~ATENEO

VCENTRAL
I BAR OPERATIONS 20191

JORGE ALFONSO C. MELO

Bar Review Coordinator

LEILAS. LIM
Bar Review Secretariat

ATENEO CENTRAL BAR OPERATIONS

PATRICK EDWARD BALISONG

Chairman

KATRINA Y. COSCOLLUELA JONATHAN VICTOR NOEL CZARINA CHER CUERPO

GENICA THERESE ENDALUZ JOHN STEPHEN PANGILINAN BENIGNO ENCISO
Administration Cornrnlttee Heads Academics Committee Heads Hotel Operations Committee Heads

ATIY. DIANNA LOUISE DELA GUERRA

ATTY. RAMON EREF:IETA
ATIY. ALBERTO AGRA
POLITICAL LAW Faculty Advisers

JAN DOMINIC CASTRO

PAUL RJCO TAN
ALYAMNA MARIE MANALANG
CZARINA MICHAELLA PLEYTO
MARION IYA MERILLES
POLITICAL LAW Subject Heads

EUNICE A. MALAYO
FRANCES CHRISTINE F. SAYSON
Central Bar Operations
Academics Understudies

GIA MORIJENO
STEPHEN ESPIRITU FELEO QUIJANO
MARK VERGARA
SELINA MIRANDA JOHN CARILLO
HIDEYUKI SATO
VEYAJOSEF ANTOINEITE DUQUE
MARJOLAINE DE CASTRO
PRAM MENGHRAJAN! HAZEL SEGOVIA
JASON DIZON
GE-AN SALUD NICO CALDOZO
POLITICAL LAW Volunteers

'
'-,./

-------------- . ----. -- - ---------------------·

 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW
'
THE PHILIPPINE CONSTITUTION

PRELIMINARIES
A. Political Law : 1
1. Subjects covered by political law ; ...•....•..•...................••...••... : 1
2. Constitutional Law ...............••..••........ .- : ....•....•.... :1
B. Constitution: Definition, Nature and concepts : 1
1. Classes of Constitution .. : 2
2. Basic Principles of Constitutional Construction ; 2
3. Doctrine of Constlt!Jtional Supremacy 2
4. Parts of the Constitution 2
5. Preamble : 2.
c. Self-Exec~ting and Non-Self-Executing Provisions 2
1. General Rule and Exceptions 2
D. General Provisions ......•.•.................•..•........••..........•.. : 3
1. Symbols of Nationality ····: 3
2. The Armed Forces of the Philippines _.. .. 3
3. The Police Force .: 3
4. Consumer Protections · !. 3
5. Mass Media and Advertising 3
E. Forms of Government
1. Government : ." 3
2. Administration 3
3. Types of De Facto Government. 4
4. Legislature 4
5. Executive 4

I. !>RELIMINARY PROVISION AND BASIC CONCEPTS

TOPIC OUTLINE UNDER THE 2019 SYLLABUS .

A. National Territory : ; 5
B. Declaration of Principles and State Policies 7 ( -
C. Separation of Powers · · 8
D. Check and Balances : •..•.........• ; 9 ' -
............
E. State lmmunlty : 9

II. LEGISLATIVE DEPARTMENT

{ i.

TOPIC OUTLINE UNDER THE 2019 SYLLABUS

·~. ··'

A. Leqlslatlve Power .. 13
1. Scope and limitatlon 13
2. Principle of Non-delegability; exceptions .. : 17
B. House of Congress; composition and qualification of members 19
1. Senate 19
' ·.
"

·- .. ,

-------~--------------
 2. House of Representatives v- ; 19
a. District representatives and questions of appointment. 20
b. Party-1\st system 21
C. Privileges, Inhibitions, and Disqualiflcations .' 25
D. Discipline of Members 26
E. Process of Law-Making 27
F. Quorum and Voting Majorities 29
G. Appropriation and Re-allqnrnent. : 31
H. Legislative Inquiries
I
and Oversight functions
.
33
.
l, Power of Impeachment
I
· '
36
J. Electoral Tribunal. 36
K. Commission pn Appointments 37
L. Initiative and Referendum 38

I
I I m. EXECUTIVE DEPARTMENT -:J
TOPIC OUTLINE bNDER THE 2019 SYLLABUS
A. Qualifications, election, and term of the President and Vice-President.. 39
B. Privileges, ln~ibitlon, and Disqualifications 40
C. Powers of the President. 42
1. Executive and Administrative powers in General 42
2. Powe~of Appointment. 43
a. Confirmation
I
and by-passed appointments 44
.
b. Midnight and ad Interim appointments 45
c. Power of Removal 45
D. Power of Cohtrol and Supervision 46
E. Doctrine of Qualified Political Agency , 46
F. Executive departments and Officers 46
G. Local Governn,ent Units 47
1. Militaf,, Powers 47
a. Callin~ out power ,.. 47
b. Declaration of Martial Law and suspension of the privilege of the writ of habeas
..
:,; -:
corpus; requisites and parameters of extension 47
': _:· I
2. Executive Clemency 49
3. PoweI1rs pertinent to .Foreign Relations 50
H. Rules of Succession 53
1 ·

I I IV. JUDICIAL DEPARTMENT

TOPIC OUTLINJ UNDER THE 2019 SYLLAB'JS

A. Judicial Pow/'er 56
B. Judicial Rev ew 57
1. Requisit~s : , 57
2. Political Question Doctrine 59
3. Moot QuJstions ; • .- : 59
·~...•J'
4. Operative Fact Doctrine 59
•,..:.I
C. Safeguards ?f Judicial lndependence , 60
1. Judicial and Bar Council : 61
I
a. Comppsltion 61
b. Powers 62

~- :
 2. Fisca Autonomy L : 62
O. Qualifications of Members of the !Judiciary : ; · · .. 61
E. Workings of the Supreme Court .. ~ : ~ 62
1. En bane and Division cases '. : 63
2. Procedural Rule-maklng l 64
3. Administrative supervision oJe,· Jower courts 64
4. Original and Appellate Jurisdiption ,. 64
I '

I v. CONSTITUTIONAL COMMISSION
I
TOPIC OUTLINE UNDER THE 2019 SYLLABUS

A. Common Provisions ; · 66
B. Powers and functions of the csc, COMELEC, and COA : 68
C. Composition and Qualifications of Members 68
0. Prohibited Offices and lnterests .. ! : 66
E. Review of final orders, Resclutions,: and Decisions '
76

VI. BILL OF RIGHTS

TOPIC OUTLINE UNDER THE 2019 S~LLABUS

I
I .
A. Fundamental Powers of the State.i 79
B. Private Acts and the Bill of Rightsl 83
C. Rights to Life, Liberty and Property · 83
1. Procedural and Substantive Due Process : 84
2. Void-for-Vagueness Doctrine .. '. : 88
3. Hierarchy of Rights .••..........•.. L. 88
D. Equal Protection .: ; : 90
1. Requisites for Valid Classificat'ion 90
2. Rational Basis, Strict Scrutiny,'and Intermediate Scrutiny Tests 92
E. Searches and Seizures .1 ; 93 , '
' '
1. Requisites for a Valid Warrant .i 94
2. Warrantless Searches and Seizure 96
3. Administrative Arrests ; .l 101
4. E:vidence Obtained through Purely Mec;hanical Acts 102
F. Privacy of Communications and Correspondence 102
1. Private and Public Communications .' 102
2. Intrusion, when allowed; ExcluJionary Rule 102
G. Freedom of Speech and Expressioh 105
1. Prior Restraint and Subsequent1Punishment 106
I·.
2. Content-Based and Content-Neutral Regulations 107 ~i '
\, t : ~-

3. Facial Challenges and the Overbreadth Doctrine 109

4. Dangerous Tendency, Balancing of Interests, and Clear and Present Danger
Tests 1 110
5. States Regulation of Different Types of Mass Media 112
6. Commercial Speech ,l.I 112
7. Unprotected Speech : 114
H. Freedom of Religion : 114
j. '
 1. Non-Establishment and Free-Exercise Clauses 114
2. Benevolent Neutrality and Conscientious Objectors 116
~- Lemon and Compelling State Interests .. 116
I. Liberty of Abode and Right to Travel •...... " 119
1. Scope and Limitations 120
2. Watch-list and Ho lei neparture Orders 120
J. Right to Information ; 120
1. Scope and Limitations 120
2. Publication of Laws and Regulations 122
K. Right of Association 123
L. Eminent Domain 124
1. Expropriation by Local Government Units 125
2. Concept of Public Use 127
3. Just Compensatlon 128
.
M. Non-Impairment of contracts ' 131
N. Free Access to Courts and Adequate Legal Assistance 132
0. Castodial Investigation Rights : 133
P. Rights of the Accused ••..... ,. .' ; 135
Q. Right to the Speedy Disposition of Cases · 141
R. Right Against Self-lncrimination 141
S. Right Against Double Jeopardy 143
T. Involuntary Servltude · ; 146
U. Right Against Excessive Fines, and Cruel and Inhuman Punishments 146
V. Non-Imprisonment for Debts 147
W. Ex post facto Jaw and Bills of Attainder 147
X. Writs of Habeas Corpus, Kalikasan, Habeas Data, and Amparo 148

VII. CITIZENSHIP

TOPIC OUTLINE UNDER THE 2019 SYLLABUS

A. Who are Filipino Citizens 153

B. Modes of Acquiring Citizenship : 153
C. Loss and Re-acquisition of Philippine Citizenship 154
D. Dual citizenship and Dual Allegiance 155
' E. Foundlings 155
I I
(

VIII. LAW ON PUBLIC OFFICERS

TOPlC OUTLINE UNDER THE 2019 SYLLABUS .

' ~· i-,
r; :;
•.;.,.:..'
A. General Principles 156
B. Modes of Acquiring title to public office 157
C. Kinds of Appointment 1 159
.
r- ';-- D. Eligibility and qualification requirements 162
.·;:..)
E. Disabilities and Inhibitions of public officers 164
F. Rights and Liabilities of public officers 167
G. De Facto v. de Jure Officers 169
H. Termination of Official Relation 170
I. The Civil Servlce 171

'~.J'
 . .
J. Personnel actions .- 172
1. Discipllne 173
a. Grounds 173
b. Jurisdlctions .' 174
c. Dismissal, preventive suspension, reinstatement and back salaries 174 ·
d. Condonatlon doctrine 177
2. Impeachment ~ 177
3. The Ombudsman .- 178
a. Functlone : 179
b. Judicial review in penal proceedings 181
4. Office of the Special Prosecutor ; ........•..... 181
5. The Sandiganbayan , 183

IX. ADMINISTRATIVE LAW t

TOPIC OUTLINE UNDER THE 2019 SYLLABUS

A. General principles · 185

B. Powers of administrative aqencies 187
1. Quasi-legislative (rule-making) power ; ; 187
a. Kinds of administrative rules and regulations 188 \ :
b. Requisites of validity 188
2. Quasi-judicial (adjudicatory) power ; 189
a. Administrative due process 191
b. Administrative appeal and review 193
c. Administrative res judlcata : 193
3. Fact-finding, Investigative, lic~nsing, and rate-fixing powers 194
c. Doctrine of Primary jurisdiction and exhaustion of administrative remedles 195

X. ELECTION LAW
~- I
TOPIC OUTLINE UNDER THE 2019 SYLLABUS

A. Suffrage 198
I '
1. Qualification and Disquallficatlon of voters · 199 l~,. " ~·
2. Registration of Voters 200
4. Inclusion and Exclusion Proceedi11gs 201
5. Local and Overseas Absentee Voting 202
6. Detainee VotlngCandidacy 202
B. Candidacy 205
1. Qualifications and Disqualifications of Candidates 205
2. Filing of Certificates of Candldacy 209
a. Effect of Filing ., 209
b. Substitution and Withdrawal of ~andldates : 209
c. Nuisance Candldates ~ 210 ('
\..:.:,.i
d. Duties of the COMELEC · 210
C. Remedies and Jurisdiction in Election Law 218
1. Petition to Deny Due Course or Cancel a Certificate of Candidacy 218

-.s

.••..J.__ -
 2. Petition for Disqualification 218
3. Failure of Election, Call of Special Electlon 220
4. Pre-proclamation Controversy : '. 221
5. Election Protest 223
6. Quo Warrant<> 225

I XI. LOCAL GOVERNMENT

TOPIC OUTLINE UNDER THE 2019 SYLLABUS

A. Principles of local autonomy 233

B. Autonomous regions and their relation to the National Government 235
C. Local Government Units ·
1. Powers , 237
a. Police Power (General Welfare Clause) 237
b. Eminent Domain 238
c. Taxing Powttr , 240
d. Legislative Power 245
i. Requisites for Valid Ordinance 245
II. Local Initiative and Referendum 246
e. Ultra vlres Acts ....• : : 247
2. Liability 248
3. Settlement of Boundary Dlsputes 249
4. Vacancies and Successlon 250
5. Recall , 254
6. Term Limits 255

XII. NATIONAL ECONOMY AND PATRIMONY

TOPIC OUTLINE UNDER THE 2019 SYLLABUS

··:_,
A. Regalian Doctrine 257
B. Nationalist and Citizenship Requirement provlslons 258
(';, C. Exploration, Development, and Utilization of Natural Resources 260
•...... 1'
D. Franchises, Authority, and Certificates for Public Utilities 261
E. Acquisition, Ownership and Transfer of Public and Private Lands 263
F. Practice of Professlons 264
G. Organization and Regulation of Corporations, Private and Public 264
H. Monopolies, Restraint of Trade, and Unfair Competition 264

XIII. SOCIAL JUSTICE AND HUMAN RIGHTS

-. ;
'· ..;','
TOPIC OUTLINE UNDER THE 2019 SYLLABUS
i t,
.......
A. Concept. 265
,· r;
\;:._-__..
B. Economic Social and Cultural Rights 265
C. Commission on Human Rights 267
 XIV. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE AND SPORTS

TOPIC OUTLINE UNDER THE 2019 SYLLABUS

A. Academic Freedom ~ 269

XV. FAMILY

TOPIC OUTLINE UNDER THE 2019 SYLLABU~

A. Rights : : 270

XVI. AMENDMENTS OR REVISIONS OF THE CONSTITUTION

------------·-----~
TOPIC OUTLINE UNDER THE 2019 SYLLABUS

A. Procedure to amend or revise the Constitution : 271

XVII. PUBLIC INTERNATIONAL LAW

TOPIC OUTLINE UNDER THE 2019 SYLLABUS ..

~
A. Concepts :
. 278
:

1. Obligations Erga Omnes 278

2. Jus Cogens ~ 278
3. Concept of Ex Aequo et Bono 279
B. Relationship Between International and National Law 280
C. Sources of Obligation in International Law 281
0. Subjects ; 284
1. States 285 ' •...
2. International Organizations 287
i. i.
3. lndivlduafs · 288
E. Jurisdiction of States 288 cs
'.·
..
1. Basis of Jurisdiction : 288
a. Territorlallty Princlpfe ~ 288 .~.. ~
l :.
•
b. Nationality Principle and Statelessness 289
c. Protective Principle ; 289 J ··~

d. Universality Principle 289

e. Passive Personality Principle 289
2. Exemptions from Jurisdiction 289
a. Act of State Doctrine 289
b. International Organizations and its Officers : 289
F. Ge:neraf Principles of Treaty Law 292
G. Doctrine of State Responsibility 296
H. Refugees 299
I. Extradition 300
J. Basic Principles of International Human Rights Law 302
1. Universal Declaration of Human Rights 302
. .. ;)
 2. International Covenant on Civil and Political Right.. 302
3. International Covenant on Economic, Social, and Cultural Right 302
K. Basic principles of International Humanitarian Law 304
1. Categories of armed conflicts : ; 304
a. International armed conflicts 304
b. Internal or non-International armed conflict 305
c. War on national liberation 306
2. R.A. 9851 (Philippine Act on Crimes Against International Law, Genocide, and
Other Crimes Against Humanity) 1 306
3. Core international obligations of states in International Humanitarian Law 310
4. Principles of International Humanitarian Law 311
5. Treatment of Civilians 311
6. Prisoners of War ......•....................•...............•............•....•...•...............•..... 312
7. Law on Neutrality .•.............•.....•...•.................•....•.........••.........••............... 312
L. Law of the Sea ; .....•.••.•. 313
1. Baselines ..••.. .' 314
2. Archlpelaqlc State '. ,. 314
a. Straight archipelagic baselines 314
b. Archipelagic Waters .............................................•................................ 314
c. Archipelagic sea lanes passage 314
d. Regime of lslands 315
3. Internal Waters , 315
4. Territorial Sea 316
5. Contiguous Zone · 316
6. Exclusive economic zone 316
7. Continental shelf and Extended Continental Shelf 317
8. International Tribunal for the Law of the Sea : 318
M. Basic Principles of International Environmental Law 319
1. Precautionary Principle 319

1
{
.,

/
'
i r
""-"

~
..
i
'

; .>

1
":c ~
(
\.
...;,,,.;,

«:»

..
• t·
(, __-, '
 ATENEO CENTRAL
BAR OPERATIONS 2019
THE PHILIPPINE CONSTITUTION
PRELIMINARIES
Political Law
Political law - branch of public law which deals with the
organization and operations of the governmental organs
of the State and defines the relations of the State with the
inhabitants of its territory. (People v. Pedecto, 43 Phil 88
, 1922)
Subjects covered by Philippine Political Law
a. Constitutional law - guaranties of the constitution to
individual rights and the limitations on governmental
action
b. Adrninlstratlve law- exercise of executive power in the
making of rules and the decision of questions affecting
private rights
c. Election Law - the study of the laws, rules, and
procedures involving the conduct of the election of all
public officials who will exercise the powers of
government as allocated to and within their functions
and responsibilitir.s
d. The law of public corporations - governmental
agencies for local government or for other special
purposes
e. Law of Public Officers - study of the creation,
modification, and dissolution of public office as well as
the eligibility of public officers, the manner of their
election or appointment and assumption of office, their
rights, duties, powers, inhibitio~s and liabilities, and the
modes of terminating official relations.
Constitutional Law
Designates the law embodied in the Constitution and the
legal principles growing out of the Interpretation and
application of its provisions by the courts in specific
cases. It is the study of the maintenance of the proper
balance between the authority as represented by the
three inherent powers of the State and liberty as
guaranteed by the Bill of Rights.
CONSTITUTION
DEFINITION, NATURE AND CONCEPTS
. ·.
c f
·::~· Definition of Constitution
A written instrument enacted by direct action of the people
by which the fundamental powers of government are
established, limited, and defined, and by which these
powers are distributed among several departments, for
their more safe and useful exercise, for the benefit of the
body politic (Bernas! 1987 Philippine Constitution, 2009).
Page 1 of320
POLITICAL LAW
l The written instrument agreed upon by tile people ... as
the absolute rule of action and decision for all departments
and officers of the government ... and in opposition to
which any net or rule of any department or officer of the
government, or even of the people themselves, will be
altogether void (Cooley, JI/ Constitutional Umitations,
1868).
The Constitution both creates the structures of government
and limits their powers.
It is the document which serves as the fundamental law of
the state; that written instrument enacted by the direct
action of the people by which the fundamental powers of
the go·1ernment are established, limited and defined, and
by which those powers are distributed among the several
departments for their safe and useful exercise, for the
· benefit of the body politic. [Malcolm, Phil. Constitutional
Law]
Philippine Constitution and Effectivity Dates
1935 Constitution: May 14, 1935
1973 Constitution: Jan. 17, 1973
1986 Freedom Constitution: Mar. 25, 1986
1987 Constitution: Feb. 2, 1987
Classes of Constitution
1. Written and Unwritten
(i) A written constitution's precepts are embodied in
one document or set of documents.
(ii) An unwritten constitution consists of rules which
have not been integrated into a single, concrete
form but are scattered in various sources, such as
statutes of fundamental character, judicial
decisions, commentaries of publicists, customs
and traditions. (Cruz, Constitutional Law 4-5;
Nachura, Outline Reviewer in Political Law 2]
2. Enacted (Conventional) and Evolved (Cumulative)
(i) A conventional constitution is enacted formally at
a definite time and place following a conscious or
deliberate effort taken by a constituent body or
ruler.
(ii) A cumulative body is the result of political
evolution, not inaugurated at any specific time but
changing by accretion rather than by any
systematic method. [Cruz, id., at 5]
, 3. Rigid and Flexible
(i) A constitution is classified as rigid when it may not
be amended except through a special process
distinct from and more involved than the method of
ATENEO CENTRAL
BAR OPERATIONS 2019
changing ordinary laws. It is supposed that bysuch
a special procedure, the constitution is rendered
difficult to change and thereby acquires a greater ,
degree of stability. · securing the enjoyment of those rights. (Art. Ill)
(ii) A constitution is classified as flexible when it may
be changed in the same manner and through the
same body that enacts ordinary legislation. The
Constitution of the UK is flexible. · 3. Constitution of Sovereignty- the mode or procedure
Note: The Philippine Constitution is written, conventional
and rigid.
Basic Principles of Constitutional Construction
f. Verba legis - whenever possible, the wcrds used in
the ConstiMion must be given their ordinary meaning
except where technical term are employed;
g. Ratio legls est anlma - words of the Constitution
should be interpreted in accordance with the intent of
the framers:
h. Ut magis valeat quam pereat - the Constitution
should be interpreted as a whole [Francisco v. House
of Representatives, 415 SCRA 44 (2003)]
In case of doubt, the provisions should be considered
self-executing (Manila Prince Hotel v GS/S, GR No
122156, February 3, 1997) ; mandatory rather than
directory (Tanada v Cuenco, GR No. L-10250, February
28, 1957) and prospective rather than retroactive (Peralta
v Director of Prisons, GR No -49, November 12, 1945)
Self-Executing and Non-Self Executing Provisions
1. Self Executing : provisions 'Nhich is complete in itself
and becomes operative without the aid of
supplementary or enabling legislation, or that which
supplies a sufficient rule by means of which the right it
grants may be enjoyed or protected. (Manila Prince·
Hotel v GS/8)
2. Non Self Executing: provisions which lays down a
general principle
Doctrine of Constitutional Supremacy
If a law or a contract violates any norm of the
Constitution, that law or contract, whether promulgated by
the legislative or executive branch of the government or
entered into by private persons for private purposes, is
null and void, and without any force and effect. Since the
Constitution is the fundamental and supreme law of the
land, it is deemed written in every statute and every
contract. (NACHURA)
Parts of the Cor,stitutlon
Essential Parts of a Written Constitution
Page 2 of320
POLiTICAL LAW
1. Constitution of Liberty - sets forth the fundamental
civil and political rights of citizens, and imposing
limitations on the powers of government as a means of
2. Constitution of Government - outlines the
organization of government, enumerating its powers,
laying down rules regarding its administration, and
defining the electorate. (Arts. VI, VII, vm.
IX)
with which formal changes in the fundamental law may
be made. (Art. XVII)
Preamble
An introduction that identifies:
the authors of the Constitution (i.e. sovereign Filipino
people)
their intentions, and
its purpose(s) of tt>e document.
_SELF-EXECUTING AND
NON-SELF-EXECUTING PROVISIONS
General Rule: The provisions of the Constitution are r
considered self-executing, and do not require future '·.
legislation for their enforcement.
Exceptions:
Principles in Article II are not intended to be selt-executinq
principles ready for enforcement through the courts. They ·
are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the
legislature in its enactment of laws (Tondo Medicalv. Courl
of Appeals, G.R. No. 167324, 2000). !
The social and economic rights guaranteed in Article XIII ' .
are also non-self-executing provisrons. (Bernas, r:
I .
Constitutional Rights aod Social Demands, 1, 2010). ·
Exceptions to the Exceptions:
Article 11, Sec. 16 - The right to a balanced and healthful
ecolcgy is self-executory and does not need an
implementing legislation (Oposa v. Factoran, G.R. No.
101083, 199:1).
Article II, Sec. 28- The duty of full public disclosure is self-
executory(Province of North Cotabato v. GRP, G.R. No.
183591, zooe;
Article II, Sec. 15- The right to health is also self-executing
(/mbong v. Ochoa, G.R. No. 204819, 2014).
NOTE: Whether or not a provision is self-executing
depends on the language of the provision. Most of the
provisions in Article II are couched in non-self-executing
language.
 ATENEO CENTRAL
BAR OPERATIONS 2019
GENERAL PROVISIONS
.,State exercises power; the aggregate of institutions by
Symbols of Nationality
The Philippine Flag (Sec. ·/)
Red, white, ar,d blue with a sun and 3 stars
The design may be changed only by constitutional
amendment.
Congress may, by law, adopt a new (Sec. 2):
Name for the country
National anthem
National seal
Law takes effect upon ratification by the people in a
national referendum.
The Armed Forces of the Philippines (Sec. 4 • 5)
• Military men cannot ~ngage, directly or indirectly, in
any partisan political activity, except to vote.
• Members of the AFP in active service cannot be
appointed to a civilian position in the government,
including GOCCs or their subsidiaries.
The Police Force (Sec. 6)
The State shall establish and maintain one police force,
/ national in scope and civilian in character. The national
police is now governed by RA. No. 6975 which took .
effect on January 1, 1991.
Consumer Protection (Sec. 9)
The State shall protect consumers from trade
malpractices and from substandard or hazardous
products. The protecfionls intended, not only against
traders, but also to manufacturers who dump defective
products in the market.
Mass Media and Advertising (Sec. 11)
The ownership and management of mass media shall be .
limited to citizens of the Philippines, or to corporations,
j .
. ,- cooperatives or associations, wholly-owr.ed and managed
by citizens.
Only Filipino citizens or corporations or associations at
least 70% of the capital of which is owned by Filipino
!' ":-,
citizens shall be allowed to engage in the advertising
industry.
FORMS OF GOVERNMENT
GOVERNMENT
~ ·:, 1 Note: On the National tevet, refers to the Legislative,
·- :: Executive. Judicial departments. On the local level, refers to the
regional, provincial, city, muruclpal, and barrio governments.
Page 3 of320
··... ,;
POLITICAL LAW
An element of a state; that institution through which the
which an independent society makes and carries out
rules of action which are necessary to enable men and
women to live in a social state, or which are imposed
upon the people forming that society by those who
possess the power or authority of prescribing them
(Bacani v. NACOCO, G.R. L- 9657, 1~56).1
ADMINISTRATION
Set of people currently running the government institution.
Classification of Government Functions
Constituent - Compulsoryfunctions which constitute the
very bonds of society.
Examples:
Keeping order and providing protection to persons and
property
Fixing of legal relations between husband and wife,
parents and children
Regulation of the holding, transmission, interchange of
property; determination of liabilities for debt or crime
Determination of contract rights between individuals
Definition and punishment of crime
Administration of justice in civil cases
Determination of political duties, privileges, and relations
of citizens
Daalings of the State will I foreign powers: preservation of
the State from external danger or encroachment and
advancement of international interest
Ministrant - Dlscretion.!ry or optional functions Intended
to achieve a better life for the community.
Principles for determining whether or not government
should exercise ministrant functions:
Government should do for the public welfare those things
which private capital would not naturally undertake.
Government should do those things which by Its nature it
is better equipped to administer for the public welfare than
is any private individual or group oflndividuals.
Classmcation According to Legitimacy of
Government
De Jure - Legitimate; possessing all the legal requisites of
govP.rnment.
De facto - Lacking one or more of the legal requisites of
government. 2
2Note: A de facto government can be denominated as such
only after they are defeated.
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Types Of De Facto Governments: (VIP)

Government that usurps government and maintains itself
against the will of the majority by force or by ~iolence.
Government established as an independent government
by inhabitants who rise in !nsurrection against the parent
state.
Government established and maintained by military forces
which invade or occupy a territory of the enemy in the
course of war; a government of faramount force.

Common Forms of Dsmocratlc Government

Presidential
• Government is characterized by a separation of
powers among the Legislative, Executive, and
Judiciary.
• This system embodies "interdependence by
separation and coordination."
• The head of State is the President, who likewise
presides over the Executive Department.
2. Parliamentary
• Government characterized by "interdependence
by integration." Here, the ministers of the
executive branch get their democratic legitimacy
from the legislature and are accountable to that
body, such that the executive and legislative
branches are intertwined.

Essential Features of a Parliamentary System of

Government (SCRePS)
Members of government. or the cabinet, or the executive
are as a rule, §.imultaneously members of the legislature.
The government or cabinet is in effect a ,!;.Ommittee of the
legislature. ·
Both government and legislature possess control devices
with which each can demand of the other immediate (':·
political asponsibility.
.. -
The government or cabinet has a .l!Yramidal structure at '\. .
the apex of which is the Prime Minister or his equivalent. ·
Government or cabinet stays in power only so long as it
enjoys the 1upport of the majority of the legislature.
. ' ·.-
Ji
\,]
LEGISLATURE - power to exercise a "vote of no
confidence" (censure) whereby government may be
ousted. ·

EXECUTIVE - power to dissolve the legislature and call

for new elections.

'

Page4 of320 .. . .__-.·

 ATENEO CENTRAL
BAR OPERATIONS 2019
,-,--"'!'-~'!11-----------------------------,------~------~----------------~~--~
I. PRELIMIN1"RY PROVISIONS AND BASIC
CONCEPTS
c. Treaty of 12 January 1930 between the United States
and Great Britain: Ceding the Turtle and Mangsee
TOPIC OUTLINE UNDER THE SYLLABUS
A. National Territory
B. Declaration of Prtnctpies and State Policies
C. Separation of Powers
0. Checks and Balances
E. State Immunity
A. NATIONAL TERRITORY
Provision on National Territory
The National Territory comprises the Philippine
Archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of its terrestrial,
fluvial, and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other .
submarine areas. The waters around. between, and
connecting the islands of the archipelago, reqardless of
their breadth and dimension, form part of the internal
waters of the Philippines (Art I , Sec. 1 ). · through any of the accepted international modes of
(. ,;-·
Archipelagic Doctrine
A body of water studded with islands, or the islands
surrounded with water, is viewed as a unity of islands and
waters together forming one integrated unit. (N.B.
Embodied in Art. II, specifically by the mention of the
"Philippine archipelago" and the specification on "internal
waters."]
Application to the Philippines
The waters around, between, and connecting the islands
...· ... of the archioeiaqo, regardless of their breadth and
\I ·;
.. ·" dimensions, form part of the internal waters of the
Philippines (Art. I, Sec. 1)
le.··
Treaty limits of the Philippine archipelago
a. Treaty of.Paris of 10 December 1898: "Spain cedes to
the United States the archipelago known as the
Philippines Islands, and comprehending the islands
lying within the follo\Ving line" Article 3 of the said treaty
defines the metes and bounds of the archipelago by
longitude and latitude, degrees and seconds.
Technical descriptions are made of the scope of the
archipelago as this may be found on the surface of the
earth.
b. Treaty of Washington of 7 November ~900 between
,'
,. , the United States and Spain: Ceding Cagayan, Sibuto
and Sulu.
. ..... · Page 5 of320
POLITICAL LAW
Islands. [BERNAS (2003), cited in Justice Velasco's
. concurring opinion In Maga/Iona v. Ermita (2011)).
Composition of National Territory
· (a) Philippine Archipelago, with all the islands and
waters embraced therein;
(b) Internal Waters : waters around, betwean and
connecting the islands of the archipelaqo, regardless
of breadth and dimension; and
(c) All other territories over which the Philippines has
sovereignty or jurisdiction
-,
It consists of:
(1) Territorial sea, seabed, subsoil, insular shelves, and
o.~er submarine areas
(2) Terrestrial, fluvial, and aerial domains
Future Acquisitions included in Natlonal Territory
The clause includes any territory presently belonging or
those that might in the future belong to the Philippines
acquiring territory.
Territories belonging to Philippines by historic right or
title
The clause also includes what was referred to under the
1973 Constitution as territories "belonging to the
Philippines by historic right or legal title," that is, territories
which, depending on available evidence, might belong to
the Philippines (e.g., Sabah, the Marianas, Freedom/and)
(Bernas, Constitutional Rights and Social Demands, 8,
2010).
Under Article 3 of the UNCLOS, "every state has the right
to establish the breadth of its territorial sea up to a limit not
exceeding 12 nautical miles, measured from the baselines"
Contl3uous Zone
It is an area of water which extends up to 24 nautical miles
from the baseline (12 nautical miles from the Territorial
Sea). Although not part of the territory, the coastal State
may exercise jurisdiction to prevent infringement of
customs, fiscal, immigratiJJn, or sanitary laws.
Exclusive Economic Zone
This refers to the body of water extending up to 200
nautical miles beyond the baseline, within which the state
may exercise sovereign rights to explore, exploit,
conserve, and manage the natural resources.
Extended Continental Shelf
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Portion of the continental shelf that lies beyond the 200
nautical mile limit. A coastal state may establish a
continental shelf beyond the 200 nautical miles from its
coastline.
The coastal State may establish the outer limits of its·
juridical continental shelf wherever the continental margin
extends beyond 200 nautical miles by establishing the foot
of the continental slope, by me•}ting the requirements of
Article 76, paragraphs 4-7, of the UNCLOS.
direction of the coast, in order to delineate the internal
waters from the territorial waters of an archipelago.
The Basellne Law (R.A. 9522, 2009)
R.A. No. 9522-amended R.A. No. 3046, entitled "An Act to
Define the Baselines of the Territorial Sea of the
Philippines;" specified that baselines of Kalayaan Group of
Islands and Bajo de Maslnloc (Scarborough Shoal) shall
be detennined as "Regime of Islands" under the Republic
of the Philippines, consistent with the UNCLOS.

The Philippine archipelago and all other territories consist R.A. No. 9522 is const!tutlonal:
of the following domains: (TAFA) ( 1) it is a statutory tool to demarcate the maritime zone and
i. Ierrestrial continental shelf of the Philipptnes under UNCLOS 111,
ii. Aerial and does not alter the national territory. Basehnes laws
iii. fluvial are nothing but statutory mechanisms for UNCLOS Ill
iv. All other territories outside archlpelago over which RP state parties to delimit with precision the extent of their
has sovereignty or jurisdiction maritime zones and continental shelves. The law has
nothing to do with acquisition, enlargement, or
Normal Baseline Method diminution of territory, as States may only acquire (or
The baseline is drawn following the low-water line along lose) territory through the following modes: (CAPO)
the coasts as marked on large-scale charts officially tession,
recognized by the coastal State. This line follows the Accretion
sinuosities of the coast and therefore would normally not frescription, and
consist of straight lines (Section 5, 1982 LOS; Bernas, Qccupation (Magaflona v. Ermita. G.R. No. 187167, 2011).
1987 Philippine Constltution: A Commentary, 23, 2009). (2) The law also does not abandon the country's claim to
Sabah, as it does not expressly repeal the entirety of
Straight basellne method R.A. No. 5446. [Maga/Iona v. Ermita, G.R. No. 187167,
Territorial 12 nautical Absolute consists 16 July 2011)
miles from Sovereignty of
Sea
baselines drawing The law also does not convert internal waters into
24 nautical Enforcement straight archipelagic waters (which allow the right of innocent
miles from of customs. lines passage). The Philippines still exercises sovereignty over
Contiguous baselines fiscal, the body of water lying landward of the baselines including . . ..
Zone immigration, the air space over it and the submarine areas underneath.
sanitation The political branches of the Philippine government, in the
laws competent discharge of their constitutional powers, may
200 nautical Exploitation pass legislation designating routes within the archipelagic
Exclusive
miles from of living and waters to regulate innocent and sea lanes passage
Economic
baselines non-living
' (Maga/Iona v. Ermita, G.R. No. 187167, 2011). \.-,.:1
Zone
resources ..
Submerged Sovereign The Baselines Law does not abandon the Philippines' ·,' ....-:.·'-
prolongation rights of claim over Sabah under RA 5446. The definition of the
of the land exploration baselines of the territorial sea of the Philippine Archipelago
Continental territory and is without prejudice to the delineation of the baselines of
exploitation the territorial sea around the territory of Sabah, situated in
Shelf
of living and North Borneo, over which the Philippines has acquired
dominion and sovereignty (RA 556, Sec. 2).
r '·
non-living
resources of
the seabed Maritime Zones
connecting appropriate points on the coast without
[.. _ .,.:
departing to any appreciable extent from the general Regime of Islands ..

Page6 of320
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

· Under Article 121 of the UNCLOS Ill, any naturally

such as national defense
formed area of land surrounded by water, which is above and foreign policy. The
water at high tides, qualifies unc!er the category of consiituent units are given
"regime of islands" whose islands generate their own more powers to develop
applicable maritime zones (e.g., Kalayaan Islands and their territories without
Scarborough Shoal). much intervention by the
Kalayaan Islands has its own Territorial Sea, Contiguous central government
Zone, and Exclusive Economic Zone.
BUT Scarborough Shoal ONLY has a Territorial Sea and
Contiguous Zone.3 · Generally Accepted Principles of International Law
There can be a Continental Shelf without an EEZ, but not Principles based on natural justice common to most
an EEZ without a Continental Shelf. . national systems of law.

Examples:
B. DECLARATION OF PRINCIPLES AND STATE i. The right of an alien to be released on ball while
POLICIES awaiting deportation when his failure to leave the
country is due to the fact that no country will accept
Principles him (Mejoffv.Director of Prisons, G.R. No. L-4254,
binding rules which must be observed in the conduct of 1951).
government. ii. The right of a country to establish military
commissions to try war criminals (Kuroda v.
Policies Jalandoni, G.R. No. L-2662, 1949).
guidelines for the orientation of the state. iii. The Vienna Convention on Road Signs and
Signals (Agustin v. Edu, G.R. No. L-49112, 1979).
Elements of a State (GSPoT) iv. Duty to protect the premises of embassies and
§overnment • institution or aggregate of ir1stitutions by legations (Reyes v. Bagatsing, G.R. No. L-65366,
which an independent society makes and carries out those 1983).
rules of action which are necessary to enable men to live v. Pacta sunt servanda - international agreements
in a social state, or which are imposed upon the people must be performed in good falth (Tanada v.
forming that society by those who possess the power or Angara, G.R. No. 118295, 1997).
authority of prescribing them (See also: "General Principles of Law" pg. 303)
l?overeignty - power of the State to regulate matters within
its own territory. The Philippines renounces aggressive war as an
. Population - community of persons sufficient in number instrument of national policy, but allows for a defensive
and capable of maintaining the continued existence of the war.
v , ;, community and held together by a common bond of law .
Ierritory - a definite area over. which the State exercises Civilian Authority
sovereign jurisdiction. Article II, Section 3 of the Constitution states that
. "[c}ivllian authority Is, at all times, supreme over the
Difference between a unitary and federal form of military. The Armed Forces of the PhHippines is the
government protector cf the People and the State. Its goal is to secure
UNITARY FEDERAL the sovereignty of the State and the integrity of the
national territory."
I •. :: Powers are concentrated The central authority and
in one central authority constituent political units Civilian Authority - The head of the armed forces is a
and some of which are divide and share the civilian president and the primary purpose of AFP is to
merely delegated to other power, where the central serve and protect the people.
units (e.g. delegated government is focused on
Mark of sovereignty - Positively, the military is the
legislative power to LGUs) more specificfunctions,
guardian of the people and of the integrity of the national

3Note: Under Articie 121 of the UNCLOS, rocks which cannot .

., '~,
·,..,,. sustain human habitation or economic life of their own shall
have no exclusive economic zone or continental shelf.
Page 7 of320
 A TENEO CENTRAL
BAR OPERATIONS 2019
territory and therefore ultimately of the majesty of the law.
Negatively, it is an expression against military abuses.
Freedom from Nuclear Weapons
PROHIBITS DOES NOT PROHIBIT
Possession, control and Peaceful use of nuclear
manufacture of nuclear energy
weapons; nuclear arms
tests
Exception to policy against nuclear weapons may be made
by political deoartments, but must be justified by demands
of national interest.
Social Justice
The State shall promote social Justice In all phases of
national development.
Social Justice has been defined by Justice Laurel as the
humanization of laws and the equalization of social and
economic forces by the State so that justice in its rational
and objectively secular conception may at least be
approximated (Calalang v. Williams, 70 Phil. 726, 1910).
Protection of the Life of the Unborn
It is not an assertion that the unborn is a legal person. It is -.
not an assertion that the life of the unborn is placed exactly
on the same level of the life of the mother. Hence, when it
is necessary to save the life of the mother, the lifo of the
unborn may be sacrificed.
The Roe v. Wade doctrine allowing abortion up to the 6th
month of pregnancy cannot be adopted in the Philippines
because the life of the unborn Is protected from the time of
conception.
Right to a Balance and Healthful Ecology
The right to a balanced and healthful ecology is not less
important than any of the civil and political rights
enumerated in the Bill of Rights. The right to a balanced
and healthful ecology carries with it an intergenerational
responsibility to care for and protect the environment
(Oposa v. Fectoren, G.R. No. 101083, 1993).
In environmental cases, the precautionary principle is used
when there is a lack of full scientific certainty in establishing
a causal link between human activity and environmental
effect. The precautionary principle, as a principle of last
resort, shifts the burden of evidence of harm away from
those likely to suffer harm and onto those desiring to
change the status quo. (International Service for the
Page 8 of320
POLITICAL LAW
Acquisition of Agri-Biotech v. Greonpeece, G.R. No.
209271, 2015)
Elements for the Application of Precautionary
Principle:
Uncertainty
Possibility of irreversible harm
Possibility of serious harm (International Service for the
Acquisition of Agri-Biotech v. Greenpeace, G.R. No.
209271, 2016)
Standing to file an action for violation of
environmental laws
The enactment of the Rules of Procedure for
Environmental Cases enabled litigants enforcing
environmental rights to file their cases as citizen suits. It
liberalized standing for all cases filed enforcing
environmental laws and collapses the traditional rule on
personal and direct Interest, based on the principle that
humans are stewards of nature. The need to give animals
legal standing in environmental cases has been eliminated
by the Rules since any Filipino citizen, as a steward of
nature, is allowed to bring a suit to enforce environmental
laws. (Resident Marine Mammals v. Reyes, G.R. No. '·
180771, 2015)
Requisites fer the lssuance of Writ of Kalikasan
1. There is an actual or threatened violation of the
constltufional right to a balance and healthful ecology;
2. The actual or threatened violation arises from an
unlawful act or omission of a public official or
employee, or private individual or entity;
3. The actual or threatened violation involves or will lead
to an environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in
two or more cities of provinces. (LNL Archipelago
Minerals Inc v. Agham Party List, GR 209165, 2016) J ·-
1 .. ,
C. SEPARATION OF POWERS f__-;,
An allocation of the three great powers of government in
the following manrer: legislation to Congress, execution of
laws to the Executive, and settlement of legal I""'\_
controversies to the Judiciary. It is also an implicit limitation i
on their powers, preventinq one from invading the domain
,. ~
of the others, but the separation is not total. ·..... ... .,
The principle of separation of powers ordains that each of
the three great government branches has exclusive
cognizance of and is supreme in concerns falling within its
own constitutionally allocated sphere; e.g., the Judiciary as
Justice Laurel emphatically asserted "will neither direct nor
· ...
 ATENEO CENTRAL
BAR OPERATIONS 2019
restrain executive (or legislative] action" (Republic v.
Bayao, G.R No. 179492, 2013).
p. CHECKS AND BALANCES
A system operating between and among the three
branches of government the net effect of which is that no
one department is able to act without the cooperation of at
least one of the other departments.
Examples:
Legislation in the form of an enrolled bill needs final
approval from the President to become a law:
President must obtain the concurrence of Congress to
complete certain acts (e.g. granting of amnesty);
Money can be released from the Treasury only by authority
of Congress;
Appropriation, revenue, tariff, increases In public debt and
private bills originate in House of Representatives;
SC can declare acts of Congress or the Executive
unconstitutional.
E. STATE IMMUNl'fX
I ;,
BASIS: Art. XVI, Sec. 3: "The state may not be sued
without its consent." This is based on the principle of
equality of states - par in parem non habet imperium.
Doctrine of State Immunity
It refers to a principle by which a state, Its agents, and
property are immune from the jurisdiction of another state
[MAGALLONA].
Principle of Equality of States
This principle is premised on the juridical equality of states,
according to which a state may not impose its authority or
extend its jurisdictlon to another state without the consent
of the latter through a waiver qt immunity. Thus, domestic
courts must decline to hear cases against foreign
sovereigns out of deference to their role as sovereigns.
Kinds of Immunity
Absolute sovereign immunity - where a state cannot be
sued in a foreign court no matter what the act it is sued for;
or
Restrictive sovereign immunity - where a state is
imrnune from suits involving governmental actions (jure
imperil), but not from those arising from commercial or non-
governmental activity (jure gestionis).
Summary
{ ~- General rule- The State cannot be sued.
Page 9 of320
POLITICAL LAW
Exception - the State consents to be sued;
How a State gives Its consent
a. Express consent
1. General Law
2. Special Law
b. Implied consent
1. When the State commences litigation, it becomes
vulnerable to a c!ounterclaim; ( United States of
America v. Judge Guinto, 261 Phil. 1n. 790
(1990)) .
2. State enters into a business contract (it is
exercising proprietary functions); (United States of
America v. Judge Guinto, 261 Phil. 777, 795
(1990))
3. When it would be inequitable for the State to
invoke immunity;
4. In eminent domain cases.
State's Business Contracts
A State's commercial activity is a descent to the level of
individuals and there is a form of tacit consent to be sued
when It enters Into business contracts with others.
However, not every contract entered into ts a form of tacit
consent to be sued. It depends upon whether the forsiqn
state is engaged in the activity in the regular course of
business. If not, or if it is in pursuit of a sovereign activity,
it falls within the exemption of acts jure imperii especially
when not intended for gain or profit.
A party who feels transqressed by anyone claiming
immunity may ask his own government to espouse his
cause through diplomatic channels.
Extent of Immunity
Immunity from jurisdiction is enjoyed by both the head of
, State and by the State itself. The State's diplomatic agents,
including consuls to a certain extent, are also exempt from
the jurisdiction of local courts and administrative tribunals.
Restrictive Application of State Immunity
This traditional rule of State immunity which exempts a
State from being sued in the courts of another State
without the farmer's consent or waiver has evolved into a
restrictive doctrine which distinguishes sovereign and
governmental acts (Jure imperil) from private, commercial
and proprietary acts (Jure gestionis). Under the restrlctive
rule of State immunity, State immunity extends only to acts
jure lmperii. The restrictive application of State immunity is
proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial
----··-·· !
ATENEO CENTRAL
BAR OPERATIONS :!013
activities or economic affairs (Arigo v. Swift, G.R. No.
.206510, 2014).
Scope of State Immunity
Jure lmperii- Immunity is granted only with respect to their
governmental acts
Jure Gestionis - Immunity is not granted with respect to
their commercial acts
Difference between Jure Gestionis and Jure Imperil
JURE GESTIONIS JURE IMPERii
By right of economic or By right of sovereign power,
business relation in the exercise of sovereign
functions
' SCRA 88)
Maybe sued May not be sued
Two Conflicting Concepts of Sovereign Immunity:
i. Classical or absolute theory - sovereign cannot,
witho;Jt Its consent, be made a respondent in the courts
of another sovereign.
ii. Newer or restrictive theory - the immunity of the
sovereign is recognized only with regard to public acts
or acts jure imperii of a state but not with regard to ·
. private acts or acts jure gestionis.
A certification executed by the Economic Commercial
Office of the Embassy of the People's Republic of China
stating that a project is in pursuit of a sovereign activity is
not the kind of certification that can establish entitlement to
immunity from suit. It unequivocally refers to the
determination of the Foreign Office of the state where it is
used (China National Machinery Equipmer.t v. · Santa
Maria, G.R. No. 18557, 2012).
When Suit Is Considered Against the State: (NUO)
The Republic is sued by Name
Suits against an Ynlnco,porated government agency
Suit is against a government Qfficial, but is such that
ultimate liability shall devolve on the government
It produces adverse consequences to the public treasury
in terms of disbursement of public funds and loss of
government property.
It cannot prosper unless the Staie has given its consent.
When not against the state
It was held that the suit is not against the State:
a. When the purpose of the suit is to compel an officer
charged with the duty of making payments pursuant to
an appropriation made by Jaw in favor of the plaintiff to
make such payment, since the suit is intended to
Page 10 of 320
POLITICAL LAW
compel performance of a ministerial duty. [Begoso v.
PVA (1970)]
b. When from the allegations in the complaint, it is clear
that the respondent Is a public officer sued in a private
capacity;
c. When the action is not in personam with the
government as the named defendant, but an action in
rem that does not name the government in particular.
Test to determine if suit is against the State
Will the enforcement thereof (decision rendered against
the public officer or agency impleaded) require an
affirmative act from the State, such as the appropriation of
the needed amount to satisfy the judgment? If so , then it
is a suit agalnst the State. (Sanders v. Verdiano, 162
Duration of Immunity of Head of Stats
Immunity oi head of state for private acts lasts while a
person is still in office; for public acts, e~en after office.
Consent to be sued is given by the state either
EXPRESSLY or IMPLIEDLY.
EXPRESS
The law expressly grants the authority to sue the State
or any of its clgencies.
a. General Law : Authorizes any person who meets
the conditions stated in the law to sue the
government in accordance with the procedure in the
law (i.e. Money claims arising from contract express
or implied ; liaolllty of local government units for
torts) .
b. Special Law: may come in the form of a private bill r.'I
authorizing a named individual to bring suit on a
special claim.
IMPLIED (P BIP)
Summary of Instances: .
!
a. When the State commences litigation, it becomes
vulnerable to counterclaim
b. When the State enters into a business contract (in
jure gestionis or proprietary functions)
c. When it would be inequitable for the State to invoke
its immunity
d. In instances when the State takes private property
for public use or purpose (=minent Domain)
I ~.
Specific Rules ·-,_,
a. When State Commences Litigation . '
()
• Exception: When the State intervenes not for the
purpcse of asking for any affirmative relief, but only
for the purpose of resisting the claim precisely '.·
 ATENEO CENTRAL
BAR OPERATIONS2019
because of immunity from suit (Lim v Brownell, GR
No. L-8587, March 24, 1960)
b. When State enters a Business Contract
• Types of Capacities of the State in entering into
contracts:
1. Acta jure gestionis - by right of economic or
business relations; commercial or proprietary
acts. The State may be sued. (US v, Guinto, GR
No 76607, February 26, 1990)
2. Acta jum imperil - by right of sovereign power
and in the exercise of sovereign functions; there
is no implied consent to be sued. (US v Ruiz, GR
No. 35645, May 22, 1985)
c. When Stale executes and enters private contracts
• General Rule: The State may be sued if a private
contract is entered into by the proper officer and
within the scope of his authority.
• Exception: When the private contract Is incidental to
the performance of a govern'!lent function.
Suits against Public Officers
General Rule: The doctrine of state immunity also applies
to complaints filed against officials of the State for acts
performed by them in the discharge of their duties within
the scope of their authority.
Exception: The doctrine of immunity from suit will not
apply and may not be invoked where the public official is
being sued in his (1) private and personal capacity as an
ordinary citizen, for (2) acts without authority or in excess
.· ', ::
of the powers vested in him. [Lansang vs CA (2000)]
Rule on Liability of Public Officers
a. Acting beyond scope of Authority: When a public
officer acts in bad faith, or beyond the scope of his
authority, he can be held personally liable for damages.
b. Acting in Good Faith: If a public officer acted pursuant
to his offlclal duties, without malice, negligence, or bad
faith, he is not personally liable, and the suit is really
. ~~....... one against the State .
[ ;,
·-..:: ..·
c. Ultra Vires Act: Where a public officer has committed
an ultra vires act, or where there is a showing of bad
faith, malice, or gross negligence, the officer can be
held personally accountable even if such acts are
claimed to have been performed in connection with
official duties (Wylie v. Rarang, G.R. No. 74135, 1992).
'r'.' /"..
Page 11 of 320
-.... j'
. . .. ./
-·-
POLITICAL LAW
Suits against Government Agencies
a. Incorporated: If the charter provides that the agency
can sue and be sued, then suit will lie, including one for
tort. The provision In the charter constitutes express
consent on the party of the State to be sued. (PNB v
CIR, 81 SCRA 314)
b. Unincorporated:
I) Performs governmental functions: Not suitable
without State consent event if performing propriety
funcrion incidentally. Thus, even in the exercise of
proprietary functions lncidental to its primarily
governmental functions, an unincorporated agency
still cannot be sued without its consent
II) Performs proprietary functions: Suable except
when the proprietary functions are indispensable in
· the discharge of its governmental functions (Mobil
PHL Exploration \. Customs Arrastre Service, G,~
No. 23139, December 17, 1966)
Case Law Exceptions when State/Public Officer May
be sued without prior consent
a. To compel him to do an act required by law;
c. To restrain him from enforcing an act claimed to be
unconstitutiona I;
d. To compel the payment of damages from an ~lready
· appropriated assurance fund or to refund tax over-
payments from a fund already available for the
purpose;
e. To secure a judgment that the officer impleaded may
satisfy by himself without the State having to do a
positive act to assist him;
f. Where the government itself has violated its own laws.
[Sanders v. Veridiano II, G.R. No. L-46930 (1988)]
Rules regarding Garnishment of Government Funds
General Rule: Garnishment of government funds is not
allowed. Whether the money is deposited by way of
general or special deposit, they remain government funds
and are not subject to garnishment.
Exceptions:
i. Where a law or ordinance has been enacted
appropriating a specific amount to pay a valid
government obligation, then the money can be
garnished.
ii. If the funds belong to a public corporation or a
GOCC which is clothed with a personality of its
own, then the funds are not exempt from
garnlshment(NHA v. Guivelando G.R. No. 154411,
2003).
'
To enforce monetary decisions against the Government, a
person may file a claim with the Commission on Audit It ls
··-··----------------~-
ATENEO CENTRAL
BAR OPERATIONS 2019
settled jurisprudence that upon determination of State
liability, the prosecution, enforcement, or satisfaction
thereof must still be pursued In accordance with the rules ,
and procedures laid down in P.O. No. 1445 (Govemmer.t
Auditing Code of the Philippines). All money claims aqainst
the Government must first be filed with the Commission on
Audit, which must act upon it within 60 days. Rejection of
the claim will authorize the claimant to elevate the matter
to the Supreme Court on certiorari and in effect, sue the
State thereby (Department of Agriculture v. NLRC; P.D.
1445, Sections 49-50).
Consent to be sued is not equivalent to consent to
liability
• The fact that the State consented to being sued does
not mean that the State will ultimately be held liable.
(US v. Guinto)
• Even if the case is decided against the State, an award
cannot be satisfied by writs of execution or
garnishment against public funds. No money shall be
paid out of the public treasury unless pursuant to an
appropriation made by law.
Payment of Interest By The Government In Money
Judgment Against It
General Rule: Government cannot be made to pay
interests.
Exceptions (EEG):
1. gminent domain
2. ~rroneous collection of tax
3. !i,overnment agrees to pay interest pursuant to law
(
Immunity from Jurisdiction
General rule: The jurisdiction of a state within its territory
is complete and absolute.
Exceptions:
1. Sovereign immunity
2. Diplomatic immunity
3. Hostis Humanis Generis - enemy of all mankind or
crimes justiciable by any state anywhere. i.e. Slave
Trader, Pirate (Filaitiga v, Pena-Ira/a, 630 F.2d 876,
1980).
Acts of State Immunity
Every state is bound to respect the Independence of
every other sovereign state. and the courts of one country
will not sit in judqrnent on the acts of the government of
another, done wlthin its. own territory. Redress of
grievances by reason of such acts must be obtained
through the means open to he availed of by sovereign
powers as between themselves.
Page 12 of 320
POLITICAL LAW
This immunity is for the benefit of the state. Thus, only the
state may waive it.
Nothing in the complaint would require a court to pass
judgment on any official act of the Philippine government.
Just as raising the specter of political issues cannot sustain
dismissal under the political question doctrine, neither
does a general invocation of international law or foreign
is
. relations mean that an act of state an essential element
of a 'claim. It cannot be thought that every case touching
foreign relations lies beyond judicial cognizance
(Provincial Government of Marinduque v. Placer Dome,
lnc., G.R. No. 07M1630, 2009).
The commission of a crime by a state official, which is an
international crime against humanity and jus cogens, is
NOT an act done in an official capacity on behalf of the
state. As a matter of general customary international law,
a head of state will PERSONALLY be liable to account if
there is sufficient evidence that he authorized or
perpetrated serious international crimes. Individuals who
commit international crimes are internationally
accountable for them.
General Rule: Any person who, in performing an act of the
state, commits a criminal offense is immune from
prosecution. This applies not only to ex-heads of state and
ex-ambassadors but to all state officials who have been
involved in carrying out the functions of the state (Immunity
Ratione Materiae/Functional lrnmuntty > "Immunity of the
official").
Exception: Functional immunity of state officials of the
foreign state could no longer be invoked In cases of
international crimes (Regina v. Bartle and the
Commissioner of Police, "Pinochet Casej.
Exception to the Exception: When the case is brought
against the State itself for liability to damages (i.e. civil l :.
proceedings against a State), the rationale for the ~..... /·
judgment in the Pinochet case has no bearing. I~
., ,,._ -,>
Note:
A state is not deprived of immunity by reason of the fact '·
that it is accused of serious violations of international ,
-::
human rights law or the international law of armed conflict.
·~
The court distinguished between immunity and substantive
jus cogens rules of International law and held that a finding
of immunity does not equal a finding that a state did not
owe reparations (Jurisdictional Immunities of the State:
Germany v. Italy, 2012).
. '
v
-,
--- end of topic---
 ATENEO CENTRAL
BAR OPERATIONS 2019 P.OI.ITICAL LAW

II. LEGISLATIVE DEPARTMENT h. Impeach (will be discussed in subsection (1))

i. Decide the disability of the President In cases
TOPIC OUTLINE UNDER THE SYLLABUS
' where majority of the Cabinet dispute his assertion
that he is able to discharge his duties
A. Legislative Power j. ' Revoke or extend proclamation o1 suspension of
1. Scope and limitation privilege of writ of habeas corpus or declaration of
· 2. Principle of Non-delegability; exceptions martial law
8. House of Congress; composition and qualification k. Power with regard to utilization of natural
of members resources
1. Senate
2. House of Representatives LEGISLATIVE
a. District representatives and questions of General plenary power
apportionment Nature of Legislative Power
b. Party-list system Legislative power is the authority to make, alter and repeal
c. Privileges, Inhibitions, and Disqualifications laws. It is vested by the Constitution in the Congress,
0. Discipline of Members · except to the extent reserved to the people by the
E. Process of Law-making provisions on Initiative and referendum. (CONST. Art. VI,
F. Quorum and Voting Majorities Sec.1)
G. Appropriation and Re-alignment
H. Legislative inquiries and Oversight functions Congress
I. Power of Impeachment Legislative power is vested in Congress which consists of
J. Electoral Tribunals the Senate and the House of Representatives.

t. ,:.·
K. Commission on Appointments
L. Initiative and Referendum General Rule: Conqress cannot delegate its legislative
power under the principle of non-delegation (delegata
potestas non potest de/egari or delegated power may not
be delegated). ·
A. LEGISLATIVE POWER

Exceptions: (PLATE)
1. SCOP~ AND LIMITATION
To the extent reserved to the feople by the provision on
initiative and referendum.
Classification of Powers
Delegation to ,bocal government
1. Legislative
Delegc1tion of rule-making 'power to 6dministrative bodies
a. General plenary power ·
Congress may delegate !ariff powers tc the President
b. Specific power of appropriation (will be discussed
~mergency powers delegated by Congress to the
in subsection (G))
President
c. Taxation and expropriation
r. .• d. Legislative investigations (will be discussed in
Classification of Legislative Power (COrODe):
subsection (H))
( -.,. e. Question Hour 1. ~onstituent - The power to propose amendments
0 2. Non-Legislative · to the Constitution.
.... a. Canvass presidential elections
2. Q!:dinary - The power to pass ordinary laws
(,.) ;~
3. Qriginal - Possessed by the people In their
b. Declare the existence of a state of war
:.overeign capacity, exercised via initiative and
c. Delegetiori of emergency powers
referendum.
d. Call special election for President and Vice
President
4. Delegated - Possessed by Congress and other
legislative bodies by virtue of the Constitution
e. Give concurrence to treaties and amnesties
Limits
f. Propose constitutional amendments
Substantive - limitations on the content of laws."
g. Confirm certain appointments (will be discussed in
Procedural - limitations on the manner of passing laws.s
subsection (K))
Conqress cannot pass irrepealable laws.

4 5 rfote: Generally, a bill must go throlJl:lh three readings on

Note: No law shall be passed establlshing a state religion.
three separate days.
Page 13 of 320

-, .. :

-· .•.I
 ATENEO CENTRAL
BAR OPERATIONS 2019
Local Legislative
Local legislative bodies are allowed by our Constitution to
legislate on purely public matters. Since what was given to
local legislative bodies are not power to make rules and
regulations but legislative power, the rules on valid
delegation do not apply. However, when what is given to
local legislative body is executive power, the rules
applicable to the empowerment of administrative agencies
also becomes applicable (Rubi v. Provincial Board, G.R.
No. L-14078. 1901).
Requisites of A Valid Ordinance: (Must NOT CUPPU,
Must be GC)
Must not fontravene the Constitution or any statute
Must not be .!.!.nfair or oppressive
Must not be fartial or discriminatory
Must not f rohlbit, but may regulate trade
Must not be ,Ynreasonable
Must be !zeneral and ~onsistenl with public policy
(Magtajas v. Pryce Properties. G.R. No. 111097, 1994).
I legislation through an election called for the purpose (RA
People's Initiative on Statutes
Initiative
The power of the people to propose amendments to the
Constitution or to propose and enact legislation called for
the purpose (RA 6735, Sec. 3(a)).
Three Types Of Initiative (CSL)
1. Initiative on the ~onstitution - A petition proposing
amendments to the Constitution.
2. Initiative on §tatutes - A petition proposing to enact a
national legislation.
3. Initiative on Local ~,egislation - A petition proposing to
enact a regional, provincial, city, municlpal, or
barnngay law. resolution or ordinance (RA 6735, Sec.
3(a)).
Local Initiative
Not less than 2,000 registered voters in case of
autonomous regions, 1,000 in case of provinces and cities;
100 in case of municipalities, and 50 in case of barangays:
may file a petition with the Regional Assembly or local
legislative body, respectively, pre.posing the adoption,
enactment, repeal or amendment of any law, ordinance or
resolution. (RA No 6735, Sec.13)
Limitations on the Power of Local Initiative Should not
be exercised more than once a year;
Extended only to subjects or matters which are within the
legal powers of local legislative bodies to enact;
If the local legislative body adopts the proposition in toto
before the initiative is held, the initiative shall be cancelled.
Page 14 of 320
·----------'----- ·--· -
POLITICAL LAW
Those against such action may apply for initiative. (RA
· 6735, Sec. 15). ·
Limitation on Local Legislative Body vis-a-vis Local
Initiative .
Any proposition or ordinance approved through an initiative
and referendum shall not be repealed, modified or
amended by the Scinggunian within 6 months from its date
of approval, and may be amended, modified, repealed
within 3 years thereafter by a vote of 3/4 of nll its members.
In case of baranqays, the period shall be 18 months after
approval.(LGC, S1:1c.125)
Indirect Initiative
a
Exercise of initiative by the people through proposition
sent to the Congress or the local legislative body for action·
(RA 6735, Sec.3, Par(b)) · ·
Referendum .
refers to the power of the electorate to approve or reject
6735, Sec. 3(c)).
\
Required Petition
1. Petition should be registered with the Commission on
Elections (RA 6735)
2. Should be signed by at least 10% of the total number
of registered voters
3. Every legislative district must be represented by at
feast 3% of the registered voters thereof
The petition lo be signed b~ the people should contain a
definite proposal of the amendment of the Constitution; not : '
::, :
merely a ge'leral question whether they approve of the
amendment or not (Lambino v. COMELEC, G.R. No. c
.. 1•
174153, 200(>).
Two Classes Of Referendum (RA 6735, Sec. 3(c))
Referendum on statutes - petition to approve or reject an
act or law, or part thereof, passed by Congress
R'3ferendum on local laws ~ legal processes whereby the
registered voters of the focal government units may
approve, amend or reject any ordinance enacted by the
Sanggunian (LGC. Sec 126).
Matters Which May Not Be the Subject of Initiative or
Referendum (RA 6735, Sec. 10)
A petition embracing more than one subject.
Statutes Involving emergency measures.
,
 .,.,
ATENEO CENTRAL
BAR OPERATIONS 2019
Initiative v, Referendum
INITIATIVE REFERENDUM
The power of the people to The right reserved to the
propose bills and laws, and people to adopt or reject
to enact or reject them at any act or measure which
the polls independent of has been passed by a
the legislative assembly. legislative body and which
in most cases would,
without action on the part
of electors, become a la
The President under a Martial Law Rule or in a
Revolutionary Government
During the period from 1972 to 1987, the laws of the
Philippines did recognize the legislative power lodged in
the presidency. Today, the 1987 Constitution has not
disturbed this fact and. still recognizes the legitimate
exercise of legislative power by then President Ferdinand
Marcos (Bernas, 1987 Philippine Constitution: A
Commentary, 681, 2009).
a. Martial Law Powers and Article XVII of the 1973
Constitution
Shortly after martial law and the birth of the 1973
Constitution the legislative power in the President, as
flowing from his martial law powers and Article XVII,
Section 3(2) of the 1'973 Constitution, was rncognized as
extraordinary legislative power given to the President to
enable him to cope with an extraordinary situation
especially at a time when there was no operating
legislative body (Aquino, Jr. v, COMELEC, G.R. No. L-
40004, 1975).
b. Amendment No. 6
In 1976, Amendment No. 6 clarlfled the legislative power
of the President; "Whenever in the Judgment of the
President (Prime Minister), there exists a grave emergency
or threat or imminence thereof, or whenever the interim
Batasang Pambansa or the regular National Assembly fails
or is unable to act adequately on any matter for any reason
'(j that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees,
orders or letters of Instruction, which shall form part of the
law of the land." · 115455, Augus11 25, 1994).
The legislative power given in Amendment no. 6 is also
concurrent with that of the regular Batasang Pambansa
(Legaspi v. Minis~er of Finance, G.R. No. L-58289, 1982).
., .:'
':.........
Page 15 of 320
POLITICAL LAW
Notes:
• The 1973 Constitution provided for two concurrent
legislative agencies: (1) Batasang Pambansa and (2)
President.
. • The legislative power of Batasan was ordinary, while
the legislative power of the President was
extraordinary. Hence, the President in his judgment
may undo what the legislature might have done not to
his satisfaction (Bemas. 1987 Philippine Constitution:
A Commentary, 684, 2009).
Revolutionary Government
a. Proclamation No. 3
,l\fter the 1986 revolution, President Corazon Aquino
assumed revolutionary legislative power and, on March 25,
1986 issued Proclamation No. 3, the Provisional Freedom
Constitution. Article II, Section 1 vested l&gislative power
in the President until a legislature is elected and convened
under a new Constitution.
b. 1987 Constitution
Section 6 of the Transitory Provisions of the 1987
Constitution provides that "The incumbent President shall
continue to exercise legislative powers until the first
Congress is convened."
President Corazon Aquino exercised legislative power
alone while President Ferdinand Marcos exercised
legislative power concurrently first with the interim
Batasang Pamabansa and then witn the regular Batasang
Pambansa (Bernas, 1987 Philippine Constitution: A
Commentary, 685, 2009).
President Corazon Aquino lost her legislative power on
July 26, 1987 when Congress was convened. ·
Power to Tax (Sec. 28 (1))
Limitations: (UP PED)
- The rule of taxation should be !J.niform.
- Congress should evolve a frogressive system of
taxation.
The VAT law is constitutional since progressive
system of taxation is not a judicially enforceable
right. (Tolentino v. Secretary of Finance, G.R.
The power to tax must be exercised for a f.ublic purpose
because the power exists for the general welfare.
- It should be gquitable.
- The Que process and equal protection clauses of the
Constitution should be observed.
---- --·---··--'------------'
ATENEO CENTRAL
BAR OPERATIONS 20•9
Constitutlonal Tax Exemption - The following properties
are exempt from real property taxes (Sec. 28(3)): (MAC3)
- Mosques
- ~II lands, buildings and improvements actually, directly
and exclusively used for religious, charitable, or
educational purposes.
- £haritable institutions.
- &hurches, and parsonages or convents appurtenant
thereto.
- Non-profit £emeterit,s.
Other Exemptions Under Article XIV:
Ali revenues and assets of non-stock non-profit
educational institutions are exempt from taxes and duties
provided that such revenues and assets are actually,
directly and exclusively used for educational purposes
(Sec. 4 (3)).
Grants, endowments, donations or contributions used
actually, directly and exclusively for educational purposes
shall be exempt from tax, subject to conditions prescribed
by law (Sec. 4 (4)).
Power t.o Fix Rates (Sec. 28 (2))
Delegation of Power to Fix Rates - Congress may, by
law, authorize the President to fix the following: (TITO)
Iariff rates
Import and export quotas
Ionnage and wharfage dues
Qther duties and imposts within the framework of the
national development program
Summary of Limitations
a. Substantive
a. Express Limitations
1. Bill of Rights
I. No law shall be passed abridging freedom
of speech, of expression, etc.
ii. No law shall be made respecting an ,
establishment of religion or prohibiting the
free exercise thereof;
iii. No law impairing the obligation of
contracts shall be passed;
iv. No ex post facto law or bill of attainder
shall be enacted
2. On Appropriation
i. The procedure in approving appropriations
for the Congress shall strictly follow the
procedure for approving appropriations for
other departments and agencies;
ii. Prohibition against use of public money or
property for religious purpose;
Page 16 of 320
POLITICAL LAW
iii. No specific funds shall be appropriated or
paid for use or benefit of ar.y religion, sect,
etc., except for priests, etc. assigned to
AFP, penal Institutions, etc.
3. On Taxation
i. No law granting any tax exemption shall be
passed without · the concurrence of a
majority of all the Members of the
Congress
ii. All money collected on any tax levied for a
special purpose shall be treated as a
special fund and poid out for such purpose
only
iii. All revenues and assets ':>f non-stock, non-
profit educational institutions used
actually, directly and exclusively for
educational purposes shall be exempt
from taxes and duties
4. On Constitutional appellate jurisdiction of
Supreme Court
i. No law shall be passed increasing the
appellate jurisdiction of the supreme Court
as provided in the Constitution without its
advice and concurrence
ii. No law granting title of royalty or nobility
shall be passed
b. Implied Limitations
1. Prohibition against irrepealable laws; and
2. Non-delegatio;, of powers (NACHURA)
c. Jurisprudence
• Power of Congress to provide Holdover:
Congress cannot provide for th~ holdover of
elective officers if the same would go beyond their
terms fixed by the Constitution (Datu Abas Kida v.
Senate, GR No 196271, October 18, 2011)
· • Powor of Congre,ss to create new Term and { ,,
appoint Occupant of Position: Congress "'--''
cannot create a new term and effectively appoint
the occupant of the position for the new term (Id.)
• Power to gr.mt franchise for Public Utilities:
Congress cannot grant legisla~ive franchises for
the operation of publlc utilities which shall be
exclusive in character and which shall not · be
subject to amendment, alteration or repeal when ( ';
"'--'
common good so requires. {Tawang Mufti
purpose Coop. v. La Trinidad Water District, GR
No 166471, March 22, 2011)
 ATENEO CENTRAL
BAR OPERATIONS 2G19
b. Procedural
1. There must only be one subject to be stated in the
title of thf3 bill to prevent hodgepodge or log-rolling
legislation.
2. 3 readings on separate days, printed copies of the
bill in its final form distributed to members 3 days
before its passage, except i~ president certifies to its
immediate enactment to meet a public calamity or
emergency; upon its tast reading, no amendment
allowed and the vote thereon taken immediately
and the yeas and nays entered into the Journal
3. Appropriation, revenue, tariff, and bills authorizing
the increase of public debts, bills of local application
and private bills shall originate exclusively in the
House of Representatives
NON-LEGISI..ATIVE
Informing function
The power of Congress, when It investigates, is not limited
to oversight or in aid of legislation. Equally important and a
fundamental power and duty of Conqress Is its Informing
function by way of investigating for the purpose of
enlightening the electorate. "The informing function of
Congress should be preferred even to its legislative
function [for] the only really self-governing people is that
people which discusses and interrogates its
administration" (Akbayan v. Aquino, G.R. 170516, 2008; J.
Azcuna, Separate-Dissenting opinion citing Schlesinger,
10, 76-77 quoting Wilson, Congressiona: Government,
278, 279, 29S, 301, 303).G
Other non-legislative powers
'·' To act as national board of canvassers for President and
Vice President (PHIL. CONST. art. VII, § 4).
To decide whether the President is temporarily disabled in
.:.. ~ the event he reassumes his office after the Cabinet, by a
majority of vote of its members, declares that he is unable
to discharge the powers and duties of his office (PHIL.
,.,· ...
·'-=....:.,• CONST. art. VII, § 11).
To concur in the grant of amnesty by the President (PHIL.
CONST. art. VII, § 19).
To act as a constituent assembly for the revision or
amendment of the Constitution (PHIL. CONST. art. XVII,
§1 and §2).
To call special election for President and Vice-President
(PHIL CONST. art. VII, §10).
Delegation of emergency powers (PHIL. CONST. art. VI,
§23(2)).
6 Note: The dissent is contrary to the majority opinion.
Nevertheless, it definas the information function of the
Congress.
' .
i.: Page 17 of 320
POLITICAL LAW
Declare the existence of state of war (PHIL. CONST. art.
VI, §23(1)).
Confirm certain appointments (PHIL. CONST. art. VII,
§16).
Revoke or extend proclamation of suspension of privilege
of writ of habeas corpus or declaration of martial law (PHIL.
CONST. art. VII, §18).
Power with regard lo utilization of natural resources (PHIL.
CONST. art. XII, §2).
To initiate (HOR) and, to try all cases of impeachment
{Senate),(PH/L CONST. art. XI,§ 2-3.)
2. PRINCIPLE OF NON-DELEGABILJTY; EXCEPTIONS
General Rule: Legislative power is vested in Congress
which consists of the Senate and the House of
Representatives by the sovereign Filipino people.
Congress cannot delegate its legislative power under the
maxim defegata potestas non potest delegari (delegated
power may not be delegated).
Exceptions: (PLAP)
Delegation to the feople ·- To the extent reserved to the
people by the provision on initiative and referendum.
:, Delegation to ,bocal government units- local legislative
bodies are allowed by our Constitution to legislate on
purely public matters. Since what was given to local
legisiative bodies are not power to make rules and
regulations but legislative power, the rules on valid
delegation do not apply. However, when what is given to
local legislative body is executive power, the rules
applicable to the empowerment of administrative agencies
also become applicable (Rubi v. ProvincialBoard, G.R. No.
L-14078, 1901).
The BPO issued by the Punong Barangay is not an undue
delegation of legislative power for it merely orders the
perpetrator to desist from (a) causing physical harm to the
woman or her child; and (2) threatening to cause the
woman or her child physical harm. Such function of the
Punong Barangay is purely executive in nature, in
pursuance of his duty under the LGC to "enforce all laws
and ordinances,• and to "maintain public order in the
barangay." (Garcia v. Drilon, 2013)
Delegation of rule-making power to Administrative
Bodies - power to issue supplementing rules and
regulations provided that the delegation must be complete
. --·· -·-·--·----------------
ATENEO CENTRAL
BAR OPERATIONS 2019
and must prescribe sufficient standards. It also includes
the determination of the presence of the conditions for the
law to take effect.
• Rationale:
o Increasing complexity of the task of government
o lack of technical competence on the part of
Congress to provide for specific details of
implementation
o Administrative agencies may fill up details of the
statute for implementation
o legislature may pass "contingent legislation
"which leaves to another body the business of
ascertaining facts necessary to bring the law into
action (ABAKADA v. Ermita, G.R. No. 168056,
2005).
• If there was a valid delegation, administrative rules and ·
regulations are just binding as if it was written in the
law.
• Admlnlstratlve agencies may not issue regulations that
contravene the law (Solicitor General v. Metro Manila
Authority, G.R. No. 102782, 1991) nor may they add to
the standards set by law (Tatad v. Secretary of Energy,
G.R. No. 124360, 1997).
• Administrative rules and regulations may be penal in
nature provided that:
o such a violation is made a crime by the delegating -,
law:
o penalty of such is provided in the statutes
o the regutation is published.
• Powers of Congress which are not to be delegated are
those that are strictly or inherently legislative. Purely
legislative power is the authority to make a complete
law - complete as to the time it shall take effect or to
whom it shall be applicable and to determine the
expediency of the enactment
Delegation to the eresident
• Congress may delegate tariff powers to the President
o Section 28(2) authorizes Congress to delegate the
power to fix tariff rates, import and export quotas,
tonnage, wharfage dues, and other duties and
impost.
• Emergency powers delegated by Congress to the
President.
Art. VI, Sec. 23(2) authorizes Congress to give the
President the power necessary and proper to carry out a
declared national policy in times of war or other national
emerqency pursuant to law.
Page 18 of 320
POLITICAL LAW
Test of Valid Delegation
1. Completeness Test - The law must state the policy
that must be carried out or implemented and leave no room
for the delegate to legislate; nor allow discretion on their
part to say what the law is; there must be nothing left for'
the delegate to do but to enforce the law.
2. Sufficiency of Standard - The limits are sufficiently
determinate and determinable to which the delegate must
conform in the performance of his actions.
Examples:
Public interest (People v. Rosenthal, G.R. Nos. L-46076
and L-46077, 1939).
Fair and equitable employment practices (Eastern
Shipping Lines v. POEA, supra)
justice and equity
public convenience and welfare
simplicity, economy, and efficiency.
Note:
Standards may be expressed or implied from the law taken
as a whole (Edu v. Ericta, G.R. No. L-32096, 1970). They
can even be gathered in other statute of the same subject
matter (Chongbian v. Orbos, G.R. No. 96754, 1995).
A law allowing a judge to inflict punishment of
imprisonment in its discretion without any designated limits
is invalid (People v. vacuycoy, G.R. No. L-45127, 1989).
Section 8 of PQ 910 regarding the Malampaya funds
provides: "all fees, revenues and receipt. .. under the
Petroleum Act of 1949; as well as the government
share ... shall form part of a special fund to be used to
finance energy resource development and exploitation
programs and projects of the government and for such
c:
··...:.•
other purposes as may be hereafter provided by the
President." This ls not a valid delegation of legislative
power. The provision constitutes an undue delegation of
legislative power insofar as it does not lay down a :;ufftcient
standard to adequately determine the limits of the 1':-
1:; __;.
President's authority (Belgica v. Ochoa, G.R. No. 208566,
2013).
Co.ngrcss can only delegate, usually to administrative
agencies, rule-making power or law execution. This
involves either of two tasks for the administrative agencies: I ,.
Subordinate legislation: Filling up the details of an \..:-·
otherwise complete statute; or
Contingent Legislation: Ascertaining the fact necessary to
bring a "contingent" law or provision into actual operation.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Any post-enactment congressional measure should be House of Representatives

limited to scrutiny and investigation. In particular, Composition: Not more than 250 members, unless
congressional oversight must be confined to the following: otherwise fixed by law, consisting of:
(SAHM) a. District Representatives: elected from legislative
.§.crutiny based primarily on Congress' power of districts apportioned among the provinces, cities and
appropriation and the budget hearings conducted in the Metropolitan Manila area
connection with it b. Party-list Representatives: shall constitute 20% of the
Its power to ask heads. of departments to Appear before total number of the members of the House of
and be !::!eard by either of its Houses on any matter Representatives lncluc.ing those under the party-list.
pertaining to their departments and its power of (RA No. 7941)
confirmation and investlqatlon
Monitoring of the implementation of laws pursuant to the Tenn of Office
power of Congress to conduct inquiries in aid of legislation 3 years, commencing at noon on the 30th day of June next
following their election
Any action or step beyond that will undermine the
separation of powers guaranteed by the Constitution. Term Limit
Legislative vetoes fall in this class (Abakada Guro Party . No member of HOR shall serve for more than 3
List v. Purisima, G.R. No. 166715, 2008). consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an
Reorganization "involves the reduction of personnel, interruption in the continuity of his service for the full term
consolidation of offices, or abolition thereof by reason of for which he was elected.
economy or redundancy of functions." The general rule has
always been that the power to abolish a public office is List of Qualifications for both Senators and Members
t _) lodged with the legislature. The exception, however, is of the House
that as far as bureaus, agencies or offices in the executive The qualifications of both Senators and Members of the
department are concerned, tile President's power of House are LIMITED to those provided by the Constitution.
control may justify him to inactivate the functions of a Congress cannot, by law, add or subtract from these
particular office, or certain laws may grant him the broad qualifications (PHIL. CONST. en. VI, § 3&6) (Pimentel v.
authority to carry out reorganization measures (Malaria COMELEC, G.R. No. 161658, 2008).
Employees v. Romulo, G.R. 160093, 2097). ·
Qualifications for Senate and House of
B. HOUSES OF CONGRESS (ART. VI} Representatives:
SENATOR REPRESENTA 1 IVE
What are the houses of congress? Natural-born citizen of the Philippines
.. :\ 0. Senate Able to read and write
~- i: 1. House of Representatives At least 35 years old on At least 25 years old on
the DAY OF THE the DAY OF THE
' ELECTION ELECTION
Senate
Registered voter Registered voter in the
Composition: 24 who are elected at large by the qualified district in which he shall be
voters of the Philippines. (CONST. Art. VI, Sec.2) elected (except party-list
representatives)
Term of Office
' Resident of the Philippines Resident of the said
\ ...J} 6 years commencing at noon on the 30th day of June
for at least 2 years district for at least 1 year
following their election (CONST., Art. \II, Sec.4)
immediately preceding the immediately preceding
election election (except party-list
Term Limit
representative)
No Senator shall serve for more than 2 consecutive terms.
Term of 6 years Term of 3 years
Voluntary renunciation of the office for any length of time
Commencing at noon on Commencing at noon on
shall. not be considered as an interruption in the continuity
June 30, June 30, next following
of his service for the full term for which he was elected
next tollowing their their election
(CONST. Art VI, Sec.4) .
election .

Page 19 of 320

' ,'
 ATENEO CENTRAL
BAR OPERATIONS 2019
Term limit: no more than 2 Term limit: no more than 3
consecutive terrns consecutive terms
(a) District re;,resentatlves and questions of
apportionment
District Representative {Sec. 5)
Elected from legislative districts that are apportioned in
accordance with the number of inhabitants in each area
and on the basis of a uniform and progressive ratio.
Qualifications
(1) Natural born citizen
6. At least 25 years of age on the day of the election
7. Able to read and write , be entitled to a representative, but not so for a province
8. Registered voler in the district in which he shall be
elected
9. A resident of the Philippines for a period of not less
than 1 year immediately preceding the day of the
election;
. 5(3), Art. VI requires a city to have a minimum population
Creation of Legislative Districts
Only Congress can create provinces and cities because
the creation of provinces and cities necessarily includes
lhe creation of leqlslative dislricts, a power only Congress
can exercise under Section 5, Article VI of the Constitution
and Section 3 of the Ordinance appended to the
Constitution. The ARMM Regional Assembly cannot
create a province without a legislative district because the
Constitution mandates that every province shall have a
legislative district (Sama v. COMELEC, G.R. No. 177597,
2008).
A law converting the municipality of Mandaluyong into a
highly urbanized city resulting to conversion of city into
congressional district was held to be valid (Tobias v.
Abalos, G.R. No. L-114783, 1994).
When a municipality is converted into a city large enough
to entitle it to one district, the incidental effect is splitting
the district into two. This does not need a consensus.
There is no need for plebiscite under Art. X of the
Constitution when one district is split into two, because you
are not creating new juridical personalities or dividing the
territory per se. There is only ,, need for plebiscite if you
are creating a new Loc31 Government Unit.
The COMELEC cannot correct the imbalance resulting
from the increase of districts by transferring districts. The
COMELEC must wait for a legislative enactment.
Apportionment (Sec. 5 (1, 3-4))
Page 20 of 320
·--------------··.-· ...
POLITICAL LAW
The standards used to determine the apportionment of
legislative districts is meant to prevent 'gerrymandering.'
Gerrymandering
the formation of one legislative district out of separate
territories for the purpose of favoring a candidate or a party
(Navarrov. E>cecutiveSecretary, G.R. No. 180050; 2010).
NOTE: .
A province is entitled to at least one representative, with
nothing mentioned about population; a city must first meet
a population minimum of 250,000 in order to be similarly
entitled. Plainly read, Section 5(3) of the Constitution
requires a 250,000 minimum population only for a city to
( Senator Aquino II/ and Mayor Robredo v. Commission on
E:lections, G.R. No. 1,'39793, 2010)
To be entitled to an additional district, a city does not have
to increase its population by another 250,000. While Sec.
of 250,000 to be enliUed to a representative, it does not
have to increase its population by another 250,000 to be
entitled to an additional district.
Rules of apportionment of legislative districts
c. Under the Constitution
1. Legis~tive districts shall be made in accordance with
the number of respective inhabitants on the basis of a
unitorrn and progressive ratio
2. Each district shall comprise, as far as practicable,
Contiguous, Compact and Adjacent territory. (CCA}
3. Each city with at least 250,000 inhabitants will be
· entitled to at least one representative while each
province will have at least one re;:,resentative.
4. Each province, irrespective of the number of
inhabitants, is entitled to at least i representative
5. Legislative districts shall be re-apportioned by
Congress within 3 years after the return of each
census.
d. Jurisprudence
• 250,000 · minimum population requirement for
Provinces: There is no specific provision in the
Constitution that fixes a 250,000 minimum population
that must compose of every legislative district. What
the Constitution provides is a 260,000 minimum
population only for a city to be entitled to a
representative, but not so for a province. (Aquino v. .":'· ·~.
\_)
COME:LEC, GR No. 189793, April,, 2010)
• 250,000 only to create an initial legislative
district: The requirement for cities applies only to its
 ATENEO CENTRAL
BAR OPERATIONS2019 POLITICAL LAW

initial legislativ& district. The Constitution does not respective sectors the seats reserved for sectoral
require a city to increase its population by another representation.
250,000 to be entitled to an additional district (/d.)
RA 7941, the Party-List System Act was approved on
• Necessity of Confirmation by Plebiscite: The
March 3, 1995. This law put into place the mechanics for a
creation of legislative districts does not need
party-iist system of representation based on election and
confirmation by plebiscite if it does not involve the
ended the appointment of sectoral representatives by the
creation of a local government unit. (Bagabuyo v.
President as provided in the Transitory Provisions.
COMELEC, GR No. 176970, December 8, 2008)
For the purposes of the May 1998 elections, the first 5
Difference of Re3pportionment In Sec. 5(10), Art. VI
major political parties on the basis of party representation
and the Creation of LGU In Sec. 10, Art. X.
in the House of Representatives at the start of the Tenth
In the former, the purpose is to ensure better access to
Congress of the Philippines shall not be entitled to
one's district representative in Congress. No political or
participate in the party-list system.
corporate unit is created. Thus, there Is no need for a
plebiscite in the creation, dissolution, or any other similar
Mechanics (RA 7941, Sec. 8)
action on a legislative district. ·
Registered party-lists, organizations, or coalitions shall
submit to the COMELEC a list of not less than five (5)
In the latter, political and corporate units are created or
nominees in order of priority.
altered. These possess legal personality and are
• A person may be nominated in one (1) list only.
considered "instrumentalities of the State in carrying out
• Only persons who have given their consent in
the functions of government". They exercise special
writing may be named in the list.
functions for the sole benefit of constituents. Thus, the
need for a plebiscite to expressly secure the consent of the • Candidates for any elective office in the
people affected by the creation, division, merger, abolition immediately preceding election shall be
disqualified from becoming a nominee.
or alteration of boundaries of local government units
through a plebiscite (Bagabuyo v. COMELEC, G.R. No. • No change of names or alteration of the order of
176970, 2008). . nominees shall be allowed after the same shall
have been submitted to the COMELEC,
Party-list system Exceptions:
- When the nominee dies, or
Party-List Representatives (Sec. 5 (2)) - Withdraws in writing his nomination,
Constitute 20% of the total number of representatives (the - Becomes incapacitated in which case the name of the
j .. total includes the party-list representatives). The maximum · substitute nominee shall be placed last in the list.
i,

( ,,
.., number of House of Representative members is set at 250,
which means a maximum of 50 part-list members are
allowed. But this· number can be increased through a
passage of a law (Banat v. COMELEC, G.R. Nos. 179271
& 179295, 2009}.
However, for 3 consecutive terms after the ratification of
the 1987 Constitution (1987-1992, 1992-1995 and 1995-
1998} from February 2, 1987 until 1998, one half of the
seats allocated to party-list representatives shall be filled
as provided by law, by selection or election from the labor,
peasant, urban poor, ·indigenous cultural communities,
women, youth, and such other sectors as may be provided
by law, except the religious sector (PHIL. CONST. art. VI,
I'
\-.,;:
' .
§ 5(2)}.
J
Under Art. XVIII, Sec. 7, until a !aw is passed, the President
may fill by appointment from a :ist of· nominees by the
Incumbent sectoral representatives in the House of
Representatives who are nominated In the party-list
system shall not be considered resigned.
The parties, organizations, and coalitions shall be ranked
. from the highest to the lowest based on the number of
votes garnered during elections. (Sec. 11, R.A. 7941).
Parameters In Party-List Elections
20% of the total number of the membership of the House
of Representatives Is the maximum number of seats
available to party-list organizations, such that there is
automatically . o~e party-list seat for every four existing
legislative districts.
Garnering 2% of the total votes cast in the party-list
·, elections guarantees a party-list organization one seat.
The gu~ranteed seats shall be distributed in a first round

Page 21 of 320

\ ..,}

... ·------ ·---------------'

ATENEO CENTRAL
BAR OPERATIONS 2019
of seat allocatio11~rties receiving at least two ps-cent
of the total party-list votes.
The additional seats. i.e. the remaining seats after -,
allocation of the guaranteed seats, shall be distributed to
the party-list organizations including those that received
less than 2% of the total votes. The additional seats shall
be distributed to the parties in a second round of seat
allocation according to the two-step procedure laid down in
the BANAT Decision of 21 April 2009 as clarified in this
Resolution. The continued operation of the 2% threshold
as it applies to the allocation of the additional seats is now
unconstitutional because this threshold mathematically
and physically prevents the filling up of the available party-
list seats.
The three-seat cap is constitutional. The three-seat cap is
intended by the Legislature to prevent any party from
dominating the party-list system. There is no violation of
the Constitution because the 1987 Constitution does not
require absolute proportionality for the party-list system.
The well-settled rule is that courts will not question the
wisdom of the Legislature as long as it Is not violative of
the Constitution (Banal v. COMELEC, G. R. No. 119271,
2009).
Seat Allocation for the Party-list Representatives
Rank all party-lists according to votes received;
Determine the 2% qualifiers (divide votes received by
party-list by total vote)
Determine the additional seats.
Deduct the number of guaranteed seats (2% qualifiers}
from the maximum allowed seats, ex. e.g. Assume there
are 17 with guaranteed seats (2% qualifiers) then 55 is the
maximum allowed seats (220 :1 20%) so, 55 - 17 38 = homosexuals from participation in the party-list
seats left;
Divide the number of votes received by all parties
(qualifiers ar.d non-qualifiers) by the total number of votes
cast, as in #2) and multiply the available seats (e.g., 38
seats)
Distribute the additional seats (rounded down) In
accordance to the ranking.
Take note of the three seat cap. (BANAT v. COMELEC,
G.R. No. 179271, 2009)
Qualifications of Party List Representatives (RA 7941,
Sec. 9)
Natural born citizen of the Philippines;
Registered voter;
Resident of the Philippines for a period of not less than 1
year immediately preceding the day of the election;
At least 25 years of age on the day of the election (youth
sector nominee must be at least 25 years but not more than
30 years old on cay of election);
Able to read and write;
Page 22 of 320
POLITICAL LAW
A bona fide member of the party or organization he seeks
to represent for at least 90 days before the day of the
election.
A nominee who changes his sectoral affiliation within the
same party will only be eligible for nomination under the
new sectoral affiliation if the change has been effected at
least six months before the elections (Amores v.
HRET, G.R. No. 189600, 2010). .
Guidelines For The Election df Party List
Representatives
Three different groups may participate in the party-list
system:
national parties or organizations, ·
regional parties or organizations, and
sectoral parties or organization (Atong Paglaum v.
COMELEC, G.R. No. 203766, 2013). ·
• Principle of Social Justice: The inspiration of the
system is social justice understood in both the
economic and political sense.
• Participation not Limited to Sectoral Groups:
Participation in the system is not limited to the
sectors enumerated by the Constitution or law.
• Groups must comply with Constitution and
other applicable laws: The enumeration of
marginalized and under-represented sectors is not
exclusive. The crucial element is not whether a
sector is specifically enumerated, but whether a
particular organization complies with the
requirements of the Constitution and RA 7941.
Moral disapproval, without more. is not a sufficient
governmental interest to justify exclusion of
... :;
system (Ang Lad/ad LG£3T Party v. COMELEC,
G.R. No. 190582, 2010). · . ·
• Concept of Economically Marginalized: The
enumerated sectors must be economically
marginalized because that is what disables them
from successfully engaging in the political struggle.
.... . ...
• Rule on N:itlonal and Regional Organizations:
The national and regional organizations need not be . ),
~· _.'._I
economically marginalized and do not need to
organize along sectoral lines but they must be
politically or ideologically disadvantaged or
marginalized.
• Rule on purely Sectoral Parties: purely sectoral
parties or organizations may either be 'marginalized
and underrepresented' or lacking in 'well-defined
political constituencies'. It is enough that their ,· ...
~SJ)
principal advocacy pertains to the special interest
and concerns of their sector.
"'-.......
 ATENEO CENTRAL
BAR OPERATIONS 2019
(a) Marginalized and Underrepresented sectors:
(HI FLOW PUV)
1. Handicapped
2. Indigenous Cultural Communities
3. Fisher Folk
4. Labor
5. Overseas Workers
6. Peasant
7. Urban Poor
8. Veterans
(b) Sectors that lack 'well defined political
constituencies' (PWEY)
1. Professionals
2. Women
3. Elderly
4. Youth
• Rule on Political Party Participation: Political
parties can participate in party-list elections
provided they register under the party-list system
and do not field candidates in legislative district
elections. A political party, whether major or not,
that fields candidates in legislative district elections
can participate in party-list elections only through its
!. :7 sectoral wing that can separately register under the
party-list system. The sectoral wing is by itself an
independent sectoral party, and is iinked to a
political party through a coalition. (Along Paglaum
v. COMELEG, G.R. No. 203766, 2013)
Its nominees must be able to contribute to the formation
and enactment of leqislatlon that will benefit the nation (RA
7941, sec. 2) · word. Thus, the plain, clear and unmistakable language of
• Rule on Nominees and Members
a) The rule. 011 nominees and members coming
from the sector they intent to represent
applies ONLY to the sectoral parties or
C:i organizations. It is enough that a majority of
-·
~ the members of the sectoral parties or
;
organization must belong to the marginalized
and underrepresented sector they represent.
The same is true· for those who lack well-
defined political constituencies.
i. The nominees of sectoral parties or
organizations must either be:
1. belong to their respective sectors;
or
2. inust have a track record of
advocacy for their respective
sectors
ii. The nominees of national and regional
r-
.:
''::..
,;.~,;. parties or organizations must be bona
fide members of such parties or
organizations.
-
... ii
. Page 23 of 320
POLITICAL LAW
b) National, regional ar,d sectoral parties or
organizations si1all not be disqualified If some
' · of their nominees are disqualified, provided
that they have at least one nominee who
remains qualified.
Dlsquallflcatlons: The party or organization must not be
disqualified under Sec 6, R.A. 7941:
religious sector;
advocates of violence or unlawful means of seeking its
goal;
foreign party or organization;
receiving support from any foreign government, foreign
political party, foundation, organization, whether directly or
through any of its officers or
members or indirectly through third parties for partisan
election purposes;
fails to comply with laws, rules or regulations relating to
elections;
declares untruthful statements in its petition;
ceased to exist for at least 1 year; or fails to participate in
the last 2 preceding elections or, fails to obtain at least 2%
of the votes cast under the party-list system in the 2
preceding elections for the constituency in which it has
registered.
Note: The word "or" is a disjunctive term signifying
disassociation and independence of one thing from the
other things enumerated; it should, as a rule, be construed
in the sense in which it ordinarily implies, as a disjunctive
the law provides for two (2) separate reasons for delisting.
(Philippine Guardians Brotherhood Inc. v. COMELEC,
G.R.No. 19052~ 2010)
The party or organization must not be an adjunct of, or a
project organized, or an entity funded, or assisted by the
foreign government.
Who determine whether a party represents
marginalized sector?
COMELEC has jurisdiction to determine whether an
organization applying for the party list system represents
marginalized sector. It cannot be challenged by certiorari
because the decision is based on facts and the SC does
not try facts (v.C. Cadangen v. COMELEC, G.R. 177179,
2003).
Sectoral parties are not required to adduce evidence
showing their track record that they have undertaken to
further the cause of the sector they represent. It is sufficient
that their ideals are geared towards the cause of the sector
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

they represent (Abang-Ungkod v. COMELEC, G.R. No. District v. Party List Represeutatlves
206952, 2013).

Tenn and Tenure:

TERM TENURE
Is the party list system synonymous with that of the The period during which The period during which
sectoral representation? such officer actually holds
the elected officer is
According to Atorg Paglaum Case, the party-list is not to his position
legally authorized
synonymous with that of the sectoral representation. The assume his office and
framers of the 1987 Constitution did not intend to leave out the powers
exercise
non-sectoral parties in the party-list system and exclusively
thereof
limit it to sectoral groups.
Cannot be reduced May be limited by law

Ways by Which Tenure of Members of Congress May DISTRICT PARTY-LIST

Be Shortened: (FRED) REPRESENTATIVE REPRESENTATIVE
forfeiture of his seat by holding any other office or
As to Election or Selection
employment in the government or any subdivision, agency,
or instrumentality thereof, including government-owned or Elected according to Elected nationally, with
controlled corporations or subsidlaries (PHIL. CONST. art legislative district by the party-list organizations
VI,§ 13); constituents of such garnering at least 2% of all
Voluntary Benunciation of office: (PHIL. CONST. ari VII, 1f district the votes cast for the
2). party-list system entitled to
gxpulslon as a disciplinary action fer disorderly behavior 1 seat, which is increased
(PHIL CONST. art VI,§ 16, 1f 3). according to proportional "·
representation, but is in no
Qisqualification as determined by resolution of the electoral
way to exceed 3 seats per
tribunal in an election contest (PHIL. CONST. art VI,§ 17).
orqanization.

Vacancy and Special Election As to Residency Requirement

In case of vacancy in the Senate or in the House of
Representatives, a special election may be called to fill Must be a resident of his No special residency
legislative district for at requirement in a leg:slative
such vacar.cy in the manner prescribed by law, but the
least 1 year immediately district
Senator or Member of the House of Representatives thus
before the election
elected shall serve only for the unexpired term.7
As to manner of candidate's election
Special Election (R.A. 6645)
Special election will be called if vacancy occurs: Elected personally (i.e. by Voted upon by party or
At least 18 months before the next regular election for the name of candidate) organization. It is the party
who designates who will sit
members of the Senate;
as its representative.
At least 1 year before. the next regular election for . f
members of Congress As to effect of change of affiliation during the term \ .... ,·
The particular House of Congress where vacancy occurs
must pass either a resolution if Congress is in session, or Does not lose seat if If she/he changes party or
the Senate President or the Speaker must sign a he/s~e changed party or affiliation, loses his seat, in
affiliation which case he/she will be
certification, if Congress is not in session,
substituted by another
Declaring the existence of vacancy
qualified person in the
Calling for a special election to be held within 45 to 90 days party/organization based
from the date of the resolution or certir1cation on the list submitted to the
The Senator or representative elected shall serve only for COMELEC.
the unexpired term.
As to manner of filling vacancies

7
Note: Filling of a vacancy in Congress falls within the
'
discretion of Congress.
Page 24 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

In case of vacancy. a In case of vacancy, a

special election may be substitution will be made Requirements to avail of the prlvil~ge of speech and
held provided that the within the party, based on debate
vacancy takes place at the list submitted to the i. . that the remarks must be made while the legislature or
least 1 year before the COMELEC the legislative committee is functioning, that is, in
next election session; and
ii. that they must be made in · connection with the
As to effect of losing in the previous election discharge of official duties
A district representative is A party-list representative
not prevented from cannot sit if he ran and Jost Inhibitions (Sec. 12)
running again as a district in the previous election. All Members of the Senate and the House of
representative if he/she Representatives shall, upon assumption of office, make a
lost during the previous full disclosure of their financial and business interests.
election. .They shall notify the House concerned of a potential
conflict of interest that may arise from the filing of a
As to effect of change :>f affiliation prior to election
proposed legislation of which they are authors.
A change in affiliation A change in affiliation
within months prior to within 6 months prior to Therefore, senators and representatives are not prohibited
election does not prevent election prohibits the party- from introducing bills that have conflicts with their interest,
a district representative list representative from as long as they disclose.
from running under his sitting as representative
new party. under his new Disqualifications (Sec. 13 & 14)
party/organization.
DISQUALIFICATION WHEN APPLICABLE
C. PRIVILEGES, INHIBITIONS AND Cannot hold any other During his term. If he
DISQUALIFICATIONS office or employment in does so, he forfeits his·
the Government or any seat in Congress.
Privileges (Sec. 11) subdivision, agency or
Immunity From Arrest- Legislators are privileged from instrumentality thereof,
arrest while Congress is in session only (whether regular including GOCCS or their
or special) with respect to offenses punishable by not more subsidiaries.
than 6 years of imprisonment. The immunity does not
extend to the prosecution of criminal of~enses. Cannot be appointed During the term for whieh
Privilege Speech - No member shall be questioned or to any office which was he was elected
held liable in any forum other than his/her respective created or the emoluments
()·,
..... " Congressional body for any debate or speech in Congress thereof increased
or in any Committee thereof.
Cannot personally appear During his term of office.
Limitations: as counsel before any
court of justice, electoral
Protection is only against prosecution in any forum other
than Congress itself. Hence, the Senate or the House may tribunal, quasi-judicial and
discipline their respective members. administrative body.
The 'speech or debate' must be made In performance of Cannot be financially During his term of office.
their duties as members of Congress. interested directly or
Congress need not be in session when the utterance is indirectly in any contract'.
made, as long as it forms part of legislative action (e.g. part franchise, or special
of the deliberative and communicative process used to privilege granted by the
participate in legislative proceedings In consideration of Government, or any
proposed legislation or with respect to other matters with subdivision, agency or
Congress· jurisdiction) instrumentality thereof,
including any GOCC or its
subsidiary.

Page 25 of 320

....:,
ATENEO CENTRAL
BAR OPERATIONS 2019
Cannot intervene in any During his term of office
matter before any office of
the government when it is
for his pecuniary benefit or
where he may be callod
upon to act on account of
his office.
'
A congressman cannot buy nominal amount of shares in a
corporation in a suit before the SEC and appear in
"intervention." This is a circumvention of the constitutional
policy (Puyat v. De Guzman, G.R. No. L-51122, 1982).
Rules on Increase in $;:)laries (Sec. 10)
No increase in their salaries shall take effect until after the
expiration of the full term (not tenure) of all the members of
the Senate and the House of Representatives approving
such increase.
Since the Constitution provides for rules on "salaries" and
not "emoluments", members of the House may appropriate
for themselves other sums of money such as travel
allowances, as well as other benefits.
A new senator er representative elected through special
election is not entitled to the new salary rate because the
new members are serving the terms of those who
approved the increase. Thus, they are not entitled to the
increase.
Right of Members to Attend Congressional Sessions
Sen. Trillanes, who remained in detention, cannot be
allowed to go to the Senate to attend all its official
functions. All prisoners whether under preventive detention
or serving final sentence cannot practice their profession
nor engage in any business or occupation, or hold cfflce,
elective or appointive, while in detention. This is a
necessary consequence of arrest and detention. The
presumption of innocence does not carry with it the full '
enjoyment of civil and political rights (Tri/lanes v. Judge
Pimentel, G.R. No 179817, 2008).
D. DISCIPLINE OF MEMBERS (SEC. 16}
1. SUSPENSION - shall not exceed 60 days, with the
concurrence of 2/3 of all its members.
2. EXPULSION - concurrence of 2/3 cf all its members.
Nature of Disciplining Authority
Each House may determine the rules of its proceedings,
punish its Members for disorderly behavior, and, with the
concurrence of 2/3 of all its members, suspend or expei a
Page 26 of 320
. POLITICAL LAW
Member. A penalty of suspension, when imposed, shall not
exceed 60 days. (CONST. Art. VI, Sec.16, Par.(3))
The disciplinary· action taken by Congress against a
member is not subject to judicial review because each
House is the sole judge of what disorderly conduct is
(Osmeiia v. Pendatun, G.R. Np. L-17144, 1960).
The parliamentary immunity of members of Congress is
not absolute. While parliamentary immunity guarantees
the legislator complete freedom of expression without fear
of being made responsible before the courts or any other .
forum outside of Congressional Hall, it does NOT protect
him {her) from responsibility before the. legislative body
itself whenever words and conduct are considered
disorderly or unbecoming a member thereof.
For unparliamentary conduct, members of Congress can
be censured, committed to prison, suspended, even
expelled by the votes of their colleagues (Osmena v.
Pendatun, G.R. No. L-17144, 1960).
Is preventive suspension considered an interruption v,
of a term?
Preventive suspension is not considered "interruption" of a
term under Sec. 8, Art. X and Sec. 43 (b) of RA 7160. A
preventive suspension cannot simply be considered an
interruption because the suspended official continues to
stay in office although 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, 2009).
(
..,
"
'\ •• 1
Authority of Sandlganbayan to Suspend
A Congressman can be preventively suspended by the
Sandiganbayan for violation of Anti-Graft Law
notwithstanding the exclusive power of Congress to
discipline its members. The suspension contemplated in
Article VI, Section 16(3) of the Constitution is a punishment
that is imposed by the Senate or House of Representatives
upon an erring member. It is distinct from the suspension
under Section 13 of the Anti-Graft and Corrupt Practices
Act, which is not a penalty but a preventive measure.
Since Section 13 of the Act does not state that the public .
officer must be suspended only in the office where he is
,illeged to have committed the acts which l>ie has been
charged, it applies to any office which he may be holding
(Santiago v. Sandiganbayan, GR. No. 128055, 2001).
 ATENEO CENTRAL
BAR OPERATION8 2019
E. PROCESS OF LAW-MAKING
Bills that mustoriglnate in the House (PuP-TL)
1. Bills authorizing the increase of Public debt.
2. f_rivate bills.
3. Iariff bills.
4. Bills of ,bocal application. (Sec. 24)
Bills of Local Application
A bill of local application, such as one asking for the
conversion of a municipality into a city, is deemed to have
originated from t~,e Hcuse provided that the bill of the
House was filed prior to the filing of the bill in the Senate;
even if in the end, the Senate approved its own version
(Tolentino v. Secretary of Finance, G.R. No. 115455,
1995).
Private Bills
One affecting purely private interest, such as one granting
a franchise.
Tariff Bill
One that specifies the rates or duties to be imposed on
imported articles
Bill Authorizing Increase of the Public Debt
One which creates public indebtedness such as bills for the
issuance of bonds and other forms of obligations
Revenue Bills
One specifically designed to raise money or revenue
through imposition or levy.
• For example, registration fees used for the cor istructon
and maintenance of highways. (PAL vs. Edu, G.R. No.
L-41383, 1QBB).
• The Videogram Regulatory Board Law imposing a tax
on video rentals does not make the law a revenue bill
because the purpose is primarily r&gulation, and not to
raise revenue. (Tio v. Videogram Regulatory Board,
G.R. No. L-75697, 1987) . exception to the general rule that an unconstitutional
General Limitations (Sec. 26)
Every bill shall embrace only one (1) subject, as expressed
in the title thereof, which does not have to be a complete
catalogue of everything stated in the bill.
An Act creating the Videogram Regulatory Board included
30% tax on gross receipts on video transactions was held
to be valid. Taxation is sufficiently related to regulation of
the video industry (Tio v. Videogram Regulatory Board,
G.R. No. L-75697, 1987).
;;
, .•
;.
,I
Page 27 of 320
~.J}
POLITICAL LAW
It is sufficient that the title expressing the general subject
of the bill and all the provisions of the statute are germane
to such general subject (Sumufong v. COMELEC, G.R. No.
L-48609, 1941).
Bills passed by either House must pass 3 readings on
separate days, and printed copies thereof in its final form
distributed to its members 3 days before its passage.
FIRST READING - Only the title is read; the bill is passed
to the proper committee
SECOND READING· Entire text is read and debates are
held; amendments introduced.
THIRD READING - Only the title is read, no amendments
are allowed. Vote shall be taken immediately thereafter
and the yeas and nays entered In the Journal.
Exceptions:
When the President certifies to the necessity of the bill's
immediate enactment to meet a public calamity or
emergency, the 3 readings can be held on the same day
When the offices of the President and Vice-President are
both vacant, the bill calling for a special election to elect a
., President and Vice-President is deemed certified. (Art. VU,
Set. 10).
Specific Limitations
No law shall be enacted increasing the Supreme Court's
appellate jurisdiction without the SC's advice and
concurrence. (Sec. 30)
No law shall be enacted granting titles of royalty or nobility.
(Sec. 31)
Operative Fact Doctrine
• The Operative Fact Doctrine is a rule of equity that
provides that a law produces effects until it is declared
unconstitutional. As such, it must be applied as an
law produces no effects.
• It can never be invoked to validate as constitutional an
unconstitutional act. The unconstitutional law remains
unconstitutional. but its effects, prior to its judicial
declaration of nullity, may be left undisturbed as a
matter of equity and fair play.
Exc&ption:
The doctrine of operative fact does not always apply, and
Is not always the consequence of every declaration of
constitutional invalidity. It can be invoked only in situations
where the nullification of the effects of what used to be a
.
ATENEO CENTRAL
BAR OPERATIONS 2019
valid law would result in inequity and injustice; but where
no such result would · ensue, the general rule that an
unconstitutional law is totally ineffective should apply.
(Arau/lo v. Aquino Ill, G.R. No. 209287, July 1, 2014)
An unconstitutional law is void and produces no rights,
duties, and affords no protection. Being void, Fertiphil is
not required to pay the levy and all levies paid should be
refunded in accordance with !he general civil code principle
against unjust enrichment. Post operatlvs fact doctrine
cannot be invoked i~ it will constitute an unjust enrichment.
In the case of Planters v. Fertiphil, the tax on fertilizers had
already been collected and applied to · a private
corporation's needs. This was by virtue of the law imposing .
the tax. If the operative fact doctrine would be applied in
this case it would sanction the enrichment of the Planters
Product at the expense of the Fertiphil. (Planters Products,
Inc. v. FertiPhi/ Corporation, 548 SCRA 485)
BICAMERAL CONFERENCE COMMITTEE - an extra-
constitutional creation which is intended to resolve conflicts
between House and Senate versions of bills. (Bernas, ·
1987 Philippine Constitution: A Commentary, 790, 2009).
Scope Of The Bicameral Conference commucee's
Powers: (A2R2P)
Adopt the Bill entirely; or
Amend; or
Revise; or
Reconcile the House Bill and the Senate Bills;
fropose entirely new provisions not found in either the
House Bili or the Senate Bill. (Amendments in the nature
of a subsntute)
Limitation: So long as the amendment is germane to the
subject of the bill before the Committee.
In a bicameral system, bills are lndependenny processed
by both Houses of Congress. It is not unusual that the final
version approved by one House differs from what has been
approved by the other, The "conference committee,"
consisting of members nominated from both Houses, is an
extra-constitutional creation of Congress whose function
is to propose to Congress ways of reconciling conflicting
provisions found in the Senate version and in the House
version of a bill.
It is within the power of ci conference committee to include
in its report an entirely new provision that is not found either
in the House blll or in the Senate bill. If the committee can
propose an amendment consisting of one or two
provisions, there is no reason why It cannot propose
several provisions, collectively considered as an
Page 28 of 320
POLITICAL LAW
"amendment in the nature of a substitute," so long as such
amendment is germane to the subject of the bills before
the oommittee. After all, its report was not final but needed
the approval of both houses of Congress to become valid
as an act of the legislative department (Tolentino v:
Secretary of Finance, G.R. No. 115455, 1994).
PRESIDENTIAL VETO
Every bill passed by Congress shall be presented to the
President before it becomes law. To approve, he shall sign
it. Otherwise, he shall veto the bill. (Sec. 27 (1))
OVERRIDING A VETO .
The President shall transmit to House where the bill
origina~ed. If, after such reconsideration, 213 of all the
members of such House shall agree to pass the bill, it shall
be sent, togethor with the objections, to the other House
by which it shall likewise be reconsidered, and if approved
by 2/3 of all the members of that House, it shall become
law.
To override the veto, at least 2/3 of all the members of
each House must agree to pass the bill. In such case, the
veto is overridden and becomes a law without need of
presidential approval. (Sec. 27 (1)) '-·
ITEM VETO
General Rule: As a gener2I rule, if the President
disapproves vf a provision in a bill approved by congress,
he must veto the entire bill.
Exception: As an exception, he is allowed in the case of
(1) appropriation, (2) revenue, and (3) tariff bills to
exercise Item-veto. (Sec. 27 (2)). s
1-.
Exceptions to the Exception: r··
(
v;
DOCTRINE OF INAPPROPRIATE PROVISIONS - A
provision that is constitutionally inappropriate for an c:
\ ..
appropriation bill may be subject to veto even _if it is not an
appropriation or revenue "item';. (Gonzalez v. Macaraig,
Jr., G.R. No. 87636, 1990J.
EXECUTIVE IMPOUNDMENT- Refusal of the President to
spend funds already· allocated by Congress for a specific
purpose. It is in effect, an "impoundment" of the law
allocating such expendlturs of funds.
Note:
There is no doctrine for or against executive
impoundment. It has not been judicially questioned.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Type of Item Bill ENROLLED BILL JOURNAL RECORD

TYPE OF BILL ITEM Official copy of Abbreviated Word for word
approved account of daily transcript of
Revenue/tax bill Subject of the tax, and legislation, With proceadlnqs in deliberations
tax rate imposed certifications of Congress in Congress
thereon presiding officers
Appropriations bill Indivisible sum dedicated to Submitted to the Provides proof Provides
a stated purpose President for of. J what detailed proof
signature, transpired of what
indicating approval during transpired
vETO OF RIDER - A rider is a provision that does not
deliberations during
relate to a particular appropriation stated in an
deliberations
a ppropriation bill. Being an invalid provision under Section
Insures publicity Supports the
2 5 (2), the President may exercise item veto.
of legislative journal entry
nternal Rules proceedings
As part of their inherent power, each House may determine
its own rules. Hence, the courts cannot intervene in the Cases When the Constitution Requires Yeas And Nays
implementation of these rules insofar as they affect the To Be Recorded
members of Congress. Last and third readings of a bill ·
Upon 1/5 members' request
Re-passing a bill over Presidential veto
Congressional Journals and Records (Sec. 16)
General Rule: The Journal is conclusive upon the courts. Adjournment
\
··~ ,,'?

Exception: An enrolled bill prevails over the contents of
the Journal.
ENROLLED BILL - The official copy of approved
legislation and bears the certifications of the pr9siding
officers of each House. Thus, where the certifications are
valid and are not withdrawn, the contents of the enrolled
bill are conclusive upon the courts as regards the provision
of that particular bill.
Neither House during the sessions of the Congress, shall
without the consent of the other, adjourn tor more than 3
days, nor to any other place than that in which the two
Houses shall be sit!ing. (CONST., Art. VI, Sec.16, Par(5))
Types of Adjournment
1. Day to day
2. Yearly
3. Sine die - with no appointed date for resumption

ENROLLED BILL.DOCTRINE- The signing of a bill by the 'Place'

, ........
I"··.; Speaker of the House and the President of the Senate and
its certification by the secretaries of both Houses of
Congress that such bill was passed are conclusive of its
due enactment (Arroyo v. De Venecia, G.R. No.127255,
1997).
. by law). It continues in session for as long as it may
Refers not to the building but to the political unit where the
Houses may be sitting.
F. QUORUM AND VOTING MAJORI~
Ses~ions (Sec. 15)
Regular sessions - Congress convenes once every year
on the 4th Monday of July (unless otherwise provided for
determine, until 30 days before the opening of the next
regular session, excluding Saturdays, Sundays, and legal
holidays. ·

Special Sessions called by the President at any time

when Congress is not in session

'···" Page 29 of 320

A TENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Regular v, Special Session ..iouse OF REPRESENTATIVES

In a special session, the Congress may consider 'general
legislation or only such subjects as the President may
Nature of Proceec!ing Required Votes Basis
designate; while in a regular session, the power of the
Congress is not circumscribed except by limitations.
Affirm I Override 1/3 of All Sec. 3(3~.
Art. Xi
Kinds of Recess Resolution to lrnpeach
a. Voluntary Recess: takes place before th9 adjournment
of Congress like Christmas recess
b. Compulsory Recess:: takes place when the Congress
adjourns COMMON TO BOTH

Quorum to do business - Majorit.y of each House shall

Nature of Proceeding Required Votes Basis
constitute a quorum.
• A smaller number may adjourn from day to day and -,
2/3 of All Sec. 16(3)
may compel the attendance of absent members. . Discipline Members
• In computing a quorum, members who are outside the
country and thus outside of each House's coercive Majority of All Sec. 16(1)
Election of Officers
Jurisdiction are not included.
• Majority in Senate: The basis in determining the
2/3 of Both Sec. 23
existence of a quorum in the Senate is the total number Declare the
Existence of a State Houses.voting
of Senators who are in the country and within the
of War separately
coercive jurisdiction of the Senate (Avelino v. Cuenco,
GR. No. L-2821, 1949}.
• Majority of the House: means Y2 +1 of the actual Override President's 2/3 of All in the Sec. 27(1)
membership of the House who are within the coercive Veto House of Origin
jurisdiction of the Congress (within the Philippines}.
• Majority of all members of Congress: means Majority w/in Sec. 16(2);
majority of the entire composition of Congress Compulsive Avelino v.
Quorum to do
regardless of the number of members present or Power of the Cuenca
business
absent during time tho question is brought to the floor House
as long as there is quorum (i.e. (24/2} +1 for the Senate
and (250/2} +1 for the HOR}
.
1 /5 of Members Sec. 16(4)
·,
Voting Majorities of Congress
SENATE
Yeas and Nays in the present of each
Journal house
I c
'\
Nature of Majority of Ali Sec. 28(4}
Required Votes Basis Tax Exemption
Proceeding

For the cffectivity of 2/3 of All Sec. 21, Art. Majority of Both Art. VII,
treaty or VII Confirmation of new Houses, voting Sec. 9
international VP nominated by separately
agreement President
Conviction in 2/3 of Al( Sec. 3(6},
Impeachment . I Art. XI Determination that 2/3 of Both Art. VII,
Pres. Unable to Houses, voting Sec. 11 '
\....
discharge powers & separately
duties t: .•

To break a tie in Majority of All, Art. VII,

presidential election
voting separately Sec. 4

Page 30 of 320
 ATENEO CENTRAL
BAR OPE:RATIO~S 2019 POLITICAL LAW

Revocation of Proc. Majority of All, Art. VII, G. APPROPRIATION ANO RE-ALIGNMENT

Of Martial law/ voting jointly Sec. 18
Suspension of Priv. Appropriation Biiis
of Writ of Habeas
; The primary and specific aim Is to apprcpriate a sum of
money from the public treasury. (e.g., Budget).
Corpus
A bill creatlnq a new office, and appropriating funds for it is
Art. VII, not an appropriation bill.
Extension of Proc. Of Majority of All,
MUSuspension. Of voling jointly Sec. 18
General Rule: No money shall be paid out of the National
Priv. of WHC
Treasury (Soc. 29).
To Concurw/ Majority of All Art. VII,
Exception: In pursuance of an appropriation made by
President in granting Sec. 19
law. ,
amnesty
• This rule does not prohibit oontinuing
appropriations (e.g. for debt servicing). This is
Instances when Congress is voting Separately because the rule does not require yearly or annual
1. Choosing the President (CONST. Art.Vil, Sec.14) appropriation.
2. Determine President's disability (CONST. Art.VII,
Sec.11) Limitations:
3. Declaring existence of a state of war in joint session Cannot increase the appropriations recommended by the
CONST. Art. VI, Sec. 23) . President for the operatior,' of the Government as specified
4. Confirming nomination of Vice-President (CONST, in the budget. (Sec. 25 (1))
Art. VI, Sec. 9) The provisions must relate specifically to some particular
5. Proposing Constitutional amendments (CONST., Art. appropriation therein and any such provision or enactment
XVII, Sec.1) must be limited in its operation to the appropriation to
which it relates. (Sec. 25 (2)) :
Instances when Congress voting Jointly The procedure in approving appropriations for Congress
1. Revoking or extending proclamation suspending the shall strictly follow the procedure for approving
privilege of writ of habeas corpus (CONST. Art. VII, ·. appropriations for other departments and agencies. (Sec.
Sec.18) 25 (3))
2. Revoking or extending declaration of martial law A special appropriations bill must specify the purpose for
(CONST. Art. vn, Sec. 18) which It is intended and must be supported by funds
actually available as certified by the National Treasurer or
Officers of Congress (Sec. 16) to be raised by a corresponding revenue proposal therein.
Senate President (Sec. 25 (4))
Speaker of the House . • Spoclal Appropriations Biii: (1) Must specify
Such other officers as it may deem necessary. purpose for which It ls intended; (2) Supported
f ;.
by funds actually available (certified by
Election of Officers National Treasurer) OR raised by revenue
• By a majority vote of all respective members proposal
• The Senate has prerogative to choose how to elect Appropriations must be for a public purpose
other officers apart from the SenAte President and Cannot appropriate public funds or property, directly or
House Speaker. So the Court cannot de-prodaim indirectly, in favor of. (Sec. 29 (2))
Guingona (Tatad v. Guingona, G.R. No. 134577, Any sect, church, denomination, or sectarian institution, or
1988). system of religion, or
• The Senate President or Speaker of the HOR is elected Any priest, preacher, minister, or other religious teacher or
through a majority vote of all its respective Members, dignitary as such.
and such other officers as may deem necessary.
(CONST. Art. VI, Sec.16, Par.(1)) Exception: if the priest, etc. is assigned to: (APOL)
, 1. The Anned Forces
2. Any fenal institution
3. Government Qrphanage

Page 31 of 320

......_..;;
 ATENEO CENTRAL
BAR OPERATIONS 2019
4. Government !.eprosarium
The government is not prohibited from appropriating ,
money for a valid secular purpose, even if it incidentally
benefits a religion. (e.g. appropriations for a national police
force is valid even if the police also protects the safety of
clergymen)
A valid appropriation may have several related purposes
that are by accounting and budgeting practice considered
, as one purpose, e.g., maintenance and ,2ther .QPerating
1xpenaes (MOOE), In which case, the related purposes
shall be deemed sufficiently specific for the exercise of the
President's item veto power. (Be/gica v. Ochoa, G.R. No.
208566, 2013)
An appropriation may be validly apportioned into
component percentages or values provided that each
percentage or value must be allocated for its own
corresponding purpose for such component to be
considered a proper line-item. (Belgica v. Ochoa, G.R. No.
208566, 2013)
The temporary use of public property for religious purposes
is valid, as long as the property is available for all religions.
Tl1e TRB, by warranting to compensate MNTC for loss of
revenue resulting from the non-implementation of the
periodic and interim toll fee adjustments, violates the
constitutionally-guaranteed act and exclusive power of the
Legislature to appropriate money for public purpose from
the General Funds of the Government. (Franciscov. Toll
RegulatoryBoard, G.R. No. 166910, 2010)
Congressional pork barrel Is unconstitutional
(PERLAS-BF.RNA BE)
1. Violates the doctrine of separation of powers -
Congress intrudes in the execution of the project.
It grants the legi:-.lators the authority to participate
in post-enactment phases of project
implementation and the power to identify the
project they decided to be funded through 2013
PDAF Articles
2. Violates the non-delegabllity of legislative
power - When legislators are given persons lump-
sum fund for which they are able to dictate and
personally determine the amount of fund to be
used anci its beneficiary, the principle of non
delegability is violated sfnce the power to
appropriate is done by law and lodged with
Congress collectively and not with its individual
members
Page 32 of 320 ·
POUTICAL LAW
3. Violates Checks and Balance The President
cannot exercise his item-veto power because the
purpose of the lump-sum discretionary budget is
stilt uncertain. Furthermore, it cannot be
considered an item because an item is defined in
the field of appropriations as the· particulars,
details, distinct and severable parts of the
appropriation or of the bill.
4. Violates Accountability under Article XI,
Section 1 of the Constitution - The fact that
individual legislators are given post-enactment
roles in the implementation of the budqet makes it
difficult for them tu become disinterested
"observers when scrutinizing, investigating or
monitoring the implementation of the appropriation
iaw (Belgica v. Hon. Ochoa, 2013)
Malampaya and Presidential Social Fund violates the
non-delegabil!ty of legislative power (PERLAS-
BERr..lABE)
• Malampaya fund - The phrase "and for such
other purposes as may be heroafter directed by
the President" under Section 8 of PD 91 O
constitutes an undue delegation of legislative
power insofar as it does not la}' down a sufficient
standard to adequately determine the limits of
the President's authority with respect to the
purpose for which the Malampaya Funds may
be used. (Belgica v. Hon. Ochoa, 2013)
• Presidential Social Fund - ''to finance the priority
infrastructure development projects" under
Section 12 of Presidontial Decree No. 1869, as
amended by Presidential Decree No. 1993, for
both falling the sufficient standard test in violation
of the principle of non-cielegability of legislative
power. (Be/gica v. Hon. Ochoa, 2013)
Special Funds (Sec. 29 (3))
Money collected on a tax levied for a special purpose shall
be treated as a special fund and paid out for such purpose
only.
Once the special purpose is fulfilled or abandoned, any
balance shall be transferred to the general funds of the
Government.
Transfer of Appropriation (Sec. 25 (5))
General Rule: No law shall be passed nuthorizing any
transfer of appropriations. .,
'i.._..,
Exception: The following may, by law, be authorized to
augment any item in the general appropriations law for
'
(
<....... •
 ATENEO CENTRAL
BAR OPERATIONS 2019
their respective offices from savings in other items of their
respective appropriatlons.8
President
Senate President
Speaker of the House of Representatives
Chief Justice of the Supreme Court
Heads of the Constitutional Commissions
The requisites for the valid transfer of appropriated
funds under Sec. 25 (5}:
There is a law authorizing the President, Senate President,
Speaker, Chief Justice, and heads of the Constitutional
Commissions;
The funds to be transferred are savings generated from the
appropriations for their respective offices; and
The purpose of the transfer is to augment an Item in the
general appropriations law for their respective offices.
Considering the above requisites, the following
activities under the OAP are unconstitutional:
The withdrawal of unobligated allotments from the
implementing agencies and the declaration of the
withdrawn unobligated allotments and unreleased
appropriations as savings prior to the end of the fiscal year
and without complying with the statutory definition of
savings contained. in the General Appropriations Act;
Unobligated allotments were encompassed by the first part
of the definition of "savings" in the GAA, that is, as "portions
or balances of any programmed appropriation in this Act
free from any obligation or encumbrance." However, NBC
No. 541 (Authority of DBM to withdraw unobligated
allotments) did not set in dear terms the criteria for the
withdrawal of unobllgated allotments. It only specified that.
,,--,
'. .:
the withdrawal of unubllgated allotments will be for those
"slow- moving projects" in order "to fund priority and/or
. fast-moving programs/projects." The problern is that such
withdrawn money does not satisfy the category of being a
saving since it is not technically considered as abandoned
or discontinued project
Cross-border transfers of savings of the executive
department to offices outside the executive department;
Funding of projects, activities, programs not covered by
appropriations in the General Appropriations Act (Araullo
v. Aquino, G.R. No. 209287, 2014). · Inquiries in Aid of legislation provide that the filing or
Savings could be generated only when the purpose of the
appropriation is fulfilled, or when the need for the
appropriation being no longer existent. However, since
information on actual revenue collections and targets are
8 Note: The Uc,t is exclusive.
·:• ..I Page 33 of 320
•.j
POLITICAL LAW
made available every quarter or at such time as the DBM
,may prescribe, actual revenue surplus may be determined
accordingly and release from unprogrammed funds may
take place even before year end. The exercise of the
powe,· to augment shall be strictly construed by virtue of its
bein~ an exception to the general rule that the funding of
PAPs shall be limited to the amount fixed by Congress for
the purpose. (Arau/lo v. Aquino, G.R. No. 209287, 2015)
Discretionary Funds of Particular Officials:
- Disbursed only for public purposes
- Should be supported by appropriate vouchers
- Subject to guidelines as may be prescribed by law ( Sec.
25 (6)).
Automatic Re-Appropriation
If Congress fails to pass the General Appropriations Bill
(GAB) by the end of any fiscal year, the GA law for the
preceding fiscal year is deemed reenacted. 1t will remain in
force and effect until Congress passes the GAB (Sec. 25
(7)).
H. LEGISLATIVE INQUIRIES AND OVERSIGHT
FUNCTIONS
Scope
The power of legislative investigation includes:
(1) The power to issue summons and notices;
(2) Power to punish or declare a person in contempt
(3) The power to determine the rules of its proceedings
Legislative Inquiries (Sec. 21}
Legislative inquiries must be conducted "in aid of
legislation" which does nc1t necessarily mean that there is
pending legislation regarding the subject of the inquiry.
Hence. the materiality of a question is determined not by
its connection to any pending legislation, but by its
connection to the general scope of the inquiry .
If the investigation is no longer "in did of legislation" but, "in
aid of prosecution" where the stated purpose of the
investigation is, to determine the existence of violations of
the law, it is beyond the scope of congressional powers.
The sub judice rule does not apply to inquiries in aid of
legislation. The Senate Rules of Procedure Governing
pendency of any prosecution of criminal or administrative
action should not stop or abate any inquiry to carry out a
legislative purpose. Hence, no individual can escape the
power of the Senate to investigate, even if he or she has a
ATENEO CENTRAL
BAR OPERATIONS 2019
pending administrative or criminal case (Sabio v. Gordon,
G.R. No. 174340, 2006).
ENFORCEMENT - While the Constitution does not
expressly vest Congress with the power to punish non-
members for legislative contempt, the power has
nevertheless been invoked by the legislative body as a
means of preserving its authority and dignity. (Arnau/t v,
Nazareno, G.R. No. L-3820, 1950)
Note:
The principle that Congress or any of its bodies has the
power to punish recalcitrant witnesses is founded upon
reason and policy. Said power must be considered implied
or incidental to the exercise of legislative power. (Negros
Orientai II Electric Cooperative Inc. v. Sangguniang
Panlungsod of Dumaguete, G.R. No. L-72492, 1987)
The continuance of such incarceration only subsists for the
lifetime, or term, of such body. Thus, for each House it lasts
for only 3 years; but, if the Senf•te incarcerates a witness,
the term is indefinite. The Senate, with its staggered terms,
is a continuing body.
The exercise by Congress or by any of its committees of
its contempt power is based on the principle oi self-
preservation. As the branch of the government vested with
the legislative power, independently of the judicial branch,
it can assert its authority and punish contumacious acts
against it. Such power is sui generis, as it attaches not to
the discharge of legislative functions per se, but to the
sovereign character of the legislature as one of the three
independent and coordinate branches of government.
(Standard Chartered v. Senate, G.R. No. 167173, 2007).
Limitations: (ADR)
1) The inquiry must be in Aid of legislation.
2) The inquiry must be conducted in accordance with the.
'Q.uly published rules of procedure' of the House
conducting the inquiry; and
3) The rights of persons appearing in or affected by such
inquiries shall be .Respected. (e.g., right against self-
incrimination) (Bemas, 1987 Philippine Constitution: A
Commentary, 761, 2009).
Oversight Functions (Sec. 22)
Question Hour- Appearance of department heads before
Congress to give account of their stewardship (Bernas,
1987 Philippine Constitution: A Commentary, 769, 2(:09).
Under Section 22, department heads (members of the , It is incumbent upon the Senate to publish the rules for its
Executive Department) cannot be compelled to appear legislative inquiries in each Congress or otherwise make
before Congress. Neither may department heads Impose the published rules clearly state that the same shall be
Page 34 of 320
POLITICAL LAW
their appearance upon Congr6ss. This is in line with the
principle of separation of powers.
Department heads may appear before Congress in the
following instances: .
Upon their own · initiative, with the consent of the
President (and that of the House concerned}
- Upon the request of either House
- Written questions shall be submitted to the President of
the Senate or Speaker of the House at least 3 days before
the scheduled appearance of the department heads.
lnterpellations shall not be limited to written questions,
but may cover related matters.
The inquiry will be conducted in executive session
when:
> Required by the security of state, or public interest,.
and ·
> When the President so states in writing.
The Permissible Powers o't Congressional Oversight
Scrutiny based primarily on Congress' power of
appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments
to appear before and be heard by either of its Houses on
any matter pertaining to their departments and its power of
confirmation; and Investigation and monitoring of the
implementation of laws pursuant to the power of Congress
to conduct inquiries in aid of legislation (Be/gica v.
Ochoa, G.R. No. 208566, 2013).
A third power, the review of implementing rules and
regulations, · is unconstitutional. Any provision that
empowers Congress or any of its members to play any role
in the implementation or enforcement of the law violates
separation of powers. /'•;
" I
\
There is no such thing as a 'question hour' in the
Constitution (It ls a parliamentary concept and practice).
The distinction in legislative hearings is between ., '
investigative function and oversight function.
The mere filing of a criminal or an administrative complaint
before a court or a quasi-judicial body should not
automatically bar the conduct of legislative investigation.
The exercise of sovereign legislative authority, of which the
power of legislative inquiry is an essential component,
cannot be made subordinate to a criminal or an
administrative investigation (Standard Chartered v.
Senate, G.R. No. 167173, 2007). -'-..::Y
, ....,.
I ·.
\ ..~~
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

effective . in subsequent Congresses or until they are Naturo Discretionary Compulsory

amended or repealed to sufficiently put the public on
notice. If it was the intention of the Senate for its present "All heads of ( 1 ) President
rules on legislative lnquirles to be effective even in the next departments of {2) Supreme Court
Congress, it could have easily adopted the same language the Executive Justices
it had used in its main rules regc:rding effectivlty. Branch of the (3) Members of the
Publication in the internet does not satisfy the requirement government shall AFP if prevented by
of publication as provided in the Constitution ( Garci/lano v. Exempted secure the the President as the
House of Representatives, G.R. No. 170388, 2008). Persons consent of the Commander-In-Chief
President prior to (Gudani v. Senga,
Violation of internal procedures of Senate cannot, as a appearing before 2006)
general rule, be subject to judicial supervision since "Each either House of
house shall determine the rules of its proceedings." The Congress." (EO,
exceptions are when there is arbitrary and improvident use 464, Sec. 1)
of power, which ultimately denies due process (Dela Paz '
v. Senate, G.R. No. 184849, 2009). (1) Executive privilege which must be
invoked by the President himself or
Question Hour vs. Legislative Investigation through the Executive Secretary by
Sections 21 and 22, while closely related and Exempted authority of the President (Senate v.
complementary to each other, should not be considered as Info Ermita, 2006)
pertaining to the same power of Congress. One sr,ecifically (2) Privileged information, e.g., national
relates to the power to conduct inquiries in aid of defense, diplomatic, mllltary secrets.
legislation, the aim of which is to elicit information that may (3) Right against self-incrimination
be used for legislation, while the other pertains to the
power to conduct a question hour, the objective of which is Invocation of Executive Privilege
to obtain information in pursuit of Congress' oversight Under Article VI, Section 22, the appearance of
function. department heads in the question hour is discretionary on
their part. However, under Section 21, Congress is not
Section 22, in keeping with the separation of powers, bound to respect their refusal to appear in inquiries in aid
states that Congress may only request their appearance. of legislation, UNLESS a · valid claim of privilege is
Nonetheless. when the inquiry in which Congress requires subsequenUy made, either by the President herself or by
their appearance is "in aid of legislation" under Section 21, the Executive Secretary. (Senate v. Ermita, G.R. No.
the appearance is mandatory (Senate v. Ermita, G.R. No. 169777, 2006)
169777, 2006).
Only the President may invoke this. If it is invoked by
somo other person, there must be proof that he or she
QUESTION LEG.
has Presidential authority.
HOUR (Sec. 22, INVESTIGATION
Article VI) (Sec. 21, Article VI)
A claim of privilege, being a claim of exemption from an
Who may Only department Any person obligation to disclose Information, must, therefore, be
appear heads · clearly asserted. The court itself must determine whether
\:.. :, the circumstances are appropriate for the claim of
Entire body Entire body or its privilege, and yet do so without forcing a disclosure of the
Who
respective very thing the privilege is designed to protect. Absent then
conducts
committees a statement of the specilic basis of a claim of executive
privilege, there is no way of determining whether it falls
Matters related to Any matter in aid of
under one of the traditional privileges, or whether, given
the department legislation
Subject the circumstances in which it is made, it should be
only as an
matter/ respected (Senate v. Ermffa, G.R. No. 169777, 2006).
exercise of
Purpose
Congress'
The President has r.onstitutional authority to prevent any
(\,) i' oversignt function
member of the Armed Forces from testifying before a
legislative inquiry by virtue of her power as commander-in-
.... , Page 35 of 320
ATENEO CENlRAL
BAR OPERATIONS 2019 . POLITICAL LAW

chief, and that as a consequence a military officer who
defies such injunction is liable under military justice. The
only way to circumvent this is by judicial order because the
President may be commanded by judicial order to compel
the attendance of the military officer. Final judicial orders
have the force of the law of the land which the President
has the duty to faithfully execute (Gudani v. Senga, G.R.
No. 170165, 2006).
.,
Inquiries in aid of leqlslation aim to elicit information that
may be used for legislation, while "question hour" pertains
to the power to conduct inquiries, the object of which is to
obtain Information in pursuit of Congress' oversight
function.
When Congress merely seeks to be Informed on how
department heads are implementing the statutes which it
has issued, its right to such information is not asimperative
as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance
as a matter of duty. In such instances, Section 22 of Article
VI, in keeping with the separation of powers, states that
Congress may only request their appearance.
Nonetheless, when the inquiry In which Congress requires
their appearance is "in aid of legislation" under Section 21,
Article VI, the appearance is mandatory (Senate v. Ermita,
G.R. No. 169777, 2006).
I. POWER OF IMPEACHMENT
Power of impeachment (Article XI)
Exclusive Power To Initiate
The House of Representatives shall have the exclusive
power to initiate all cases of impeachment (Sec. 3 (1))..
• The impeachment proceedings begin with :3 complaint
filed with the House of Representatives either by a
member of the House or by any citizen supporter' by a
resolution of endorsement by any member. The
complaint is referred to a Committee which prepares a ,
report (which can be favorable or unfavorable). In
either case, the House by a vote of 1/3 of all its
members decides whether complaint should be given
due course. (Sec. 3(2-3)).
• Referral to the Committee and decision by the House
is unnecessary if the complaint is filed by at ieast 1/3 of
all the members of the house (Sec 3(4)).
Exclusive power to try and decide
The Senate shall have the sole power to try and decide all
cases of impeachment. No person shall be convicted
without the concurrence of 2/3 of all the Members of the
Senate (Sec. 3 (6)).
Page 36 of 320
The penalty imposable shall be limited to
removal from office and .
disqualification to hold any office under the Republic of the
Philippine (Soc. 3(7)).
Officers Sl•bject to Impeachment (Sec. 2j (VSCO-P)
fresident .
YJce President
Members of the §C
Members of the ~onstitutio.nal Commissions
Qmbudsman ·
Grounds for Impeachment (Sec. 2) (GOT2 BGC)
Culpable violation of the ,Gonstitution
!reason
§ribery
Qraft and Corruption
Betrayal of Public !rust
Qther high crimes
J. ELECTORAL TRIBUNALS AND THE COMMISSION
ON APPOINTMENTS
ELECTORAL TRIBUNALS (Sec. 17) .
The Senate and the House shall each have an Electoral
Tribunal.
Composition
3 Supreme Court Justices to be designated by the Chief
Justice.
6 Members of the Senate or House, as the case may be.
They shall be chosen on the basis of proportional
representation from the political parties and party-list
organizations.
i._ -i
The senior Justice in the Electoral Tribunal shall be its
Chairman.
Nature of Tribunals
Non-partisan court. It must be independent of Congress
and devoid of partisan influence and consideration.
Disloyalty to lhe party and breach of party discipline are not
valid grounds for the expulsion of a member. (Bondoc v.
Pineda, GR No. 97710, September 26, 1991)
Security of Tenure
Membership in the HRET may not be terminated except for
· a just cause, such as the expiration of the member's
congressional term of office, his death, permanent
disability, resignation from the political party he represents
in the tribunal, formal affiliation with another political party,
· or removal for other valid cause. A member may not be
expelled by the HOR for 'party disloyalty' short of proof that
he has fonrnally affiliated with another political group. ,...:.·
(Pimentel v. HRET)
 ATENEO CENTRAL
BAR OPERATIONS 2019
Jurisdiction
(a) Each Electoral tribunal shall be the sole judge of all
contests relating to the (ERQ) slection, Beturns and
Qualifications of their respective members. · This
includes determining the validity or invalidity of a
proclamation declaring a particular candidate as the
winner.
(b) Once a winning candidate has been:
proclaimed,
taken his oath, and
assumed office as a Member of the House of
Representatives,
the COMELEC's jurisdiction over election contests
relating to his election, returns, and qualifications ends,
and the HRET's own jurisdiction begins.
Ncte: The Constitution provides that a person assumes
office "at noon on the 30th day of June". The Oath of Office
the petitioner presented is not valid. As far as the court is
concerned, she took her oath on 5th of June which is not
the one prescribe by the Consti~utiori. Therefore, the
COMELEC still has jurisdiction. Before there is a valid
taking of the oath, it must be made (1) before the Speaker
of the House of Representatives, and (2) in open session.
(Ongsiako Reyes v. COMELEC, G.R. No. 207264, 2013)
Does the HRET have jurisdiction over pro-proclaimed
controversies?
No, the Electoral tribunals have no jurisdiction over pre-
proclaimed controversies which come under the
jurisdiction of the COMELEC.
. :,
Is jurisdiction lost upon withdrawal or protest?
No. Jurisdiction once acquired, is not lost upon the
instance of the parties, but continues until the case is
terminated. Mere filing of a motion to withdraw protest,
without any action on the part of tho tribunal, does not
.. , ~ divest it of jurisdiction. An election protest is Impressed
:~ ';!
. .,..... F with public interest in the sense that the public is interested
-,
~.....:../ . in knowing what happened in the elections. Thus, private
interest must yield to the common good. (Rcbles v HRET,
GR No 86647, February 5, 1990)
ELECTION CONTEST - Where a defeated candidate who
~ ~
..
,;_,;: received the second highest number of votes challenges
., the qualifications of a winning candidate and claims for ·
.. I
-:» himself the seat of a proclaimed winner.
In the absence of an election contest, tne Electoral
Tribunal is without jurisdiction. However, each House can
expel its owr. members or even defer their oath taking until
Page 37 of 320
. .. /
. ,'
I:~_.:
POLITICAL LAW
their qualiflcatlons are determined. This may be exercised
even without an election contest.
The power of the HRET to determine the citizenship of a
winning candidate does not include looking at the grant of
citizenship to the candidate's ascendant. That would boa
prohibited collateral attack (Vilando v. HRET, G.R. Nos.
192147 & 192149, 2011).
. Since the Electoral Tribunals are indepsndent
constitutional bodies:
Neither Congress nor the Courts may interfere with
procedural matters relating to the functions of the Electoral
Tribunals.
Its members may not be arbitrarily removed from their
positions in the tribunal by the parties that they represent.
Neither may they be removed for not voting according to
party lines, since they are acting independently of
Congress.
The mere fact that the members of either the Senate or the
House sitting on the Electoral Tribunal are themselves the
ones sought to be disqualified (due to the filing of an
eleetion contest against them) does not warrant the
disqualification of all the members of the Electoral Tribunal.
Judicial review of decisions of the Electoral Tribunals. may
be had with the SC only on the ground of grave abuse of
, discretion, the decision or resolution having been rendered
without or in excess of jurisdiction.
Rule' Making Power
The power of the HRET, as the sole judge of all contests
relating to the election, returns and qualifications of the
Members of the House of Representatives, to promulgate
rules and regulations relative to matters within its
jurisdiction, including the period of filing election protests
before it, Is beyond dispute. It's rule-making power
necessarily flows from the general power granted it by the
Constitution. (Lazatin v HRET, GR No 84297, December
8, 1998)
K. COMMISSION ON APPOINTMENTS (CA)
(Sec. 18)
Composition
- Senate President as ex-officio chairman
- 12 Senators
- 12 Members of the House
Manner of Constltuticn
Elected on the basis of proportional representation from
the political parties and party-list organizations within 30
days after the Senate and the House of Representatives
shall have organized with the election of the Senate
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

President and the Speaker of the House (PHIL. CONST.

art. VI, § 19).

The minimum required number of elected senators Limitations .

belonging to the same political party in order for the party Congress cannot by law prescribe that the appointment of
to qualify for a seat in ttie CA is at least 2 elected senators a person to an office created by such law shall be subject
for every seat in the CA. (Guingona v. Gonzales, G.R. No. to confirmation by the CA. .
106971 March 1, 1993). Appointment; extended by the President to the
enumerated positions while Congress is not in session
The Constitution does not require that the full complement shall only be effective until disapproval by the CA, or until
of 12 senators be elected to the membership in the CA the next adjournment of Congress.
before it can discharge its functions and that it is not Since the Commission on Appointments is an independent
mandatory to elect 12 senators to the CA ( Guingona vs. constitutional body, its rules of procedure are outside the ·
Gonzales, G.R. No. 106791, March 1, 1993). scope of congressional powers as well as that of the
judiciary.
The two houses have primary jurisdiction on who should
sit in the CA. This includes determination of party affiliation
and number of party members for purpose of determining L. INITIATIVE AND REFERENDUM
proportional representation (Ori/on v. De Venecia, G.R. No.
180055, 2009). (see discussion on People's initiative on Statute in
subsection A of this topic)
Voting
- The Commission shall rule by a majority vote of all the ---- end of topic---·
Members.
- The chairman shall only vote in case of a tie.
- The Commission shall act on all appointments submitted
to it within 30 session days.
- The Commission shall meet only while Congress is in '
session, at the call of i'.s Chairman or a majority of all its
members.

Jurisdiction
Commission on Appointments shall confirm the
appointments by the President with respect to the following
positions: (E·MA2-C)
- Heads of the gxecutlve DepartmentG
Exception: Appointment of Vice President as a member .
of the Cabinet needs no confirmation (PHIL. CONST. Art
VII, §15)
- ,8mbassadors,
(}
- Other public .Ministers or consuls
Officers of the AFP from the rank of Colonel or Naval
Captain and above; and ·
Other officers whose appointments are vested in him
by the ~onstitution {e.g. COMELEC members)
• Examples:
o Chairmen and commissioners of the CSC,
COMELEC, and COA
(]1
o Regular members of the Judicial Bar Council

Note: The consent of Commission on Appointments is

required only in the 151 sentence enumeration of Art. VII,
Section 16. (Sarmiento v. Mison, G.R. No L-79974, 1987)
Page 38 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Ill. EXECUTIVE DEPARTMENT A. QUALIFICATIONS, ELECTION, AND TERM OF THE

TOPIC OUTLINE UNDER THE SYLLABUS
A. Qualifications, election, and term of the President
and Vice-President
B. Privileges, Inhibitions, and Disqualifications
C. Powers of the President
1. Executive and Administrative powers in
General
2. Power of Appointment
a. Confirmation and by-passed appointments
b. Midnight and ad interim appointments
c. Power of Removal
3. Power of Control and suoervtston
a. Doctrine of Qualified Political Agency
b. Executive departments and Officers
c. Local Gcwernment Units
4. Military Powers
a. Calling out power
b. Declaration of Martial Law and suspension
of the privilege of the writ of habeas
corpus; requisites and parameters of
extension
5. Executive Clemency
6. Powers pertinent to Foreign Relations
D. Rules of Succession
PRESIDENT AND VICE-PRESIDENT
Qualifications of President And Vice-President (Secs.
3-4):
PRESIDENT VICE PRESIDENT
.
1. Natural-born citizen of the Philippines
2. Registered voter '
3. Able to read and write
4. At least 40 years old on the day of election
.
5. Resident of the Philippines for at least 10 years
immediately preceding the election
6. Term of 6 years
7. Unless otherwise provided by law, term of offtee
commence at noon of June 30 next following the
election
Single term only; not eligible Term limitation: 2
for any reelection (but can successive terms.
run if no longer incumbent
president like President
Estrada in May 2010).
Any person who has
succeeded as President, and
served as such for more than
4 years shall NOT be
qualified for election to the
same office at any time.

Voluntary renunciation of the office for any length of

time shall not be considered an interruption in the
continuity of service.

Term of Office
The President and Vice President shall be elected by direct
vote of the people for a term of 6 years. (CONST. Art. VII,
Sec.4)

'The president shall not be eligible for any re-election. No

t -~ person who has succeeded as President and has served
··-·~"
as such for more than 4 years shall be qualified for election
). .\ to the same office at any time. (CONST. Art VII, Sec.4,
·\.:-)
Par(1))

No Vice-President shall serve for more than 2 consecutive

terms. (CONST. Art. VII, Sec.4., Par.(2))

.·· f. Election
·. .;· 1. Regular: 2nd Monday of May, every 6 years
2. Special (Requisites)
a. Death, permanent disability, removal from
office or resignation of both President and
Vice-President

Page 39 of 320

.. ,
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

b. Vacancies occur more than 18 months before iii. Participating in any business.
the next regular presldential election; and iv. Being financially interested in any
c. A law passed by Congress calling for a special contract with, or in any franchise,
election to elect a President and Vice or special privilege granted by the
President to be held not earlier than 45 days government or any subdivision,
nor tater 60 days from the time of such call agency or instrumentality thereof,
(CONST. Art. VII, Sec.10) including GOCCs or their
subsidiaries. (Art. VII, Sec. 13)
Congress as Canvassing Board
The proclamation of presidential and vice presidential Spouses and Cannot be appointed during
winners is a function of Congress and not of the :.tth degree president's tenure as:
COMELEC (Macalintal v COMEL£C, GR No. 157013, relatives of the 1. Members of the Constitutional
June 10, 2003) President Commissions
( consanguinity 2. Office of the Ombudsman
SC as the Presidential Electoral Tribunal (PET) '- or affinity) 3. Department Secretaries
The SC, sitting en bane, shall be the sole judge of all 4. Department Under-secretaries
contests relating to the election, returns and qualifications 5. Chairman or heads of bureaus or
of the President or Vice President, and may promulgate its offices including GOCCs and their
rules for the purpose. (Macalintaf v PET, GR No. 191618, subsidiaries.
November 23, 2010)
If the spouse, etc., was already in any
Oath of Office of the above offices before his/ her
Before they enter on the execution of their office, the spouse became President, he/ she
President, Vice-President or the Acting President shall may continue in office. What is
take the oath or affirmation (CONST. Art. Vfl, Sec.5) prohibited is appolntrnent and
reappointment, not continuation in
B. PRIVILEGES. INHIBITIONS, AND office.
DISQUALIFICATJONS
Spouses, etc., can ba appointed to the
Disquallfications: judiciary and as ambassadors and
SUBJECT SOURCEOF DISQUALIFICATION consuls.
I

President PROHIBITED FROM:

I. Holding any office or employment The Chief Presidential Legal Counsel (CPLC) has the duty
Vice-President during their tenure of giving independent and impartial legal advice on the
Exceptions: actions of the heads of various executive departments and
Cabinet • Otherwise provided in the agencies and to review investigations involving heads of I ·,
Members Constitution. (e.g., Vice executive departments and agencies, as well as other
President appointed as a ' '.
f' ,..,
Presidential appointees. '..,:.,
Deputies or member of the Cabinet,
Assistants of Secretary of Justice sits as an The PCGG is charged with ·the responsibility, under the · \ .. ,
Cabinet ex-officio member on Judicial President, of recovering ill-gotten wealth. The offices of the
Members and Bar Counci) PCGG and CPLC are incompatible. Without question, the
• The positions are ex-officio and PCGG is an agency under the Executive Department.
they de.! not receive any salary or Thus, the actions of the PCGG Chairman are subject to the. I
'i
·.,
_.

"-...::
other emoluments therefor. review of the CPLC (Public Interest Group v. Elma, G.R.
(e.g., Sec. of Finance is head of No. 138965, 2006). { '.",
t._ ..: .•
Monetary Board)
ii. Practicing, directly or indirectly,
any other profession during their
tenure.

Page 40 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
Exception to the prohibition on the President and
his/her official family from holding any other office or
employment
if 4th degree relatives are already in office when a
President assumes office, the relatives are not thereby
ousted from their positions. What is prohibited is
appointment or reappointment and not uninterrupted
continuance in office
Inhibitions
No increase in salaries until after the expiration of the term
of the incumbent during which such increase was
approved (Sec. 6).
Shall not, during tenure. directly or indirectly, practice any
other professior., participate in any business, or be
financially interested in any contract with, or in any
franchise, or specla! privilege granted by the Government
or any subdivision, agency or instrumentaiity thereof,
including GOCCs or their subsidiaries (Sec. 13).
Shall not receive any other · emoluments from the
government or any other source (CONST. Ari. VII, Sec.6)
Shall avoid conflict of interest in conduct of office ( Sec. 13).
.......... , Privileges
1. Presidential Immunity
Immunity from suit is personal to the President and may
be invoked by him alone. The President may waive it
impliedly, as when he himself files suit (So/iven v.
Makasiar,G.R. No. 8287, 1988).
The presidential immunity from suit remains preserved
under our system of government, albeit not expressly
reserved in the present constitution (Rubrico, et al. v.
'·· :· GloriaMacapagal-Arroyo,et al., G.R. No. 183871, 2010).
Unlawful acts of public officials are not acts or' State and
the officer who acts illegally is not acting as such but stands
in the same footing as any other trespasser. Once out of
office, even before the end of the six-year term, immunity
for non-official acts is lost (Estrada v, Desietio, G.R. No. ·
146710-15, 2001).
r ;1
y~ .,
Even if the DECS Secretary is an alter ego of the
President, the President's immunity from suit cannot be
invoked because the questioned acts are not the acts of
the President but merely those of a Department Secretary
( Gloria v. CA, G.R. No. 119903, 2000).
Duration of Presidential Immunity
.-.-~..
: t, After his tenure, the Chief Executive cannot invoke
•...:..-
immunity from suit for civil damages arising out of acts
done by him while he was President which were not
'
; .::r Page 41 of 320
' J
..... ,.•,/
POLITICAL LAW
performed in the exercise of official duties. (Estrada v.
Desierlo, GR No. 146710, March 2, 2001)
A department secretary, even if an alter ego of the
President, cannot invoke presidential immunity in a case
filed against him because the questioned acts are not the
acts of the President. (Gloria v CA, GR No. 119903, August
15, 2000)
2. Presidential Privilege
Executive Privilege is the power of the President to ·
withhold certain types of information from the court, the
Congress. and the public. (Neri v. Semite, G.R. No.
180643, 2008).
For tile presidential communlcations privilege to
apply, the following must concur:
Communications relate to a "quintessential and non- ·
delegable power" of the President. (e.g. the power to
enter into an executive agreement with other countries
without the concurrence ol the Legislature has traditionally
been recognized in Philippine jurisprudence)
Communir::ations are "recelved" by a close advisor of the
President. Under the "operational proximity" test,
Secretary NP,ri of NEDA can be considered a close advisor,
being a member of President Arroyo's cabinet.
There is no adequate showing of a compelling need that
would justify the limitation of tho privilege and of the
unavailability of the Information elsewhere by an
appropriate investigating authority.
Scope of Executive Privilege
Executive privilege covers all confidential or classified
information between the President and the public officers
covered by this executive order; including:
a. Conversations and correspondence between the
President and the public official covered by this
executive order (Chavez v Public Estates Authority)
b. Military, diplomatic and other national security matters
which in the Interest of national security should not be
divulged;
c. Information between inter-government agencies prior
to the conclusion of treaties and executive agreements
Chavez v. PCGG, G.R. No. 130716, 1998);
d. Discussion in close-door Cabinet meetings (Chavez v.
PCGG, G.R. No. 130716, 1998);
e. Matters affecting national security and public order
(Chavez v. Public Estates Authority, G.R. No. 133250,
2002).
'
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Person covered by the Privilege Difference between Presidential communlcatlons

The person covered by the executive privilege is a person Privilege and Deliberative Process Privilege
in possession of information which is, in the judgment of , Presidential
the head of office concerned, privileged . · Deliberative process
communications
privilege
privilege
Operational Proximity
Not every person who plays a role in the development of Pertains to Includes advisory opinions,
presidential advice, no matter how remote and removed communications, recommendations and
from the President, can qualify for the privilege. The documents or other deliberations comprising
materials that reflect part of a process by which
privilege should apply only communications authored or
presidential decision- governmental decisions and
solicited and received hy those members of an immediate
making and deliberations policies areformulated
white house advisor's staff who have broad and significant
responsibility for investigation and formulating of the · Applies to decision- Applies to decision-making
advice to be given the President on the particular matter to making of the President of executive officials (and
which the communications relate (Neri v. Senate judiciary)
Committee, G.R. Ne. 180643, 2008 citing In re: Sealed,
Rooted in the Based on common law
No. 96-3124, 121 F.3d 729,326 U.S. App. D.C. 276, 1997).
constitutional principle of privilege
separation of powers
Presidential communications are presumptively privileged
and such presumption can be overcome only by mere Requisites: Requisites:
showing of public need by the branch seeking access to 1. It must involve a 1. Predecisional - it
conversations. The oversight function of Congress rnay be quintessential and precedes, in temporal
facilitated by compulsory process ONLY to the extent that non-delegable power sequence, the decision .~
of the President .i
it is performed in pursuit of legislation" (Neri v. Senate, to Which it relates. 'c
2. Operational proximity 2. Deliberative - reflects
G.R. No. 180643, 2008).
3. Important and the give and take of the
compelling need to be consultative process
While the final text of the JPEPA may not be kept kept confidential, not such that disclosure
perpetually confidential - since there should be "ample merely based on would discourage
opportunity for discussion before a treaty is approved" - the general interest candid discussion within
offers exchanged by the parties during the negotiations the agency (In Re:
continue to be privileged even after the JPEPA is Production of Courl
published. Dip!omatic negotiations privilege bears a close Records and
resemblance to the cellberatlve. process and presidential Documents, 2012)
communications' privilP-ge. Clearly, the privilege accorded ,,.. -·'

to diplomatic negotiations follows as a logical consequence C. POWERS OF THE PRESIDENT r" .,

from the privileged character of the deliberative process \_-r_:
(Akbayan v. Aquino, G.R. No. 170516, 2008). 1. Executive Powers, In General
b ••
The Constitution provides that "[t)he executive power shall
When To Apply Executive Privilege: be vested in the President of the Philippines." However, it
Must fall within one of the above. does not define what is meant by executive power although
Must be stated with sufficient particularity so the in the same article it touches on the exercise of certain
Congress or Court can determine the legitimacy of the powers by the President, i.e., the power of control over all
claim of privilege. executive departments, bureaus and offices, the power to ·'""I.-.
Exception to Executive Privilege: execute the laws, the appointing power, the powers under
l
I
_...
• ...
•
.

The President's generalized assertion of privilego must the commander-in-chief clause, the rower to grant
yield to the demonstrated, specific need for evidence in a reprieves, commutations and pardons, the power to grant
pending criminal trial. (U.S. v. Nixon, 418 U.S. 683, 1974). amnesty with the concurrence of Congress, the power to
Executive privilege cannot be used to conceal a crime or a contract or guarantee foreign loans, the power to enter into t.... ,..,·'
possible wrongdoing. Thus, the specific need for evidence treaties or international agreements, the power to submit
in a pending cdrninat trial outweighs the President's the budget to Congress, and the power to address
generalized interest in confidentiality (Neri v. Ermita, G.R. Congress.
No. 169777, 2006). . ...,,,,
Page 42 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
The President's Executive powers are not limited to those
set forth in the Constitution. The President has residual
powers as the Chief Executive of the country. which.
powers include others not set forth in the Constitution
(Marcos v. Manglapus, G.R. No. 88211, 1989).
Power of Administrative Reorganization
The President has the continuing authority to reorganize
the national government, which includes the JJOWer to
group, consolidate bureaus and agencies, to abolish
offices, to transfer functions, to create and classify
functions, services and activities and to standardize
salaries and materials, if effected in good faith and for the
purpose of economy or make the Jureaucracy more
efficient. (MEWAP v Executive Secretary, GR No 160093,
July 31, 2007)
Faithful Execution ctause
Until and unless a law is declared unconstitutional, the
President has a duty to execute it regardless of his doubts
as to its validity.
2. Power of Appointment
:.. .• )l
(a} In general
Nature of the Power to Appoint
Executive in nature; while Congress (and tho Constitution
in certain cases; may prescribe the qualifications for
particular offices, the determination of who among those
who are qualified will be appointed is the President's
prerogative.
In case of vacancy in an office occupied by an alter ego of
the President, such as the office of a department secretary,
:... y
the President must necessarily appoint an alter ego of her
choice as acting secretary before the permanent appointee
of her choice could assume office. Congress, through a
:· 'l law, cannot impose on the President the obligation to
appoint automatically the undersecretary as her temporary
alter ego. An alter ego, whether temporary or permanent,
holds a position of qreat trust and confidence. Congress,
in the guise of prescribing qualifications to an office, cannot . only effective until they are disapproved by the CA or until
impose on the President who her alter ego should be
(Pimentel v. Ermita, G.R. No. 16497, 2005).
May the President appoint an individual as acting
Solicitor General and acting Secretary of Justice?
The President may not appoint an individual as acting
Solicitor General and acting Secretary of Justice in a
concurrent capacity. The designation of Alberto Agra as
acting Secretary of Justice concurrently with his position as
Solicitor General is in violation of the constitutional
prohibition under Article VII, Section 13. It is of no moment
Page 43 of 320
POLITICAL LAW
that the designation was in a temporary capacity. The
..Constitution makes no reference to the nature of the
designation (Fune v. Agra, G.R. No. 191644, 2013).
Kinds of Presidential Appointments untler Sec.15
a. Appointments made by an acting president
b. Midnight appoint -appointment made by a President
after the election of his successor and up to the end of
his term. This type of appointment is prohibited by the
Constitution.
c. Appointments for Partisan Political Consideration.
Those made 2 months before the next Presidential
election. This is prohibited by the Constitution.
d. Regular presidential appointments, with or without
confirmation by the Commission on Appolntments, and
'recess' or 'ad-interim' appointments.
Requisites for Valid Appointment
Authority to appoint and evidence of its exercise;
Transmittal of the appointment and proof of It;
Vacant position at the time of appointment; and
Receipt of the appointment and its acceptance by the
appointee, who possesses all the qualifications and none
of the disqualifications. (Ve/icaria-Garafil v. OP, G.R. No.
203372, 2015).
Exceptions to Midnight Appointments Requisites
1. It is necessary to make such appointment
2. Only temporary appointments can be extended
3. Appointments only in the Executive Department
(CONST. Art. VII, Sec. 15)
The Court held that the rule does not apply to
appointments made in the Supreme Court. (De Castro v.
JBC, GR No. 191002, Apr/I 20, 2010)
Ad-Interim Appointments (SEC. 16)
When Congress Is in recess, the President may still
appoint officers to positions subject to CA confirmation.
These appointments are effective immediately, but are
the next adjournment of Congress.
Applies only to positions requiring confirmation of CA
Appointments to fill an office in an 'acting' capacity are
NOT ad-interim in nature and need no CA approval.
The assumption of office on the basis of the ad interim
appointments issued by the President does not amount to
a temporary appointment which is prohibited by§ 1 (2), Art.
IX-C. An ad interim appointment is a µermanent
appointment because it takes effect immediately and can
no longer be withdrawn by the President once the
appointee has qualified Into office. (Matibag v. Benipayo
G.R. No. 149036, 2002).
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Appointments extended by an acting President shall

What Is an ad Interim appointment? remain effective unless revoked by the elected President
An ad interim appointment is a permanent appointment within 90 days from assumption of office {PHIL CONST.
unless otherwise indicated. It is an appointment made by art. VII, § 14)
the President v.ihile Congress is NOT in session or during Two months immediately before the next presidential
recess. elections and up to the end of his/her term, a President or
Acting President shall not make appointments except
How Ad-Interim Appointments Terminated temporary appointments to executive positions when
a. Disapproval of the appointment by the CA; continued vacancies therein will prejudice public service or
b. Adj0t1rnment by the Congress without the CA acting on endanger public safety (PHIL CONST. art. VII, § 15).
the appointment (NACHURA)
(b) Commission on Appointments confirmation
Difference between Disapproval and By-Passed Regular Appointments Requiring Consent of CA
Appointments
The following may be appointed by the president, subject
APPOINTMENTS BY-PASSED to approval by the Commission on Appointments (CA}:
DISAPPROVED APPOINTMENTS - Heads of executive departments
- Ambassadors, consuls, and other public ministers
When the Commission When an ad-interim position - Officers of AFP from the rank of colonel or naval captain
disapproves an ad interim is by-passed because of lack Other officers whose appointment is vested in him by
appointment, the of time or failure of the the Constitution, such as:
appointee can no longer Cornmlssion to organize, > Chairmen and members of tho COMELEC, COA, and
be extended a new there is no final decision yet. csc.
appointment, inasmuch Absent such decision, the > Regular members of the JBC. ,,_
as the disapproval is a President is free to renew > The Ombudsman and his deputies.
final decision in the the ad-interim appointment. > Sectoral representatives in Congress, as provided in
exercise of the Transitory Provisions (Sec. 16).
Commission's checking
power on the Appointments With Prior Recommendation Or
appointment authority of Nomir.ation By The JBC
the President. Members of the SC and judges of the lower courts; these
appointments do not need CA conflrmaton (Phil Const.
Appointments By An Acting President (Sec. 14) art. VIII, § 9).
These shall remain effective unless revoked by the Ombudsman and his Deputies (Phil Cons!'. art. XI, § 9). ····~)
elected President with,n 90 days from his assumption or
re-assumption of office. Regular Appointments Without Need Of CA
Confirmation
The power of the succeeding President to revoke All other officers whose appointments are not otherwise
appointments made by the Acting President refers only to provided for by law and those whom he may be
appointments in the Executive Department (De Castro v. authorized by law to appoint do not require CA
JBC, G.R. No. 191002, 2010). confirmation. This includes the Chairman and members of
the Commission on Human Rights (CHR), whose
The Constitutional Limitations on the President's appointments are provided for by law, and NOT by the
Constitution. (SP.c. 16) ..r-...»
appointing power .._,
!

The President may not appoint his/her spouse and

relatives by consanguinity or affinity within the 41h civil Congress may, by law, vest in the President alone or in
degree as members of the: the courts, or in the heads of departments, agencies, .
Constitutional Commissions boards or commissions the appointment of other officers (..... >.J
Ombudsman lower in rank than those mentioned above. (Sec. 16)
Department Secretaries
Undersecretaries However, Congress cannot, by law, require CA
Chairmen and heads of Bureaus and Offices confirmation cf the appointment of other officers for
' offices created subsequent to the 1987 Constitution
GOCCs (PHIL CONST. art. VII,§ 13)
Page 44 of 320

-------------------·-- ·-·-
 ATENEO CENTRAL
BAR OPERATIONS 2019
(Calderor. v. Carale, G.R. No. 91636, 1992). e.g. NLRC
Commissioners, Bangko Sentral Governor.
PROCEDURE WHEN CA CONFIRMATION NEEDED:
1. Nomination by President
2. Confirmation by CA
3. Appointment by President
4. Acceptance by appointee.
• At any time before all four steps have been
complied with, the President can withdraw the
nomination or appointment.
Procedure When No CA Confirmation Needed:
1. Appointment
2. Acceptance
Once appointee accepts, President can no longer
withdraw the appointment
(c) Midnight Appolntments
General Rule: Two (2) months immediately before the
next Presidential elections and up to the end of his term,
the President or Acting President shall not make
appcintments. This is to prevent the practice of making
"midnight appointments."
Exception: Temporary appointments to executive
positions if continued vacancies will prejudice public
service or endanger public safety.
• Prohibition does not extend to appointments in the
Supreme Court. Had the framers intended to extend
the prohibition to the appointment of Members of the
Supreme Court, they could have explicitly done so. The
prohibition is confined to appointments In the Executive
Department. Existence of the JBC also prevents
possible abuses in appointment (De Castro v JBC,
G.R. No. 191002, April 20, 2010); overturned (In re:
Appointment of Valenzuela, AM 98-0501 SC, 1998).
• There Is no law that prohibits local elective officials
from makinqappolntments during the last days of his
. or her tenure'. Prohibition only applies to appointments
r-. ·r:
·-...:~ )
by the President (De la Rama v. CA, G.R. No. 131136,
2001).
• If the President is not satisfied with the list submitted
by the JBC, he may ask for another list. But once the
appointment is issued by the President and accepted
by the nominee, it needs no further confirmation.
• President may appoint SC Justice within 60 days prior
to election. Article Vil deals entirely with the executive
department while Article VIII deals with the judiciary.
Had the framers intended to extend the 60-day
.:. . . . r· prohibition contained in Section 15, Article Vil to the
Page 45 of 320
POLITICAL LAW
appointment of Membe-s of the Supreme Court, they
could have explicitly done so. That such specification
was not done only reveals that the prohibition against
. the President or Acting President making appointments
within two months before the next presidential
elections and up to the end of the President's or Acting
President's term does not refer to the Members of the
Supremo Court. The usage in Section 4 (1), Article VIII
of the word shall - an imperative, operating to impose
a duty that may be enforced - should not be
disregarded.
• The framers did not need to extend the prohibition
against midnight appointments to appointments In the
, Judiciary, because the establishment of the JBC and
subjecting the nomination and screening of candidates
for judicial positions to the unhurried and deliberate
prior process of the JBC ensured that there would no
longer be midnight appointments to the Judiciary. JBC
intervention eliminates the danger that appointments to
the Judiciary can be made for the purpose of buying
votes in a coming presidential election, or of satisfying
partisan considerations. The creation of the JBC was
precisely intended to de-politicize the Judiciary by
doing away with the Intervention of the Commission on
Appointments (De Castro v. JBC, G.R. No. 191002,
2010).
Power of Removal
General Rule: The express power of appointment of the
President has the corollary lrnpliod power of removal.
Hence, the President may remove appointees.
Exception: Appointments requiring certain methods for
removal (e.g., Impeachment, appointment of judges of
inferior courts (Phil Const. art. VIII, § 11; Gonzales Ill vs.
Office of the President of the Philippines, G.R. No. 196231,
2012).
The succeeding President may not revoke appointments
to the Judiciary made by an Acting President. Sec. ~4, Art.
VII refers only to appointments in tho Executive
Department. It has no application to appointments in the
Judiciary because temporary or acting appointments can
only undermine the judlciary due to their being revocable
at will ... Prior to their mandatory retirement or resignation,
judges of the first or second level courts and the Justices
of the third level courts may only be removed for cause, but
the members of the Supreme Court may be removed only
by impeachment (De Castro v. JBC, G.R. No. 191002,
2010).
 ATENEO CENTRAL
BAR OPERATIONS 2019
The President cannot dismiss the Deputy Ombudsman
because it will unde,·mine the independence of the
Ombudsman. However, the same rule does not apply to
the special prosecutor, which can be dismissed by the
President. (Gonzales v. OP, G.R. No. 203372, 2014)
Disciplinary Powers
The power of the President to discipline officers flows from
the power to appoint the officer., and NOT from the power
of control.
While the President may remove from office those ·who are
not entitled to security of tenure. or those officers with no
set terms, such as Department Heads, the officers, and
employees entitled to security of tenure cannot be
summarily removed from office.
Power of Control
The power of an officer to alter, modify, or set aside what
a subordinate officer has done in the performance of his
duties, and to substitute the judgment of the officer for that
of his subordinate.
The President's power of control is a self-executing
provision. The incurnbent President is free to amend,
rescind and modify any political agreements entered into
by the previous Presidents (Ocampo v. Enriquez, G.R. No.
225973, 2016).
The appeal from the decision of a Department Secretary to
the President can be restricted due to the President's
power of control. It may be limited by executive order of the
President, a law providing for judicial review, and a rule of
procedure promulgated by the Supreme Court. (Angeles v. ·
Gaite, G.R. No. 165276, 2009).
Power of Supervision
The power of a superior officer to ensure that the laws are
faithfully executed by subordinates. · faithful-execution clause of the Constitution under Article
' VII, Section 17 thereof. One of the recognized powers of
The power of supervision does not include the power of
control; but the power of control necessarily includes the
power of supervision.
The President's power over GOCCs comes not from the
Constitution but from statute. Hence. it may similarly be
taken away by statute.
For Administrative Proceedings, decisions of Department
Secretaries need not be appealed to the President in order
to comply with the requirement of exhaustion of
administrative remedies.
Page 46 of 320
-------------·-
POLITICAL LAW
The execution of laws is an OBLIGAT!ON of the President.
He cannot suspend theoperation of laws.
(a) Doctrine of Qualified Political Agency or Alter Ego
Principle
QUALIFIED POLITICAL AGENCY - Acts of department
heads, etc., performed and promulgated in the regular
course of business, are presumptively acts of the
President.
Exceptions:
If the acts are disapproved or reprobated by the President.
If the President is required to act in person by law or by the
Constitution (e.g. the power to grant pardons).
(b) Executive Departments and Offices
The President may, by executive or adrninistrative order,
direct the reorganization of government entities under the
Executive Department. Section 17, Article Vil of the 1987
Constitution, clearly states: "The President shall have
control of all executive departments, bureaus and offices."
The Administrative Code also grants the President the
power to reorganize the Office of the President in ·
recognition of the recurring need of every President to
reorganize his or her office "to achieve simplicity, economy
and efficiency" (Tondo Medical v. Court of Appeals, G.R.
No. 167324, 2007).
The President may transfer any agency under the Office of
the President to any other department or agency, subject
to the poiicy in the Executive Office and in order to achieve : '
'~. ::
simplicity, economy and efficiency (Anak Mindanao v.
Executive Secretary, G.R. No. 166052, 2007).
(;
The creation of the Truth Commission does not fall within t: ..
\.,,
the President's power to reorganize. It flows from the
the President is the power to create ad hoc committees.
This flows from the need to ascertain facts and determine
if laws have been faithfully executed or guide the President
in performing his duties relative to the execution and
enforcement of laws. The Truth Commission will not
supplant the Ombudsman or the Department of Justice or
erode their respective powers. The investigative function
of the Commission will complement those of the two offices
(Biraogo v. The Philippine Troth Commission of 2010 I
Rep. Edee/ C. Lagman, et al. v. Exec. Sec. Paquito N.
;
. ;. '
"-..../
 ATENEO CENTRAL
BAR OPERATIONS 2G19 POLITICAL LAW

Ochoa, Jr., et al., G.R. No. 192935 & G.R. No. 19303, While the suspension of the privilege of writ and the
2010).9 proclamation of martial law is subject to judicial reviow, the
actual use by the President of the armed forces is not.
(c) Local Government Units Thus, troop deployments in times of war are subject to the
The power of the president over local government units is President's judgment and discretion.
only of general supervision. He can interfere with the
actions of their executive heads only if these are contrary Limitations:
to law. 1. Suspension or proclamation is effective for only 60
days.
President exercises direct supervision over autonomous 2. W!thin 48 hours from the declaration or suspension. the
regions, provinces, and independent cities. President must submit a report in person or in writing
to Congress.
To facilitate the exercise of power of general supervision 3. Congress, voting jointly, by a vote of at lsast c1 majority,
of local government, the President may merge may revoke the same, and the Fresident cannot set
administrative regions and transfer the regional center to aside the revocation.
Koronadal City from Cotabato City (Republic v. Bayao, 4. In the same manner, upon the President's initiative,
G.R. NO. 179492, 2013). Congress may extend the proclamation or suspension
for a period determined by Congress if:
MILITARY/EXTRAORDINARY POWERS a. Invasion or rebellion persists, and
b. Public safety requires it
Scope (Sec. 18)
As Commander-in-Chief of the Armod Forces, whenever Congress CANNOT extend the period motu proprio.
necessary, the President may call out the Armed Forces
\,,.! to: Duty of President to report to Congress
PREVENT or SUPPRESS Section 18, Article VII, requires the President to report his
1. Lawless violence -, actions to Congress, in person or in writing, within 48
2. Invasion hours of such proclamation or suspension. In turn, the
3. Rebellion Congress is required to convene without need of a call
He may also: within 24 hours following the Presidents proclamation or
1. Suspend the privilege of the writ of habeas corpus suspension. Clearly, the Constitution calls for quick action
2. Proclaim a state of martial law on the part of the Congress. Whatever form that action
takes, therefore, should give the Court sufficient time to
Grounds For The Suspension Of The Prlvileqe Of The fulfill its own mandate to review the factual basis of the
Writ Of Habeas Corpus And Declaration Of Martial proclamation or suspension within 30 days of its issuance.
Law (Fortun v. Arroyo, G.R. No. 190293, 2012)
Actual, and not merely imminent
Invasion Supreme Court Review
'.
Rebellion; and 1. In an appropriate proceeding flied by any citizen;
Public safety requires it 2. The SC may review the sufficiency of the factual
~ ;.
. \. . ./' basis of the proclamation or suspension, or the
Effects of Suspension of Writ extension thereof.
1. Proclamation does not affect the right to bail; 3. Its decision must be promulgated within 30 days from
2. Suspension applies only to persons facing charges of filing.
( '"..
rebellion or offenses inherent in or directly connected
with invasion; In reviewing the sufficiency of the factual basis Of the
3. Persons arrested must be charged within 3 days, if not proclamation or suspension, the Court considers only the
they must bereleased: and information and data available to the President prior to, or
4. Proclamation does not supersede civilian authority at tho time of the declaration; it is not allowed to "undertake
an independent investigation beyond the pleadings.ff On

9 Note: The main defect seen in tho Truth Commission was the

failure in equal protection because the ourpose of Its creation

was to focus on acts under GMA's administration.
Page 47 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

the other hand, Congrnss may trike into consideration not Judicial Power to Review vs. Congressional Power to
only data available prior to, but likewise events Revoke Martial Law and Suspension of the Writ of
supervening the declaration. Unlike the Court which does Habeas Corpus
not look into the absolute correctness of the factual basis Judicial flower to review Congressional Power to
as will be discussed below, Congress could probe deeper revoke
and further; it can delve into th€:l accuracy of the facts
presented before it. (Lagman v. Medialdea, G.R. No. Court can only refer to Ccngress may take into
231658, 2017) . information available to the consideration:
President prior to or at the • Data available to the
Section 18, Article VII itself sets the parameters for time of the declaration President prior to or at
determining the sufficiency of the factual basis for the the time of the
declaration of rnartiai law and/or the suspension of the Court is not allowed to declaration and
privilege of the writ of habeas corpus, "namely (1) actual undertake en independent • Events supervening
invasion or rebellion, and (2) public safety requires the investigation beyond the the declaration
exercise of such power." Without the concurrence of the pleadings
two conditions, the President's declaration of martial law
and/or suspension of the privilege of the writ of habeas Does not look into the Can probe further and
corpus must be struck down. What the President needs to absolute correctness of the deeper, can delve into
satisfy is only the standard of probable cause for a valid factual basis accuracy of facts
declaration of martial law and suspension of the privilege presented before it
of writ of habeas corpus. (Id.)
Passive power Automatic
Martial Law Does Not Initiated by filing of a May be activated by
Suspend the operation of the Constitution petition "in an appropriate Congress itself at any time
Supplant the functioning of the civil courts or legif,lative proceeding" by a citizen after ths proclamation or
assemblies
suspension was made
Authorize conferment of jurisdiction on military courts over
civilians where civil courts are able to function " (Lagman v. At,ed1a/dea, G.R. No. 231658, July 4, 2017)
Automatically suspend the privilege of the writ of habeas
corpus Declaration Of State Rebellion
The factual necessity of calling out the armed forces is
The scope of the Supreme Court's power to review the something that is for the President to decide, but the Court
declaration of Martial Law or suspension of the writ of may look into the factual basis of the declaration to ( ..
habeas corpus is limited to a determination of the determine if it was done with grave abuse of discretion ,...
sufficiency of the factual basis of such declaration or amounting to lack of jurisdiction (IBP v. Zamora, G.R. No.
suspension. (Lagman v. Medla/dea, G.R. No. 231658, July 141284, 2000).
4, 2017)
Judicial inquiry can go no further than to satisfy the Court
not that the President's decision is correct but that the
The nature of the Supreme Court's jurisdiction to ' .
determine the suffidency of the factual basis for the President did not act arbitrarily. Thus, the standard laid ·...,.,....:-
!

declaration of martial law and the suspension of the
privilege of the writ of habeas corpus by the President is
sui generis and granted by Sec. 18, Art. VII of the
Constitution. The said provision provides that in case of
invasion or rebellion, when public safety requires it, the
President may, for a period not exceeding 60 days
suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. It
does not stem from Sec. 1 or 5 of Art. VIII. (Lagman v.
Medislclea, G.R. No. 231658, July 4, 2017)
Page 48 of 320
down is not correctness, but arbitrariness.
PP 1017 is constitutional insofar as it constitutes a call by
PGMA on the AFP to suppress :awless violence, which
pertains to a spectrum of conduct that is manifestly subject
i i,
to state regulation, and not free speech. '\4.•.;.>
PP 1017 is unconstitutional insofar as it grants PGMA the
authority to promulgate "decrees." Legislative power is
within the province of the Legislature. She can only order
the military, under PP 1017, to enforce laws pertinent to its
duty to suppress lawless violence (David v. Gloria
Macspagal-Arroyo,G.R. No. 171396, 2006).
 ATENEO CENTRAL
BAR OPERATIONS 2019
The President does not have the power to take over
privately owned public utilities or businesses affected with
public interest, without prior legislation.
Gen. Order No. 5 is constitutional since it provides a
standard by which the AFP and the PNP should implement
PP 1017, that is, suppressing lawless violence. However,
considering that "acts of terrorism" have not yet been
defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared unconstitutional (David
v. Macapagal-Arroyo, G.R. No. 171396, 2006).
The declaration of a state of emergency is merely a
description of a situation that authorizes (the President) to
call out the Armed Forces to help the police maintain law
and order. It gives no new power to her, or to the military,
or to the police. Certainly, it does not authorize warranUess
arrests or control of media (David v. Ermita, G.R. No.
171409, 2006).
Presidential proclamation of a state of emergency is NOT
sufficient to allow the President to tal<e over any public
l,, ,!I utility. Since it is an aspect of emergency powers in
accordance with § 23 (2). Art. VI of the Constitution, there
must be a law delegating sucn power to the President
(David v, Macagapal Arroyo, G.R. No. 171396, 2006).
Ways to Lift the proclamation or suspension
1. Lifting by the President himself;
2. Revocation by Congress;
3. Nullification by the Supreme Court; and
4. By operation of law after 60 days (CONST. Art. VII,
Sec.18)
,,.
,,.. "
...
I, F The factual necessity of calling out the armed forces is
something that is for the President to decide (IBP v
Zamora, GR No. 141284, August 15, 2000).
PARDONING POWERS (SEC. 19)
Nature and Limitation
The matter of executive clemency is non-delegable power
and must be exercised by the President personally (Villena
v, Secretary of the Interior, G.R. No. L-46570, 1939).
...- _; r:
The power exists as an instrument for c:orrecting the
(3 infirmities in administration of justice and for mitigating
whenever a strict application of the provisions of the law .
will result in undue harshness. (Bernas, 1987 Philippine
Ccnstitution: A Commentary, 924, 2009).
:: . .. ~,·
) :- Page 49 of 320
POLITICAL LAW
limitations:
Cannot be granted:
Before conviction, in cases of impeachment
• The President can pardon criminal offenses after
an impeachment proceeding such as what
happened in 2007 when President Arroyo
pardoned former President Estrada after having
been convicted by the Sandiganbayan of plunder.
• The exercise bf the pardoning power is
discretionary in the President and may not be
interfered with by Congress or the Court, except
only when it exceeds the limits provided for by the
Constltutlon (Risos-Vidal v. COMELEC, G.R. No.
206666, 2015).
For violations of election laws, 'rules, and regulations
without the favorable recommendation of the COMELEC
In cases of clvll or legislative contempt
Granted only after conviction by final Judgment. (People. v.
Sa/le, 250 SCRA 581).
2. As to effect:
Does not absolve civil liabilities for an offense
Does not restore public offices already forfeited, although
eligibility for the same may be restored (Monsanto v.
Factoran, G.R. No. 78239, 1989).
4. Forms of Executive Clemency
a. PARDON -An act of grace, proceeding from the power
entrusted of the laws, which exempts the individual on
whom it is bestowed, from the punishment the law
inflicts for a crime he has committed ( United States v.
Wilson, 503 U.S. 329, 1992). It is either condltlonal
or plenary.
b. AMNESTY -An act of grace concurred in by Congress,
usually extended to groups of persons who commit
pol!tical offenses, which puts into oblivion the offense
itself. The President alone cannot grant amnesty for it
needs the concurrence by a majority of all the members
, of Congress. When a person applies for amnesty, he
must admit his guilt of the offense that is subject to
such amnesty. If his application is denied, he can be
convicted based on this admission of guilt.
c. REPRIEVE - postpones the execution of an offense to
a day certain (People v. Vera, G.R. No. L-45685,
1937).
d. REMISSION OF FINES AND FORFEITURES -
prevents the collection of fines or the confiscation of
forfeited property but it cannot have the effect of
retuming the property which has been vested in 3rd
parties or money already in the public treasury (Bernas,
1987 Phillppine Constitution: A Commentary, 933,
2009).
 ATENEO CENTRAL
BAR OPERATIONS 20·,9 POLITICAL LAW

e. COMMUTATION - a rerrussion of a part of the prior concurrence of the Monetary Board; and subject
punishment; it is a substitution of a lesser penalty for to such limita!ions as may be provided by law
the one originally imposed (People v. Vera, G.R. No. L- • The Monetary Board shall, within 30 days from the end
45685, 1937). of every quarter of the calendar year, submit to
Congress a complete report on loans to be contracted
Amnesty v. Pardon or guaranteed by the government or GOCCs that would
have the effect of increasinq foreign debt.
AMNESlY. PARDON

Polltical offenses Ordinary offenses Principle of Transformation of International Law (Sec.

21)
To a class of persons To individuals No treaty or international agreement shall be valid and
Need not be accepted Must be accepted effective unless concurred in by at least 2/3 of ALL the
Members of the Senate.
Requires concurrence of No need for
majority of all members of Congressional
Congress concurrence EXECUTIVE
TREATIES
AGREEMENTS
A public act; subject to Private act of President;
judicial notice it must be proved. International agreements International agreements
involving politlcal Issues or embodying adjustments of
Extinguishes the offense Only penalties are changes of national policy detail carrying out well-
itself extinguished; and those involving established national
May or may not restore international arrangements policies and traditions and
political rights; of a permanent character those involving
Absolute pardon restores; arrangements of a more or v .
Conditional, does not. less temporary nature
Civil indemnity is not
extinguished.
May be granted before or Only granted after Power to enter Into foreign relations includes:
after conviction conviction by final The power to appoint ambassadors, other public
judgment ministers, and consuis.
The power to receive ambassadors and other public
EXECUTIVE CLEMENCY IN ADMINISTRATIVE ministers accredited to the Philippines.
CASES: - The power to contract and guarantee foreign loans on
The power to grant clemency includes cases involving behalf of the Republic.
administrative penalties. Where a conditional pardon is The power to deport aliens
granted, the determination of whether it has been violated . > This power is vested in the President by virtue of
rests with the President. his office, subject only to restrictions as may be
President can extend it to administrative cases but only in provided by legislation· as regards grounds for '
J '
.
the Executive Branch, not Jn the Judicial or Legislative deportation. In the absence· of any legislative
Branches of government (Llamas v. Orbos, GR. No. restriction to authority, the President may exercise .,
{
...,.,.,
99031, 1991). this power.
- The Power to negotiate treaties and other international
TAX AMNESTY: General pardon to impose penalties on agreements. However, such treaty or international
persons guilty of evasion or violation of revenue or tax agreement shall be transmitted to the Senate. with the
Jaw (Republic v. /AC, G.R. No. ~9344, 1991). following options:
> Approve it by 213 majority vote
POWERS PERTINENT TO FOREIGN RELATION ·> Disapprove it outright
> Approve it conditionally, with sugges~ed {x, >...•,:
Power to Contract or Guarantee Foreign Loans (Sec. amendments. If re-negotiated and the Senate's
20) suggestions are incorporated, the treaty goes into
• The President may contract or guarantee foreign loans effect without need of further Senat& approval.
on behalf of the Republic of the Philippines with the

Page 50 of 320 '• . .J.'

I
 ATENEO CENTRAL
BAR OPERATIONS 2019
NOTE: While a treaty is re-negotiated, there is yet no
treaty.
EXECUTIVE AGREEMENTS
Executive agreements are concluded:
to adjust the details of a treaty, e.g., EDCA as to VFA;
pursuant to or upon confirmation by an act of the
Legislature; or
in the exercise of the President's independent powers
under the Constitution.
The President may enter into an executive agreement on
foreign military bases, troops or facllitles only if the
executive agreement
is not the instrument that allows the presence of foreign_
military bases, troops or facilities; or
merely aims to implement an existing law or treaty.
(Saguisag v. Exec. sec., G.R. No. 212426, 2016)
Altllough municipal law makes a distinction between
international agreements and executive aqreements, with
the former requiring Senate approval and the latter not
needing the same, under international law, there is no
such distinction.
The President cannot, by executive agreement,
undertake an obligation that indirectly circumvents a legal
prohibition.
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 SC, it should dismiss the case. The Jurisdiction of the
SC (other lower courts) over a treaty is only with respect
to questions of its constilutionality of validity. It does not
pertain to the termination/abrogation of a treaty {Gonzales
v Hecnenove. G.R. Na. L-21897, 1963).
Treaty v. E>recutive Agraement10
, '...
1,
'< :J
TREATY EXECUTIVE AGREEMENT
Involves political lssues.'
Involve details carrying out
national policy national policy
International agreements More or less temporary in
of a pennanent kind character
'
\ .:/
,.
10
Note: See Part XVI {F) (P11blic International Law - Treaties)
for further discussion..
(_.:.
POLITICAL LAW
Must be No need
Ratified to be ratified
Rules In case Of Conflict Between Treaty And
Municipal Law, Depending On Venue
Philippine court: Provided both are self-executing, the
later enactment will prevail, be it treaty or law, as it is the
latest expression of the will of the State.
International tribunal: Treaty will always prevail. A State
cannot plead its municipal law to justify noncompliance
with an international obligation
Exception: Vienna Convention on Law of Treaties Art. 46
- Constitutional violation was: .·
: > Manifest - Objectively evldent to any State
conducting itself in the matter in accordance with
normal practice and in good faith.
> Concerned a rule of Its inten 1al law of fundamental
importance.
An "exchange of notes" is a record of a routine agreement
that has many similarities with a private law contract. The
agreement consists of the exchange of two documents,
each of the parties being in possession of the one signed
by the representative of the o1her. Under the usual
procedure, the accepting State repeats the text of the
offering State to record its assent. An exchange of notes is
considered a form of an executive agreement, which
becomes binding through executive action without the
need of a vote by the Senate or Congress (Abaya vs.
Edbane, G.R. No. 167919, 2007).
The Exchange of Notes between Secretary Romulo and
the US Ambassador embodying a "No Surrender
Agreement'' regarding citizens arrested under the Rome
Treaty ie valid. An exchange of Notes is equivalent to an
executive agreement and it is a valid form of international
agreement. The categorization of agreements in Eastern
Sea Trading, is not cast in stone. Neither a hard and fast
rule on whether Senate concurrence is needed for
executive agreements. (Bayan Muna v. Secretary Romulo,
G.R No. 159618, 2011).
'
Page 51 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

POWERS RELATIVE TO APPROPRIATION VETO POWERS

MEASURES
ITEM VETO POWER on the basis of:
Doctrine of Inappropriate Provisions - A provision ihat
is constitutionally inappropriate for an appropriation bill
may be subject to veto even if it is not an appropriation or
revenue "item."
Executive lmpoundment - Refusal of the President to
spend funds already allocated by Congress for a specific
purpose. It is, in effect, an "impoundment" of the law
allocating such expenditure of funds.
The President must communicate his decision to veto
within 30 days from the date of receipt thereof. If he fails
to do so, the bill shall become law as if he signed it. This
rule eliminates tha possibility of a 'pocket veto' whereby
the President simply refuses to act on the bill.
In exercising the veto power, the bill is rejected and
returned with his objections to the House from which it
orlqinated. The House shall enter the objections in the
· journal and proceed to reconsider it. ( See earlier
comment)

DELEGATED POWEM Pocket veto vs. Item veto

Pocket Veto
Congress may delegate tariff powers to the President.
When the president is
Art. VI, Section 23 (2) authorizes Congress to give the considered to have rejected
President power necessary and proper to carry out a · a bill submitted to him for his
declared national policy; Section 28(2) authorizes approval when Congross
Congress to deleqate the power to fix tariff rates, import adjourns during the period
and expert quotas, tonnage, wharfage dues and other given to the president to
duties and impost. (See Supra.) approve or reject a bill
Item Veto
Power of a president to
nullify or cancel specific
provisions of a bill, usually
a budget appropriations
bill, without vetoing the
entire legislative package

EMERGENCY POWERS can be delegated by Congress

to the President.
Malampaya and Presidential Social Fund violates the
non-delegability of legislative power (PERLAS·
BERNABE)
• Malampaya fund - The phrase "and for such
other purposes as may be hereafter directed by
the President" under r Section 8 of PD 910
constitutes an undue delegation of legislative
power insofar as it does not lay down a sufficient
standard to adequately determine the limits of
the President's authority with respect to the
purpose for which the Malampaya Funds may
be used. (Belgica v. Hon. Ochoa, 2013)
• Presidential Social Fund - "to finance the priority
infrastructure development projects" under
Section 12 of Presidential Decree No. 1869, as
amended by Presidential Decree No. 1993, for
both failing the sufficient standard test in violation
of the principle of non-delegability of legislative
power as it gives the President the unlimited
discretion to determine which projects are
considered "priority". (Belgica v. Hon. Ochoa,
2013)
Congressional pork barrel violates the President's
power to item-veto (PERLAS-BERNABE)
• The President cannot exercise his item-veto power
because the purpose of the lump-sum·
discretionary budget is still uncertain.
Furthermore, it cannot be considered an item
because an item is defined in the field of
appropriations as the particulars, details, distinct
and severable parts of the appropriation or of the
bill. (Belg/ca v. Hon. ocnoe, 2013)
RESIDUAL POWEP.S
,, ··'
The President shall exercise such other powers and
functions vested in the President which are provided for
under the laws and which are not specifically enumerated
above, or which are not delegated by the President in
accordance with law.
The textual justification for this under the Constitution is
Article VII, Section 17 -to ensure that the laws are faithfully
i.-~->
executed - called the Faithful Execution Clause.
.
,., I
'.:

The power involved is the President's residual power to

protect the general welfare of the people. It is founded on
the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of
the President but also his duty to do al"lything not forbidden
Page 52 of 320 :.....7
 ATENEO CENTRAL
BAR OPERATIONS 2019
by the Constitution or the laws that the needs of the nation
demand. It is a power borne l)y the President's duty to
preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take
care that the laws are faithfully executed (Marcos v
Manglapus, G. R. No. 88211, 1989)).
EXECUTIVE PRIVILEGE
Executive Privilege is the power of the President to
withhold certain types of information from the court, the
Congress, and the public. (Neri v. Senate, G.R. No.
180643, 2008). . Upon receipt of the certificates of canvass, the Senate
(See portionof PresidentialPrivilege for more comments)
Non-Delegable Powers of the President
· Commander-in-Chief powers;
Appointment and removal power;
The power to g,·ant pardons and reprieves;
The authority to receive ambassadors and other public
officials; and
The power to negotiate treaties. (Neri v, Senato, G.R. No.
180643, 2008)
(,_ ·I
OTHER POWERS
1. Borrowing Power: The President may contract or
guarantee foreign loans on behalf of the Republic with
the concurrence of the Monetary Board, subject to
such limitations as rr.ay be provided by law.
2. Deportation Power ·
3. Power to Receive Ambassadors and other public
., ministers duly accredited to the Philippines
4. Informing Power: The President shall address
Congress at the opening of its regular session. He may
also appear before it at any time. · Proclamation of President-Elect & VP-Elect is the function
5. Call Congress to a special session
6. Emergency Powers: Congress may authorize the
.. ,.; President to exercise powers necessary and proper to
carry out a declared national policy.
• Conditions for the Exercise of the President of
Emergency Powers:
10. There must be a war or national emergency;
11. There must be a law authorizing the President
to exercise emergency powers;
12. Exercise must be for a limited period
13. Exercise must be necessary and proper to
carry out a declared national policy; and
14. Must be subject to Restrictions that Congress
may provide
7. Power to Classify an::I Reclassify lands
~. ... , Page 53. of 320
·.,r
POLITICAL LAW
-, RULES OF SUCCESSION
Man~er Of Election (Sec. 4):
The President and Vice-President shall be elected by the
direct vote of the people.
Election returns for President and Vice-President, duly
certified by th~ Board of Canvassers of each province or
city, shall be transmitted to Congress, directed to the
Senate President.
President shall, not later than 30 days after the day of the
election, open all the certificates in the presence of both
houses of Congress, assembled in joint public session.
The Congress, after determining the authenticity and due
execution of the certificates, shall canvass the votes.
The person having the highest number of votes shall be
proclaimed elected.
In case of a tie between 2 or more candidates, one shall
be chosen by a majority of ALL the members of both
Houses, voting separately.
The Supreme Court en bane shall act as the sole judge
over all contests relating to the election, returns, and
qualifications of the President or Vice-President and may
promulgate its rules for the purpose.
I
Congress may delegate countlnq to a committee provided
it approves it as a body.
Considered as a non-legislative function of Congress.
of Congress not the COMELEC's.
Limitations:
1. Salaries and emoluments of the President and Vice-
President shall be determined by law
2. Shall not be decreased during the tenure of the
President and the Vice-President
3. Increases take effect only after the expiration of the
term of the incumbent during which the increase was
approved.
4. No other emolument from the government or any other
source during their tenure may be received.
ATENEO CENTRAL
BAR OPERATIONS 2019
Succession of President-elect and Vice-President
elect at the Start of the Term (Sec. 7)
VACANCY
President-elect fails to
qualify or lo be chosen
President-elect dies or
permanently disabled
Both President and VP-
elect are not chosen, or
do not qualify, or both
die, or both become
permanently disabled
Death, permanent
disability, or inability of
Senate President and
Speaker of the House
as Acting President
Succession of President and Vice-President During
Mid-Term (Sec. 8)
VACANCY
President dies/
permanently disabled/
impeached or resigns
Both President and VP
die/ permanently disabled/
impeached, or resign
Death, permanent
disability, or inability of
Senate President and
Speaker of the House as
Acting President
-
sUCCESSOR
VP-elect will be Acting
President until a President is
qualified/chosen
VP beco mes President
Senate President, or in case
of his ina bility,
Speaker of the House shall
act as Presiclent until a
President or a VP shall have
been cho sen and qualified.
Congress shall determine,
bylaw, who will be the
Acting President until a
President or VP shall have
qual\fied.
SUCCESSOR
VPbecomes President for
the une xpired term
Senate President, or in
case of his inability,
Speake r of the House
shall acl as President until
the President or VP shall
have been elected and
qualifie d.
Congress shall determine,
bylaw, who will be the
Acting President until a
Preside nt or VP shall have
been el ected and qualified,
subject to the same
restrictions of powers and
disquali fications as the
Acting President
' If within 5 days after the President re-assumes his position,
the majority of the Cabinet transmits their written
Page 54 of 320
POLITICAL LAW
Vacancy in the Office of the \'ice-President (Sec.9)
Procedure T':> Fill Up Vacancy
President will nominate new VP from among the members
of either House of Conqress.
. .
Nominee shall assume office upon confirmation by majority
vote of ALL members of both Houses, voting separately.
(In effect, nominee forfeits his seat in Congress.)
Election of President and Vice-President after
vacancy (Sec.10)
Procedure
Congress shall convene 3 days after the vacancy in thl:l
offices of both the President and the \/P, without need of a
call. The convening of Conqress cannot be suspended.
Within 7 days after convening, Congress shall enact a law
calling for a special election to elect a President and a VP.
The special election cannot be postponed.
The requirement of three readings on separate days under
Sec. 26(2), Art VI shall not apply to a bill calling for a
special election. The law shall be deemed enacted upon
its approval on third reading.
The special election shall be held within 45-60 days from
the time of the enactment of the law.
Limitation: No special election shall be called if the
vacancy occurs within 18 months before the date of the
next presidential election.
Temporary Disability of the President to discharge
his duties [Sec. 11 J may be raised In either of two
ways:
By the President himself, when he sends a written
declaration to the Senate President and the Speaker of the
House. In this case, the Vice-President will be Acting •· t:
President until the President transmits a written declaration
to the contrary.
When a majority of all Cabinet members transmit to the
Senate President and the Speaker of the House their
written declaration. The VP will immediateiy assume the
powers and duties of the office as Acting President.
·:._;..·
Scenarios After Disability is Relayed in The
Congress:
. ..
,·
If the President transmits a written declaralion that he is
not disabled, he reassumes his posltion. .,_,
,,... )
~-
.J.,•
 A TENEO CENTRAL ·
BAR OPERATIONS 2019 POLITICAL LAW

declaration to the contrary, Congress shall decide the

issue. In this event, Congress shall convene within 48
hours if it is not in session, without need of a call.

Within 10 days after Congress is required to assemble, or

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

Presidential Illness (Sec. 12)

General Rules:
If the President is seriously ill, the public must be informed
thereof. · ,

During such illness, the following shall not be denied

access to the President:
National Security Adviser
Secretary of Foreign Affairs
- Chief of Staff of the AFP

----- end of topic

... .:,

':..... ...)

- .,

Page 55 of 320
ATENEO CEN1RAL
BAR OPERATIONS 2019 POLITICAL LAW

IV. JUDICIAL DEPARTMENT JUDICIAL POWER

Judicial Power
TOPIC OUTLINE UNDER THE SYLLABUS
The authority to settle justiciable controversies or disputes .
A. Judicial Power
B. Judicial Review involving rights that are enforceable and demandable
1. Requisites before the courts of justice or the redress of wrongs for
2. Political Question Doctrine violations of such rights and to determine whether or not
3. Moot Questions there has been grave abuse of discretion amounting to lack
4. Operative Fact Doctrir!e or excess of jurisdiction on the part of any branch or
C. Safeguards of w1ullicial Independence instn.,mentality of the government. (Lopez v. Roxas, G.R. ·
1. Judicial and Bar Council No. L-25716, 1966). '
a. Composition
b. Powers Where Vested
2. Fiscal Autonomy Vested in the Supreme Court and such lower courts as
D. Qualifications of Members of the Judiciary may be established by law. Hence, they may neither
E. Workings of the Supreme Court attempt to assume or be compelled to perform non-judicial
1. En bane and Division cases functions. They may not be charged with adminfstrative
2. Procedural Rule-making functions, except when reasonably Incidental to the
3. Administrative supervision over lower courts fulfillment of their duties (Mera/co v. Pasay Transportation
4. Original and Appellate Jurisdiction Co., G.R. No. L-37878, 1932).

Duties of the courts (Sec. 1)

To settle actual controversies involving rights which are
legally demandable and enforceable;
To determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of
the government. ·
The courts cannot give advisory opinions.

Necessity of Applicable Law

The courts cannot exercise judicial power when there is
no applicable law. In a number of cases decided, the
Supreme court ruled that the exercise of judicial power
when there is no applicable law is not authorized.

The court has no authority to entertain an action for judicial

i. j
declaration of citizenship because there was no law
authorizing such proceeding (Channie Tan v. Republic,
' G.R. No. L-14159, 1960).

An award of honors to a student by a board of teachers

..
'i /

may not be reversed by a court where the awards are

govemed by no applicable law ( Santiago Jr. v. Bautista,
G.R. No. L-25024, 1970).

Courts cannot reverse the award of a board of judges in an

i
oratorical contest (Felipe v. Leuterio, G.R. No. L-4606, '"l.....

1952).
•.. ;.,

Page 56 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
Jurisdiction
The power to hear and decide a case.
a) Who Definas: Congress shall have the power to
define, prescribe and apportion the jurisdiction of the
various courts, but may not deprive the Supreme Court
of its jurisdiction over cases enumerated in Sec. 5, Art.
VIII [Sec. 2. Art. VIII],
b) No law shall be passed increasinq the appellate
jurisdiction of the Supreme Court as provided in the
Constitution without its advice and concurrence [Sec.
30, Art. VI]. i)
Scope cf Jurisdiction
The power to control the execution of its decision is an
essential aspect of jurisdiction. It cannot be the subject of
substantial subtraction, for out Constitution vests the
entirety of judicial power in one Supreme Court and in such
lower courts as may be established by law. (Echagrayv.
SOJ, GR No. 132601, January 19, 1999)
Limitations of Judicial Power
1. Political Questions: A question, the resolution of
which has been vested by the Constitution exclusively
In the people, in the exercise of their sovereign
capacity, or In which full discretionary authority has
been delegated to a co-equal branch of the
Government (Tanada v. Cuenca, G.R. No. L-10520,
1957).
2. Separation of Powers : The Supreme Court and its
members should not and cannot ne required to
exercise 'any power or to perform any trust or to
· assume any duty not pertaining to or connected with
the administering of judicial functions. (Manila Electric
Co. v Pasay Transportation,GR No 37878, November
25, 1932)
3. Not the function of the judiciary to give adviscry
opinion : The function of the courts is to determine
controversies between litigants. They do not give
advisory opinions. (Directorof Prisons v Ang Cho Kio,
GR No. 30001, June 23, 1970)
Expanded Jurisdiction and Authority of the Supreme
Court
Art. VIII; Sec.1, Par.2, of the Constitution expanded the
power, authority and jurisdiction of the courts of justice,
particularly the Supreme Court, to determine whether any
branch of the government has committed grave abuse of
discretion amounting to l~ck or excess of jurisdiction.
Under this expanded jurisdiction conferred to the Supreme
Court, the political question doctrine is no longer the
insurmountable obstacle to the exercise of judicial power
Page 57 of 320
.... ,
POLITICAL LAW
or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review (Oposa v.
Factoran, Jr. GR No. 101083, July 30, 1993)
JUDICIAL REVIEW
Judicial Review:
• ThEI power of the SC to declare a law, treaty,
ordinance, etc. unconstitutional (Sec. ·1(2))
• Lower courts may also exercise the power of judicial
review, subject to the appellate jurisdiction of the SC.
(Sec. 5(2))
• Only SC decisions set precedents. As thus, only SC
decisions are binding on all.
Requisites of Judicial Review: (REARS)
The question Involved must be B.lpe for adjudication, e.g.
the challenqed government act must have had an adverse
effect on the person challenging it.
The question of constitutionality must be raised in the first
instance, or at the garliest opportunity.
An Actual case calling for the exercise of judicial power.
Resolution of the issue of constltutionality is unavoidable
or is the very lis mota of the case.
The person challenging the governmental act must have
., ·~tanding' (Locus Stand,)
Exception: The Court can waive the procedural rule on
stanc.iing in cases that raise issues of transcendental
importance.
Functions of Judicial Review
1. Checking - Invalidating a law or executive act that is
found to be contrary to the Constitution
2. Legitimating - upholding the validity of the Jaw that
results from a mete dismissal of a case challenging the
validity of the law
3. Symbolic - to educate the bench and bar as to the
contro!ling principles and concepts on matters of grave
public importance for the guidance of and restraint
upon t:,e future (Salonga v. Cruz Pano, GR No 59524,
February 18, 1985)
Doctrine of Judicial Supremacy
When the judiciary allocates constitutional boundaries, it
neither asserts superiority nor nullifies an act of the
Legislature. It only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them.
ATENEO CENTRAL
BAR OPERATIONS 2019
Actual Case
Refers to a conflict of legal rights, an assertion of opposite
legal claims susceptible of judicial determination.
'Ripe for Adjudication'
A constitutional question is ripe for adjudication when the
governmental act being challenged has had a direct
adverse effect on the individual challenging it. It is also
necessary that there be a law that gives rise to some
specific rights of persons or property, under which adverse
claims are made. (Santiago Jr. v. Bautista, GR No. 25024,
march 30, 1970)
Elements of Standing (ITR)
a. The petitioner must have personally suffered some
actual or threatened Injury which can be legal,
economic, or environmental;
b. The injury is fairly traceable to the challenged action;
and · Commission, et al., G.R. No. 174697, 2010).
c. The injury is likely to be redressed by a favorable action
(Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. COMELEC, GR No. 132922, April
21, 1998)
Requisites for Third Party Standing (jus terti1) (IRf.1):
The litigant must have suffered an injury-in-fact, thus giving
him or her a "sufficiently concrete interest" in the outcome
of the issue in dispute;
The litigant must have a close Belatlon to the third party;
and
There must exist some Hindrance to the third party's ability
to protect his or her own interests. (White Light v. C.'ty of
Manila, 576 SCRA 416, 2009)
Rules on the Liberal Approach on Locus Standi
In recent years, the SC has been following a liberal
approach on standing in high profile issues. The rules may
be summarized as follows:
4. For taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure
is unconstitutional
5. For voters, there must be showing of obvious interest
in the validity of the election law in question;
6. Forconcerned citizens, there must be showing that the
issues raised are of transcendental importance which
must be settled
7. For legislators, there must be a claim that the official
action complained of infringes their prerogatives as
legislators;
8. Government of the Philippines is a proper party to
question the validity of its own laws
Page 58 of 320
POLITICAL LAW
Epistolary Jurisdiction
This concept is a result of the relaxation of the rule on locus
standi; where a third party (who may have suffered no
damage) can approach the court on behalf of a
marginalized affected class.
Guidelines in determining whether or not a matter is of
transcendental importance:
The character of the funds or other assets involved in the
case;
The presence of a clear case of disregard of a
constitutional or statutory prohibition by the public
respondent ager.cy or Instrumentality of the government;
and . ·
The lack of any other party with a more direct and specific
interest in the questions being raised ( Chamber of Real
Estate and Builders' Association, Inc. v. EnergyRegulatory
Taxpayer Suits
A taxpayer suit is proper only when there is an exercise of
the spending or taxing power of Congress, whereas citizen
standing must rest on direct and personal interest in the
proceeding. In sum, it bears to stress that generalized
interests, albeit accompanied by the assertion of a public
right, do not establish locus standi. Evidence of a direct
' and personal interest is key ( Southern Hemisphere
Engagement Networr., Inc., et al. v. Anti- Terrorism Council,
et al., 2010).
Rule on Raising at the Earliest Opportunity
General Rule: The earliest opportunity to raise a
constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same. (Matibag v
Benipayo, GR No. 149036, April 2, 2002)
Exceptions:
1. In criminal cases - at any time at the discretion of the
court
2. In civil cases - at any stage of the proceedings if
necessary for the determination of tne case itself; or
3. In every case (E1cept where there is estoppel) - at r
(..,1:
any stage if it involves the jurisdiction of the court
(People v. Vera, GR No. 45685, November 16, 1937)
Justiciable Controversy
A definite and concrete dispute touching on the legal
relations of parties having adverse legal interests, which
I
'\.;..:,,
may be resolved by a court of law through the application
of a law (Cutaran v. DENR, GR No 134958, January 31,
2001)
 ATENEO CENTRAL
BAR OPERATIONS 2019
Requirements for Justiclability
a. That there be an actual controversy between or among
the parties to the dispute;
b. That the interests of the parties be adverse;
c. That the matter in controversy be capable of being
adjudicated by judicial power; and
d. That the determinaticn of the controversy will result in
practical relief to the complainant.
(a) Operative fact
Effect of a Declaration of Unconstitutionality - Prior to
the declaration that a particular law is unconstitutional, it is
considered an "operative fact". Vested rights acquired
under such law before it was declared unconstitutional are
not prejudiced by the subsequent declaration that the law
is unconstitutional.
A mere administrative practice, not formalized into a rule
or ruling, will not suffice because such a mere
administrative practice may not be uniformly and
consistently applied. An administrative practice, if not
formalized as a rule or ruling, will not be known to the
general public and can be availed of only by those within
,:;
the formal contacts witn the government agency. (CIR v.
San Roque Power Corporation, G.R. No. 187485, 2013)
(b) Moot questions
When an action is considered Moot
An action is considered MOOT when it no longer presents
a justiciable controversy because the issues involved have
become academic or dead or when the matter has already
been resolved. There is nothing for the court to resolve as
the determination thereof has been overtaker. by
subsequent events (Atty. Evillo C. Pormento v. Estrada
, ... and COMELEC, G.R. No. 191988, 2010).
A moot case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or
dismiss it. As this Court has time and again declared, the
"moot and academic" principle is not a magical formula
that automatically dissuades courts in resolving a case.
When Courts still decide even if the case is Moot
The Court may still take cognizance of an otherwise moot
and academic case, if it finds that:
a. there is a grave violation of the Constitution;
b. the situation Is of exceptional character and paramount .
public interest is involved;
c. the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and · .
the public; and
Page 59 of 320
POLITICAL LAW
d. the case Is capable of repetition yet evading review.
(Narra Nickel Mining and Development Corp. v.
Redmont Consolidation Mines Corp., G.R. No. 195580,
20'15)
(c) Political questions doctrine
Political Question - A question, the resolution of which
has been vested by the C0nstitution exclusively
1. In the people, in the exercise of their sovereign
capacity, or
2. In which full discretionary authority has been delegated
to a co-equal branch of the Government (Tanada v.
Cuenco, G.R. No. L-10520, 1957).
While courts can determine questions of legality with
respect to governmental action, they cannot review
government policies and the wisdom behind such policies.
These questions are vested by the Constitution in the
Executive and Legislative Departments.
"EDSA I involves the exercise of the people power of
revolution which overthrew the whole government. EDSA
II is an exercise,of people power of freedom of speech and
freedom of assembly to petition the government for redress
of grievances which only affected the office of the
President. EDSA I is extra constitutional and the legitimacy
of the new government that resulted from it cannot be the
subject of judicial review, but EDSA II is extra
constitutional and the resignation of the sitting President
that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented
a political question; EDSA II involves legal questions"
(Estrada v. Desierto, G.R. No. 146710-15, 2001).
The Judiciary is NOT precluded from reviewing "political
questions". Under the second clause of Sec. 1, Art. VIII
, (the power to determine whether or not there has been a
grave abuse of discretion) the Courts may now determine
whether there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government.
The determination of what constitutes "betrayal of public
trust" or "other high crimes" is a political question. A
determination of what constitutes an impeachable offense
is a purely political question, which the Constitution has left
to the sound discretion of the legislature (Ma. Merveditas
N. Gutierrez v. The House of Representatives Committee
on Justice, et af., G.R. No. 193459, 2011).
 ATENEO CENTRAL
BAR OPERATIONS 2019
The Ombudsman, despite being a constitutionally created
body with constitutionally mandated independence comes
within the scope of the power of Judicial review which
serves as a safety net 1:1gainst capricious and arbitrary acts
of any branch or agency of the Government (Presidential
Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto, G.R. No. 135715, 2011).
Examples of political questions In jurisprudence.
Interpretation of the meaning of "disorderty behavior" and
the legislature's power to suspend a member (there is no
procedure for the imposition of the penalty of suspension
nor did the 1935 Constitution define what "dlsorderty
behavior is). The matter is left to the discretion of the
legislature (Osmena, Jr. v. Pendatun, G.R. 17144, 1960).
Whether the court could intervene in a case where the':
House of Representatives was said to have disregarded its
own rule. The court was hold to have been without
authority to interv&ne (Arroyo v. De Venecia, G.R. No.
127255, 1997).
Recognition of diplomatic immunity (International Catholic
Migration Commission v. Hon. Calleja, G.R. No. 85750,
1990).
Examples of cases ln jurisprudence where the Court .
held that there was nu political question involved. ·
1. Apportionment of representative districts {because
there are constitutional rules governing apportionment)
(Bagabuyo v. COMELEC, G.R. No. 176970, 2008).
2. Suspension of the privilege of the writ of habeas corpus
because the Constitution sets limits to executive
discretion on the matter (Montenegro v. Castaneda,
G.R. No. L4221, 1952). . shall be fixed by taw. It cannot be decreased
3. Manner of forming the Commission on Appointments
(Daza v. Singson, G.R. No. 86344, 1989; Coseteng v.
Mitra, G.R. No. 86649, 1990; Guingona v. Gonzales,
G.R. No. 106971, 1992).
SAFEGUARDS OF SECURING JUDICIAL
INDEPENDENCE
1. Being a Constitutional body, it may not be abolished by
law;
• Creation and abolition of courts - The power to
create courts IMPLIES•the power to abolish and
even re-orqanlze courts. But this power cannot be
exercised in a manner that would undermine the
securlty of tenure of the judiciary. If the abolition
or re-organization is done in good faith and not
for political or personal reasons, it is valid.
2. Members are only removable by impeachment;
Page 60 of 320
POLITICAL LAW
3. SC may not be deprived of minimum and appellate
jurisdiction; appellate Jurisdiction may not be increased
without its advice or concurrence; Congress cannot
deprive the Supreme Court of its jurisdiction over cases
provided for in the Constitution. Congress can only do
the following:
• Define enforceabla and demandable rights;
prescribing remedies for violations of such rights
• Determine the court with jurisdiction to hear and
decide controversies or disputes arising from
legal rights
4. SC has administrative supervision over all inferior
courts and personnel;
5. SC has exclusive power to discipline judges/ justices of
inferior courts;
6. Members of the judiciary enjoy security of tenure;
7. Members of judiciary may not be designated to any
agency performing quasi-judicial or administrative
functions;
• The Court rejected 'petltloner's claim that the
Presidential Electoral Tribunal (PET) exercises
quasi-judicial functions contrary to Section 12, ;
\, ...
Article VIII of the Constitution. When the Supreme
Court, as the PET, resolves a presidential or vice-
presidential election contest, it performs what is
essentially a judicial power (Atty. Macalintal v.
Presidential Electoral Tribunal, G.R. No. 191618,
2010).
8. Salaries of judges may not be reduced.
• Salaries of SC Justices and judges of lower courts
during their continuance in office, but can be
increased. Members of the Judiciary are NOT
'exempt from payment of income tax (Nitafan v. . .
CIR, G.R. No. 78780, 1987).
9. SC alone may initiate Rules of Court; ,•. ::..
10. SC alone may order temporary detail of judges;
11. SC can appoint all officials and employees of the
Judiciary.
Salaries of Judges and General Income Tax
In Nitafan v CIR, the Court held that the salaries of Justices
and Judges are properly subject to a general income tax
law applicable to all income earners and that the payment
of such income tax by Justices and Judges does not fall
within the constitutional protection against decrease of
their salaries during their continuance in office.
(, __.,,
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

JUDICIAL RESTRAINT in the practice of law in the Philippines or has held public
office in the Philippines requiring admission to the practice
Judicial Restraint of law as a requisite.
This doctrine is well intertwined with the doctrine of
separation of powers. The courts should defer to the THE JUDICIAL ANO BAR COUNCIL
decisions made by the legislature and executive branches
and should not thwart the implementation of these acts Composition
unless they are clearly unconstitutional. The Supreme 1. Chief Justice, as ex-officio chairman
Court exercises judicial restraint where the issue before it 2. Secretary of Justice, as ex-officio member
has already been mooted by subsequent events. 3. Representative of Congress, as ex-officio member
4. Representative of the Integrated Bar
Appointments to the Judiciary 5. A professor of law
6. A retired member of the SC
Qualifications
7. Private sector representative
Every prospective appointee to the judiciary must apprise
the appointing authority of every matter bearing on his
The last four are the regular members of the JBC. The
fitness for judicial office including such circumstances as
President, with CA approval, appoints regular members
may reflect on his integrity and probity (Office of the Court
who serve for 4 years, in staggered terms.
Administratorv. Estacio,1, Jr., A.M. No. RTJ-87-104, 1990;
Gutierrez v. Be/an, A.M. No. MTJ-95-1059, 1998).
The JBC is composed of 7 members coming from different
I
sectors. Thus, while we do not lose sight of the bicameral
Until a correction of existing records on one's birth and
nature of our legislative department, it is beyond dispute
citizenship, one cannot accept an appointment to the
that the Constitution is explicit that we have only "a
!,:,, b'
judiciary, as that would be a violation of the Constitution.
representative". Thus, two (2) representatives from
For this reason, he can be prevented by lnjunction from
Congress would increase the number of JBC members to
doing so (Kilosbayan v. Ermita, G.R. No. 177721, 2007}.
eight (8), a number beyond what the Constitution has
Qualifications for J11dges and Justices: contemplated. The lone representative of Congress is
entitled to one full vote. This eifectively disallows the
LOWER scheme of splitting the said vote into half between two
LOWER NON-
SUPREME COLLEGIATE representatives of Congress.
COLLEGIATE
COURT COURTS (CA, CTA,
COURTS
Sandiganbayan) Thus, any inclusion of another member, whether with one
whole vote or 1/2 of it, goes against that mandate. Section
Natural born citizen of the Citizen of the
8(1 ), Article VIII of the Constitution, providing Congress
Philippines Philippines
with an equal voice with other members of the JBC in
(may be a
recommending appointees to the Judiciary is expllcit
naturalized citizen)
(Chavez v. JBC, G.R. No. 202242, 2013).
At least 40 Possesses other qualifications
years old prescribed by Congress Functions of The ,JBC
Primary Function: Recommend appointees to the
At least 15 Member of the Philippine Bar Judiciary.
years of Secondary Function: It may also exercise such other
experience as functions as the SC may assign to it.
a judge or in
the practice of Rules on Appointments/Clustering of Nominees
law in the 1. President shall appoint Members of the Supreme Court
Philippines and judges of lower courts from a list of al least 3
nominees for each vacancy, as prepared by the JBC.
A person of proven competence, integrity, probity and
2. No CA confirmation is needed for appointments to the
independence Judiciary.
'
3. Vacancies in SC should be filled within 90 days from
Note: For the RTC/MTC the age requirements is at least t~e occurrence of the vacancy.
35/30 years old' has been engaged for at least 10/5 years
.. ,i PagP. 61 of 320

·.....

-----~-----------------..:__ ·--·-----·-··-··--·-·-···--· ..····-·-· ...... _ ,_ .. -------·

 ATENEO CENTRAL
BAR OPERATIONS 2019
4. Vacancles in lower courts should be filled with:n 90
days from submission to the President of the JBC list.
5. Midnight Appointments - Explicit prohibition against ,
midnight appointments is already unnecessary due to ·
the intervention of and screening made by Judicial Bar
Council (JBC) (De Castro v. JBC, G.R. No. 191002,
2010)
Term
Members of the SC and ji.;dges of the lower courts hold
office during good behavior until:
1. The age of 70 years old
2. They become incapacitated to discharge their duties
Note: For judges of the lower courts, the term is the same.
Power to Discipline. . implying a position not contemplated by the Constitution.
The Supreme Court en bane shall have the power to
discipline judges of lower courts OR order their dismissal
by a vote of a majority of the Members who actually took
part on the issues in the case and voted thereon (CONST.
Art. VIII, Sec. 11J
Decisions of the SC on disciplinary cases en bane is
needed only when the penalty imposed is dismissal of a
judge, disbarment of a lawyer, suspension of either for
more than 1 year or a fine exceeding 10,000 pesos (People
v Gacott, GR No 116049, July 13, 1995)
FISCAL AUTONOMY
The entire judiciary shall enjoy fiscal autonomy. Annual
appropriations for the Judiciary cannot be reduced below
the amount appropriated for 1.ne previous year. Once
approved, approprlations shall be automatically and
regularly released.
Any exemption from the paymert of legal fees granted by
Congress to government-owned or controlled corporations
and local government units will r.ecessarily reduce the
Judiciary Development Fund (JDF) and the Special
Allowance for the Judiciary Fund (SAJF). Undoubtedly,
such situation is constitutionally infirm for it impairs the
Court's gl'aranteed fiscal autonomy and erodes its
independence (GS/S v. Heirs of Caballero, et et., G.R. No.
158090, 2010).
Page 62 of 320
'----------··. ·-··· -.
POLITICAL LAW
THE SUPREME COURT
A Constitutional Court .
The Supreme Court is the only constitutional court, all the
lower courts being of statutory creation.
Composition Of The Supreme Court
• Chief Justice,· and
• 14 Associate Justices
The President cannot appoint a temporary member of the
Supreme Court. There can be no doubt that the Chief
Justice and Associate Justices required by the Constitution
· to compose the Supreme Court are regular members of the
Court. A temporary member would be a misnomer,
Thus, a lciw which authorizes the President to designate
any judge of the lower court or cadastral judge to act as
member of the Supreme Court is void ( Vargas vs.
Ril/aroza, G.R. No. L-1612, 1948).
The members of the judiciary perform judicial functions.
This function is exclusive. They cannot perform non-
judicial functions. For this reason, the Constitution
provides that the members of the SLipreme Court and of
other courts shall not be delegated to any agency
performing quasi-judicial or administrative functions. ( Sec.
12, Art. VIII.)
Hearing Of Cases In The Supreme Court:
Divisions of 3, 5, or 7 members
En Banc
'. '.
··..
Primus Inter Pares
..;;';,
Literally, first among equals; the maxim indicates that a \ .
person is the most sen!or of a group of people sharing the
same rank or office. The phrase has been used to describe
the status, condition or role of the Chief Justice in many
supreme courts around the world.
Decisions By The Supreme Court . ,
t .;,
Reached in consultation before being assigned to a
member for the writing of the court's opinion. I '·
A certification to this effect must be signed by the Chief
-.~-
Justice and attached to the record of the case, and served
upon the parties.
Absence of a certification does not mean that there was no
consultation prior to assignment of the case to a member.
The presumption of regularity prevails but the erring officer
t\,,~·'
 A TENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

will be liable administratively ( Consing v. Court of Appeals, cases Heard By Division:

G.R. No. 78272, 1989). . Decided with the concurrence of a majority of the members
Members of the SC who took no part, or who dissented or who took part in the deliberations and voted thereon
abstained must state the reasons therefor. Majority vote in a division should be at least 3 members

All lower colleglate courts shall observe the same Cases Required To Be Heard En Banc
procedure (e.g., CA, CTA, and Sandiganbayan). All cases involving constitutionality of a: (UT)
- !:.aw
Decisions By The Lower Courts - International or executive agreement
• Decisions must state clearly and distinctly the facts - Ireaty
and the law on which they are based. (CONST. Art. All cases involving the constitutionality, application or
VIII, Sec. 14) operation of: (POPORI)
• Memorandum decisions, where the appellate court - f.residential decrees
adopts the findings of fact and law of the lower court, - Qrders
are allowed as long as the decision adopted by - froclamations
reference is attached to the Memorandum for easy - Qrdinances
reference. (Oil and Natural Gas Commission v. CA, - Other _Regulations
GR No. 114323, July 23, 1998) - [nstructlons

Timeframe For Deciding All cases required to be heard en bane under the Rules of
Court
SUPREME COLLEGIATE LOWER Appeals from Sandlganbayan and from the
COURT COURTS COURTS Constitutional Commissions
Cases heard by a division where required r:najority of
24 months from 12 months from 3 months from
submission submission submission
3 was not obtained
Cases where SC modifies or reverses a doctrine or
principle of law laid down by the SC en bane or by a
Periods above commence from the date of submission for division
decision or resolution. Administrative cases to discipline or dismiss Judges
of lower courts
A case or matter shall be deemed submitted for decision Election contests for President and Vice-President.
or resolution upon the filing of the last pleading, briaf, or
memorandum required by the Rules of Court or by the Other cases outside the ehumeration are heard in Division
Court itself. and decided or resolved with the concurrence of a majority
; •·.
of the members who actually took part in the deliberations
·;. T Upon expiration of the period without decision or on the issues and voted thereon, but in no case without the
resolution, a r.ertification stating why no decision or concurrence of at least 3 such members.
•'
,·-,
:.
.;'
resolution has been rendered shall be issued and signed
by the Chief Justice or presiding judge.
Decisions or resolutions of a division of the court, when
concurred in by a majority of Its members who actually took
A copy of the certillcation shall be attached to the record of part in the deliberations on the Issues in a case and voted
the case or matter, and served upon the parties.
thereon is a decision or resolution of the Supreme Court
itself. The Supreme Court sitting en bane is not an
The expiration of the period notwithstanding, the court shall
-, ,;. appellate court vis-a-vis its Divisions, and it exercises no
decide or resolve the case or matter without further delay.
appellate jurisdiction over the latter. Each division of the
Court is considered not a body inferior to the Court en
The Sandiganbayan falls under the 3-month rule because bane, and sits veritably as the Gourt en bane itself. The
it is a trial-court, not a collegiate court (Re: Problemsof
only constraint is that any doctrine or prinr.iple of law laid
Delays in Cases Before the Sandiganbayan,A.M. No. 00-
down by the Court, either rendered en bane or in division,
8-05-SC, 2002).
may be overturned or reversed only by the Court sitting en
bane. (FirestoneCeramics v. CA, G.R. No. 127245, 2000)
1. EN BANC AND DIVISION CASES

:
··.~:i Page 63 of 320

·.... ,
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Sin Perjuico Judgments ADMINISTRATIVE SUPERVISION OVER LOWER

One that is rendered without a statement of the facts in COURTS
support of its conclusions, to be later supplemented by the SC has administrative supervlslon over all inferior courts
final judgment. The Supreme Courted expressed its and personnel: .
disapproval of the practice of rendering of sin prejuico Temporarily assign lower court judges to other stations in
judgments. (NACHURA) the public interest.
Temporary assignment - shall not exceed 6 months
PROCEDURAL RULE-MAKING without the consent of the judge concerned.
Only the SC en bane has jurisdiction to discipline or
The Supreme Court has the power to promulgate rules dismiss judges of lower courts.
concerning the: Disciplinary Action/Dismissal: Majority Vote of SC
The protection and enforcement of constitutional rights Justices who took part in the deliberations and voted
Pleading, practice and procedure in all courts therein.
Admission to the practice of law
The Integrated Bar ORIGINAL AND APPELLATE JURISDICTION
Legal assistance to the underprivileged SC has Original Jurisdiction over:
1. Cases affecting:
A legislative grant of exemption from the payment of legal a. Foreign ambassadors
fees under RA 8291 was held to be unconstitutional since b. Other foreign public ministers
the payment of legal fees is an integral part of the rules c. Consuls stationed in the Philippines
promulgated by the court pursuant to Its rule-making power 2. Petitions for:
'
under the Constitution. The separation of powers among a. Certiorari
the three co-equal branches of our gcvernment has b. Prohibition
erected an impregnable wall that keeps the powers to c. Mandamus
promulgate rules of pleading, practice and procedure d. Quo Warranto
within the sole province of the Supreme Court. The other e. Habeas Corpus .
branches cannot trespass upon this prerogative by
enacting laws or issue orders that effectively repeal, alter 5. OTHER POWERS OF THE SC
or modify any of the procedural rules (Re: Petition for
Recognition of the GSIS from Payment of Legal Fees, A.M. • Power to Appoint: SC appointed al officials and
No. 08-2-01-0, 2010). employees of the Judiciary in accordance with the Civil
Service Law
However, it was ruled that Congress can amend the Rules • Temporary Assignments of Judges: SC . may
of Court in cases where it involves not just procedural temporarily assign judges of lower courts to other
elements but also substantve matters (Republic v. stations es public interest may require and NOT to
Glngoyon, G.R. No. 166429, 2006). exceed 6 months without the consent of the judge
concerned
Rule-making power also includes the inherent power to
suspend its own rules in particular cases in the interest of • Order a Change of Venue: SC may order a change of
justice. venue or place of trial to avoid miscarriage of justice
• Contempt Powers:
Limitations on Judicial Rule-Making:
1. It should provide a simplified and inexpensive SC has Appellate Jurisdiction over:
procedure for the speedy disposition of cases. Over final judgments and orders in the following:
2. It should be uniform for all courts of the same grade. 1. All cases involving constitutionality of :baw,
It should not diminish, increase, or modify substantive International agreement or Ireaty (LIT)
rights. 2. All cases involving the constitutionality, application or
3. Order a change of venue or place of trial to avoid a operation of froclamation, Qrder, fresidential decree,
miscarriage of justice. Qrdinance, Begulation or Instruction (PP.OPORI)
3. All cases involving the legality of any: !ax, fmpost, Ioll,
Assessment or any fenalty imposed in relation thereto
' (TITAP)

Page 64 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
4. All cases in which the jurisdiction of any lower court is
in issue
5. Criminal cases where the penalty imposed is reclusion
perpetua or higher.
6. All cases where only errors or questions of law are.
involved
Judicial Privilege
Judicial privilege insulates the Judiciary from an improper
intrusion into the functions of the judidal branch and
shields justices, judges, and court officials and employees
from public scrutiny or the pressure of public opinion that
would impair a judge's ability to render impartial decisions.
(In Re: Production of Court Records and Documents a.nd
the Attendance of Court Officials and Employees as.
Witnesses under the Subpoenas of February 10, 2012 and
the Various Letters of Impeachment Prosecution Panel
dated January 19 and 25, 2012, Notice ot Resolution,
February 14, 2012).
Court records which are "predecisional" and ''deliberative"
in nature are protected and cannot be the subject of a
subpoena. A document is "predeclsional" If it precedes, in
ternrorai sequence, the decision to which it relates. A
material is "deliberative" if it reflects the give-and-take of
the consultative process. (In Re: Production of Court
Records and Documents and the Attendance of Court
Officials and Employees as Witnesses under the
Subpoenas of February 10, 2012 and the Various Letters
of Impeachment Prosecution Panel dated January 19 and
25, 2012, Notice of Resolution, February 14, 2012).
Prlvlleged documents or communications not subject
to disclosure:
Court actions such as the result of the raffle of cases and
the actions taken by the Court on each case Included in the
agenda of the Court's session on acts done material to
..
"' '
pending cases, except where a party litigant requests
information on the result of the raffle of the case, pursuant
to Rule 7, Section 3 of the Rules of Court of the Supreme
Court (IRSC);
'·...
Court deliberations or ths deliberations of the Members of
the court sessions on cases and matters pending before
the Court;
;( '
.. Court records which are "pre-decisional" and "deliberative"
< • in nature;
Confidential Information secured by justices, judges, court
officials and employees in tne course of their official
functions mentioned in the 2 preceding enumerations, are
privileged even after their term of office;
i·.....;~ Page 65 of 320
POLITICAL LAW
Records of cases that are still pending for decision are
privileged materials that cannot be disclosed, except only
for pleadings, orders and resolutions that have been made
available by court to the general public.
The principle of comity or inter-departtnental courtesy
demands that the highest officials of each department be
exempt from the compulsory processes of the other
departments; ·
These privileges belong to the Supreme Court as an
institution, not to any justice or judge in his or her individual
-, capacity. Since the Court 1s higher than the individual
justices or judges, no sitting or retired justice or judge, not
even the Chief Justice, may claim exception without the
consent of the Court.
Judicial Privilege can be Invoked to
1. Deny access to specific portions of the Court's records
to the Members of the House Prosecution Panel and
the Senate Impeachment Court;
i. Prevent the oral disclosure of specific matters by the
Justices or officials of the Supreme Court before the
Senate Impeachment Court
The Internal Rules of the Supreme Court (IRSC)
prohibits the disclosure of:
1. Result of the raffle of cases;
2. Actions taken by the Court on each case included in
the agenda of the Court's session;
3. Deliberations of the Members in court sessions on
cases and matters pending before it;
4. The privilege against disclosure of these kinds of
lnformaUon/communicatlon is known as deliberative
process privilege ·
To qualify for Protection under Deliberative Process
Privilege
To qualify for protection under the deliberative process
privilege . the agency must show that the document is both
predecisional and deliberative.
---- end of topic----
1
ATENEO CENTRAL
BAR OPERATIONS 2019
V. CONSTITUTIONAL COMMISSIONS
TOPIC OUTLINE UNDER THE SYLLABUS
A. Common provisions
B. Powers and functions of the CSC, COMELEC,
and COA
C. Composition and Qualificetions of Members
D. Prohibited Offices and Interests
E. Review of final orders., Resolutions, and
Decisions
' (h) The Commissions enjoy fiscal autonomy (Phil Const.
Page 66 of 320
POLITICAL LAW
CONSTITUTIONAL SAFEGUARDS TO
ENSURE INDEPENDENCE OF COMMISSIONS
Independent Constitutional Commissions ·
1. Civil Service Commission (CSC)
2. Commission on Elections (COMELEC)
3. Commission on Audit (COA)
Prohibited Offices and Interests (BEEH)
No member of a Constitutional Commission shall, during
his tenure:
(1) f!e financially interested, directly or indirectly, in 'any
contract with, or in any franchise or privilege granted
by the Government, any of its subdivisions, agencies
or instrumentalities
(2) gngage in the Practice of any profession:
(3) gngage in the Active management and control of any
business which in any way may be affected by the
functions of his office; and
(4) Hold any other Office or Employment;
What are the Constitutional safeguards to er.sure
Independence of the commissions?
(a) The commissions are constitutionally created, and may
not be abolished by law (Phil Const. art. IX-A, §1)
(b) Each is expressly described as 'independent'
(c) Each is conferred certain powers and functions by the
Constitution which cannot be reduced by statute {Phil
Const. art. IX-8, C, and D)
(d) The Chairmen and members cannot be removed,
except by impeachment (Phil Const. art. XI, § 2)
(e) The Chairmen and the members are given a fairly long
term of office of 7 years (Phil Const. art. IX-B, C, and
D,§1,,I2) ' ':..;,,
(f) The Chairmen and members may not be re-appointed
or appointed In an acting capacity
(g) The salaries of the Chairmen and members are
relatively high and may not bo decreased during .. ~.,
j,, •
· continuance in office (Phll Const. art. IX,§ 3; art. XVIII,
§ 117)
art. IX-A, § 5).
(i) Each Commission en bane may promulgate its own
procedural rules, provided they do not diminish, ,,:;
increase or modify substantive rights (PHIL CONST.
art. IX,§ 6)
• In case of conflict between the Rules of Court and
the Rules promulgated by the commission, the
prevailing rule will depend on where the case is
filed. If before the commission, the rule of the
commission prevails, If before a regular court, the
Rules of Court will prevail.
 ATENEO CENTRAL
BAR OPERATIONS 2019
• The power of the Supreme Court to review the
rules of quasi-judicial ngencies does not apply to
Constitutional Commissions. · appointment from comrnissloner to chairman as long as:
U) The Chairmen and members are subject to certain
disqualifications calculated to strengthen their. integrity
(PHIL. CONST. art. IX, § 2)
(k) The Commissions may appoint their own officials and
employees in accordance with Civil Service Law (PHIL.
CONST. art. IX,§ 4).
What does fiscal autonomy mean?
Fiscal autonomy means that there is automatic and regular
release as opposed to the fiscal autonomy of the Judiciary,
which includes the rule that appropriation may not be less
than the previous year.
What is the concept of 'Rotational Scheme of
Appointments'?
The "rotational scheme of appointments" provides that the
first appointees shall serve terms of 7, 5 and 3 years,
respectively. "There appears to be near unanimity as to the
purpose/s of the rotational system, as originally conceived,
i.e., to place in the commission a new appointee at a fixed
interval (every two years presently), thus preventing a four-
year administration appointing more than one permanent
and regular commissioner. or to borrow from
Commissioner Monsod of the 1986 CONCOM, 'to prevent
one person (the President of the Philippines) from
dominating the commissions"' (Funa v. Chairman of COA,
G.R. No. 192791, 2012).
The 2 conditions tor the workability of the "Rotational
Scheme" are:
The terms of the first batch of commissioners should start
{ ',. on a common date; and
Any vacancy due to the death, resignation or disability
before the expiration of the term should be filled only for
the unexpired balance of the term (Fune v. Chairman of
GOA, G.R. No. 192791, 2012 citing Republic v. Imperial,
G.R. No. L-8684, 1955).
.. .•
Where rotational scheme of appointments apply:
1. Civil Service Commission (CSC)
2. Commission on Elections (COMELEC)
3. Commission on Audit (GOA)
4. Judicial and Bar Council (JBC)
.( -.
-. ...;
' ;,
.."',,,
Page 67 of 320
'·····
.~
... :.,,:
POLITICAL LAW
Promotional Appointment of Commissioner to
Chairman
Article IX-0, Sec. 1(2) QQes not prohibit a promotional
(a) The commissioner has not served the full term of 7
years; and
(b) The appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. [Sec.
1(2), Article IX-DJ
(c) The promotional appointment must conform to the
rotational plan or the staggering of terms in the
commission membership.
Jurisprudence on Sec.1 (2), Art.IX-Ci
(1) Term of Appointment: The appointment of members
of any of the three constitutional commissions, after the
expiration of the uneven terms of office of the first set
of commissioners, shall always be for a fixed term of
seven (7) years; an appointment for a lesser period is
void and unconstitutional.
7he appointing authority cannot validly shorten the full
term of seven (7) years in case of the expiration of the
term as this will result in the distortion of the rotational
system prescribed by the Constitution.
" (2) Rule on Appointment to Vacancies: Appointments to
vacancies resulting from certain causes (death,
ri:.lslgnation, disability or impeachment) sllall only be for
the unexpired portion of the term of the predecessor;
such appointments cannot be less than the unexpired
portion [as it will disrupt the staggering].
(3) Memoers of Commission who served Full Term:
Members of the Commission who were appointed for a
full term of seven years and who served the entire
period, are barred from reappointment to any position
in the Commission. The first appointees in the
Commission under the Constitution are also covered
by the prohibition against reappointment.
(4) Eligibility for Appointment as Chairman of
Commissioner who resigns: A commissioner who
resigns after serving in the Commission for less than
seven years is eligible for an appointment as Chairman
for the unexpired portion of the term of the departing
chairman. Such appointment is not covered by the ban
en reappointment, provided that the aggregate period
of the length of service will not exceed seven (7) years
and provided further that the vacancy in the position of
Chairman resulted from death, resignation, disability or
removal by impeachment. This Is not a reappointment,
but effectively a new appointment
ATENEO CENTRAL.
BAR OPERATIONS 2019
(5) Rule on Temporary Appointments: Any member of
the Commission cannot be appointed or designated in
a temporary or acting capacity.
Term of Office of Each Commission Member
The terms of the first Chairmen and Commissioners of the
Constitutional Commissions under the 1987 Constitution
must start on a common date, irrespective of the variations
in the dates of appointments and qualifications of the
appointees, in orce- th.:1t the expiration of the first terms of
seven. five and three years should lead to the regular
recurrence of the two-year interval between the expiration
of the terms. This common appropriate starting point must
be on February 02, 1987, the date of the adoption of the
1987 Constitution.
A. Tenn - the time during which the officer may claim to
hold office as of right, and fixes the interval after which
the several incumbents shall succeed one another.
B. Tenure - term during which the incumbent actually
holds the office.
The term of office is not affected by the hold- over. The
tenure may be shorter than the term tor reasons within or
beyond the power of the incumbent. [Gaminde v.
Commission on Audit, G. R. No. 140335 (2000)] ·
POWERS AND FUNCTIONS OF
EACH COMMISSION
CIVIL SERVICE COMMISSION
Legal Basis: Art. IX-B, Sec. 3. The Civil Service
Commission, as the central personnel agency of the
Government, shall establish a career service and adopt
measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil
service. It shall strengthen the merit and rewards system,
integrate all human resources development programs for
all levels and ranks, and institutionalize a management
climate conducive to public accountability. It shall submit
to the President and the Congress an annual report on its
personnel programs.
Functions of the CSC
1. In the exercise of its powers to implement R.A. 6850
(granting civil service eligibility to employees under
provisional or temporary status who have rendered
seven years of efficient service), the CSC enjoys a
wide latitude of discretion, and may not be compelled
by mandamus.(Torregoza v. Civil Service
Commission, 211 SCRA 230).
Page 68 of 320
POLITICAL LAW
2. Under the Administrative Code of 1987, the Civil
Service Commission has ~he power to hear and
decide administrative cases ir.stituted before it
directly or on appeal, including contested
appointments.·
3. The Commission has original jurisdiction to hear and
decide a complaint for cheating in the Civil Service
examinations committed by government employees.
[Cruz v. CSC, (2001)]
4. It is the intent of the Civil Service Law, in requiring the
establishment of a grievance procedure, that
decisions of lower level officials (in cases involving
personnel actions) be appealed to the agency head,
then to the Civil Service Commission. (Olanda v.
Bugayong (2003)]
5. As the central personnel agency of the government,
shall establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness,
progressiveness and courtesy in the Civil Service.
a. It may revoke a certificate of eligibility motu
proprlo and consequently. the power to revoke
one that has been given.
b. Where the case simply Involves the
rechecking of examination papers and nothing
more than a re-evaluation of documents
already in the records of the CSC according to
a standard answer key previously set by it,
'·
notice and hearing is not required. Instead,
what will apply in such a case is the rule of res
ipsa loqultur {Lazo v. Civil Service
Commission, G.R. No. 108824, 1994). : '
6. Strengthen the merit and rewards system
7. l11tegrate all human resources development programs
for all levels and ranks
8. Institutionalize a management climate conducive to
public accountaollity
9. Submit to the President arid the Congress an annual
report of personnel programs
Scope of the Civil Servi~e Commission (BIGAS)
1. !!ranches
2. !nstrumentalities
3. GOCCs with original charters ~ \:
4. ,Agencies of the government ' !
5 . .§ubdivisions (Sec.2(1), Art. IX-B)
Composition
A Chairman, and 2 Commissioners
v, ;,
\..)
. .
. .,;
 ATENEO CENTRAL
BAR OPERATIONS 2019
Qualifications (Art.lX·B, Sec.1 (1 ))
1. Natural-born citizens of the Philippines;
2. At the time of their appointment, at least 35 years of
age
3. With proven capacity for public administration; and
4. Must not have been candidates for any elective
position in the election immediately preceding their
appointment
Dis qua I ifications
1. No candidate who has iost in any election shall, within
1 year after such election, be appointed to any office
in the Government of any GOCC or in any of their
subsidiaries. (CONST. Art. IX-8, Sec.6)
2. No elective official shall be eligible for appoint or
designation in any capacity to any public office or
position during his tenure. (CONST. Art. IX-8, Sec. 7,
Par(1))
Exceptions:
a. the Vice President may be appolnted as
member of the Cabinet
b. Member of the Congress is designated to sit
in the JBC
3. Unless otherwise allowed by law or by 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 GOCCe or their subsidiaries. (CONST. Art.
IX-8, Sec. 7, Par.(2))
4. No officer or employee in the civil service shall engage,
directly or indirectly, in any electioneering or partisan
political campaign, (CONST. Art.lX-8, Sec.2, Par.(4))
Appointment and Term
, > Appointed by the President with the consent of the
·r ..
Commission on Appointments. The term is 7 years, without
reappointment. The prohibition of reappointment applies
even if the Commissioner has served for less than 7 years.
(BERNAS)
Appointment to any vacancy shall be only for the unexpired
!of•• term of the predecessor. In no case shall any member be
appointed or designated in a temporary or acting capacity.
(CONST. M.IX-8, Sec.1, Par(2))
.. _ _..{
Page 69 of 320
..__ ., .
POLITICAL LAW
Classes of Service
1. Career Service: characterized by entrance (a) based
on merit and fitness to be determined, as far as
practicable, by competitive examinations; or (b) based
on highly technical qualifications; with opportunity for
advancement to higher career positions and security
of tenure.
a. Open Career Positions: where prior
qualification in an appropriate examination is
required
b. Closed career positions: scientific or highly
technical in nature;
c. Career Executive Service: undersecretaries,
bureau directors
d. Career Officers: other than those belonging to
the Career Executive Service who are
appointed by the President (e.g. those in the
foreign service)
e. Positions in the AFP although governed by a
different merit system
f. Personnel of GOCCs with original charters
g. Permanent laborers, whether skilled, semi-
skilled or unskilled
2. Non-Career Service: characterized by entrance on
bases other than those of the usual tests utilized for
the career service, tenure limited to a period specific
by law, or which is co-terminus with that of the
appointing authority or subject to his pleasure, or which
is limited to the duration
a. Elective officials, and their personal and
confidential staff;
b. Department heads and officials of Cabinet
rank who hold office at the pleasure of the
President, and their personal and confidential
staff;
c. Chairmen and members of commissions and
bureaus with fixed terms;
' d. Contractual personnel;
e. Emergency and seasonal personnel
The CSC cannot disallow an appointment to a position
authorized by law but not included in the Index of
Occupational Service. Although the CSC rules limit
appointments to positions within the Index of Occupational
Service, nevertheless, it is limited to the implementation of
the laws it is tasked to eniorce. RA 8494 exempted the
Trade and Investment Corporation from conforming to the
position classification; thus, the appointment is valid ( Trade
and Investment v. CSC, G.R.No.182249, 2013) .
ATENEO CENTRAL
BAR OPERATIONS 2019
Appcililtments in the Civil Service
General Rule: Made only according to merit and fitness to
be determined, as far as practicable, by competitive
examination
Exceptions:
(1) Policy determining - Where the officer lays down
principal or fundamental guidelines or rules: or
formulates a method of action for government or any of
its subdivisions; e.g. department head.
(2) Primarily confidential - Denoting not only confidence in
the aptitude of the appointee for the duties 9f the office
but primarily close intimacy which ensures freedom of
intercourse without embarrassment or freedom from
misgivings or betrayals on confidential matters of state ,
[De los Santos v. Malla re, 87 Phil 289); OR one
declared to be so t,y the President of the .Philippines
upon the recommendation of the CSC [Salazar v.
Mat hay, 73 SCRA 285] · determination is always a question of fact. (CSC v, Javier,
(3) Highly technical - Requires possession of technical
skill or :raining in supreme degree. [De tos Santos v.
Mallare, supra]
Types of Appointment . nature of the office requires close intimacy between the
1. Permanent St.atus: A permanent appointment shall
be issued to a person who meets all the requirements
for the positions to which he is being appointed,
including the appropriate oligibility prescribed, in
accordance with the provisions of law, rules and
standards promulgated in pursuance thereof.
2. Temporary Status: In the absence of appropriate
eligibles and when it becomes necessary in the public
interest to fill a vacancy, a temporary appointment shall
be issued to a person who meets all the requirements
for the position to which he is be;ng appointed except
the appropriate civil service eligibility; provided that
such temporary appointment shall not exceed 12
months, but the appointee may be replaced sooner if
a qualified civil service eligible becomes available.
CSC may not terminate the employment of a civil
servant
The CSC may not terminate the employment of a civil
servant The CSC is not a co-manager or surrogate
administrator of government c!ffices and agencies. Its
functions and authority are limited to approving or
reviewing appointments to determine their compliance with
requlrernents of the Civil Service Law. On its own, the
Commission does not have ihe power to terminate
employment or drop members from the rolls (UP and
Torres v, CSC. G.R. No. 132860, 2001).
Page 70 of 320
POLITICAL LAW
Security of Tenure In Civil Service Law
The concept of security of tenure in the Civil Service Law
is embraced in Section 2(3), Article Xl-8. "No officer or
employee of the civil service shall be removed or
suspended except for cause provided by law."
Classes of non-competitive positions
Polley detennlning -where the officer lays down principal
or fundamental guidelines or rules or formulates a method
of action for government or any of its. subdivisions.
(Nachur&, p. 418)
Primarily confidential - when the nature of the office
requires .close intimacy between the appointee and
appointing authority which insures freedom of intercourse
without embarrassment or freedom from misgiving of
betrayal of personal trust on confidential matters of state.
Highly technical - it means something beyond the
ordinary requirements of the profession. Hence, its
G.R. No. 173264, 2008)
When Position Primarily Confidential
A position is considered primarily confidential if the
appointee and appointing authority which insures freedom
of intercourse without embarrassment or freedom from
misgiving of betrayal of personal trust on confidential
matters of state.
The Guarantee of Security of Tenure for Primarily
Confidential Positions
They are covered by the guarantee of security of tenure
but the termination of their official relation can be justified
on the ground of loss of confidence because in that case
their cessation from office involves no removal but the
expiration of the term of office.
The CSC cannot take back-up files in the computer of an
employee to determine if he was acting as counsel for
employees with cases before the Commission when such
employee has a reasonable expectation of privacy. In ·
~
\
.,.
determining such, the following factors should be
considered: (PAC)
The Employee's Belationship to the item seized; ~- - ,I
Whether the employee took Action to maintain his privacy
in the item
Whether the item was in the immediate fontrol of the
employee; (Pollo v. Constantino-David, G.R. No. 181881, ~~ ...
2011)
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Rule on Security of Tenure COMMISSION ON ELECTIO~

No officer of employee of the CSC shall be removed or
suspended except for causes provided by law. (CONST. Composition
Art. IX-8, Sec.2, Par.(3)) Security tenure is available even One Chairman and 6 Commissioners
to positions which are considered highly technical, policy-
determining and primarily confidential. Qualifications (NTCIM)
1. Natural-born citizen;
Rule on Partisan Political Activity 2. At least 35 years old at the time of appointment;
Joint Circular No.001 d. 2016 of the COMELEC and CSC 3. College degree holder;
reiterated Art. IX, Sec.2(4) that no officer or employee in the 4. Not a candidate in any election immediately preceding
civil service shall engage, directly or indirectly. in any the appointment; and
electioneering or partisan political campaign. However, the 5. Majority, including the chairman, must be members of
prohibition of €ngaging in partisan political activity does the Philippine Bar who have been engaged in the
not apply tc department secretaries. (Santos v Yetco, GR practice of law for at least 10 years (CONST., Art.fX-
No. L013932, December ?.4, 1959) C, Sec.1, Par.(1))

Right to Self-Organization Appointment and Term

The right to self-organization shall not be denied to Appointed by the President with the consent of the
government employees. 3ut employees in the civil service commission of Appointment, for a term of 7 years, without
may not resort to strikes, walkouts, and other temporary reappointment. (CONST. ,f'.rt. IX-C, Sec.1, Par(2))
work stoppages, like workers in the private sector, to
pressure the government. to accede to their demands. If the appointment was ad interim, a subsequent renewal
' ·. Thus, their right to organize does not include the right to of the appointment does not vlolate the prohibition on
\.... :? strike. (SSS v, CA, GR No. 85279, jULY 28, 1989) reappointment because no previous appointment was
confirmed by the Commission on Appointment. Further,
Prohibition against Additional and Double the total term of both appointments must not exceed the 7
Compensation year limit. (Matibag v, Benipayo, GR No. 149036, April 2,
Rule: No elective or appointive public officer or employee 2002)
shall receive additional, double, or indirect compensation.
unless specifically authorized by law, nor accept without Constitutional Powers and Functions
the consent of the Congress, any present, emolument, Enforce and administer
·.. .:. office or title of any kind from any foreign gover.,m&nt. • All laws and regulations relative to the conduct of
Note that, pensions or gratuities shall not be considered as an election, plebiscite, initiative, referendum, and
additional, double or indirect compensation. (CONST. recall. e.g., COMEU:C can enjoin construction of
Art.IX-a, Sec.a) public works within 45 days of an election.
a. Additional Compensation: when for one and the • The COMELEC can take cognizance of any
same office for which compensation has been fixed question on the conduct of plebiscite such as to
- -··- there is added to such fixed compensation an .extra correct or check what the Board of Canvassers
reward in the form of bonus and the like (BERNAS) erroneously or fraudulently did during the
b. Double Compensation: refers to two sets of canvassing, verify or ascertain the results of the
compem:ation for two different offices held plebiscite either through pre-proclamation case or
concurrently by one officer through revision of ballots. The power of the
.... ":, COMELEC to ascertain the results of the plebiscite
Can ex officio members receive per diems? is implicit in the power to enforce all laws relative
., :. No, ex officio members of a board are not entitled to per to the conduct of plebiscite .
•..:._,,.· diems. (PEZA v GOA, GR No. 189i67, Jufy 3, 2012) • COMELEC can take jurisdiction over cases
involving party identity and leadership or
<;.r controversy as to leadership in the party. Such
i ::
jurisdiction is sourced from the general power of
' the Commission to administer laws and rules
,' .. involving the conduct of election.
\.)

,,... . ,'
1;. ::
Pagf! 71 of 320

...,•

"---i
A TENEO CENTRAL
BAR OPERATIONS 2019
• There is no need for a special legislation for the
authorization of the conduct of recall elections
because It is deemed included in the constitutional ..
function of COMELEC, hence, contemplated in its
budget in the GAA (Goh v. Bayron, G.R. No.
212584, 2014).
Exercise
Exclusive original jurisdiction over all contests relating to
the elections, returns, and qualifications of all elective
regional, provincial and city officials
Election contests in the Sangguniang J<abataan (SK) are
not under COMELEC jurisdiction but under the jurisdiction ·
of the DILG.
Appellate jurisdiction over all contests involving:
Elective municipal officials decided by trial courts of
general Ju.-isdiction
Elective barangay offlclals decided by trial courts of
limited jurisdiction
• A petition for certiorari questioning an interlocutory
order of a trial court in an electoral protest was within
the appellate jurisdiction of the COMELEC. The Court
recognizes the COMELEC's appellate jurisdiction over
petitions for certiorari against all acts or omissions of
courts in election cases (Bu/i/is v. Nuez, G.R. No.
195953, 2011).
• Petition for certiorari questioning the decision of
COMELEC division is premature as there is a plain and
speey remedy before COMELEC Er: Banc (Vil/arosa v.
Festin, G.R. No. 212953, 2014).
• Decisions, final orders, or rulings of the
COMELEC contests inrolving elective municipal
and barangay offices shall be final, executory,
and not appealable.
Exception:
May be appealed to tho SC EN BANC on questions of law
When the decision is brought on a special civil action for
certiorari, prohibition, or mandamus under Rule 64 for
grave abuse of discretion under Article IX-A Section 7.
Contempt powers
COMELEC can exercise this power only in relation to its
adjudicatory or quasi-judicial functions. It CANNOT
exercise this in connection with its purely executive or
ministerial functions.
If it is a pre-proclamation controversy, the COMELEC
exercises quasi-judlclal or administrative powers.
Its Jurisdiction over 'contests' (after proclamation) is in
exercise of its judicial funcnons.
Page 72 of 320
POLITICAL LAW
d. Issue writs of certiorari, prchlbltlon and
mandamus in the exercise of its appellate
jurisdiction.
Decide, except thane involving the right to vote, all
questions affecting elections, including determination of
the number and location of polling places, appointment of
election officials and Inspectors, and registration of voters.
These petitions are cognizable by the Regular Courts
{MTC).
Deputize, with the concurrence bf the President, law
enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring free,
orderly, honest, peaceful, and credible elections.
• This power is NOT limited to the election period.
• Applies to both criminal and administrative
cases.
Register political parties, organizations, or coalitions,
accredit citizens' arms of the Commission on Elections.
• Political parties, etc. must present their platform or i
,....
program of government.
• There should be sufficient publlcation.
• Groups that cannot be registered:
Religious denominations/ sects
Those that seek to achieve their goals through violence or·
unlawful means
Those that refuse to uphold and adhere to the Constitution.
Those supported by any foreign government e.g. receipt of
financial contributions related to elections
.\...,
Fiie, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters; ( ~-
investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions .{ -:.
't, .. ;
constituting elections frauds, offonses and malpractices.
COME:LEC has exclusive jurisdiction 10 inve:stigate and
prosecute cases for violations of election laws.
COMELEC can deputize prosecutors for this purpose. The >
,_ .,;
•
actions of the prosecutors are the actions of the
COMELEC. .
COMELEC can conduct preliminary investigation on
election cases falling within its jurisdiction. :I :
'"·'
Recommend to the Congress effective measures to ', :-
minimize election spending, including limitation of places .
where propaganda materials shall be posted, and to
<:»
prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.
 ATENEO CENTRAL
BAR OPERATIONS 2019
Recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or
' the same exactitude of the provisions of Art. VI, Sec.
disobedience to its directive, order, or decision.
Submit to the President and the Congress a .
comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall. (CONST. Art.
IX-C, Sec. 2)
The vote requirement for a valid COMELEC en Banc
resolution is a majority of the votes of all members, er 4
votes. If the six members are evenly divided, the
Commission on Elections should rehear the case (Sevilla
v. COMELEC, G.R. 203833, 2013}.
Powers not given to COMELEC
Decide questions involving the right to vote (placed under
jurisdiction of courts);
Transfer municipalities from one congressional district to
another for the purpose of preserving proportionality.
Cases decided by COMELEC subject to judicial
review:
Decisicns or determinations by COMELEC in the exercise
of its administrative (not quasi-judicial) power may be
questioned in an ordinary civil action before the trial court.
(FilipinasEngineering & Machine Shop v. Ferrer, G.R. No.
L-31455, 1985).
• · The Court has no power to review on certiorari an
interlocutory order or. even a final resolution issued by
a DIVISION of the COMELEC. The Court can only
review a final decision or resolution of the COMELEC
en bane (Cagas vs. COMELEC, G.R. No. 194139,
2012).
• COMELEC has jurisdiction to determine the presence
of "probable cause" in election cases. The finding of
probable cause and the prosecution of election
offenses rests in the COMELEC's sound discretion
(Baytan v. COMELEC, G.R. No. 153945, 2003}.
• The Chief State Prosecutor, who may have been .
designated by the COMELEC to prosecute a criminal
action, merely derives his authority from the
COMELEC. It is beyond his power to oppose the
appeal made by COMELEC (Come/ec v. Silva, G.R.
No. 129417, 1998).
The COMELEC cannot itself, in the same cancellation (of
certificate of candidacy) case, decide the qualification or
lack thereof of the candidate if such issues are yet
undecided or undetermined by the proper authority.
. '
-:-...:ff Page 73 of 320
',;.•
-=- ,,
... ·~·"
PO!..ITICAL LAW
• The provisions in Article IX, C, Section 2, enumerating
the powers and functions of COMELEC does not have
17, which provides for the HRET and SET, or that of
Art. VII, Sec. 4, which provides that the SC en bane
shall be the sole judge of all contest regarding the
. Presidency and Vice-Presidency. These tribunals have
jurisdiction over the question of qualifications of the
President, VP, Senators, and the HoR.
o Not one of the enumerated powers of the
COMELEC as stated in Article IX C, Sec. 2 of the
Constitution grants the commission the power to
determine the qualifications of a candidate.
• In Fermin v COMELEC, the SC ruled that mere rules
could not be sufficient to provide the COMELEC with
power to decide on the ineligibility of candidates.
• Insofar as the qualification of a candidate is concerned,
Rule 25 and Rule 23 of the COMELEC rules do not
allow authorization and do not constitute vestment of
jurisdiction for the COMELEC to determine the
qualification of a candidate.
• The facts of qualification must first be established in a
prior proceeding before an authority vested with
jurisdiction. Prior determination of qualification may be
by statute, by an executive order or by a judgment of a
competent court or tribunal.
• Lacking this prior determination, the certificate of
candidacy cannot be cancelled or denied due course
on ground of false representations regarding a
candidate's qualifications except if there exists self-
evident facts of unquestioned or unquestionable
veracity and judicial C<;'nfessions.
• In this light the COMELEC cannot cancel Poe's
certificate of candidacy lacklng prior determination of
her qualifications by a competent body. (Poe-
Uamanzares 11. Come/ec et al, G.R. Nos. 221697 &
221698-700, March 8, 2016)
Regulation of Public Utilities, Media and Franchises
The COMELEC may, during the election period, supervise
or regulate the utilization of all franchises or permits for the
operation of transportation and other public utilities, media,
all grants, privileges and concessions, granted by the
Government. (CONST. Art.lX-C, Sec.4)
The aim is to ensure equal opportunity, time, and space,
and the right to reply, induding reasonable equal rates for
public information campaigns and forums among
candidates. (CONST.Art. lX-C, Sec.4)
ATENEO CENTRAL
BAR OPERATIONS 2019
Can print media be compelled to allocate free space?
No. Print media may not be compelled to allocate free
space to the Commission. Such would amount to a taking
of property without just compensation. (Philippine Press
Institute v. COMELEC, GR No 119694, May 22, 1995)
Can the COMELEC regulate expressions made by
private citizens?.
No. COMELEC had no legal basis to regulate expressions
made by private citizens. As such, COMELEC's order to
remove the tarpaulin posted by the Diocese of 8acolod
bearing the heading 'Conscience Vote' was
unconstitutional. (Diocese of Bacotod v COMELEC, GR No
205728, January 21, 2()15)
COMMISSION ON AUDIT
Composition
1 Chairman, 2 Commissioners
Qualifications
1. Natural born citizen;
2. At least 35 years old at the time of appointment
3. CPAs with at least 10 years auditing experience or
members of the Bar with at least 10 years of
experience in the practice of law; at no time shall all
members belong to the same profession, and
4. Not a candidate in any election immediately preceding
appointment (CONST. Art. IX-D,Sec.1, Par(1))
Appointment and Term
Appointed by the President with the consent of the
Commission of Appointments for a term of 7 years, without
reappointment.
Appointment to any vacancy shall only be for the unexpired
portion of the term of the predecessor.
In no case shall any member be appointed or designated
in a temporary or acling capacity. (CONST. Art. IX-D,
Sec.1, Par.(2))
Powers and Duties of the Commission
Examine, audit, and settle all accounts pertaininq to:
• Revenue and receipts of funds or property
• Expenditures and uses of funds or property ownec
or held in trust by, or pertain to:
a. The Government
b. Any of its subdivisions, agencie:3 or
instrumentalities
c. GOCCs with original charters.
' correct deficiencies.
Page 74 of 320
POLITICAL LAW
COA is endowed with enough latitude to determine,
prevent and disallow irregular, unnecessary, excessive,
extravagant or unconscionable expenditures of
government funds. In resc.,lving cases brought before it on
appeal, respondent COA is not required to limit its review
only to the grounds relied upon by a government agency's
auditor with respect to disallowing certain disbursements
of public funds. In consonance with its general audit
power, respondent COA is not merely legally permitted, but
is also duty-bound to make its own assessment of the
merits of the disallowed disbursement and Mt simply
restrict itself to reviewing the validity of the ground relied
upon by the auditor of the £,overnment agency
concerned. To hold otherwise wou!d render COA's vital
constitutional power unduiy limited and thereby useless
and ineffective (Yap v. Commission on Audit, G.R.
No.158562, 2010).
Funds cannot be released without auditing in pre-audit
while in post-audit, the auditing is done only after the
funds are released.
To settle government accounts
- This means the power to settle liquidates accounts i.e.
accounts which may be adjusted simply by an arithmetical
process. It does not include the power to fix the amount of
an unfixed or undetermined debl
To define the scope and techniques for its own auditing
procedures;
To promulgate accounting and auditing rules i11cluding
those for the prevention and disallowance of irregular,
unnecessary, excessive, extravagant, or unconscionable
expenditures;
Conduct post-audit with respect to the following:
- Constitutional bodies, commissions, and offices granted
fiscal autonomy
- Autonomous state colleges and universities
- GOCCs and their subsidiaries incorporated under the
Corporation Code
- Non-governmental entities receiving subsidy or equity,
directly or indirectly, from or through the government,
which are required by law, through the granting institution, .• ... .
to submit to such audit.
- To decide administrative cases involving expenditure of
public funds (CONST. Art. IX-D, Sec.2)
If COA finds the internal control system of audited
agencies inadequate, COA may adopt measures,
including temporary or special pre-audit, as necessary to
' <-i,: ..~
 ATENEO CENTRAL
BAR OPERATIONS 2019
Keep the general accounts of the government, preserving
vouchers and other supportinq papers pertaining thereto.
The functions of COA can be classified as:
1. Examining and auditi,1g all forms of government
revenues and expenditures
2. Settling government accounts
3. Promulgating accounting and auditing rules
4. Deciding admlnistrative cases involving expenditures
of public funds.
COA's non-exclusive power to audit
The COA does not have the exclusive power to examine
and audit governn:ient entities. As such, public
corporations under COA, jurisdiction may employ private
auditors. However, COA's findings and conclusions
necessarily prevail over those of private auditors, at least
Insofar as government agencies and officials are
concerned (OBP v COA, GR No. 88435, January ·t 6, 2002)
Thus, private auditors can be hired but if there Is a conflict,
COA audit prevails. ·
Prosecutors Power to Review Accounts Settled by
COA
Prosecutors may still review accounts already settled and
approved by COA for the purpose of dstermlninq possible
criminal liability. This: is because COA's interest in such
accounts is merely adrnlnistrative.
Exclusive Authority to Define Scope of Audit and
Examination · COA has the power to detennine the meaning of 'public
Pursuant to its mandate as the guardians of public funds,
the COA has the exclusive authority to define the scope of
its audit and examination, establish the techniques and
methods for such review and promulgate accounting and
auditing rules and regulations (Veloso v. Commission on
... Audit, G.R. No. 193677, 2011).
; ... ~
What are Consldered Private Corporations
Note that 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. As presently constituted, the BSP is a public
corporation created t.iy law for a public purpose, and being·
such the funds of the BSP fall under the jurisdiction of the
Commission on Audit. (Boy Scouts of the Philippines v.
s ;.
1
'--'
:- GOA, G.R. No. 177131, June 7, 2011)
'".. , ....:··.... Complete Discretion afforded to COA
Page 75 of 320
. . .....
POLITICAL LAW
COA is generally accorded complete discretion in the
exercise of its constitutional duty and responsibility to
examine and audit expenditures of public funds. Only in
instances when COA acts without or in excess of
jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction shall the Court interfere. Thus,
· COA can disallow TESDA from paying a healthcare
allowance to their employees. (TESDA v. COA, G.R. No.
196418, Feb 10, 2015)
Jurisdiction
1. Of the Commission in General: No law shall be passed
exempting any entity of the Government, or any
investment of public funds, from the jurisdiction of the
' COA (CONST.Art. IX-0, Sec.3)
2. Over GOCCs: The Constitution vests in the COA audit
jt_;risdiction over 'government-owned and controlled
corporations with original charters, as well as
3. government owr.ed or controlled corporations without
original charters'. GOCCs with original charters are
subject to COA pre-audit, while GOCCs without
original charters are subject to COA post-audit. The
determining factor of COA's audit jurisdiction is
government ownership or control of the corporation.
4. Over LGUs: LGUs, through granted local fiscal
autonomy are still within the audtt jurisdiction of the
COA (Veloso v COA, GR No. 193677, September 6,
2011)
COA authority in Public Bidding
bidding' and what constitutes failure of the same when
regulations require public bidding for the sale of
governmenl property.
JURISDICTION OF EACH
CONSTITUTIONALCOMMISSION
Civil Service Commission
Scopo: All branches, subdivisions, instrumentalities,
agencies of the government, including government owned
and controlled corporations with original charters.
• "With Original Charter" means that the GOCC was
created by special law or by Congress
If incorporated under the Corporation Code, it does not
fall within the Civil Service and is not subject to the
CSC jurisdiction
• If previously government-controlled, but is later
privatized, it ceases to fall under CSC
• Jurisdiction is determined as of the time of filing the
complaint.
 --~--------------·-----
ATENEO CENTRAL
BAR OPERATIONS 2019
Commission on Electfons
EXCLUSIVE ORIGINAL jurisdiction over all contests
relating to the elections, returns, and qualifications of all
elective REGIONAL, PROVINCIAL and CITY officials
Election contests in the Sangguniang Kabataan (SK) are
not under COMELEC jurisdiction but under the jurisdiction
of the DILG.
• APPELLATE jurlsdlctlon over all contests
involving:
o ELECTIVE MUNICIPAL officials decided
by trial courts of general jurisdiction
o ELECTIVE BARA.NGAY officials decided
by trial courts of limited jurisdiction .
• A petition for certiorari questioning an interlocutory
order of a trial court in an electoral protest was
within the appellate Jurisdiction of the COMELEC.
The Court recognizes the COMELEC's appellate
jurisdiction over petitions for certiorari against all
acts or omissions of courts in election cases (Bulilis
v. Nuez. G.R. No. 195953, 2011).
• The COMELEC HAS jurisdiction over intra-party
disputes. The ascertainment of the identity of a
political party and its legitimate officers is a matter
that is well within its authority. The COl'vlELEC has
the power to enforce and administer all laws and
regulations relative to the conduct of an election.
• To resolve the issue, the COMELEC need only
refer to the Party Constitution. It need not go as far
as to resolve the root of the conflict between the
parties. It need only resolve issues as may be
necessary in the exercise of its enforcement
powers.
Commission on Audit
COA is endowed with enough latitude to determine,
prevent and disallow irregular, unnecessary, excessive,
extravagant or unconscionable expenditures of
government funds. In resolving cases brought before it on
appeal, respondent COA is not required to limit its review'
only to the grounds relied upon by a government agency's
auditor with respect to disallowing certain disbursements
of public funds. In consonance with its general audit
power, respondent COA is not merely legally permitted, but
is also duty-bound to make its own assessment of the
merits of the disallowed disbursement and not simply
restrict itself to reviewing the validity of the ground relied
upon by the auditor of the government agency
concerned. To hold otherwise would render COA's vital
constitutional power unduly limited and thereby useless
and ineffective (Yap v. Commission on Audit, G.R.
No.158562, 2010).
Page 76 of 320
·-· --·----------------------
POLITICAL LAW
COA has authority not just over accountable officers but
also over other officers who perform functions related to
accounting such as verification of evaluations and
computation nf fees collectible. and the adopUon of internal
rules of control.
COA has the authority to define the scope of its audit and
examination, establish the techniques and methods for
such review and promulgate accounting and auditing rules
and regulations (Veloso v. Comm;ssion on Audit. G.R. No.
193677, 201'1).
The Boy Scout of the Philippines ("BSP") is a government-
owned and controlled corporation under the jurisdiction of
COA. The BSP Charter (Commonwealth Act 111 ), entitled
"An Act to create a Public Corporation to be Known as the
Boy soouts of the Philippines, and to Define its Powers and
Purposes" created the BSP as a "public corporation" (BSP
v. COA, G.R. No. '177131, 2011). .
The Manila Economic and Cultural Office ("MECO") is
subject to audit by the COA. The MECO is sui generis. It
was established when the Philippines severed diplomatic
relations with Taiwan upon recognition of China. None of
its members are government officials. It is not a GOCC nor
an instrumentality. Its functions are of a kind that would
otherwise be performed by the diplomatic and consular
offices of the Philippines. Nevertheless, the consular fees ·
collected by the MEC may be audited by the COA.
Water districts are within the coverage of the COA. A water
district is a GOCC with a special charter since it is created
pursuant to a special law. Thus, COP. has the authority to
investigate whether directors, officials or employees of
GOCCs receiving allowances and bonuses are entitled to
such benefits under applicable laws.
" ,'·,
't.. ..,:.
,REVIEW OF FINAL ORDERS.
RESOLUTIONS, AND DECISIONS 5 :.
.
\. .,;
How Commission decides Matters or Cases
Each commission shall decide matters or cases by a
majority vote of all its members within 60 days from
submission. The rule on majority vote shall apply both in a
division or en bane.
•... r
Who constitutes 'majority'
This prevision is clear when it says that the voting should
be a majority vote of all its members and not only of those
· who participated in the deliberation and voted therein.
Effect of Resignation of a Co~missloner
When a commissioner resigns, it does not automatically
invalidate the decision. So long as the required majority of
the commission is still achieved despite the withdrawal of
the vote of the one who resigned, the decision shall stand.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

o Exception: COMELEC may sit en bane or in 2 to bring the appeal (PD 807, sec. 37- 39); (CSC v.
divisions. Dacoycoy, G.R. No. 135805, 1999).

How Election cases are decided on . Enforcement - It has been held that the CSC can issue a
Election cases, including pre-proclamation controversies writ of execution to enforce judgments, which is deemed
are decided in division, with motions for reconsideration final.
filed to the COMELEC en bane.
---- end of topic--· --
Majority decision of a Division
The SC has held that a majority decision decided by a
division of the COMELEC is valid.

No One member can decide a case for the Commission

As collegial bodies, each commission must act as one,
and no one member can decide a case for the entire
commission. (e.g. Chairman cannot ratify a decision that
would otherwise have been void.)

1. Rendered in the exercise of quasi-judicial

functions
• Decisions, orders or rulings of the COMELEC or the
COA may be brought on certiorari to the SC under
Rule 64.
~-:~ ..)'''
• Decisions, orders or ruling of the CSC should be
appealed to the CA under Rule 43.
• Period for appeals is 30 days from receipt of a copy ·,
of the decision, order, or ruling.
• It is however a requirement, that a motion for
. ,. reconsideration must first be filed before the
commission en bane, before resort to court is taken.
• The certiorari Jurisdiction of the court is limited only
to cases and matters rendered by a commission In
the exercise of its adjudicatory power, or those
relating to an election dispute and not to cases and
matters purely administr ative or executive in nature .
. .-
Rendered in the Exercise of Administrative Functions
Administrative disciplinary cases involving penalty of
suspension for more than 30 days, or fine in an amount
exceeding 30 days' salary, demotion, transfer, removal, or
dismissal from office shall be appealable to the CSC
\ ,~·-

.:: .... Decision may be executed pending appeal

Decision of CSC may be brought on appeal to the CA

under Rule 43
Decision of CA may be brought on appeal to the SC under
Rule 45.

Exoneration of officers or employees from administrative

charges does nol bar appeal. The CSC is the proper party
: .....
",...:11

Page 77 of 320
~-----~-·- -·· - ...

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

VII. BILL OF RIGHTS 2. Just Compensation

TOPIC OUTLINE UNDER THE SYLLABUS 3. Expropriation by Local Government Units
A. Fundamental Powers of the State M. Non-Impairment of Contracts
B. Private Acts and the Bill of Rights N. Free Acess to Courts and Adequate Legal
C. Rights to Life, Liberty, and Property Assistance
1. Procedural and Substantive Due Process O. Custodial Investigation Right~.
2. Void-for-Vagueness Doctrine P. Rights of the Accused
3. Hierarchy of Rights Q. Right to the Speedy Disposition of Cases
D. Equal Protection R. Right Against Self·lncriminatior.
1. Requisites for Valid Classification S. Right Against Double Jeopardy
2. Rational Basis, Strict Scrutiny, and T. Involuntary Servitude
Intermediate Scrutiny Tests U. Right Against Excessive Fines, and Cru~I and
E. Searches and Seizures Inhuman Punishments
1. Requisites for a Valid Warrant V. Non-Imprisonment for Debts
2. Warrantless Searches and Seizures W. Ex post facto laws and Bills of Attainder
3. Administrative Arrests X. Writs of Habeas Corpus, Kallkasan, Habeas
4. Evidence Obtained through purely Data, and Amparo
Mechanical Acts
F. Privacy of Communications and
Correspondence
1. Private and Public Communications
2. Intrusion, when allowed; Exclusionary .
Rule
G. Freedom of Speech and Expression
1. Prior Restraint and Subsequent
Punishment
2. Content-Based and Content-Neutral
Regulations '
3. Facial Challenges and the Overbreadth
Doctrine
4. Dangerous Tendency, Balanclng of
Interests, and Clear and Present Danger
Tests
5. State Regulation of Different Types of
. .,.
Mass Media
6. Commercial Speech
7. Unprotected Speech
H. Freedom of Religion
1. Non-Establishment and Free-Exercise
Clauses
2. Benevolent Neutrality and Conscientious
Objectors
._ ... ..,'

3. Lemon and Compelling State Interests r .:.

I. Liberty of Abode and Right to Travel ' - :,
1. Scope and Limitations .1"'; ..

t.....:.~·
2. Watch-list and Hold Dpearture Orders
J. Right to Information I
1. Scope and Limitations
2. Publication of Laws and Regulations • <

K. Right of Association "'-···

L. Eminent Domain
1. Concept of Public Use ·~ ,._;

Page 78 of 320

\.. ~r
 ATENEO CENTRAL
BAR OPERATIONS 2019
FUNDAMENTAL POWERS OF THE STATE: POLICE
POWER, EMINENT DOMAIN, TAXATION
CONCEPT, APPLICATION, AND LIMITS
The totality of governmental power is contained in three
great powers: police power, power of eminent domain and
power of taxation. These belong to the very essence of
government, without which no government can exist...a
constitution does not grant such powers to government: a
constitution can only define and delimit them arid allocate
their exercise amo.1g various government agencies
(Bernas, The 1987 Constitution of the Republic of the
Philippines, 2009).
REQUISITES FOR VALID EXERCISE
• Based on public necessity and the right of the State and
of the public to self-protection. For this reason, its scope
expands and contracts with changing needs (Baseco v.
PCGG, G.R. No. 75885, 1987).
• It is the power of the State to enact regulations to
promote the health, morals, peace and order, and
welfare of the society (Ermita-Ma/ate Hotel and Motel
l.J Operators v. City Of Manila, G.R. No. L-24693, 1967).
These fall under 'public necessity."
• Police power has been properly characterized as the
most essential, insistent, and the least !imitable of
powers, extending as it does to all the great public needs
[Id.]
Police Power (SM)
1. Reasonable Subiect - The subject of the measure is
within the scope of police power, i.e., that the activity or
property sought to be regulated affects the public
welfare. The interest of the public, generally, as
compared to a particular class requires interference by
.~ ... _
the state .
t.:t 2. Reasonable Means - the means employed ar~
reasonably necessary for the accomplishment of the
,.,.-
purpose, and not unduly oppressive on individuals.
Both the end and the means must be legitimate (United
States v. Toribio, G.R. No. L-5060, 1910).
Nature
...
. .... :;-
Legislative but may be delegated to the following:
• President
. ' • Administrative Bodies
\... :
• Legislative bodies of Local Government Units
...., :;'.
,:), ...
' .'
' '
\_)
POLITICAL LAW
Taxation (PUJ-NO)
• Must be exercised for public purpose, it must be
uniform and equitable (Sison v. Ancheta, G.R. No. L-
59431, 1984).
• The taking of property without due process of law may
not be passed over under the guise of taxing power,
except when the latter is exercised lowfully as when
(Pepsi-Cola Bottling Company v. Municipality Of
Tanauan, Leyte, 69 SCRA 460, 1976):
1. The tax is for a Public purpose; - The right of the
legislature to appropriate public funds is correlative
with its right to tax and as such the power of taxation
may only be exercised for public purposes. In that
case, the appropriation of ::,ublic funds for the
construction of feeder roads on land owned by a private
person is invalid for being made for other than a public
purpose (Pascual v, Secretary of Public Works, G.R.
No. L-10405, 1960).
2. The rule on Uniformity of taxation is observed; -
By uniformity, the Constitution does "not signify an
intrinsic, but simply a geographic uniformity ... A tax is
uniform when it operates with the same force and effect
in every place where the subject of it is found''
(Churchill v. Concepcion, G.R. No. 11572, 1916).
Uniformity requires that all subjects or objects of
taxation similarly situated are to be treated alike or put
on equal footing both in privileges and liabilities (Sison
v. Ancheta, G.R. No. L-59431, 1984).
3. Either the person or property taxed is within the
Jurisdiction of the government levying the tax; and
4. In the assessment and collection of taxes Notice
and Opportunity for hearing are provided.
Eminent Domain (PU.JU)
·. • The purpose of the taking must be public use. Just
compensation· must be given to the private owner
(8~:nas, The 1987 Constitution of the Republic of the
Philippines, 2009).
• The State has a paramount interest in exercising its
power of eminent domain for the general welfare and
that the superior right of the State to expropriate private
property always takes precedence over the interest of
private owners, provided that:
(a) the expropriation is for public use
(b) the exercise of the right to eminent domain
complies with the guarantees of due process
(Estate of JBL Reyes v. City of Manila, G.R. Nos.
132431 & 137146, 2004).
Page 79 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
1. Public Use - It means public usefulness, utility, or
advantage or what is productive of general benefit, so
that any appropriating of private property by the state
under its right of eminent domain, for purposes of great
advantage to the community, is a taking for public use
(Bernas, The 1987 Constitution of the Republic of the
Philippines, 2009 citing Gohld Realty Co. v. Hartford,
104 A. 2d 365, 368-9 Conn., 1954). What has emerged
is a concept of public use which is as broad as public
welfare. The scope of the power of eminent domain has
become as broad as the expansive and ever
expanding scope of police power itself (Bernas, The
1987 Constitution of the Republic of the Philipr,ines.
2009)
2. "Taking" requires: EPAP-D
1. Expropriator must Enter the private property
2. Entrance must not be for a momentary period,
must be Permanent
3. Entry must be under warrant or color of legal
Authority,
4. Property must then be devoted to a Public use.
5. Utilization of property must Deprive owner of all
beneficial enjoyment of the property (Republic v.
Vda. Castel/vi. G.R. No. L-20620, 1974).
3. Just Compensation - This includes not only the
determination of the amount to be paid (market value)
to the owner of the land but also the payment of the
land within a reasonable period of time from its taking
{MunicipaliCyof Makati v. Court of Appeals, G.R. No.
89898-99, 1990). It also includes interest in case of
delay (Republic v, Court of Appeals, G.R. No. 146587,
2002).
SIMILARITIES AND DIFFERENCF.S OF
FUNDAMENTAL POWERS
(See table above)
A. As to authority which exercises the power
• Police power and taxation may be exercised only by the
government or its polllical subdivisions
• The exercise of the power of eminent domain may be
granted to public service companies or public utilities.
B. As to purpose
• In police power. the use of tht' property is "regulated" for
the purpose of promoting the general welfare, hence it
is not compensable
• In taxation, the property (generally in the form of money)
is taken for the support of government
• In eminent domain, the property is "taken" for public use
or benefit, hence, it must be compensated.
Page 80 of 320
\ ·
POLITICAL LAW
C. As to persons affected
• Police power (usually) operates upon a community or a
class of entities or individuals
• Eminent domain operates on an entity or an individual
as the owner of a particular property.
D. As to effect
• In police power, there is no transfer of title, at most there
is a restraint on the injurious use of the property
• In taxation, the money contributed in the concept of
taxes becomes part of the public funds
• In eminent domain, there is a transfer of the right to
' property whether it be ownership or to a lesser right
(e.g., possession.)
E. As to benefits received
• In police power, the person affected receives no direct
and immediate benefit but only such as may arise from
the maintenance of a healthy economic standard of
society and is often referred tc as damnum absque
injuria, i.e .. "damage without injury."
• In taxation, :t is assumed that the person affected
receives the equivalent of the tax in the form of
protection and benefits he receives from the government
as such. · ·
• In eminent domain, the person affected receives the
market value of the property taken from him.
i. .~
F. As to amount of Imposition , .,
1. .. ~·
· • In police power. the amount imposed should not be more
than sufficient to cover the cost of the license and the
necessary expense of police surveillance and
Inspection, examination, or regulation as nearly as can
be estimated.
• In taxation, there is generally no limit to the amount that
may be imposed.
r ·~
• In eminent domain, there is no amount imposed but
rather the owner is paid the market value of the property . '
\:..__,.=-
taken.
' .. ·
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

DELEGATION implementation which may call for some degree of

Police Power
While police power rests primarily with the national
legislature, such power may be delegated. Section 16 of
the LGC, known as the general welfare clause,
encapsulates the delegated police power to local
governments (Social Justice Society v. Atienza, G.R. No.
156052, 2007).
Taxation
The power of taxation is essentially a legislative function.
Taxaticn is an attribute of sovereignty. It is the strongest of
all powers of the government. There is a presumption in
favor of legislati-19 determination. Public policy decrees
that since upon the prompt collection of revenue depends
the very existence of government itself, whatever
determination shall be arrived at by the legislature should
not be interfered with, unless there be a clear violation of
some constitutional inhibition (Sarasota v. Trinidad, 40
Phil.252, 1919).
The Legislature is free to select the subjects of taxation
and it may determine within reasonable bounds what is
necessary for its protection and expedients for its
promotion (Lutz v. Araneta, G.R. No. L-7859, 1955).
discretionary powers under a set of sufficient standards
expressed by law (Maceda v. Mace1aig, G.R. No.
88291, 1993).
Eminent Domain
The matter is legislative, however, "once authority is given
to exercise the power, the matter ceases to be wholly
legislative. The executive authorities may then decide
whether the power will be invoked and to what extent
(Republic v. Juan, G.R. No. L-24740, 1979).
It may be delegated to LGUs, other public entities and
public utilities. The scope is narrower and may be
exercised only when authorized by Congress, subject to its
controi and restraints imposed through the law conferring
the power or in other legislations. Thus, the power of
eminent domain delegated to an LGU is in reality not
eminent but "inferior." The national legislature is still the
principal of the LGUs, the latter cannot go beyond the
principal's will or modify the same (Beluso v. Municipality
of Panay, G.R No. 153974, 2006).

General Rule: The power to tax is purely legislative and it

cannot be delegated.
Exceptions:
I. As to the President - Congress may, by law,
authorize the President to fix within specified limits, and
subject to such limitations and restrictions as it may
impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within
the framework of the national development program of
the Government (Phil. Const. art. VI, § 28 ,r 2).

II. As to Local Government - Under the present

Constitution, each local government unit is now
expressly given the power to create its own sources of
-; ;.. · revenue and to levy taxes, subject to such guidelines
and limitations as the Congress may provide, ·
consistent with the basic policy of local autonomy ..
. ·· ,.
(Phil. Const. art. X, § 5).
~; A A municipal corporation has no inherent right to
,· . impose taxes. Its power to tax must always yield to
\ . .i a legislative act which is superior having been
passed by the state itself which has the inherent
power to tax (Basco v. PAGCOR, G.R. No. 91649,
1991). .
. '
Lii. As to Administrative Agencies - When the
'.,
delegation relates merely to administrative
Page 81 of 320

_.,...
....
ATENEO CENTRAL
BAR OPERATIONS 2019
POLITICAL LAW

May be exercised only by the government' or its May be granted to public service
· political subdivisions. companies or public utilities,

The use of the property The property (generally The property is "taken" for public
is "regulated" for the in the form of money) is use or benefit, hence, it must be
purpose of promoting taken for the support of compensated.
the general welfare, government.
hence it is not
compensable.

Usually operates upon Operates on an entity or an

a commur.ity or a class Individual as the owner of a
of entities or particular propeny.
individuals.

There is no transfer of The money contributed There is a transfer of the right to

title, at most there is a in the concept of taxes property whether it be ownership or
restraint or. the becomes part of the to a lesser right (e.g. possession.) .r
injurious use of the public funds.
property.

The person affected Person affected receives The person affected receives the full
receives no direct and the equivalent of the tax and fair market value of the property
immediate benefit but in the form of protection, taken from him.
only such as may arise public improvements,
from the maintenance and benefits he receives
of a healthy economic from the government as
standard of society and such. Therefore, taxation
is often referred i'.o as may be used as an
... =
damnurn absque implement. of police
injuria, i.e., "damage power (Lutz v. Araneta, t -,
~
without injury." 1955)
The amount imposed There is g1merally no There is no amount imposed but ·
should not be more limit to the amount that rather the owner Is paid the market ·
than sufficient to cover may be imposed. · value of the property taken. ·
the cost-of the license
and the necessary
expense of police
surveillance and
inspection,
examination, or
regulation as nearly as
can be estimated.
::..... . ·.·

Regulates both liberty Affect only property rights

and property
{ ~
\ ~; ..
Page 82 of 320

', ......
 ATENEO CENTRAL
BAR OPERATIONS 2019
PRIVATE ACTS AND BILL OF RIGH..I§.
· .Purpose of Due Process
Conceptually, the set of fundamental human rights and
freedoms contained in the Bill of Rights, whether civil or
political in character, serve as a limitation on the exercise
of governmental power. Even in the absence of a
Constitution, fundamental human rights may be invoked
before the courts for the protection of citizenry.
The Bill of Rights governs the relationship between the
individual and the state. Its concern is not the relation
betw3en individuals, between a private individual and other
individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any
power holder [People v. Marti, G.R. No. 81561 (1991 )].
The constitutional proscription against unlawful searches
and seizures therefore applies as a restraint directed only
against the government and its agencies tasked with the
enforcement of the law. If the violation is by private
individuals, the remedy is found in the Civil Code, or If
proper, in the Revised Penal Code. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
\.. ,/
Human rights have a primacy over property rights. The
rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation
and vitality of civil institutions [Philippine Blooming Mills
Employment Organization v. Philippine Blooming Mills,
Co., G.R. No. L-31195 (1973)].
The Bill of Rights governs tho relationship between the
individual and the state. Its concern is not the relation
between individuals, between a private individual and other
individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any
power holder [People v. Marti, supra).
I° ~
· .....
DUE PROCESS - THE RIGHTS TO LIFE LIBERTY AND
PROPERTY
~... ~: No person shall be deprived of life, liberty, or property
,.. .. without due process of law, nor shall any person be denied
1.,.,, the equal protection of the laws (Phil. Const., art. 111, § 1 ) .
All natural persons, and artificial persons, only in so far as
their property is concerned, are protected by the Due
Process clause. (Smith Bell & Co. v, Natividad, G.R. No.
15574, 1919) .
.- ~
Page 83 of 320
.<:»,.
POLITICAL LAW
Concept and aspects of Due Process, In General
Due process evades a precise definition. The purpose of
the quaranty is to prevent arbitrary governmental
encroachment against the life, liberty, and property of
indiv:duals. The due process guaranty serves as a
protection against arbitrary regulation or seizure. Even
corporations and partnerships are protected by the
guaranty insofar as their property is concerned (White
Light Corporation v. City of Manila, G.R. No. 122846,
2009).
The due process guaranty has traditionally been
interpreted as imposing two related but distinct restrictions
on governn1ent, "procedural due process" and "substantive
due process. (id.).
Due process of law, in any particular case, means such an
exercise of the powers of the govornment as the settled
maxims of law permit and sanction and under such
safeguards for the protection of individual rights as those
maxims prescribe for the class of cases to which the one
in question belongs. (U.S. v. Ling Su Fan, 10 Phil. Rep.,
104, 111, 1908; Moyerv. Peabody, 212 U.S. 78, 1909).
Due process of law, in its broad concept, is a principle in
our legal system that mandates due protection to the basic
rights, inherent or accorded, of every person against harm
or transgression without an intrinsically just and valid law,
as well as an opportunity to be heard before an impartial
tribunal, that can warrant such an impairment. Due process
guarantees against arbitrariness and bears on both
I .
substance and procedure. Substantive due process
concerns itself with the law, its essence, and its
concomitant efficacy; procedural due process focuses on
the rules that are established In order to ensure meaningful
adjudications appurtenant thereto. (Separate Opinion of
Justice Vitug in Serrano v. NLRC, G. R. No. 11704(), 2000).
The Court cannot set the benchmark of due process at the
lowest level by considering each pleading submitted by a
party as enough to satisfy the requirements of this
Constitutional protection. If the Court is to animate the spirit
of the Constitution and maintain in full strength the
substance of the due process protectloo, it must afford
each party the full legal opportunity to be heard and
present evidence in support of his or her contentions. A
party must, therefore, be given full opportunity to proffer
evidence on its claim of ownership over the treasury
shares in a proper case before the right court. (Philippine
Coconut Producers Federation, inc., et al. v. Republic ot
the Philippines, G.R. Nos. 177857-58, .W16)
 ATENEO CENTRAL
BAR OPERATIONS 2019
Types of Due Process
1. Procedural - Procedural due process refers to the
procedures that the government must follow before it
deprives a person of life, liberty, or property.
Procedural due process concerns itself with
government action adhering to the established
process when it makes an intrusion into the pnvate ·
sphere. (White Light Corporation v. City of Manila,
G.R. No. 122846, 2009).
2. Substantive - If due process were confined solely to
Its procedural aspects, there would arise absurd
situation of arbitrary government action, provided the
proper formalities are followed. Substantive due
process completes the protection envisioned by the
due process clause. It Inquires whether the
government has sufficient justification for depriving a
person of life, liberty, or property. (White Light
Corporation v. City of Manila, G.R. No. 122846, 2009).
The Rights to Life, Liberty, and Property
Life I Procedural and Substantive Due Process
not just a protection of the right to be alive or to the security
of one's limb against physical harm; it is also the right to a
good life characterized by "dignity" and "a decent standard
of living." Article 2 extends the protection to the life of the
unborn.
Liberty
includes the right to exist and the right to be free from
arbitrary personal restraint or servitude.
Property
includes all kinds of property in the Civil Code, including
vested rights such as a perfected mining claim, or a
perfected homestead, or a final judgment, the right to work
and earn a living. But does not include mere privileges
granted by the government, i.e., licenses. (sernas, The
1987 Constitutior. of the Republic of the Philippines, 2009).
When Right Vested
"A right is vested when the right to enjoyment has become
the property of some particular person or persons as a
present interest." (16 C.J.S. 1173). It is "the privilege to
enjoy property legally vested, to enforce contracts, and
enjoy the rights of property conferred by existing law· (12
C.J. 955, Note 46, No. 6) or "some right or interest in
property which has become fixed and established and is
no longer open to doubt or controversy" (Downs v. Blount,
170 Fed. 15, 20, cited in Balboa v. Farra/es, 51 Phi/, 498,
502; Yinluvs Trans-Asia, GR 207942, 2015).
Section 13 of the Cybercrime Prevention Act on the '
preservation of computer data was assailed for being an
Page 84 of 320
POLITICAL LAW
undue deprivation of the right to property. The petitioners
argued that the data preservation order that law
enforcement authorities are empowered to issue is a form
of garnishment of perscnal property in civil forfeiture
proceedings and that such order prevents internet users
from accessing and disposing of traffic data that essentially
belong to them. The court upheld the section explaining
that the data that service providers preserve on orders of
law enforcement authorities are not made inaccessible to
users by reason of the issuance of such orders. The
process of preserving data will not unduly hamper the
normal transmission or use of the same. (Dlsini v. Sec. of
Justice, G.R. No. 203335, 2014).
Relatlvity of Due Process
The concept of due process is not a static one. "What due
process is depends on circumstances. It varies with the .
subject matter and the necessities of the situation." (Moyer
v. Peabody, Governor of Colorado, 212 U.S. 78, 1909)
Procedural Due Process
Procedural due process refers · to the procedure that
government agencies must follow in the enforcement and ·
application of laws. It contemplates notice and opportunity
to be heard before judgment is rendered affecting one's
person or property. (Fabe/fa v. Court of Appeals, G.R. No.
110379, 1997).
Adversarial proceeding becomes necessary only when
there is a need to propound searching questions to unclear
witnesses, a procedural right which the employee must ask
for. Where the dismissal of the employee from service is
due to dishonesty or for a just cause but due process was
not observed as no hearing was conducted despite her
request, the employer should be held liable for indemnity .
in the form or' nominal damages. (Lavador v. "J" Marketing ' .
\~..;:
Corporation, G.R. No. 157757, 2005).
Three copies of every administrative issuance should be
filed in the Office of the National Administrative Reyister
(ONAR) of the UP Law Center. Non-compliance makes it
f· ··~.
invalid and it may not be enforced. This requirement is put ~~,. - .
into place as a guarantee to the constitutional right to due
process. (Republic v. Pilipinas Shell, G.R. No. 173918, .!' "'.:·
2008).
However, not all rules and regulations adooted by every
government agency are to be filed with the UP Law Center. .. '...
·, ..:-
::,
Only those of general or of permanent character are to be
filed. According to the UP Law Center's guidelines for
receiving and publication of rules and regulations,
 ATENEO CENTRAL
BAR OPERATIONS 2019
Interpretative regulations and those merely internal in
nature, that is, regulating omy the personnel of the
Adrninlstrative agency and not the public, need not be filed
with the UP Law Center. (The Board of Trustees of the
Government Service Insurance System v. Albert Velasco,
G.R. No. 170463, 201'1).
Standards for Different Types of Proceedings
TYPE STANDARD
i--~~~~-+~~~~~~~~~~~~-·-
Judicial CODE: (Ju3NO)
Proceedings 1. An Impartial court or tribunal
clothed with Judicial power to hear
and determine the matter before it.
2. Jyrisdiction must be lawfully
acquired over the person or subject
matter.
Service of summons is not only
required to give the court jurisdiction
over the person of the defendant but
also to afford the latter the opportunity
to be heard on the claim made against
him. Thus, compliance with the rules
regarding the service of summons is
as much an issue of due process as of
jurisdiction (Sarmiento v. Raon, G.R.
No. 157219, 2004)
3. Judgment must be rendered upon a
lawful hearing.
4. The defendant must be given
Notice and an Qpportunity to be
heard.
Adminisirative CODE: (HIP-DESK)
and Quasi- 1. The right to a Hearing, which
~~ ·,,.. Judicial includes the right to present one's
. - Proceedings case and subrnlt evidence in support
thereof.
2. The tribunal or body or any of i_ts
judges must act on its or his own
Independent consideration of the law
and facts of the controversy
3. The decision must be based on the
evidence Presented at the hearing or
.,· ~ at least contair.ed in the record and
disclosed to the parties affected.
4. The Decision must have something
to support itself.
!: !.
5. The tribunal must consider the
Evidence presented.
6. Evidence supporting the conclusion
must be Substantial. · pursuant to the Rules of
7. The board or body should, in all
.· ,. ccntroversial questions, render its
t.J
decision m such a manner that the
Page 85 of 320
"'--•
t, ..I
POLITICAL LAW
parties to the proceeding can Know
the various issues involved and the
reasons for the decision rendered
What is required is not actual hearing,
but a real opportunity to be heard.
The requirement of due process can
be satisfied by subsequent due
hearing.
Notice and hearing are required in
judicial and quasi-judicial proceedings,
but not in the promulgation of a
general rule.
., Academic CODE: {FACE3)
Institutions f 1. The penalty imposed must be
School f.roportionate to the offense.
Disl':plinary 2. The student shall have the right to
Proceedings Answer the charges against him, with
the assistance of counsel if desired.
3. The student must be informed in
writing of the nature and .Qause of any
accusation against them.
4. The student has the right to be
informed of the gvidence against him.
5. The student has the right to
adduce §vidence in his own behalf.
6. The gvidence must be duly
considered by the investigating
committee or official designated by the
school authorities to hear and decide
the case.
• Proceedinqs in student disciplinary
cases may be summary; cross-
examination is not essential.
• The school has a contractual
obligation to afford its students a
fair opportunity to complete the
course they seek to pursue.
Exceptions:
1. Serious breach of discipline
2. Failure to maintain the required
academic standard
Deportation CODE: (Gin-HO)
Proceedings 1. There should be a prior
determination by the Board of
Commissioners of the existence
of, the !zround as charged against
the alien.
2. The alien should be Informed of
lhe specific grounds for
deportation.
3. A .!:!earing should be conducted
Procedure presented by the CID
Commissicner .
 ATENEO CEN1RAL
BAR OPERATIONS 2019
4. Order based on the determination
of the CID commissioner.
Extradition GRANTING OF BAIL
Proceedings If bail can be granted in deportation
cases, there is no justification why it
should not also be allowed in
extradition cases. After all, both are
administrative proceedings where the
innocence or !}uilt of the person
detained is not in issue. (Government
of Hong Kong v. 0/alia Jr., G.R. No.
153675, 2007).
When Bail may be granted to a
prospective extraditee:
1 . Upon a clear and convincing
showing that he/she will not be a
flight risk or a danger to the
community
2. When there exist special
humanitarian compelling
circumstances.
The cancellation of petitioners' bail,
without prior notice and hearing, could
be considered a violation of
petitioners' right to due process
tantamount to grave abuse of
discretion. (Rodriguez v. Presiding
Judge, G.R. No. 157977, 2006).
The doctrine in Purganan states that a
possible extraditee is not entitled to
notice and hearing before the
issuance of a warrant of arrest, since
notifying him before his arrest only tips
him of his pending arrest.
Instances when hearing is not necessary:
1. When administrative agencies are exercising their
quasi-legislative functions.
2. When administrative agencies are exercising their'
quasi-judicial functions if temporary pending hearing.'
3. Abatement of nuisance per se.
4. Granting by courts of provisional remedies.
5. Cases of preventive suspension.
6. Removal of temporary employees in the government.
7. Issuance of warrants of distraint and/or levy by the BIR
Commissioner.
8. Cancellation of the passport of a person charged w;th
a crime.
9. Suspension 01 a bank's operations by the Monetary
Board upon a prima facie finding of liquidity problems
in such bank.
Page 86 of 320
-------- - - .
POLITICAL LAW
Due process standards in student niscipllnary cases
The PMA is not immune from the strictures of due process.
The statement that "a cadet can be compelled to surrender
some civil rights and liberties in order for the Code and
System to be implemented" simply pertains to what cadets
have to sacrifice in order to prove that they are men or
women of integrity and honor, such as th3 right to entertain
vices and the right to freely choose what they want to say
or do. In the context of disciplinary investigation, it does not
contemplate a surrender of the right to due process but, at
most, refers to the cadets' rights to privacy and to remain
silent. (FirstClass Cadet Aldrin Jeff P. Cudia of the PMA v.
The Superintendent of the PMA, G.R. No. 211362, 2015).
Publicity and Coverage
The right of an accused to a fair trial is not incompatible to
a free press. Pervasive publicity is not per se prejudicial to
the right of an accused to fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-gavel
coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his
impartiality. (People v, Claudio Teehankee, Jr., G.R. Nos.
111206-08, 1995).
The peculiarity of the subject criminal cases is that the
proceedings already necessarily entail the presence of
hundreds of families. It cannot be gainsaid that the families
of the 57 victims and of the 197 accused have as much
interest, beyond mere curiosity, to attend or monitor the
proceedings as those of the impleaded parties or trial
· · participants. It bears noting at this juncture that the
prosecution and the defense have listed more than 200
witnesses each. The impossibility of holding such judicial ,. .
t.-... ::
proceedings in a courtroom that will accommodate all the
interested parties, whether private complainants or
accused, Is unfortunate enough. What more if the right
itself commands that a reasonable number of the general
public be allowed to witness the proceeding as it takes
place inside the courtroom. Technology tends to provide
the only solutlon to break the inherent limitations of the
courtroom, to satisfy the imperative of a transparent, open
and public trial. Thus, the Court partially granted pro hac
vice petitioners' prayer for a live broadcast of the trial court
proceedings, subject to strict guidelines. (In Re: Petition for
Radio and T. V. Coverage Of The Multiple Murder Case
Against Zaldy Ampatuan et al., A.M. No. 10-11-5-SC,
2011).
,;
,i :
· .. ~
 ATENEO CENTRAL
BAR OPERATIONS 2019
Substantive Due Process.
1. Reasonable Subject - The interests of the public
generally, as distinguished from those of a particular
class, requires the interference by the government
2. Reasonable Means - The means employed are
reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals.
(US. v. Toribio, G.R. No. L-5060, 1910).
Requisites of a valid ordinance: (Must NOT CUPPU,
Must be GC)
1. Must not Contraver,e the Constitution or any statute.
2. Must not be Unfair or oppressive.
3. Must not be Partial or discriminatory.
4. Must not Prohibit, but may regulate trade.
5. Must not be Unreasonable.
6. Must be General and Consistent with public policy
(Magtajas v. Pryce Properties, G.R. No. 111097,
1994).
Publication
Due process, which is a rule of fairness, requires that those
who must obey a command must first know the command.
Thus, Art. 2 of the Civil Code prescribes a 15--dayperiod of
publication of laws before they take effect, unless
otherwise provided.
The rule that requires publication for the effectivity of laws
applies not only to statutes but also to presidential decrees
and executive orders promulgated by the President.
Administrative rules and regulations must also be
published if their purpose is to enforce or implement
existing laws pursuant also to a valid delepation (Republic
v. Pilipinas Shell, G.R. No. 173918, 2008).
While notice and hearing are required in judicial and quasi-
judicial proceedings, they are not prerequisites in the
promulqation of general rules {in the performance of
executive and legislative functions, such as issuing internal
rules and regulations, an administrative body need not
comply with the requirements of notice and hearing)
" .. ,.} (Bernas, The 1987 Constitution of the Republic of the
Philippines, 2009).
. CONSTITUTIONAL AND STATUTOR'f DUE PROCESS
What is often said about statutory due process is a
procedure created by law, which upholds the constitutional
~ . ..J right of a person to due process.
·~ "
..
,.)
Page 87 of 320
..... t·
'<•• ,...i.,''
POLITICAL LAW
Application of Constitutional v, Statutory Due Process
To be sure, the Due Process Clause in Article Iii, Sec. 1 of
· the Constitution embodies a system of rights based on
moral principles so deeply imbedded In the traditions and
feelings of our people as to be deemed fundamental to a
civilized society as conceived by our entire history. Due
process is that which comports with the deepest notions of
what is fair and right and just. It is a constitutional restraint
on the legislative as well as on the executive and judicial
powers of the government provided by the Bill of Rights.
Due process under the Labor Code, like constitutional due
process, has two aspects: substantive, (i.E:., the valid and
authorized causes of employment termination under the
Labor Code) and procedural, (I.e., the manner of
dismissal). Procedural due process requirements for
dismissal are found In the Implementing Rules of P.O. 442,
as amended, otherwise known as the Labor Code of the
Philippines in Book VI, Rule I, Sec. 2, as amended by
Department Order Nos. 9 and 10. Breaches of these due
process requirements violate the Labor Code. Therefore,
statutory due process should be differentiated from failure
to comply with constitutional due process.
Constitutional due process protects the individual from the
,, government and assures him of his rights In criminal, civil
or administrative proceedings; while statutory due process
found in the Labor Code and Implementing Rules protects
employees from being unjustly terminated without just
cause after notice and hearing. (Agabon v. NLRC, G.R.
No. 158693, 2004).
The case of Timber Co. v. Ababon, -':! labor case, is
illustrative. Although the closure was done in good faith
and for valid reasons, we find that ITC did not comply with
the notice requirement. While an employer is under no
obligation to conduct hearings before effecting termination
of employment due to authorized cause, however, the law
requires that it must notify the DOLE and its employees at
least one month before the intended date of closure.
(Timber Co. v Ababon G. R. 164518, 2006).
The purpose of a preliminary investigation is to secure the
innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety
of a public trial, and also to protect the State from useless
and expensive trials. The right to a preliminary
investigation is a statutory grant, and to withhold It would
be to transgress constitutional due process. However, in
order to satisfy the due process clause, it is not enough
that the preliminary investigation is conducted in the sense
of making sure that a transgressor shall not escape with
ATENEO CENTRAL
BAR OPERATIONS 2019
impunity. A prehrnlnary investig:::ition serves not only the
purposes of the State. More importantly, it is a part of the
guarantees of freedom and fair play, which are birthrights
of all who live in our country. (Sa/onga v. Panon, G.R. No.
59524, 1985).
JUDICIAL STANDARD FOR REVIEW
Jurisprudence has developed three kinds of test
depending on the subject matter involved {Bernas. The
1987 Constitution of the Republic of the Philippines, 2009).
Tests are also applicable to Equal Protection Cases.
1. Strict scrutiny test • the focus is on the presence of
compelling, rather than substantial, governmental
interest and on the absence of less restrictive means
for achieving that interest. In terms of judicial review of
statutes or ordinances, it refers to the standard for
determining the quality and the amount of
governmental intorest brought to justify the regulation
of fundamental freedoms, it is used today to test the
validity of laws dealing with the regulation of speech,
gender, or race as well as other fundamental rights; its
scope has been expanded to protect fundamental
rights such as suffrage, judicial access, and interstate
travel (White Light Corporation v. City of Manila,. G.R.
No. 122846, 2009).
2. Intermediate scrutiny test • classification is at least'
substantially related to serving an important state
interest. It applied traditionally to suspect
classifications tike gender or illegitimacy. It is used in
dlscrirnlnatlons based on gender or illegitimacy of
children. Under the intermediate scrutiny test, the
classification must be substantially related to an
important government objective (League of Cities v.
COMELEC. G.R. No. 176951, 2008).
3. Rational basis test· classification is rationally related
to serving a legitimate state interest. This is the most
liberal test. It is often used to all subjects other than
those listed above. (Bernas, The 1987 Constitution of
the Republic of the Philippines. 2009).
Overcome the presumption of constitutionality
To overcome the presumption of constitutionality, it must
be demonstrated explicitly that the classification is hostile,
oppressive and discriminatory against particular persons
and classes and that there is no conceivable basis, which
might support it.
Page 88 of 320
POLITICAL LAW
VOID FOR VAGUENESS DOCTRINE
Void for Vagueness Doctrine ·
A statute which either forbids or requires the doing of an
act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its
application violates the essential of due process of law
(Estrada v. Sandiganbayan, G.R. No. 148560, 2001).
A vague law is unconstitutional because:
• It violates due process for failure to accord persons fair
notice of the conduct to avoid.
• Law enforr:ers have unbridled discretion in carrying out
its provisions. ·
The RH Law is not void under the void for vagueness
doctrine merely due to insufficiency of definition of some
terms. In determining whether the words used in a statute
are vague, words must not only be taken in accordance
with their plain meaning alone, but also in relation to other
parts of the statute. It is a rule that every part of the statute
must be interpreted with reference to the context, that is,
every part of it must be construed together with the other
parts and kept subservient to the general intent of the
whole enactment (lmbong v. Ochoa, G.R. 204819, 2014).
BERNABE: Verily, the objective of curbing unbridled
enforcement is not the sole consideration in a void for
vagueness analysis; rather, petitioners must show that this
perceived danger of unbridled enforcement stems from
an ambiguous provision In the law that allows
\ .
enforcement authorities to second-guess if a
particular conduct Is prohibited or not prohibited. in
this regard, that amhiguous provision of law contravenes
due process because agents of the government cannot
reasonably decipher what conduct the law permits and/or
forbids.
Here, petitioners fail to point out any ambiguous standard
in any of the provisions of the Curfew Ordinances, but
rather, lament the lack of detail on how the age of a
suspected minor would be determined. Without any
correlation to any vague legal provision, the Curfew
Ordinances cannot be stricken down under the void
for vagueness doctrine (SPARK v. QC, G. R. No. 225442.
2017).
Overbreadth Doctrine
A government purpose may not be achleved by means,
which sweep unnecessarily broadly and thereby invade the
',
i. ~
.. ....,·.
area of protected freedoms (Estrada v. Sandiganbayan,
f."
G.R. No. 148560, 2001). 'L;
·- .......
 ATENEO CENTRAL
BAR OPERATIONS 2019
Analytical tools developed for testing "on their faces"
statutes
The doctrines of strict scrutiny, overbreadth, and.
vagueness are analytical tools developed for testing "on
their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases ... With
respect to such statute, the established rule is that 'one to
whom application of a statute is constitutional will not be
heard to attack the statute on the ground that impliedly :t
might also be taken as applying to other persons or other
situations · in which its application might be
unconstitutional.' As has been pointed out, 'vagueness
challenges in · the First Amendment context, like
overbreadth challenges typically produce facial
invalidation, whlle statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a
particular defendant (Romualdez v. Sandlganbayan, G.R.
No. 152259, 2004).
Facial Invalidation
... an examination of the entire law, pinpointing its flaws and
'
defects, not only on the basis of Its actual operation to the
parties, but also on the assumption or prediction that its
very existence may cause others not before the court to
refrain from constitutionally protected speech or
activities. (Southern Hemisphere Engagement Network,
Inc., et al. v. Ami-Tetrorism Council, et a!.; KMU, et al. v.
Hon. EduardoErmita, et al. G.R. Nos. 178552, 178554,
2010).
When facial challenge allowed
A facial challenge is allowed to be made to a vague statute
and to one which is overbroad because of a possible
' : "chilling effect" upon protected speech. The theory is that
"[w]hen statutes regulate or proscribe speech and no
readily apparent construction suggests itself as a vehicle
for rehabilitating the statutes in a single prosecution, the
J '
r l'
\.~,r· transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks
on overly broad statutes with no requirement that the
person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn with
narrow specificity." The possible harm to society in
permitting some ur.protected speech to go unpunished is
outweighed by the possibility that the protected speech of
'~ .': others may be deterred and perceived grievances left to
fester because of possible inhibitory effects of overly broad
statutes. This rationale does not apply to penal
statutes. Criminal statutes have general In terrorem effect
resulting from their very existence, and, if facial challenge
is allowed for this reason alone, the State may well be ,
., ~
. ;, prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take
Page 89 of 320
',,r
POLITICAL LAW
chances as in the area of free speech (Estrada v.
Sandiganbayan, G.R. No. 148560. 2001).
"Aiding or abetting" in the commission of any offense or
"attempting" to commit any offense punished in the
Cybercrime Prevention is overbroad. A user can post a
statement, a photo or a video on Facebook. If the post is
made available to the pub'lc, anyone can react by clicking
"Like.• "Comment" enables him to post his feelings or
views. "Share• makes the post visible to his friends in the
social network. Except from the original author of the
assailed statement, the rest are knee-jerk sentiments of
readers who may think little or haphazardly of their
response to the posting. Unless the law takes into account
the unique circumstances and culture of cyberspace, such
a law will create a cl,illing effect on those who express
themselves through cyberspace. Thus, Section 5, which
punishes "aiding or abetting" libel on cyberspace Is void
(Dislniv. Sec. of Justice, G.R. No. 203335, 2014).
Void For Vagueness v. Overbreadth
1. Vagueness and overbreadth are distinct from each
other; a vaque law must lack clarity and precision,
while an overbroad law need not.
2. It ;s submitted that while the defect of overbreadth as
an analytical tool is applicable only to cases involving
speech, this is not so about vagueness (Bernas, The
1987 Constitution of the Republic of the Philippines,
2009).
VOID FOR VAGUENESS OVERBREADTH
Unconstltutlonal
Statute or act Government regulation
of free speech
Lacks comprehensible Means sweep
standards unnecessarily broadly
People guess at its Not necessarily unclear
me~ming; differ in
application
Violates due process; Invades protected
creates unbridled discretion freedoms
(Bernas, The 1987 Ccnstitution of the Republic of the
Philippines, 2009).
 A TENEO CEN1 RAL
BAR OPERATION3 2019
-,---1-i-lE-=R_A_R_C_H_Y
__O_F_R~l"'!'G~H~T~S--------::S~ec-t:'!"'ion-6:-o~f
-:-:th-e~C-.yb
Primacy of human rights over property rights is .
recognized.
While the Bill of Rights also protects property rights, the
primacy of human rights over property rights is recognized.
Property and property rights can he lost thru prescription;
but human rights are imprescriptible. The superiority of
these freedoms over property rights is underscored by the
fact that a mere reasonable or rational relation between the
means employed by the law and its object or purpose -
that the law is neither arbitrary nor discriminatory nor
oppressive - would suffice to validate a law which restricts
or impairs property rights. (Phi/fppine Blooming •Mills
Employment Organization v. Philippine Blooming Mills Co.,
G.R. No. L-31195, 1973).
' Justice, G.R. No. 203335, 2014).
EQUAL PROTECTION
CONCEPT
The Equal Protection clause guarantees equality of all
persons before the law. It does not demand absolute
equality. It merely requires that all persons shall be treated
alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced.
Protection against undue favor and individual or class
privilege, as well as hostile discrimination or the
oppression of inequality.
The equal protection of the law clause is against undue
favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not
intended to orohibit legislation which is limited either [by}
the object to which it is directed or by [the} territory within
which it is to operate. It does not demand absolute equality
among residents; it m".lrely requires that all persons shall
be treated alike, under like circumstances and conditions
both as to privileges conferred and liabilities enforced
(lchong v. Hernandez, G.R. No. L-7995, 1957). ·
Not a guaranty of equality
The guaranty of equal protection of the laws is not a
guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in
order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely
· as such, but on persons according to the circumstances
surrounding them. It guarantee:. equality, not identity of
rights (Victoriano v. Elizalde Rope Wor.l<ers' Union, G.R.
No. L-25246, 1974).
Page 90 of 320
POLITICAL LAW
...e...re
...r.,...im"""e~P...
re'."."v::e::nt:;:io:-:n-A:".c::,t~i::m::po:'.s:;".in::g
penalty one degree higher than that provided in the RPC
for acts committed by, through and with the use of
. information and communlcatlons technologies was
assailed for violating equal protection. The Court upheld
the section and explained that Section 6 merely makes
commission of existing crimes through the internet a
qualifying circumstance. There exists a substantial
distinctlon between crimes committed through the use of
information and communications technology and similar
crimes committed using other means. In using the
technology in question, the offender often evades
identification and is able to reach far more victims or cause
greater harm. The distinction, therefore, creates a basis for
higher penalties for cybercrirnes (Disini v. Secretary of
The OAP was challenged as "unfair as it [was] selective"
because tho funds released under the OAP was not made
available to all the legislators, with some of them refusing
to avail themselves of the OAP funds, and others being
unaware of the availability of such funds. The Court held
that the challenge based on the contravention of the Equal
Protection Clause, which focuses on the release of funds
under the OAP to legislators, lacks factual and legal basis.
· The denial of equal protection of any law should be an
issue to be raised only by parties who supposedly suffer it,
and, in · these cases, such parties would be the few
legislators claimed to have been disc, iminated against in
the releases of funds under the OAP. The requirement was
not rnet here (Arau/lo v. Aquino Ill, G.R. No. 209287,
·,,
2014).
: ~ I'
REQUISITES FOR VALID CLASSIFICATION: (GEES)
1. Be Qermane to the purposes of the law
· 2. Not limited to Existing conditions only
3. Applied Equally to all members of the same class.
4. Rest on Substant!al distinctions (People v. Cayat,
G.R. No. L·45987, 1939).
Validity of Classification freeze provision
The classification freeze provision does not violate the
equal protection and uniformity of taxation. Even though it
failed to promote fair competition among the players in the
industry, the classification freeze provision was not
-"":;,~
precipitated by a veiled attempt or hostile attitude on the
part of Congress to unduly favor older brands. Since the
provision was done in good faith and is germane to the
purpose of the law, the Court cannot declare it r:
unconstitutional nor question its wisdom. (British American ~ ,,I
Tobacco v. Camacho, G.R. No. 163583, 2009).
 ATENEO CENTRAL
BAR OPERATIONS 2019
Cityhood Laws
The Cityhood laws were constitutional. Based on the
deliberations by Congress on RA 9009, Congress intended
that those with pending cityhood bills during the
11th.Congress would not be covered by the new and
higher income requirement of P100 million imposed by RA
9009. The exemption clauses found in the individual
Cityhood Laws are the express articulation of that intent to
exempt respondent municipalities from the coverage of RA
9009. Such Cityhood Laws are, therefore, also
amendments to the LGC itself. In the enactment of the
Cityhood Laws, Congress merely took the 16
municipalities covered thereby from the disadvantaqed
position brought about by the abrupt increase in the
income requirement (from 20 million to 100 million) of RA
9009, acknowledging the "privilege" that they have already
given to those newiy-converted component cities, which
prior to the enactment of RA 9009, were undeniably in the
same footing or "class" as the respondent
municipalities. But in effect, the Cityhood Laws granted to
33 municipalities amended RA 9009 through the
exemption clauses found therein (League of Cities of the
\ Phil. et al. v. COMELEC, et al. G.R. Nos. 176951, 177499,
~
..
178056, 2011).
Is VAWC violative of the equal protection clause?
RA 9262 (An Act Defining Violence Against Women and
Their Children - VAWC) is not violative of the equal
protection clause. There is a valid classiflcation. The
unequal power relationship that women are mom likely to
be victims of violence and the widespread gender bias and
prejudice against women make for real differences
justifying the classification. Th~ distinction Is germane to
the purpose of the law to address violence committed
against women. The law applies to women and children
who suffer violence and abuse (Gare/av.Hon. Ori/on, G.R.
No. 179267, 2013).
..r _:.
Is the RH law violative of EPC?
. . . ..:. The RH Law, in providing that the poor are to be given
priority in the government's reproductive health care
.~
~. ~· f.
program, does not violate the equal protection clause. In
fact. it is pursuant to Section 11, Article XIII of the
Constitution which recognizes the distinct necessity to
address the needs of the underprivileged by providing that
....
.,._
' .r
',
they be given priority in addressing the health development
of the people. It should be noted that Section 7 of the RH
Law prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have children
(lmbong v. Ochoa, G.R. 204819, 2014).
:. } The Supreme Court upheld the constitutionality of RA No.
9442 or the Magna Carta for Persons with Disability
t} PagP, 91 of 320
POLITICAL LAW
granting the PWDs a 20% discount on the purchase of
medicine, and a tax deduction scheme was adopted
wherein covered establishments may deduct the discount
granted from gross income based on the net cost of goods
sold or services rendered. The equal protection clause
recognizes a valid classification, that is, a classification that
has a reasonable foundation or rational basis and not
arbitrary. With respect to R.A. No. 9442, its expressed
public policv is the rehabilitation, self-development and
self-reliance of PWDs. Persons with disability form a class
separate and distinct from the other citizens of the country.
·Indubitably. such substantial distinction is germane and
intimately related to the purpose of the law. Hence, the
classification and treatment accorded to the PWDs fully
satisfy the demands of equal protection. Thus, Congress
may pass a law providing for a different treatment to
persons with disability apart from the other citizens of the
country. (Drugstores Association of the Philippines, Inc
and Northern Luzon Drug Cotporeiioo v. National Council
on Disability Affairs. et a/.,1G.R. No. 194561, 2016)
Distinction between elective and appointive officials
There is a substantial distinction between elective and
appointive officials. The former occupy their office by virtue
of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom
only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some
appointive officials hold their office ir, a permanent capacity
and are entitled to security of tenure while others serve at
the pleasure of the appointing authority. (Eleazar P. Quinto
and Gerino A. Tolentino, Jr., vs. COMELEC, G.R. No.
189698, 2010).
Doctrine of Relative Unconstitutionality
A statute valid at one time may become void at another
time because of altered circumstances. Thus, if a statute
in its practical opemtion becomes arbitrary or confiscatory,
its validity, even though affirmed by a former adjudication,
is open to inquiry and investigation in the light of changed
conditions. This doctrine was invoked in a case to
invalidate RA 7653, which started as a valld measure of
legislative power applicable to Central Bank employees,
but, with the enactment of subsequent laws exempting all
rank and file employees of all GFls from the Salary
Standardization Law, was rendered void on account of a
violation of the equal protection clause (Central Bank
Employees Association, Inc. v. Bangko Sentral ng
, Pilipinas, G.R. No. 148208, 2004).
 ATENEO CENTRAL
BAR OPERATIONS 2019
STANDARDS OF JUDICIAL REVIEW
Standards of Judicial Review of the constitutionality of ,
a classification imbued in a statute
The equality guaranteed by the Equal Protection Clause is
not a dlsernoodied equality. It recognized that inherent in
the right to legislate is the right to classify. The problem is
one of determining the validity of the classification made by
law. Jurisprudence has developed three kinds of test
depending on the subject matter involved (Bernas, The
1987 Constitution of the Republic of the Philippines, 2009).
Rational Basis Scrutiny
The challenged classification needs only be shown to be
rationally related to serving a legitimate state interest
(Bernas, The 1987 Constitution of the Republic pf the
Philippines, 2009).
Rational basis examination, which is used to review
economic legislation, is a test to see if laws or ordinances
rationally further a legitimate governmental interest. (White
Light Corporation v. City of Manila, G.R. No. 122846,
2009).
The rational basis test was properly applied to gauge the
constitutionality of the assailed law in the face of an equal
protection challenge. Under the rational basis test, it is
sufficient that the legislative classification is rationally
related to achieving some legitimate State interest. (British
American Tobacco v. Camacho, G.R. No. 163583, 2009).
Middle Tier or Intermediate Scrutiny
The government must shov, that the challenged
classification serves an important state interest and that
the classification is at least substantially related to serving
that interest (Bernas, The 1987 Constitution of the
Republic of the Philippines, 200S').
Immediate scrutiny test, which is used to review
classifications based on gender and legitimacy,
extensively examines governmental interest and the
availability of less restrictive measures is considered
(White Ught Corporation v. City of Manila, G.R. No.
122846, 2009).
Strict Judicial Scrutiny
A legislative classlf'cation which impermissibly interferes
with the exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect class is presumed
unconstitutional, and the burden is upon the government
to prove that the classification is necessary to achieve a
compelling state interest and that it is the least restrictive
Page 92 of 320
·--------·- - .
POLITICAL LAW
means to protect such interest (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009).
Strict scrutiny test, which is used to review laws dealing
with freedom of the mind or restricting the political process,
focuses on the presence of .
• Compelling governmental interest; and on
• The absence of less restricting means for
achieving such interest. (White Light Corporation
v. City of Ma,1ila, G.R. No. 122846, 2009).
BERNABE: Jurisprudence holds that compellinq State
interests include constitutionally declared policies. The
Court has ruled that children's welfare and the State's
mandate to protect and care for them as parens
patrlae constitute · compelling interests to Justify
regulations by the State. It is akin to the paramount
interest of the state for which some individual liberties must
give way.
Althouoh treated differently from adults, the foregoing
standard applies to regulations on minors as they are still
accorded the freedom to participate in any legitimate
activity, whether it be social, religious, or civic. Thus, in the
present case, each of the ordinances must be narrowly
tailored as to ensure minimal constraint not only on the
minors' right to travel but also on their other constitutional
rights: In this case, two ordinances were declared·
unconstitutional for do not account for the reasonable ·
exercise of tho minors' rights of association, free exercise
of religion, rights to peaceabty assemble, and of free
expression, among others. (SPARK v. QC, G.R. No.
225442, 2017). ~...,·.::
A differentiated rule of computation of the money claims of
illegally dismissed OFWs based on their employment
periods violates the Equal Protection Clause because one
-.
category is singled out which . includes those whose
contracts have an unexpired portion of one year or more
and have their monetary awards limited to their salaries for
3 months or for the unexpired portion, whichever is
less. Imbued with the same sense of "obliqation to afford
protection to labor," the Court in the present case also
employs the standard of strict judicial scrutiny, for it
perceives in the subject clause a suspect classification
prejudicial to OFWs {Serrano v. Gallant Maritime Service,
G.R. No. 167614, 2009).
. . .....
l :.
., '
;_ .J
 A TENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

BERNABE: Considering that the right to travel is a
fundamental right in our legal system guaranteed no less
by our Constitution, the strict scrutiny test is the applicable
test. It should be emphasized that minors enjoy the same
constitutional rights as adults; the fact that the State has
broader authority over minors than over adults does .
not trigger the application of a lower level of sci utlny
(SPARK V. QC, supra).
WARRANT REQUIREMENTS Coda: PDEP
· .1.
it must be based on Probable cause;
2.
Probable cause must be Determined personally by a
jt!dge;
3. The judge must Examine under oath or affirmation the
complainant and the witnesses he may produce;
4. The warrant must Particularly describe the place to
be searched and the person or things to be seized
(Phil. Const., art. Ill, § 2)

SEARCHES AND SEIZURES Search Warrant v. Warrant of Arrest:

SEARCH WARRANT WARRANT OF ARREST
Scope of Right
The right of the people to be secure in their persons, The Applicant must show The Applicant must show
houses, papers, and effects against unreasonable that the items sought are Probable cause, i.e.
searches and seizures of whatever nature and for any in fact: • That an offense has
purpose shall be inviolable, and no search warrant or • Seizable by virtue of been committed and
being connected • The person to be
warrant of arrest shall issue except upon probable cause
with criminal arrested has committed
to be determine:d personally by the judge after examination
activity. it.
under oath or affirmation of the complainant and the
• Will oe found in the
witnesses he may produce, and particularly describing the place> to be
place to be searched and the person or things to be seized searc:hed.
(Phil. Const., art. Ill,§ 2)
' ~. ,., :,
The judge must The judge is not required to
CONCEPT personally examine the personally examine the
complainant or applicant complainant and his
Section 2 protects the privacy and sanctity of the person
and the witnesses under witnesses.
and of his house and other possessions against arbitrary
oath or affirmation in the
intrusion by the State. "A man's home is his castle." It is form of searching Instead, he may opt to
therefore a guarantee against unlawful arrests and other questions. personally evaluate the
forms of restraint on the physical liberty of the person. It is report and supporting
not' a prohibition of all searches and seizures but only of The applicant must have documents submitted by the
·. -~
"unreasonable" searches and seizures. (Bernas, The 1987 personal knowledge of prosecutor or he may
I
Constitution of the Republic of the Philippines, 2009). the facts. disregard the prosecutor's
+ ;.
' , report and require the
No presumption of regularity The place to be submission of supporting
/. •I,
,.
...... . ":"' searched and the things affidavits of witnesses. What
There is no presumption of regularity. Normally, searches
to be seized must be the Constitution
.. and seizures are "unreasonable" unless there is a valid
described with underscores is the exclusive
'"' .... warrant issued. A liberal construction in search and seizure particularity. and personal responsibility
cases is given !n favor of the individual (Bernas, The 1987 of the issuing judge to
Constitution of the Republic of the Philippines, 2009). One search warrant for satisfy himself of the
one specific offense existence of probable cause
Section 19 of the Cyhercrime Prevention Act on Restricting (ROC, Rule 126, § 4-6). (Soliven v. Makasiar, G.R.
or Blocking Access to Computer Data was assailed for No. 82585, 1988).
,_____~~~~~~~~~~~~~~~~~
violating the right against unreasonable searches and
Prescribes in 10 days Until served
seizures. The SC agreed and held that the Government, in
effect, seizes and places the computer data under its
control and disposition without a warrant. The Department Searches and Seizures
of Justice order cannot substitute for judicial search General Rule: Searches and seizures are unreasonable.
warrant (Disini v. Sec. of Justice, G.R. No. 203335, 2014).
Exception: Unless authorized by a validly issued search
warrant or warrant of arrest (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009).

Page 93 of 320

'~··
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

place to be searched and the things to be seized which

WITHOUT A VALID
WITH A VALID WARRANT may be anywhere in the Philippines (ROC, Rule 126, § 4)
WARRANT

CODE: JPEPO CODE: WIPE MS CACP The judge must, before issuing the search warrant,
1. The existence of 1. ~aiver of righUWith personally examine in the form of searching questions and
probable cause is Consent answers, in writing and under oath, the complainant and
determined personally by the witnesses he may produce on facts personally known
the Judge. , 2. Incidental to a l;3wful to them and attach to the record their sworn statements,
arrest
together with the affidavits submitted. (ROC, Rule 126, §
2. It must be issued upon
frobable cause. 3. flain view doctrine 5)' '':

3. The judge must ~xarnine 4.During sxigent and Note:· In issuing a warrant of arrest, the judge is not
under oath the complainant emergency situations required to examine personally the complainant and the
and the witnesses he may witnesses. He is only required to determine probable
produce. 5. Moving vehicle cause personally. He may satisfy himself by fiscal reports,
if not, he may require submission of affidavit of witnesses.
4. The warrant must 6. §top and frisk rule (Soliven v. Makasiar, G.R. No. 82585, 1988).
farticularly describe the
place to be searched and 7. Seizure of goods
person or things to be Warrant must particularly describe the place to be
concealed to avoid
seized. &ustoms duties (does not searched and the person or things to be seized
c.'pply If the place to be Section 2, Article Ill of the 1987 Constitution requires that
5. II must be in connection
with Qne specific offense.
I searched is a dwelling
house) .
a search warrant should particularly describe the things to'
be seized. "The evident purpose and intent of the
requirement is to limit the things to be seized to those, and
8 Airport searches only those, particularly described in the search warrant -
to leave the officers of the Jaw with no discretion regarding
9. &heckpoints what artides they should seize, to the end that
unreasonable searches and seizures may not be made
1. Warrantless search by
and that abuses may not be committed." (People v. Go,
a Private individual
G.R. No. 144639, 2003).
The Commissioner of
Immigration may order General Wa1Tants
the arrest of an alien in Do not allege any specific acts or omissions constituting
order to carry out a final the offense charged in the application for the issuance of
deportation order. the warrant. It contravenes the requisite that the things to
be seized be particularly described (Bernas, The 1987
Probable Cause . Constitution of the Republic of the Philippines, 2009).
• I
Refers to such facts and circumstances, which would lead ''-
a reasonably discreet and prudent man to believe that an Effect of a General Warrant
offense has been committed by the person sought to be It will be considered void (Nolasco v. Pano, G.R. No. L-
arrested (warrant of arrest) or that the objects sought In 69803, 1985).
connection with the offense are in the place to be searched • Exception: The whole warrant will not be voided if
(search warrant). Probable cause is concerned with other items were particularly described (Uy v. BIR,
probability, not ebsolute or moral certainty (Bernas, The G.R. No. 129651, 2000).
1987 Constitution of the Republic of the Philippines, 2009).
Searches with Warrant Requirement of particularity
~.
' .

A search warrant shall not Issue except upcn probable A search warrant may be said to particularly describe the
cause in connection with one specific offense to be things to be seized when the description therein is as
determined personally by the judge after examu :ation specific as the circumstances will ordinarily allow or when
under oath or affirmation of the complainant and the the description expresses a conclusion of fact - not of law
witnesses he may produce, and particularly describing the ., - by which the warrant officer may be guided in making the r':
;t• 1
search and seizure or when the things described are '-.:.
limited to those which bear a direct relation to the offense
Page 94 of 320

·------------·---··"..... ··· --··

 ATENEO CENTRAL
BAR OPERATIONS 2019
for which the warrant is being issued (Bache and Co. v.
Ruiz, G.R. No. 32409, 1971; Worldwide Web Corporation
v. People, G.R. 161106, 2014).
A personal description, or descriptio personae is sufficient
to meet the requirement of particularity (People v. Rubio,
G.R. No. L-35500, 1932). The principle is applicable
mutatis mutandis to search warrants (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009).
John Doe warrant
A John Doe warrant, in order to be valid, must contain a
descriptio personae such as to enable the officer to identify
the accused. (People v. Veloso, G.R. No. L-23051, 1925).
A total of 42 search warrants were issued against the
petitioners and corporations of which they are officers for
violation of Central Bank Laws, etc. The warrants
mandated the seizure of all papers and documents
pertaining to the said businesses, regardless of the legality
of the transactions, in the offices and residences of
petitioners. There was no specific offense charged and no
reference to any particular provision of the law that was
violated. The SC held that the warrants were general, and
general warrants are outlawed by the Bill of Rights.
Particular acts must be alleged and the things to be seized
must also be particularly described. A search warrant shall
only issue upon probable cause in connection with one
specific offense. The SC held the warrants were a fishing
expedition, making the evidence obtained from the said
search inadmissible (Stonehill v. Oiokno, G.R. No. L-
19550, 1967).
.,._. Extent of Specificity Required
The description is required to be specific only so far as the
»; r:
circumstances ordinarily allow and where, by the nature of
the goods to be seized, their description must be rather
·,'.... '·' general, it is not required that a technical description be
given, as this would mean that no warrant could issue. A
. ;.~.r· description substantially complies with the legal provisions
when the officer of the law who executed the warrant was
placed in a position enabling him to identify the articles to
be seized. (Bernas, The 1987 Constitution of the Republic
of the Philippines, 2009).
Test of sufficiency of an affidavit for a search warrant
The test of sufficiency of an affidavit for a search warrant
.'. ..:;. is whether it has been drawn in such a manner that perjury
-:-;
could be charged thereon and the affiant could be held
liable for the damages caused (Alvarez v. CF/, G.R. No. L-
45358, 1937).
Page 95 of 320
-----'-------=----- ----------------··-··--.
POLITICAL LAW
The offense of illegal poseession of firearms is malum
prohibltum but it does not follow that the subject thereof is
necessarily illegal per se. Motive is immaterial in mala
prohibita but the subjects of this kind of offense may not be
summarily seized simply because they are prohibited. A
search warrant is still necessary (soouses Veroy v.
Layague, G.R. No. L-95630, 1992).
Requirement is primarily meant to enable the law enforcers
serving the warrant to:
• Readily identify the properties to be seized and
thus prevent them from seizing the wrong items;
• Leave said peace officers with no discretion
, regarding the articles to be seized and thus
prevent unreasonable searches and seizures
, (People v. Tee, G.R. Nos. 140546-47. 2003).
Process of Search, Required presence of the lawful
occupant
No search of a house, room or any other premise shall be
made except in the presence of the lawful occupant thereof
qr any member of his family or in the absence of the latter,
in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality (ROG, Rule 126, §
8).
This requirement is mandatory to ensure requtarity in the
execution of the search warrant. The Rules of Court clearly
and explicitly establishes a hierarchy among the witnesses
in whose presence the search of the premises must be
conducted. Thus, Section 8, Rule 126 provides that the
search should be witnessed by "two witnesses of sufficient
age and discretion residing in the same locality" only in the
absence of either the lawful occupant of the premises or
any member of his family (People v. Go, G.R. No. 144639,
2003).
When any court may Issue search warrant
ln certain cases when no criminal action has yet been filed,
any court may issue a search warrant even though It has
no jurisdiction over the offense allegedly committed,
provided that all the requirements for the issuance of such
warrant are present. (People v. Hon. Edmar P. Castillo, Sr.,
G.R. No. 204419, 2016) /·
"Knock and Announce" Principle in the Service of a
Search Warrant
Police officers are obliged to give notice, show their
authority, and demand that they be allowed entry. They
may only break open any outer or inner door or window of
a house to execute the search warrant If, after such notice
and demand, such officers are refused entry to the place
ATENEO CENTRAL
BAR OPERATIONS 2019
of directed search. This is known as the "knock and
announce· principle which is embodied in AnglerAmerican
Law. The method of entry of an officer into a dwelling and
the presence or absence of such notice are as important
considerations in assessing whether subsequent entry to
search and/or arrest is constitutionally reasonable (People
v. Huang Zhen Hua, G.R. No. 1393C1, 2004)
Unannounced intrusion into the premises is
permissible when:
1. A party whose premises or who is entitled to the
possession thereof refuses, upon demand, to open it;
2. When such person in the premises already knew of the
identity of the officers and of their authority and
persons;
3. When the officers are justified in the honest belief that
there is an imminent peril to life or limb; and
4. When those in the premises, aware of the presence of
someone outside (because, for example, there has
been a knock at the door), are then engage:d in activity
which justifies the officers to believe that an escape or
the destruction of evidence is being attempted. (Id.)
Suspects have no constitutional right to destroy evidence
or dispose of evidence. However, the exceptions above
are not exclusive or conclusive. Indeed, there is no formula
for determination of reasonableness. Each case is to be
decided on its own facts and circumstances (People v.
Huang Zhen Hua and Jogy Lee G.R. No. 139301, 2004).
WARRANTLESS SEARCHES
The Rule that searches and seizures must be supported
by a valid warrant is not an absolute rule. (Bernas, The .
1987 Constitution of the Republic of the Philippines, ·
2009).
Warrantless Searches are allowable in the following
circumstances: WIPE MS CACP
1. ~ofright
2. Incidental to a law~ul arrest
3. Plain view doctrine
4. During exigent and Emergency situations
5. Moving vehicle
6. ~ and frisk rule
7. Seizure of goods concealed to avoid Customs duties
8. Airport searches
9. Checkpoints
10. Warrantless search by a Private individual (Note: This
is found in Sec. 5, Rule 113 of the Rules of Court where
a private person may arrest a person without a
warrant) (Peop/€; v. Aruta, G.R. No. 120915, 1998)
Page 96 of 320
POLITICAL LAW
Waiver of Right
The SC held that the right to be secure from unreasonable
searches and seizures may be waived, expressly or
impliedly, so long as it is made voluntarily. inteffiqentfy..
and knowingly. Mere passive conformity and failure to
object to unlawful entry cannot be construed as a waiver of
the right against unreasonable search and seizures.
(People v. Compacion, G.R. No. 124442, 2001)
Requisites: (EKI)
1. The right Exists.
2. The person had actual or constructive Knowledge of
the existence of such right. ·
3. There is an actual Intention to relinquish such right
(People v. Tudtud, G.R. No. 144037, 2003)
While it is doctrinal that the right against unreasonable
searches and seizures is a personal right, which may be
waived expressly or impliedly, a waiver by implication
cannot be presumed. There must be clear and convincing
evidence of an actual intention to relinquish it to constitute
a waiver thereof. (People v. Aruta, G.R. No. 120915,
1998).
The right against unreasonable searches and seizures
may be waived only by:
1. the person whose rights are injured or
2. the one who is expressly authorized to make the
waiver in his behalf. (People v. Damaso, G.R No.
93516, 1992).
Incidental to a lawful arrest
General Rule: The arrest must precede that search; the
process cannot be reversed. (People v. Tudtud, G.R. No.
144037, 2003). .
Exception: A search substantially contemporaneous with
an arrest can precede the arrest if the.police have probable
!•
:'...... ~-
-
cause to make the arrest at the outset of the search.
' (People v. Bu/en Mariacos, G.R. No. 188611, 2010).
•.. c;,
! ·~
Scope of Warrantless Search Limited Area ~. :
The scope of allowable warrantless search is limited to the
area within which the person arrested could reach for a
weapon or reach for evidence to destroy it. (Chimel v.
California, 395 U.S. 752, 1969).·
I
Moreover, in lawful arrests, it becomes both the duty and -....1
the right of the apprehending officers to conduct a
warrantless search not only on the person of the suspect,
but also in the permissible area within the latter's reach.
Otherwise stated, a valid arrest allows the seizure of
evidence or dangerous weapons either on the person of
 ATENEO CENTRAL
BAR OPERATIONS 2019
the one arrested or within the area of his immediate
control. The phrase "within the area of his immediate
control" means the area from within which he might gain
possession of a weapon or destructible evidence (People
v. Calantiao, G.R. No. 203983, 2014).
The better established rule is a strict application of the
exception provided in Rule 126, Sec. 12 (now Sec. 13) and
that is to absolutely limit a warrantless search of a person
who is lawfully arrested to his or her person at the time of
and incident to his or her arrest and to "dangerous
weapons or anything which may be used as proof of the
commission of the offense." (Nolasco v. Pano, G.R. No. L-
69803, 1987).
An officer making an arrest may take from the person:
1. Any mor.ey or property found upon his person which
was used in the commission of the offense; or
2. Was the fruit thereof; or
3. Which might furnish the prisoner with the means of
committing violence or escaping; or
4. Which may be used in evidence in the trial of the case.
Plain View Doctrine
Requisites: (VIAJ)
1. There was a prior Valid intrusion.
2. The evidence was Inadvertently discovered.
3. The evidence is immediately Apparent.
4. Plain view is Justified seizure without further search
(People v. Compacion, G.R. No. 124442, 2001)
. ' The immediate requirement means that the executing
officer can, at any time of discovery of the object or the
facts therein available to him, determine probable cause of
the object's incriminating evidence. Probable cause must
be the direct result of the officer's Instantaneous sensory
perception of the object. The immediately apparent test
·. ,•
does not require an unduly high degree of certainty as to
the incriminating character of the evidence. (United
Laboratories, Inc. v. Isip, G.R. No. 163858, 2005).
The seizure of the passports, bankbooks, checks,
typewriter, check writer, dry seals and stamp pads and
other assorted documents does not fall within the "plain
view" exception. The assertions of the police officers that
said objects were "inadvertently" seized within their "plain
view" are mere legal conclusions which are not supported
_by any clear narration of the factual circumstances leading
to their discovery. The supposed illegal character of the
items claimed to have been seized within the "plain view"
of the policemen was not readily and immediately
apparent. Rather, the suspicions of the policemen appear
to have been aroused by the presence of the numerous
.' '
.;,
· Page 97 of 320
POLITICAL LAW
passports and immigration documents which they
discovered in the course of their search. (People v. Go,
G.R. No. 144639, 2003).
During Exigent and Emergency Situations (e.g., war,
prevailing chaos, disorder or ongoing coup d'etat)
In the event of a coup d'etat conducted by the "Reform the
Armed Forces Movement Soldiers of the Filipino People",
· the EUROCAR Building was put unoer surveillance
pursuant to an intelligence report that it housed large
quantities of ammunition. During the operations, the car of
the surveillance team was fired upon by 5 persons from a
crowd within the vicinity of the EUROCAR Building. The
team proceeded to the building without a warrant and was
able to seize de Gracia and plenty of explosives and
ammunition. The SC held that the arrests were impelled by
the exigencies of the situation, which concerned the very
survival of society and the government. In this case, the
military operatives had reasonable ground to believe that
a crime was being committed. The team had no
opportunity to apply for a search warrant from the courts,
as the court with jurisdiction, at that time, was closed due
to disorder. (People v. De Gracia, G. R. Nos. 102009-10,
1994).
·, Moving Vehicle - limited to visual search
Requisites: (EP)
1. This exception is based on Exigency. If there is time
to obtain a warrant in order to search tne vehicle, a
warrant must first be obtained. (Coolidge v. New
Hampshire, 403 U.S. 443, 1971).
2. Must still be based on Probable cause (applies only to
extensive search of a moving vehicle). (Bernas, The
1987 Constitution of the Republic of the Philippines,
2009).
Limited to visual search - in checkpoint (Caballes v. CA,
G.R. No. 136292, 2002)
A warrantless search of a vehicle that can be quickly
moved out of the locality or jurisdiction 1s valid. (Paople v.
CF/, G.R. No. L-41686, 1980).
A confidential informer tipped the police that a Gemini car
was going to deliver shabu. When they stopped the car,
they saw a gun tucked in Tuazon's waist. He did not have
any documents, which strengthened the police's suspicion.
After he was told to step out of the car, they found plastic
sachets containing shabu on the driver's seat. These
circumstances are sufficient to establish probable cause
for the warrantless search of the car. Hence, the sachets
of shabu may be admitted as evidence. (People v. Tuazon,
G.R. No. 175783, 2007).
 ATENEO CENTRAL.
BAR OPERATIONS 2019
Stop and Frisk Rule
When a reasonably prudent officer is warranted in the
circumstances of a given case in believing that his safety
or that of others is endangered, he may make a reasonable
search for weapons of the person ne believes to be armed
and dangerous, regardless of whether he has probable
cause to arrest the person or the absolute certainty that the
individual is armed. Although as a general rule, a warrant
should first be secured, the said procedure cannot be
followed where swift action based upon on-the-spot
observations of the officer is required. (Terry v. Ohio, 392
U.S. 1, 1968).
"While probable cause is not required to conduct a 'stop
and frisk,· (Malac:at v. Court of Appeals, G.R. No. 123595.
1997) a genuine reason must exist in light of the police
officer's experience and surrounding conditions, to warrant
the belief that the person detained has weapons concealed
about him." (Bernas, The 1987 Constitution of the Republic
of the Philippines, 2009). ·
Requisites: (URIRA)
1. Police Officer observes Unusual conduct.
2. ReasonabM suspicion that person is engaged in «orne
type of criminal activity in light of experience.
3. Identifies himself as a policeman upon approach.
4. Makes Reasonable inquiries. ' materials or substances. Holder refusing to be searched
5. There is reasonable fear for one's own, or others'
safety. Thus, he is entitled to conduct a limited search
of the outer clothing of such persons in an Attempt to
discover weapons that might be used for assault (Terry
v. Ohio, 392 U.S. 1, 1968).
Even before an arrest, an officer justified in believing that
the individual whose suspicious behavior he · is
investigating at close range is presently dangerous, he
may conduct a limited protective search. (Malacat v. Court
of Appeals, G.R. No. 123595. 1997). The more pressing
interest of safety ar,d self-preservation which permit the
police officer to take steps to assure himself that the
person with whom he deals is not armed with a deadly
weapon that could unexpected and fatally be used ag3inst
the public officer. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009).
Seizure of Goods Concealed to Avt;>ld Customs Duties
The SC held that the Tariff and Customs Code explicitly
does not require warrants for customs officers to board and
search vessels, beasts, or persons suspected of
introducing contraband merchandise into the Philippines.
In this case, the PNP Chief, having been deputized by the
Commissioner of Customs, Is, thus. authorized to carry out
Page 98 of 320
.
I----------·· ..... -
POLITICAL LAW
such searches. However, the SC held that the search of
dwelling houses, even for the enforcement of Customs
Laws, requires a warrant. The SC · recognized that
jurisprudence has held that there is a difference between
a) a search of a dwelling house and b} a search of a ship,
motorboat, wagon. or automobile for contraband goods,
where it is not practicable to secure a warrant because the
vehicle can quickly escape. Thus, search of motor vehicles
is likewise valid without a search warrant. The SC further
held that vehicles are, after all, not actively used within the
home, where the sanctity of privacy is more safeguarded,
but instead is used in public places such as roads and may
facilitate commission of crimes. (Papa v. Mago, G.R. No.
L-27360, 1968).
lnc!udes searches at borders and ports of. entry. An
exception to this exception is the search of a dwelling
house.
Airport Searches
This search was made pursuant to routine airport security
procedure, which is allowed under Section 9 of RA 6235
. reading as follows: SEC. 9. Every ticket issued to a
passenger by the airline or air carrier concerned shall
contain among others the followir.g condition printed
· thereon: "Holder hereof and his hand-carried luggage(s)
are subject to search for, and seizure of, prohibited
shall not be allowed to board the aircraft," which shall
,. ~
constitute a part of the contract between the passenger
and the air carrier.
To limit the action of the airport security personnel to
' .. •
simply refusing her ontry into the aircraft and sending her
home. and thereby depriving them of "the ability and facility
to act accordingly,· including to further search without
warrant, in light of such circumstances, would be to ' .
'l.s_,,:.;
sanction impotence and ineffectivity in law enforcement, to
the detriment of society." Thus, the strip search in the
ladies' room was justified under the circumstances.
(People v. Canton, G.R. No. 148825, 2002).
Checkpoints
Requisites: (No body LAV)
1. Passengers !:J91. subjected to body search
2. Limited to visual search
3. Abnormal times
4. Vehicle not searched (Valmonte v. General De Villa,
G.R. No. 83988, 1989). ~' a;,
:.
' ..J
. ~. '...
 -:

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

To limit the search to visual searches would defeat the aim day. The apprehending officer was able to identify the
of the COMaEC to effect the gun ban. In this case. the markings and was able to explain how it was made.
method employed by authorities consisted of merely (People v. Montevirgen y Ozaraga, G.R. No. 189840,
stopping cars they deemed suspicious, such as those 2013).
whose windows are heavily tinted just to see if the
passengers thereof were carrying guns. At best they WARRANTLESS ARRESTS
merely directed their flasl 1lights inside the cars they would
stop, without opening the car's doors or subjecting its Arrest with Warrant v. Warrantless Arrest
passengers to a body search. There is nothing ARREST WITH
WARRANTLESS ARREST
discriminatory in this as this is what the situation demands WARRANT
(People v. Escano, G.R. Nos. 129756-58, 2000).
1. The existence of 1. When the person to be
Warrantless Searches by a Private Individual probable cause is arrested has
The rule that searches and seizures must be supported by determined committed, is actually
a valid warrant of arrest is not an absolute rule. What is personally by the committing, or is about
prohibited are "unreasonable searches and seizures." judge. to commit an offense in
Thus, a search made incidental to an arrest Is not 2. It must be issued the presence of the
prohibited. The purpose of this exception is to protect the upon probable arresting officer.
arresting officer against physical harm from the person cause. 2. When an offense has in
who is being arrested who might be armed 'Nith a 3. The judge must fact just been committed
concealed weapon and also to prevent the person arrested examine under oath and the arrestinq officer
from destroying evidence within his reach. (Moreno v. Ago the complainant and has probable cause to
Chi, G.R. No. L-4680, 1909). the witnesses he may believe based on
produce. personal knowledge of
If the search is made at the behest or initiative of the 4. The warrant must facts and circumstances
proprietor of a private establishment for its own and private particularly indicating that the
purposes, and without the intervention of police authorities, . describe the person person to be arrested
the right against unreasonable search and seizure cannot to be arrested. has committed it.
be invoked for only the act of a private individual. not tho 5. It must be in 3. When the person to be
law enforcers, is involved. In sum, the protection against connection with one arrested is a prisoner
unreasonable searches and seizures cannot be extended specific offense. who has escaped.
to acts committed by private individuals so as to bring it
within the ambit of alleged unlawful intrusion by the Arrest with Warrant
government. (People v. Marti, G.R. No. EJ1561. 1991). Procedure
Within 10 days from the flllng of the complaint or
; . Admissibility/Exclusionary Rule Information, the judge shall personally evaluate the
"Any evidence obtained In violation of the search and resolution of the prosecutor and its supporting evidence.
seizure clause, whether or no: it is also self-incriminating ' He may immediately dismiss the case if the evidence on
testimonial evidence, is inadmissible for any purpose in record clearly fails to establish probable cause. If he fihds
any proceeding." (Bernas, The 1987 Constitution of the proc.ible cause, he shall issue a warrant of arrest, or a
Republic of the Philippines, 2009). commitment order if the accused has already been
arrested pursuant to a warrant issued by the judge who
Buy-bust operations ~ conducted the preliminary investigation or when the
There was a failure of officers to comply with the IRR complaint or information was filed pursuant to section 7 of
regarding RA 9165 regarding the physical inventory and this Rule. In case of doubt on the existence of probable
photograph of seized items. Thus, the accused argue that cause, the judge may order the prosecutor to present
the evidence is inadmissible. It is still admissible provided · additional evidence witt,in five (5) days from notice and the
that' that the integrity and evidentlary value of the issue must be resolved by the court within thirty (30) days
evidence have been preserved. The apprehending from the filing of the complaint or information (ROC, Rule
officer marked the seized evidence in front of the appellant, 112, §6).
barangay captain and members of the buy bust team. It
was delivered to the investigator and subsequently sent to
the PNP Crime Laboratory for examination in the same
· Page 99 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019
;;:;;r comply with particularity of description and
examination discussed under Searches with Warrants
The judge is not required to personally examine the
complainant and his witnesses or to await the submission
of counter affidavits from an accused. Following
established doctrine and procedure. the judge shall:
1. Personally evaluate the report and supporting
documents submitted by the prosecutor regarding the
existence of probable cause, and on the basis thereof,
he may already make a personal determination ot the
existence of probable cause; and
2. If he is not satisfied that probable cause exists, hr. may
disregard the prosecutor's report and require the
. submission of supporting affidavits of witnesses to aid ,
him in arriving at a conclusion as to the existence of
probable cause. (Bernas, The 1987 Constitution ot the
Republic of the Philippines, 2009).
Warrantless Arrests
The rule on valid warrantless arrests is found in Section
5, Rule 113 of the Rules of Court, which provides:
· A peace officer or private person may, without a
warrant, arrest a person:
A. When, in his presence, the person to be arrested has
committed, is actually committing, or attempting to
commit an offense;
• In Flagrante Delicto - when the illegal act was
committed in the presence of the arresting officers, a
warrar.tless arrest may be effected. An offense is
committed in the presence of an officer when the
officer sees the offense, although at a distance, or
hears the disturbances created thereby and
proceeds at once to the scene of the crime. Police
officers have personal knowledge of the actual
commission of the crime when they had earlier
conducted surveillance activities of the accused
(People v. Suero, G.R. No. 93239, 1991).
• In buy-bust operations, the arresting officers catch
the malefactor in flagrante delicto. But tho arresting
officers must neither instig:;1te nor induce the arrestee
to commit <1 crime. Entrapment is the employment of
such ways and means for the puroose of capturing a
lawbreaker from whose mind the criminal intent
originated. In such cases, a search warrant is not
necessary because a search pursuant to a buy-bust
operation is one made incldental to a lawful arrest -
the arrestee is caught in flagrante delicto (People v.
De La Cruz. G.R. No. 101315, 1993).
Page 100
POLITICAL LAW
Stop and Frisk - When a policeman observes
susptclous activity, which leads him to believe that a
crime is about to be committed, he can investigate
the suspicious looking person and may frisk him for
weapons as a measure of self-protection. Should he
find, however, a weapon on the suspect, which is
unlicensed, he can arrest such person for having
committed an offense in his presence.
B. When an offense has in fact been committed, and he
has probable cause to believe based on personal
knowledge of facts or circumstances that the person to
be arrested has committed it;
• Hot Pursuit - The pursuit of the offender by the
arresting officer must be continuous frorn the time of
the commission of the offense to the time of the
arrest. There must be no supervening event which
breaks the continuity of the chase.
To fall under the exception that an offense had just been
committed and the officer has personal knowledge of the
facts ir.dicating that the person to be arrest has committed
it, the arrest must immediately follow the commission of the
crime. In other words, there is no valid warrantless arrest if
the crime had not "just boen committed". (People v. Go,
G.R. No. 144639, 2003).
Manlulu was arrested without a warrant for allegedly
\ ;
having killed another person at around 1 :OOAM in the
morning. The warrantless arrest was made around 7:00PM
or about 19 hours later. The SC held that for there to be a
lawful warrantless arrest, the arresting officer must have r :.
;
personal knowledge of the offense, which has in fact just
been committed. In other words, the arrest has to
· immediately follow the commission of the offense. If a
sufficient amount of time lapses as to allow him to procure
a warrant, then the police officer must do so. Ir. this case,
not only was the arrest 19 hours after the alleged crime.
but the arresting officer also did not have any personal
knowledge of the facts. The SC also held that personal
l, ;,;,
gathering of information is different from personal
knowledge. (People v. Manlulu, G.R. No. 102140, 1994) .
The SC held that personal knowledge must be based on
probable cause, which means an actual belief or
reasonable grounds of suspicion. Reasonable suspicion
means when, in the absence of actual belief. the suspicion
that the person to be arrested is probably guilty of i ·,.
committing the offense is based on actual facts that are ,,_.,.,
supported by circumstances sufficiently strong in
~ ::
of 320
- ,-
 ATENEO CENTRAL
BAR OPERATIONS 2019
themselves. (People v. Escordia/, G.R. Nos. 138934-35,
2002).
C. When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he
is serving final judgmsnt or temporarily confined while
his case is pending or has escaped while being
transferred from one confinement to another
D. Continuing Offenses. Arrest of the accused without a
warrant is justified as it can be said that he was
committing an offense when arrested. Involves crimes
of: rebellion, subversion, conspiracy or proposal to
commit crimes in furtherance thereof (In the Matter of
the Petition for Haoeas Corpus of Roberto Umll,
Rolando Dural, et al. v. Ramos, et al., G.R. No. 81567,
1991 ).
When to Question Validity
Old rule: Any obiection Involving a warrant of arrest or
procedure in the acquisition by the court of jurisdiction over
the person of the accused must be made before he enters
his plea, otherwise the objection is deemed waived." The
accused must move for the quashing of the information
against him before arraignment. Otherwise, he is estopped
from cuestloninq the validity of the arrest
Current rule: Under Section 26, Rule 114 of the Rules of
Court, an application for bail or admission to bail by an
accused is not considered a waiver of his right to assail the
warrant issued for his arrest or the legalities or irregularities
thereof, provided that he raises them before entering his
plea. An application for or admission to bail shall not bar
the accused from chall~nging: the validity of his arrest, the
legality of the warrant issued therefor, the regularity or
questioning the absence of a prelirr,inary investigation of
the charge against him. The rule is a new one, Intended to
-.... modify previous rulings that an application for bail or the
admission to bail by the accused shall be considered as a
waiver of his right to essan the warrant issued for his arrest
on the legalities or irregularities thereon.
Doctrine of the Waiver of Rights
The constitutional immunity from unreasonable searches
and seizures, being a personal one, cannot be waived by
anyone except the person whose rights are invaded or cne
who is expressly authorized to do so in his or her behalf.
(People v. Damaso, G.R. No. 93516. 1992).
Who May Challenge
The constitutional right against unreasonable searches
and seizures is a personal right capable of being invoked
only by those whose rights have been infringed. In this
Page
...... ;
POLITICAL LAW
case, the petitioner cannot invoke It for other persons.
(Valmonte v. General De Vil:a, G.R. No. 83988, 1989).
ADMINISTRATIVE ARRESTS
Deportation proceedings
Section 37 of the Immigration Law, empowering the
Comrnissloner of Immigration to issue warrants for the
arrest of overstaying aliens is constitutional. The arrest is
a step preliminary to the deportation of the aliens who had
violated the condition of their stay in this country. The
requirement of probable cause, to be determined by a
Judge, does not extend to deportation proceedings. There
need be no "truncated" recourse to both judicial and
administrative warrants in a single deportation proceeding.
(Harvey v. Miriam Defensor Santiago, G.R. No. 82544,
1988).
DRUG, ALCOHOL, AND BLOOD TEST
The Court acknowledged ,that compelled urinalysis was a
form of search but its "reasonableness" must be judged by
balancing the intrusion on the individual's interests against
the promotion of legitimate government interests. What
was essential was the school's custodial responsibility and
authority, the nature of the intrusion, the confidentiality of
the test results and the legitimate government interest.
(Vernonia School District v. Acton, 515 U.S. 64, 1995;
Board of Education v. Earls, 536 U.S. 22, 2002).
The Philippine courts followed the ruling in Vernonia when
it decided a case involving the mandatory drug testing of
candidates for publlc office, students of secondary and
tertiary schools, officers and employees of public and
private offices, and persons charged before the
prosecutor's office with certain offenses. The SC held that
the right to privacy has been accorded as a facet of the
right to unreasonable searches and seizures.
On the case of mandatory drug testing provided for in the
Dangerous Drug Act, the Supreme Court held the
following:
1: Candidates for Constitutional Offices
Unconstitutional
A law cannot provide additional qualifications other than
those outlined in the Constitution.
2. Employees - Constitutional
The random drug testing would be undertaken in such a
manner as to protect the privacy of the employees
·, involved. Also, the privacy interest in an office Is
circumscribed by the company's work policies, CBAs, and
· the· ,right of the employer to maintain discipline and
efficiency in the workplace. The right to privacy must yield
101 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019
to the necessary and reasonable requirements of plice
power.
'·
3. Students - Constitutional
It is within the prerogative of schools to require compliance
with reasonable school regulations, as a condition for
admission or enrollment. The court found: ·
a. Schools and their administrators stand in loco parentis
with respect to their students;
b. Minor students have contextually fewer rights than an
adult, and are subject to the custody and supervision
of their parents, guardians, and schools;
c. Schools, acting in loco parentls, have a duty to
safeguard the health and well-being of their students
and may adopt such measures as may reasonably be
necessary to discharge such duty; and
d. Schools have the right to impose conditions on
applicants for admission that are fair, just, and non-
discriminatory.
4. Persons charged before the public prosecutor's
office - Unconstitutional . ·
Defendants in a criminal complaint are not randomly
picked; neither are they beyond suspicion. Certain persons
are singled out and are impleaded against their will,
making a medical test a tool for criminal prosecution.
(Social Justice Society v. Dangerous Drugs Board, G.R.
Nos. 157870, 158633, 16165~ 2008).
Evidence Obtained Through Purely Mechanical Acts
The constitutional right of an accused against self-
incrimination proscribes the use of physical or moral
compulsion to extort comrnuni« ations from the accused
and not the Inclusion of his body In evidence when it may
be material. Purely mechanical acts are not included in the
prohibition as the accused does not thereby speak his guilt,
hence the assistance and guiding hand of counsel is not
required. The essence of the right against self~
incrimination is testimonial compulsion, that is, the giving
of evidence against himself through a testimonial act.
Hence, it has been held that:
1. A woman charged with adultery may be cornpeued to
submit to physical examination to determine her
pregnancy:
2. An accused may be compelled to submit to physical
examination and to have a substance taken from his
body for medical determination as to whether he was
suffering from gonorrhea which was contracted by his
victim;
3. To expel morphine from his mouth;
Page 102 of 320
POLITICAL LAW
4. To have the outline of his foot traced to determine its
identity with bloody tootprints: and
5. To be photographed or measured, or his garments or
shoes removed or replaced, or to move his body to
.enable the foregoing things to be done. (People v.
Gallarde, G.R. No. 133025, February 17, 2000}
PRIVACY OF COMMUNICATIONS AND
CORRESPONDENCE
Concept
• The privacy of communication .and correspondence
shall be inviolable except upon lawful order of the court,
or when public safety or order requires otherwise as
prescribed by law.
• Any evidence obtained in vi~lation of this or the
preceding section shall be inadmissible for any purpose
in any proceedir,gs. (Phil. Const., art. 3, § 3).
• The privacy right is an aspect of the right to be secure in
one's person.
PRIVATE AND PUBLIC COMMUNICATIONS
Forms of communication considered private and protected
by this provision include letters, messages, telephone
calls, telegrams and the like. (Bernas, The 1987 Philippine
_Constitution: A Comprehensive Reviewer, 59, 2011 ).
Private communications can be made public
Private communications can be made public where a
secret involves public questions which the State should
and ought to know, the State may infringe that privacy of .,
communication by some process or by appealing to the
Court for the purpose of determining whether or not the ' ..
privacy should be maintained. The court may allow
Intrusions on privacy of communication and 1:. ·-~
correspondence only on the ground of probable cause.
(Bernas, The 1987 Constitution of the Republlc of the
Philippines, 2009).
INTRUSION, WHEN ALLOWED
It is allowed "upon 1awful order of the court, or when public
..
safety or order requires otherwise as prescribed by law." :
-;
....
;,
(Phil. Const., art. 3, § 3).
( .
t ~·
General Rule: Intrusion requires court order.
Exception: When public safety or order requires it, the
executive may intrude into the privacy of an individual but
only in accordance with an existing law allowing such
 ATENEO CENTRAL
BAR OPERATIONS 2019
intrusion. (Bernas, The 1987 Constitution of the Republic
of the Philippines, 2009).
Requisites of an intrusion without an order
It should be based upon a governmeint official's
assessment that public safety and order demand such
intrusion, as provided by law. It is not only that the
discretion of the executive officer is !imitable by law but
also that a public officer who exercises this power must be
able to point to a law under which he acts. (Bernas, The
1987 Constitution of the Republic of the Philippines, 2009).
Public order and safety
The security of human lives, liberty, and property against
the activities of invaders, insurrectionists, and rebels."
(1971 Constitutional Convention, Nov. 25, 1972).
RA 10175 (CYBERCRIME LAWl
Certain Cybercrime Offenses under RA 10175 were
assailed for violating both the right against unreasonable
searches and seizures and the right to privacy. The court
held that relevant to any discussion of the right to privacy
is the concept known as the "Zones of Privacy." Zones of
privacy are recognized and protected in our laws. Within
these zones, any form of intrusion is impermissible unless
excused by law and in accordance with customary legal
process. The meticulous regard we accord to these zones
arises not only from our conviction that the right to privacy
is a "constitutional right" and "the right most valued by
. clvllized men," but also irom our adherence to the UDHR
which mandates that, "no one shall be subjected to
arbitrary interference with his privacy" and "everyone has
the right to the protection of the law against such
(' ·.. interference or attacks." Thus, the two constitutional
guarantees create these zones of privacy:
.-... A. the right against unreasonable searches and seizures,
·- .
+ .,
which is the basis of the right to be let alone, and
B. the right to privacy of communication and
correspondence.
:l i
t .' In assessing the challenge that the State has
impermissibly intruded into these zones of privacy, a court
must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether
that expectation has been violated by unreasonable
government intrusion. The usual identifying information
regarding a person includes his name, his citizenship, his
residence address, his contact number, his place and date
of birth, the name of his spouse, If any, his occupation, and
similar data. The law punishes those who acquire or use
such identifying inform~tion without right, implicitly to
cause damage. Petltioners failed to show how government
. ·~ .. Page 103
.' '
POLITICAL LAW
effort to curb computer-related Identity theft violates the
\ight to. privacy and correspondence as well as the right to
due process of law.
However. Section 12 on real-time collection of traffic data
was declare::l unconstitutional for the authority that Section
12 gives law enforcement agencies is too sweeping and
lacks restraint. While it says that traffic data collection
should not disclose identities or content data, such
restraint is but an illusion. Admittedly, nothing can prevent
law enforcement agencies holding these data in their
hands from looking into the identity of their sender or
receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information
or. worse, to extortion from certain bad elements in these
agencies. Section 12, of course, limits the collection of
traffic data to those "associated with specified
communications." But this supposed limitation is no
limitation at all since, evidently, it is the law enforcement
aqencies that would specify the target communications.
The power is virtually limitless, enabling law enforcement
authorities to engage in "fishing expedition," choosing
whatever specified communication they want. This
evidently threatens the right of individuals to privacy.
(Disini v. Sec. of Justice, G.R. No. 203335, 2014).
The employee has a burden of proving that he has
legitimate expectation of privacy either in his office or
computer files. He can prove this by alleging and
demonstrating the following: he used a password on his
computer, did not share his office with co-workers and kept
the same locked. However, the existence of a workplace
privacy policy may limit or erode the reasonable
expectation of privacy. {Pollo v. Constantino-David, GR
No. 181881, 2011)
Test of Reasonable Expectation Of Privacy
• Subjective: A person has exhibited an actual
expectation of privacy; and
• Objective: The expectation be one that society
is prepared to recognize as reasonable (Pollo v.
Constantino-David, supra)
Before one can have an expectation of privacy in his or her
Online Social Network activity, it is first necessary that said
user manifest the intention to keep certain posts private. In
the cyber world, utilization of privacy tools is the
manifestation of the user's invocation of his or her right to
informational privacy. (Vivares v. St. Theresa's College,
G.R.No.20266~ 2014)
of 32C
ATENEO CENTRAL
BAR OPERATIONS 2019
That the photos are viewable by "friends only" does not
necessarily bolster the petitioners' contention. In this
regard, the cyber community is agreed that the digital
images under this setting still remain to be outside the
confines of the zones o! privacy in view of the following:
1. Facebook "allows the world to be more open and
connected by giving its users the tools to interact and
share in any conceivable way";
2. A good numher of Facebook users "befriend" other
users who are total strangers;
3. The sheer number of "Friends" one user has,' usually
by the hundreds; and
4. A user's Facebook friend can "share" the formers post,
or "tag" others who are not Facebook friends with the
former, despite its being visible only to his or her own
Facebook friends.
Setting a post's or profile detail's privacy to "Friends" is no
assurance that it can no longer be viewed by another user
who is not Facebook friends with the source of the content.
(Vivares v. St. Theresa's College, G.R. No. 202666, 2014.)
R.A, 4200 (AtJTI-WIRETAPPING ACT)
a. Only protects letters, messages, telephone calls,
telegrams and the like.
b. The substance of the conversation need not be
specifically alleged in the information.
c. Under Section 3 of R.A. 4200, a peace officer, who is
authorized by a written order of the Court, may execute
any of the acts declared to be unlawful in the said law
in cases involving the crimes of:
1. Treason
2. Espionage
3. Provoking war and disloyalty in case of war
4. Piracy and mutiny in the high seas
5. Rebellion (conspiracy and proposal to commit;
incltmg to commit)
6. Sedition (conspiracy to commit and inciting to·
commit)
7. Kidnc1pping
8. Violations of C.A. No. 616 (punishing
espionage and other offenses against national
security)
d. R.A. 4200 does not distinguish between a party to
the private communication or a third person.
Hence, both could be held liable under RA 4200 ·
if they commit any of the prohibited acts under RA
4200. (Rnrnirez v. CA, G.R. No. 93833, 1995).
e. The use of a telephone extension to overhear a
private conversation is not a vlotatlon of R.A. 4200
because it is not similar to any of the prohibited ,
devices under the law. Also, a telephone extension
is not purposely installed for the purpose of
Page 104 of 320
POLITICAL LAW
secretly intercepting or recording private
communication. (Gaanan v, /AC, G.R. No. L-
69809, 1986).
EXCLUSIONARY RLILE
Any evidence obtained shall be inadmissible for any
purpose in any proceeding. However, in the absence of
governmental interference, the protection against
unreasonable search and seizure cannot be extended to
acts committed by private individuals.
The constitutional proscription against unlawful searches
and seizures applies as a restraint directed only against
government and its agencies tasked with the enforcement
of the law. Thus, It could only be invoked against the State
to whom the restraint against arbitrary and unreasonable·
exercise of power is Imposed. (People v. Marti, G.R. No.
81561, 1991).
This does not mean however that private individuals
cannot be held liable. Almost all these liberties are also
guaranteed by Article 32 of the C!vil Code, making private
violations actionable even if the violation does not have a
constitutional consequence such as the applicability of the
exclusionary rule. (Bernas, The 1987 Cons.titution of the
Republic of the Philippines, 2009 ).
Exclusionary rule will not apply if the recipient of the
message granted access to the message(s) sent. (Office
of the Court Administrator v. Judge Eliza 8. Yu, A.M. No.
MTJ-12-1813, 2017)
WRIT OF HABEAS DATA
A remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or
of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved
party. (A.M. No 08-1-16-SC, Sec. 1).
i
... -~·
Who may file: (P-SCP-R)
1. Person whcse right to Privacy is threatened
2. In case of extrajudicial disappearance or killings: I.- '
(a) Spouse, Children and Parents
(b) Any ascendant, descendant or collateral Relative of
the aggrieved party within the fourth civil degree of
consanguinity or affinity in default of those
mentioned in the preceding paragraph. (A.M. No '
" ~.
08-1-16-SC, Sec. 2). ' ;.,
 ATENEO CENTRAL
BAR OPERATIONS 2019
Where to file: (RGP)
1. Residence of petitioner or respondent,
2. Place wnere the data is Gathered or stored
3. In case of actions involving public data of government
offices: ·
(a) Supreme Court
(b) Court of Appeals
(c) Sandiganbayan {A.M. No 08-1-16-SC, Sec. 3).
Contents of the petition:
1. The personal circumstances of the petitioner and the
respondent;
2. The manner the right to privacy is violated or
threatened and how it affects the right tc life, liberty or
security of the aggrieved party;
3. The actions and recourses taken by the petitioner to
secure the data or information;
4. The location of the files registers or databases, the
government office, and the person in charge, In
possession or i,1 control of the data or information, if
known;
5. The reliefs prayed for, which may include the updating,
rectification, suppression or destruction of the
database or information or files kept by the
respondent. In case of threats, the relief may include a
prayer for an order enjoining the act complained of;
and
6. Such other relevant reliefs as are just and equitable
(A.M. No 08-1-16-SC, Sec. 6}.
Court shall immediately order the Issuance of the writ
The Court shall immediately order the issuance of the writ
if on its face it ought to issue. The clerk of court shall issue
the writ under the seal of the court and served within 3 days
,( . from its issuance.
Cases of Urgt1nt Necessity
i. ,J In case of urgent necessity, the justice or judge may issue
the writ under his or her own hand, and may deputize any
officer or person to serve it. {A.M. No 08-1-16-SC, Sec.
7).
Date and time for summary hearing - not be later than
.. ;• 10 working days from the date of Its issuance. (A.M .
No 08-1-16-SC, Sec 7).
Rationale why Writ was conceived
' It bears reiteration that like the Writ of Amparo, habeas
' J
data was conceived as a response, given the lack of
,( .
effective and available remedies, to address the
extraordinary rise in the number of killings and enforced
'
I .
•
.......; disappearances. Its intent is to address violations of or
threats to the rights to life, liberty or security as a remedy
.! l Page 105 of 320
'- .•. :
<:»
POLITICAL LAW
independently from those provided under prevailing Rules.
Writs of Amparo and habeas data will not issue to protect
purely property or commercial concerns nor when the
grounds invoked in support of the petitions therefor are
vague or doubtful. Employment constitutes a property right
under the context of the due process clause of the
Constitution. It is evident that respondent's reservations on
the real reasons for her transfer - a legitimate concern
respecting the terms and conditions of one's employment
- are what prompted her to adopt the extraordinary remedy
of habeas data. (Manila Electric Company v. Lim, G.R. No.
184679, 2010}.
FREEDOM OF SPEECH AND EXPRESSION
CON~EPT AND SCOPE
No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for
redress of grievances. (Phil. Const., art. 3, § 4 ).
Freedom of Speech
Formulated primarily for the protection of "core" speech,
(i.e., speech, which communicates political, social, or
religious ideas). These enjoy the same degree of
protection. Commercial speech, however, does not.
(Bernas, The 1987 Constitution of the Republic of the
Philippines, 2009).
Section 19 of the Cybercrime Prevention Act on Restricting
or Blocking Access to Computer Data was assailed for
violating freedom of speech. The court declared the
provision unconsntutional and held that the content of the
computer data can also constitute speech. In such a case,
Section 19 operates as a restriction on the freedom of
expression over cyberspace. Certainly not all forms of
speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression
as illegal. But for an executive cfficer to seize content
alleged to be unprotected without any judicial warrant, it is
not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury,
and executioner all rolled into one. Not only does Section
19 preclude any judicial i17tervention, but it also disregards
jurisprudential guidelines established to determine the
validity of restrictions on speech. Section 19, however,
merely requires that the data to be blocked be found prima
facie in violation of any provision of the cybercrime law.
Taking Section 6 into consideration, this can actually be
made to apply in relation to any penal provision. It does not
take into consideration any of the three tests. (Disini v. Sec.
of Justice, G.R. No. 203335, 2014; See case for other
ATENEO CENTRAL
BAR OPERATIONS 2019
provisions relating to freedom of speech, which were
upheld by the court).
The scope of freedom of expression is so broad that it
extends protection to nearly all forms of communication. It
protects speech, print and assembly regarding secular as
well as political causes, and is not confined to any
particular field of human interest. The protection covers
myriad matters of public interes! or concern embracing all
issues, about which information is needed or appropriate,
so as to enable members of society to cope with lhe
exigencies of their period (Chavez v. Gonzales, G.R. No.
168338, 2008).
Freedom of Expression Prohibits:
a. Prior Restraint (Censorship)
Offlclal governmental restrictions on the press or other
forms of expression in advance of actual publication or
dissemination. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009).
The Session Law of Minnesota mandated the abatement,
as public nuisances, of malicious, scandalous, and
defamatory publications. After publishing articles that
criticized certain lorn! public officials and personalities, The
Saturday Press, owned by the petitioner Near, was
enjoined from further publication. The court held that the
operation and e~ect of the statute in substance is that
public authorities may bring the owner or publisher of a
newspaper or periodical before a judge upon a charge of
conducting a business of publishing scandalous and
defamatory matter... and unless the owner or publisher is
able to disposed to bring competent evidence to satisfy the
judge that the charges are true and are published with
good motives and for justifiable ends, his newspaper or
periodical is suppressed and further publication is made
punishable as a contempt. This is of the essence of
censorship. (Near v. Minesota, 283 U.S. 697, June 1,
1931; Bernas, The 1987 Constitution ofthe Republic of the ,
Philippines, 2009).
Some Forms of Prior Restraint
• System of licensing administered by an executive
officer. (e.g., movie censorship)
Judicial prior restraint (an injunction against publication)
• License taxes or flat license fees
General Rule: There is always a presumption of
unconstitutionality on any system of prior restraint - thus,
the Government has the "burden of showing justification
for the enforcement of such a restraint." (Bernas, Th1:11987
Constitution of the Republic of the Philippines, 2009).
Page
POLITICAL LAW
Any prior restraint upon the freedom of the press bears a
heavy presumption against its constitutionality. In
other words, the government must clearly make out a case
to overcome this presumption, which it failed to do in this ·
case. The word "security" is so broad that it should not be
used to abrogate the fundamental law. The publication
would not cause an inevitable, immediate, and direct event
that would imperil the safety of the American forces, such
that there was no grave and irreparable danger. The US
SC also held that the 1st Amendment does not tolerate
prior restraints predicated upon beliefs that untoward
consequences may result therefrom. The press must be
left free to publish news, whatever the source, without
censorship or restraint because only a free and
unrestrained press can effectively expose government
deception to the people. (New York Times v. United States,
403 U.S. 713, 1971).
Exception: When Comelec is exercising the power
granted by Art.9, C(4) to ensure equal opportunity, time,
space, and the "right to reply'' as well as uniform and
reasonable rates of charges for the use of such media
facilities for "public information campaigns and forums .
among candiJates." In such cases, there is no presumption
of invalidity (National Press Club v. Comelec; Bernas, The
1987 Constitution of the Republic of the Philippines, 2009).
Freedom of expression is not an absolute
Freedom of expression is not an absolute nor it ls an
unbridled license that gives immunity for every possible
use of language and prevents the punishment of those who
abuse this freedom (Chavez v. Gonzales, G.R. No. i ·::.
,-,, .7
168338,2008)
When the Prohibition Does Not Apply: (WOS) /:
.... ,)
1. Wheil the nation is at War. (Chavez v. Gonzales, G.R.
No. 168338, 2008) (e.g., The govc!mment can prevent ." '!
publication about the number or location of its troops) ·Ji..•. L
2. Obscene publications
3. Security of community life may be protected against ..... ./
incitements to acts of violence or overthrow by force of
orderly government. (Near v. Minesota, 283 U.S. 697,
1931).
\ .
(b} Subsequent punishment
The iree speech and press clause also prohibits systems
of subsequent punishment, which have the effect of unduly
curtailing expression. For, indeed, if prior restraint were all
that the constitutional guarantee prohibited and
government could impose subsequent punishment without
restraint, freedom of expression would be a mockery and
a delusion. (Bernas, The 1987 Constitution of ttie Republic
of the Phiiipplnes, 2009).
106 of 320
\ ...
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

assessing content-based restrictions on free speech, as

Since freedom of expression ranks in the hierarchy of
constitutional rights higher than property, the norms for the
regulation of expression place more stringent limits on
state action. Jurisprudence has evolved three tests:
1. Dangerous Tendency test;
2. the Clear and Present Danger test.
3. the Balancing of Interests test.
Of these, the second and third are favcred. (Bernas,
The 1987 Philippine Constitution: A Comprehensive
Reviewer, 2011 ).
Symbolic Speech
When "speech" and "r,on-speech" elements are combined
in the same course of conduct, a sufficiently Important
government interest in regulating the non-speech eiement
can justify incidental limitations on free speech.
well as for laws dealing with freedom of the mind or
restricting the political process, oi laws dealing with the
regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier
applications to equal protection. The immediate implication
of the application of the "strict scrutiny" test is that the
burden falls upon respondents as agents of government to
prove that their actions do not infringe upon petitioners'
constitutional rights. As content regulation cannot be done
in the absence of any compelling reason, the burden lies
with the government to establish such compel!ing reason
to infringe the right to free expression. (Newsounds
BroadcastingNetwork v. Dy, G.R. Nos. 170270 & 179411,
2009).
Scope of Protection
PROTECTED SPEECH UNPROTECTED SPEECH

Government Regulation is Justified if: (WI-FU-UN-NO) There are certain well

1. It is within the constitutional power of the government Every form of expression
defined and narrowly limited
2. It furthers a substantial govern,nent interest (oral, written, tape or
classes of speech, the
3. The governmental interest is unrelated to the disc recorded).
' prevention and punishment
1,.. ~·
suppression of free expression of which has never been
4. The incidental restriction is !!2 greater than essential It includes motion
thought to raise any
to the furtherance of the interest. (Osmena v. pictures as well as what
-,
constitutional problems.
COMELEC, 351 Phil. 692, 717, citing Adiong v. is known as symbolic
COMELEC, G.R. No. 103956, 1992). speech such as the
These are:
wec::ing of an armband
1. Libel
The test was formulated in U.S. v. O'Brier, (391 U.S. 367, as a symbol of protest.
2. Obscenity
1968), which was deemed appropriate for restrictions on Peaceful picketing has
speech, which are content-neutral. also been included
It has well been observed
within the meaning of
that such utterances are not
CONTENT -BASED AND CONTENT -NEUTRAL speech.(Bernas, The
essentlai part of any
REGULATIONS 1987 Constitutionof the
-. exposition of ideas, and are
{
·, . Content-Based Regulations Republic of the
of such slight societal value
The restriction Is based on the subject matter of the . Philippines,2009).
as a step to truth that any
utterance or speech. Content-based laws are generally
treated as more suspect . than content-neutral laws benefit that may be derived
because of judicial concern with discrimination in the from them is clearly
regulation of expression. (Newsounds Broadcasting outweighed by the social
Network v. Dy, G.R. Nos. 170270 & 179411, 2009). interests in order and
moralily. (Bernas, The 1987
Content-Neutral Regulations Constitution of the Republic
It is merely concerned with the incidents of the speech, or of the Philippines, 2009
one that merely controls the time, place or manner, and citing Chaplinsky v. New
under well-defined standard. Content-neutral regulations Hampshire).
of speech or of conduct that may amount to speech, are
subject to lesser but still heightened scrutiny. Thus, in dealing with them
, .. .:, there is no call for the
application of the clear and
.' . The Court is of the position that the actions of the
respondents warrant heightened or strict scrutiny from the present danger rule, the
Court. the test which we have deemed appropriate in
l. .
Page 1 07 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW
,...---------------...--------------------,-~--:s~ta~t~e:m:e:nt;-:in~t;h:e~c:a:se~·~w:o;u~ldihha;v:e;;--;a~c;h~illijrin;g~e~
dangerous tendency rule, or them. This makes the law overbroad and therefore in
the balancing of interests violation of freedom of expression. (Disini v. Secretary of
test because these are Justice, G.R. No. 203335, 2014)
essentially methods of
weighing competing
Publication vis-a-vis Libel
legitimate values. But there
Publication means "making the defamatory matter, which
still remains the
is written, known to someone other than the person to
complicated task of
whom it has been written" (Ledesma v. CA, G.R. No.
discovering the norms for
determining what speech is 113216. 1997).
libelous or what speech is
obscene. (Bernas, The However, a defamatory speech is protected if it is made in .
1987 Constitution of the good faith on any subject . matter in which the
Republic of the Philippines, communicator has an interest, or concerning which he has
2009). a duty. e.g., Reporting a defamatory matter to a superior is
not libelous. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009).
Libel
A libel is a public and malicious Imputation of a crime or of Contempt Is akin to a case of libel
a vice or a defect, re;3I or imaginary, or any act, omission,
Contempt is akin to a case of libel for both constitute
condition, status, or circumstance tending to cause the
limitations upon freedom of the press or freedom of
dishonor, discredit. or contempt of a natural or juridical·
expression guaranteed by our Constitution. What is
person, or to blacken the memory of one w~o is dead.
considered a privilege in one may likewise be considered
(Revised Penal Code, Art. 353). ',_
in the other. The principle of privileged communications
can also be invoked in contempt charges. {Atty. Raymund
Elements of libel: (APIM) P. Palad v, Lolit Solis, et al., G.R. No. 206691, 2016)
1. The Allegation of a discreditable act or condition concerning
another. ' When a lawyer has become a public figure for being
2. Publication of the charge. involved in a public lssue, the controversy involving such
3. ·Identity of the person defamed. individual becomes a matter of public interest. Therefore,
4. Existence of Malice. the media has the right to report the disciplinary case as
legitimate news. Such will not be considered as a violation
Malice is bad faith or bad motive. It is the essence of '
of the confidentiality rule In disciplinary proceedings ,
t ~
the crime of libel.
· against lawyers. (Atty. Raymund P. Palad v. Lolit Solis, et
Proof that statement was false
al., G.R. No. 206691, 2016)
In the absence of proof that the defendant knew that the
statement was false or published with reckless disregard Privileged Communications
of whether or not it was true, the defendant cannot be held · 1. Absolute- Privileged communication may be absolute
liable for libel. (Guingguing v. Court of Appeals, G.R. No. {like statements made by legislators in Congress) which
128959, 2005). are never actionable.
2. Qualified - Those which are not actionable, if found to
When Is there Malice
have been made in good faith or for justifiable motive
There is malice when the author of the imputation is
(Borja! v. CA, G.R. No, 126466, 1999).
prompted by ill-will or spite and speaks not in response to
duty but merely to injure the reputation of the person who While (Jenerally every defamatory imputation is presumed
claims to have been defamed (Alonzo v. CA, G.R. No.
malicious, if the communication is privileged, the
110088, 1995). presumption does not arise. The plaintiff assumes the
burden of proving malice. {Bernas, The 1987 Constitution
Original author of the statement should be prosecuted of the Republic of the Philippines, 2009). .: '.:
for libel. \. . .,.·
Only the original author of. the statement should be
prosecuted for libel. Because of the unique culture of
{
·... .../
-
cyberspace, the inclusion of those who just shared the
Page 108 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
Requisites for a Qualifiedly Privileged
Communication: (DAG)
1. The person wno made the communication had a legal,
moral, or social Duty to make the communication, or
at least, had an interest to protect, which interest may
either be his own or of the one to whom it is made;
2. The communication is Addressed to an officer or a
board, or superior, having some interest or duty in the
matter, and who has the power to furnish the protection
sought;
3. The statements in the communication are rnade in
Good faitti and without malice.
Libel Against Public Officials and Public Figures
A public officlal cannot recover damages for a defamatory
falsehood relating to his official conduct unless he proves
that the statement was made with 'actual malice'. Actual
malice means there was knowledge that it was false or with
reckless disregard of whether it was false or not. (NY
Times v. Sullivan, 376 U.S. 254, 1964).
General Rule: Libel is presumed to be malicious even if
true.
Exception: if the object is a public official, there is no
presumption of malice. · treated un a case to case basis and on the judge's sound
With respect to public personalities (politicians, actors,
anyone with a connection to a newsworthy event), opinions
can be aired regarding their public actuations.
However, if the utterances are false, malicious, or .
unrelated to a public officer's performance of his duties, or
irrelevant to matters of public interest Involving public
figures, the same may give rise to .criminal and civil liability.
Fair Commentaries
These are privileged and constitute a valid defense in an
action for libel or slander. When the discreditable
' 6. Any conviction is subject to appeal. The appellate court
imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order for it to
be actionable, it must either be a false allegation of fact or
a comment based on a false supposition.
If the comment is an expression of opinion based on
established facts, then it is immaterial that the opinion
happens to be mistaken, as long as it might
reasonably be inferred. The insertion of an old picketing
footage in a news report was not libelous because it did not
-r
'~., convey anything derogatory in nature, and it was actually
.~
•.
simultaneously voiced over by the narration of the news
report. The report was also merely quoted from the
contents and allegations in the petltion and is merely a
Page 109
POLITICAL LAW
summary of the petition. (GMA Network v. Bustos, G.R.
. No. 146848, 2006).
indecency
Not conforming with generally accepted standards of
behavior or propriety.
Obscenity
Appeals to lascivious thoJghts or desire or tends to
arouse sexual desire.
Test for obscenity (Milter Test) codified in BP 880:
1. Whether the average person, applying contemporary
community standards would find that the work, taken
as a whole, appeals to the prurient interest.
2. Whether the work depicts or describes, in a patentiy
offensive way, sexual conduct specifically defined by
the applicable state law.
3. Whether the work, taken as a whole Lacks Serious
Literary, Artistic, Political, or Scientific value (Code:
LSLAPS) (Miller v. California, 413 US. 15, 1973).
Relative Obscenity
The Court noted that there was "no perfect definition of
obscenity" and that ultimately therefore "obscenity is an-
issue proper for judicial determination and shouid be
discretion." (Soriano v. Laguardia, G.R. No. 164785,
2009.).
Procedure for Seizure
1. Authorities must apply for issuance of search warrant
2. Court must be convinced that the materials are
obscene (apply clear and present danger test)
3. Judge determines whether they are "obscene"
4. Judge will issue a search warrant
5. Proper action should be filed under Art. 201 of the RPC
(Immoral documents, obscene publications and
exhibitions, and indecent shows)
may assess whether or not the properties seized are
indeed "obscene". (Pita v. CA, G.R. No. 80806, 1989)
FACIAL CHALLENGES AND OVERBREADTH
DOCTRINE
Overbreadth Doctrine
The doctrine provides that a government purpose rnay not
be achieved by means that sweep unnecessarily broadly
and thereby invade the area of protected freedoms .
. The overbreadth doctrine only applies to those Involving
free speech. Criminal statutes generally have in terrorem
effect resulting from the very existence, and, if facial
of 320
ATENEO CEN)"RAL
BAR OPERATIONS 2019
challenge is allowed for this reason alone, the State may
be prevented from onacting laws against socially harmful
'conduct.
A plain reading of P.P. No. 1017 shows that it is not
prima,ily directed at speech, rather, it covers a spectrum of
conduct. It is a call upon the AFP to prevent or suppress
all forms of lawless violence. Facial invalidation on the
ground of overbreadth is a manifestly strong medicine, to
be used sparingly and only as a last resort. Petitioners did
not show that there is no instance wherein P .P. No. 1017
may be valid (David v. Arroyo, G.R. No. 171396 2006).
Facial Challenge .
Prohibiting placing of campaign decals on private cars is ,
overorcad, and thus invalid prohibition. (Adiong v.
COMELEC, G.R. No. 103956, 1992).
Banning the publishing of survey results is also overbroad
because It does not meet the O'Brien test, since it
suppresses one type of expression while allowing others
like editorials. (SWS v. COMELEC, G.R. No. 147571,
2001).
A facial challenge is allowed against vague or overbroad
statutes because of possible ffchilling effect" upon
protected speech. The theory is that "[w]hen statutes
regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating
the statutes in a aingle prosecution, the transcendent value
to all society of constitutionally protected expression is
deemed to justify allowing attacks on overly broad statutes
with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated
by a statute drawn with narrow specificity." This rationale
does not apply to penal statutes. (Estrada vs.
Sandiganbayan, G.R. No. 148560, 2001 ).
The facial challenge has expanded its scope to cover
statutes not only regulating free speech, but also those
involving religious freedom, and other fundamental rights
because of the expanded scope of judicial power. (lmbong
v. Ochoa, GR No. 204819, 2014) . . about the substantive evil the utterance be to bring about
In an "as applied" challenge, ,the constitutionality of a
statute can be chauenqed only by one who asserts a
violation of his own rights. It cannot be challenged based
solely on the violation of the rights of third persons not
before the court. An exception to this rule is the concept of
facial challenge. A petitioner may mount a 'facial"
challenge to the constitutionality of a statute even if he
claims no violation of his own rights under the assailed
st.atute where it involves free speech on grounds of
Page 110 of 320
POLITICAL LAW
overbreadth or vagueness of the statute. (Disini v.
Secretary of Justice, GR No. 203335, 2014)
TESTS
The freedom of expression and the right to freely associate
are not absolute. The standards to test the validity of
regulations that curtail the freedom of speech, of the press,
and of peaceful assembly are:
1. Dangerous tendency doctrine
This is used for statements against the Supreme Court and
permits the application of restrictions when:
(a) There is a rational connecticn between the speech and
the danger apprehended;
(b) The tendency of one to create the other is shown.
(Gonzales v. COMELEC, G.R. No. L-27833, 1969).
Citizen Perez made this remark at a political discussion at
a town municipio: "and the Filipinos, like myself, must use
bolos for cutting off Wood's head for having recommended
·. a bad thing for tho Philippines." The court held that
criticism, no matter how severe, on the Executive, the
Legislature, and the Judiciary, is within the range of liberty
of speech, unless the intention and effect be seditious. In
this case, Malcolm found a seditious tendency which could
easily produce disaffection among (he people and a state
of feeling incompatible with a disposition to remain loyal to
the Government and obedient to the laws. (People v.
Perez, G.R. No. L-21049, 1923; Bernas, The 1987
Philippine Constitution: A Comprehensive Reviewer,
2011 ).
If the words uttered create a dangerous tendency which
the state has a right to prevent, then such words are
punishable. it is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be
-:. ..:;;
advocated. It is sufficient that such acts he advocated in
general terms. Nor is it necessary that the language used
be reasonably calculated to incite persons to acts of force,
violence or unlawfulness. It is sufficient if the natural
t .. ,,i
tendency and probable effect of the utterance be to bring
the substantive evil which the legislative body seeks to
prevent (Cabansag v. Fernandez, G.R. No. L-8974, 1957).
2. Clear and present danger rulo
This test Is used for statements against lower courts. The
question is whether the words are used in such { :.
circumstances and are of such a nature as to create a clear
and present danger that they will bring about substantive
evils :hat Congress has a right to prevent. It must be
i
(
.,,,.'
present and inevitable. It is a question of proximity and
 ··.···

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

degree. Clear connotes a causal connection with the (Bernas, The 1987 Phflippine Constitution: A
danger of the substantive evil arising from the utterance Comprehensive Reviewer, 2011 ed. citing Gonzales v.
questioned. Present refers to the time element that is COMELEC, G.R. No. L-27833, 1969).
identified with imminent and immediate danger. (Gonzales
v. COMELEC, G.R. No. L-27833, 1969); The dangerous tendency rule and the clear and present
danger rule were evolved in the context of prosecution for
Radio station DYRE was summarily closed for national seditious speech. They are thus couched in terms of
security reasons because it allegedly aired subversive degree of ,=wil and proximity of the evil. But not all evils
programs. The SC held that all forms of media are entitled easily lend themselves, like sedition to measurement of
to the protection of the freedom of speech and expression proximity and degree. For legislation therefore whose
clause. The clear and present danger test may be applied object is not the prevention of evil measurable in terms of
to test the limits of free speech. That the words are used in proximity and degree, another test had to be evolved. The
such circumstances and are of such nature as to create a balancing of interests serves this purpose. It is used, for
clear and present danger that they will bring about the instance, for commercial speech. (People v. Perez, G.R.
substantive evils that Corqress has a right to prevent. The No. L-21049, 1923; Bernas, The 1987 Philippine
SC recognized that the government also has a right to be .Constitution: A Comprehensive Reviewer, 2011).
protected against broadcasts that incite the listeners to
violently overthrow it. . The SC held that the dangerous tendency doctrine and the
clear and present danger rule were fashioned in the course
However, the clear and present danger test is not an all- of testing legislation that l,imited speech expected to have
embracing interpretation that is applicable to all utterances deleterious consequences en the security and public order
i:i all forums. Freedom of television and radio broadcasting of the community. The clear and present danger rule is not
\ is lesser in scope than the freedom accorded to newspaper one of universal applicability and validity (Gonzales v.
[!
and print media. Radio broadcasting receives the most COMELEC, G.R. No. L-27833, 1969).
limited protection from the free expression clause.
Broadcast media have a uniquely pervasive preser.ce in Summary
the lives of all citizens - it reaches even the privacy of the
TEST CRITERION
home. Broadcast media is uniquely accessible to all, even
children - selectivity is more difficult in radio and TV. In 1. There should be a rational
.,..._:: other words, the aurliences of radio and TV have lesser connection between the speech
opportunity to cogitate, analyze, and reject the utterances.
l
, .. .
(Eastern Broadcasting v. Dans Jr., G.R. No. L· 59329, Dangerous
Tendency
and tne evil apprehended.
(Bernas, The 1987 Philippine
1985). .
Constitution: A Comprehensive
Reviewer, 2011).
3. Balancing of interest test 2~ Focus on content.
Represents a wholJy pragmatic approach .. .it rests on the
theory that it is the Court's function in the case before it 1. The words when used under such
when it finds public interests served by legislation on the circumstances are of such a
one hand and First Amendment freedoms affected by it on nature as to create a clear and
the other, to balance the one against the other and to arrive present danger that they will
at a judqrnent where the greater weight shall be placed. !f Clear and bring about the substantive evils
on balance, it appears that the public interest served by Present Danger that the state has a right to
restrictive legislation is of such .a character that it prevent (Bernas, The 1987
.... :.· outweighs the abridgement of freedom, the Court will find Philippine Constffution: A
the legislation valid. (Bernas, The 1987 Philippine Comprehensive Reviewer, 2011).
Constitution: A Comprehensive Review€r, 2011 ). 2. Focus on content & context.

Republic Act 4880 among other things prohibits the too 1. The courts should balance the
early nomination of politlcal candidates and limits the Balancing of public Interest served by
period for partisan political activity. Its purpose is to prevent , Interests legislation and the freedom of
the debasement of the political process. In determining the speech (or any other
constitutional right).
·..' ; validity of the law, free speech as a social value must be
weighed against the political process as a social value.
Page 111 of 32.0

'-, -1'.
-------------·· ---·----- ·--- -- ·-· ··----
A TENEO CENTRAL
BAR OPERATIONS 2019
2. The courts will then decide where
the greater weight should be
-,
placed.
3. Focus on weighing government
and private interest.
STATE REGULATION OVER DIFFERENT TYPES OF
MASS MEDIA
• A speech that may endanger public safety may be
censored and disapproved for broadcasting.
• The freedom of broadcast media is lesser in scope than
the press because of their pervasive presence in the
lives of the people and because of their accessibility to
children. (Radio and TV).
• Movies may be requlated by an administrative body
subject only to judicial review by the courts.
• Live TV coverage of a criminal case may be
allowed ... "mere fear of possible undue influence is not
tantamount to actual prejudice resulting in the
deprivation of the right to a fair trial" (In Re: Petition For
Radio And TV Coverage Of The Multiple Murder Case
Against Zaldy Ampatuan et al., A.M. No. 10-11-5-SC,
2011 ).
• The right to privacy or "the right to be left alone" is not
an absolute right. A limited intrusion into a person's
privacy has long been regarded as permissible when
that person is a public figure and the information sought
to elicited from him or to be published about him
constitute matters of a public character. The right of
privacy cannot be invoked to resist publication and
dissemination of matters of public interest. The interest
sought to be protected by the right of privacy is the right
to be free from "unwarranted" publicity, from the
wrongful publicizing of the private affairs and activities of
an individual which are outside the realm of legitimate
public concern (Ayer Productions v. Capulong, G.R. No.
82380, 1988). (Bernas, The 1987 Constitution of the
Republic of the Philippines, 2009).
A. Cannot prohibit columnists from using their columns
or programs to campaign against or for a plebiscite
choice, since the authority given by the Constitution
is over holders of franchises and to give candidates
equal opportunity and equal access to media - not
restrain free dlscussion. (Sanidad v. COMELEC,
G.R. No. 90879. 1990).
B. Cannot ban exit polls because the evils envisioned
are merely speculative. (ABS CBN v, COMELEC,
G.R. No. 133486, 2000).
C. MTRCB has power to review both religious shows
like the INC program, as well as public affairs and
Page 112 of 320
POLITICAL LAW
documentary programs like The Inside Story.
(MTRCB v. ABS-CBN, G.R. No. 155282, 2005).
The content of the computer data can also constitute
speech. In such a case, Section 19 of RA 10175
(Cybercrime Law) operates as a restriction on the freedom
of expression over cyberspace. Certainly not all forms of
speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression
as illegal. But for an executive officer to seize content
alleged to be unprotected without any judicial warrant, it is
not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury,
and executioner alt rolled into one. Not only does Section
19 preclude any judicial intervention, but it also disregards
jurisprudential guidelines established to determine the
validity of restrictions on speech. {Disini v. Sec. of Justice,
G.R. No. :203335. Feb. 11, 2014; See case for other
provisions relating to freedom of speech, which were
upheld by the court).
COMMERCIAL SPEECH
Concept
Communication which no more than proposes a
commercial transaction. Even an individual advertisement,
though entirely "commercial," may be of general public
interest. Advertising, however tasteless and excessive it
sometimes may seem, is nonetheless dissemination of
information as to who is producing and selling what
product, for what reason, and at what price. So long as we
preserve a predominantly free enterprise economy, the
allocation of our resources in large measure will be made
through numerous private decisions. To this end, the free
flow of information is indispensable. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009).
J
\ ... :·
Requirements for Protection of Commercial Speech
(FSDO)
1. The speech must not be False or misleading or
proposing an illegal activity; .
r.
.'
2. The governmental interest sought to be served by the
regulation must be Substantinl;
3. The regulation must Directly advance the
government's Interest;
4. The requlation must not be Overboard. (Central .
':' •.·
.
Hudson Gas v, Public Service Commission, 447 U.S.
' ~·
557, 1980)_ v.
:. __;-
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

PRIVATE v, GOVERNMENT SPEECH to peaceable assembly is a right ccgnate to those of free

<speech and free press and is equally fundamental.
TEST. CRITERION ·
(Bernas, The 1987 Philippine Constitution: A
1. There should be a rational Comprehenslve Reviewer, 2011, citing de Jonge v.
connection between the speech Oregon).
Dangerous and the evil apprehended. (Bemas,
Tendency The 1987 Philippine Constitution: A "Assembly"
Comprehensive Reviewer, 2011). Means a right on the part of the citizens to meet peaceably
2. Focus on content. ·
for consultation in respect to public affairs. It is a necessary
1. The words when used under such consequence of our republican institution and
circumstances are of such a nature complements the right of speech. As in the case of
as to create a clear and present freedom of expression. this right is not to be llmited, much
Clear and danger that they will bring about the less denied, except on a showing of a clear and present
Present substantive evils that the state has danger of a substantive evi! that Congress has a right to
Danger a right to prevent (Bernas, The prevent. In other words, like other rights embraced in the
1987 Philippine Constitution: A
freedom of expression, the right to assemble is not subject
Comprehensive Revie't'.er, 2011).
to previous restraint or censorship.' It may not be
2. Focus on content & context.
conditioned upon the prior Issuance of a permit or
1. The courts should balance the authorization from the government authorities except, of
public interest served by course, if the assembly is intended to be held in a public
legislation and the freedom of place, a permit for the use of such place, and not for the
speech (or any other constitutional assembly itself, may be validly required. (David v. Arroyo,
Balancing of right).
G.R. No. 171396, 2006).
Interests 2. The courts will then decide where
the greater weight should be
placed. The standards for allowable impairment of speech and
3. Focus on weighing government and press also apply to the right of assembly and petition.
private interest.
Rules on Assembly in Public Place
HECKLER'S VETO 1. Applicant should inform the licensing authority of the
It involves situations in which the government attempts to date, the public place where and the time when the
assembly will take place.
ban protected speech because it might provoke a violent
response. The mere possibility of a violent reaction to 2. The application should be filed ahead of time to enable
protected speech is simply not a constitutional basis on the public official concerned to appraise whether there
which to restrict the right to speak. (Roe v. Crawford, No. are valid objections to the grant of the permit or to its
06-3108, 2008). grant, but in another public place. The grant or refusal
should be based on the application o'Nhe Clear and
In Feiner v. New York (340 US 315, 1951 ), petittoner was Present danger test.
neither arrested nor convicted for the making of the speech 3. If the public authority is of the view that there is an
or the content of his speech, but for the reaction which it Imminent ar.d grave danger of a substantive evil, the
actually engendered. The Court held that the police cannot applicants must be heard on the matter.
be used as an instrument for the suppression of unpopular 4. The decision of the public authority, whether favorable
views; but, when 3 speaker passes the bounds of or adverse, must be transmitted to the applicants at the
argument or persuasion and undertakes incitement to riot, earliest opportunity so that they may, if they so desire,
the police are not powerless to prevent a breach of the have recourse to the proper judicial authority. (Reyes
r ' peace. v. Bagatsing, G.R. No. L-65366, 1983).
\j
The Right of Ass.embly and Petition General Rule: Permit is necessary to assemble in a
' .;
Concept · public space.
The right of petition is the primary right. the right peaceably
to assemble a subordinate and instrumental right, as If the Exception: No permit is necessary when: (PCF)
provision read: "The right of the people peaceable to 1. Private place;
assemble" in order to "petition the government". The righi 2. Campus of government school;
3. Freedom park.
Page 113 of 320.
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Rule on Assembly in Private Places -
Only the consent of the owner of the property or person
entitied to possession thereof is required.
B.P. 880 or the Pub I le Assembly Act of 1985
Sets forth the requirements and procedure which· are
necessary to regulate the time, place and manner of public
assemblies. It is a content-neutral legislation. It refers to all ·
kinds of public assemblies that would use public places.
The reference to "lawful cause" does not make it content-
based because assemblies really have to be for lawful
causes; otherwise they would not be "peaceable" and
entitled to protection.
FREEDOM OF RELIGION
No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever
be ailowed. No religious test shall be required tor the
exercise of civil or political rights. (Phil. Const., art. 3, § 5).
Freedom of Religion includes:
1. Non-establishment clause
. 2. Free exercise clause
Non-Establishment ctause and Frfie Exercise Clause

The Calibrated Preemptive Response (CPR) -

.
NON-ESTABLISHMENl' . FREE EXE:RCISE
, CLft:USE . CL~USE' .
issued In lieu of the "Maximum Tolerance" for the
protection and benefit of all rallyists and is independent of 1. Does not depend 1. In order t.o
the content of the expressions in the rally. on any showing of direct show a violation of
vernmental compulsion. this clause, the
The existence of freedom parksis an essential part of the person affected
law's system of regulatlon of the people's exercise of their It is violated by the must show the
right to peacefully assemble and petition. No prior permit nactment of laws which coercive effect of :-- .

may be required for the exercise of such right in any public tablish an official religion tile legislation as it
park or plaza of a city or municipality until that city or hether those laws operate operates against
municipality shall have established or designated such irectly to coerce non- him in the practice
freedom parks. For without such alternative forum, to deny servlnq individuals or not. of his religion.
the permit would in effect be to deny the right. Advance
notices should, however, be given to the authorities to 2. While the
ensure proper coordination and orderly proceeding. non-estabtishment
clause is absolute,
The use of the term CPR should be discontinued, since it the moment such
does not mean anylhing other than the maximum tolerance belief flows over
policy set forth in B.P. 880. (Bayan v. Ermita, G.R. No. into action, it
169838, 2006). becomes subject to
' ,.
government ;

The Mayor possesses "reasonable discretion to determine regulation.

or specify streets or public places to be used for the
assembly in order to secure convenient use thereof by
others and provide adequate and proper policing to
minimize the risks of disorder and maintain puhlic safety
and order." (Navarro v. Villegas, G.R. No. L-31687, 1970).
Demonstrations, rallies, and other similar activities within a
radius of 200 meters from the outer boundary of the
Supreme Court Building, any Hall of Justice, and any other
building that houses at least one court sala are prohibited
(In re: Petition to Annul 98-7-02 SC}.
UNPROTECTED SPEECH - See discussion on Content-
based and Content-Neutral Regulations.
' A Comprehensive Reviewer, 2011 ).
..
NON-ESTABLISHMENT CLAUSE
..
concept and basis
There is substantial agreement on the values non-
establishmenl seeks to protect:
1. Voluntarism - the growth of a religious sect as a social
force must come from the voluntary support of its
members because of the belief that both spiritual and
secular society will benefit if religions are allowed to
compete on their own intrinsic merit without benefit of
official patronage and,
2. Insulation of the politicai process from interfaith
· dissension. (Bernas, Tiie 1987 Philippine Constitution:
t..5
l

Page 114 of 320 l .. §

 ATENEO CENTRAL
BAR OPERATIONS20·19
The Constitution does not authorize the appropriation,
use, or applir.ation of public money for the use, benefit, or
support of a particular sect or church (Aglipay v. Ruiz, 64
Phil. 201).
The non-establishment clause was intended to afford
protection from sponsorship, financial support, and active
involvement of the sovereign in religious activity. (Lemon
v. Kurtzman, 403 U.S. 602, 1971}.
The government should be neutral. The State cannot
forbid the exercise of religious funcUons and aid in the
performance of the same. Legislation requiring the
ceremonial reading from the Bible and reciting The Lord's
Prayer before class is clearly an exercise of religion and
to require the same would violate the rights of the
students. But the US SC also held that objective study of
the Bible for academic purposes, such as for its historic or
literary qualities, may be part of the curriculum as a
secular activity. (School District v. Schempp, 374 U.S.
203, 1963).
The holding of Catholic masses at the basement of the
QC Hall of Justice is not a case of estaolisbrnent, but
merely accommodation.
1. There is no law, ordinance or circular issued by any
duly constitutive authorities expressly mandating that
judiciary employees attend the Catholic masses at the
basement.
2. When judiciary employees attend the masses to
profess their faith, it is at their ow., initiative, without
any coercion from the judges or administrative officers.
![ .. 3. No 'government funds are be!ng spent because the
.... lightings and air conditioning . continue to be
'.
,_ _'.. operational even if there are no religious rituals there.
4. The basement has neither been converted into a
Roman Catholic chapel nor has it been permanently
appropriated for the exclusive use of its faithful.
..·,,, 5. The allowance of the masses has not prejudiced other
religions
1;
, 6. In no case shall a particular part of a public building be
a permanent place for worship for the benefit of any
{
and all religious groups. There shall also be no
'l - permanent display of religious icons in all halls of
,,
(_; justice in the country. In case of religious rituals,
religious icons and images may be displayed but their
tf
~ t" presentation is limited only during the celebration of
such activities. After any religious affair, the icons and
,' ... ,
I( '
images shall be ·hidden or concealed from public view.
(Re: letter of _Tony Valenciano, 2017)
,.,...
Page 115 of 320
v.
POLITICAL LAW
Acts Permitted and Not Permitted
Non-establishment clause requires government neutrality
in all religious matters. The following acts are proscribed
because such preference would violate voluntarism and
breed dissension:
I. Government must not prefer one religion over another
or religion over lrrellgion
2. Government funds must not be applied to religious
purooses for the same reason
3. Government action must not aid religion for the same
reason
4. Government action must not result _In excessive
entanglement with religion (Bernas. The 1987
' Constitution of the Republic of the Philippines, 2009).
Aglipay. of the Philippine Independent Church sought to
prohibit the issuance and sale of ouch stamps
commemorating a Catholic Eucharistic Congress for
vlolatinq the command that no public money should be
appropriated to support any system of religion. The SC
held that the statute contemplates no religious purpose.
The stamps were not sold for the benefit of tl1e catholic
Church, but merely to advertise the Philippines as the seat
of the Eucharistic Gongress. Thus, the resl!itii;ig
propaganda possibly in favor of the Catholic Church is
merely incidental and should not frustrate the main
purpose of the law, which is to generate profit and boost
tourism. (Aglipay v. Ruiz, G.R. No. L-45459, 1937).
Government programs that neutrally provide benefits to a
broad class of citizens and without reference to religion do
not violate the non-establishment clause, as when
government furnishes a disabled child enrolled in a
sectarian school with a sign language interpreter to
facilitate his education because the service is part of a
general government program that neutrally distributes
benefits to any child qualifying as disabled under the IDEA,
without regard to the sectarian or non-sectarian or public
or non-public nature of the school the child attends. Neither
does the IDEA create a financial incentive for parents to
choose a sectarian school. Most cases, where
governmental aids were struck down, challenged
programs which gave direct grants of government aid,
relieving sectarian schools of costs they otherwise would
have borne. In this case, Jthe child is the primary beneficiary
and whatever benefits that may accrue to the school is
merely incidental. (Zobrest, et al. v. Cata!ina Foothills
School District, 509 U.S. 1, 1993)
 A TENEO CENTRAL
BAR OPERATIONS 2019
Tests
1. Abjnqton v. Schempp test requires that the statute
should have: (SP)
1. A Secular legislative purpose
2. Primary effect of which neither advance~ nor inhibits
religion.
If the purpose and primary eff13c! is the advancement or
inhibition of religion. then the enactment exceeds the
scope of legislative power as crcumscrlbed by the .
constitution. (Bernas, The 1987 Constitution of the
Republic of the Philippines, 352, 2009).
2. Lemon v. Kurtzman test developed 3 requisites for
statutes to be consistent with the non-establishment
· clause: (SNF)
1. The statute must have a Secular legislative purpose
2. The principal effect of the statute must Neither
advance nor inhibit religion
3. The statute must not Foster excessive entanglement
of the government with religion (regarding government
aid}.
To determine excessive entanglement, the following
must be taken into consideration:
1. The character and purposes of the benefitted
institutions,
2. The nature of the aid that the State provides,
3. The resulting relationship between the government
and religion (Agostini, et al. v. Felton et al, 521 us:
203117, 1997).
3. Mitchell v. Helms (530 U.S. 793, June 28, 2000) found
that the primary criteria to determine if governmental
aid has the effect of advancing religion: . its indirect burden on religious observance, unless
1. If the aid results in governmental Indoctrination. i.e.,
whether or not the governmental aid program
subsidizes religion
2. If the aid defines its recipients by reference to religion '
3. If the aid creates an excessive entanglement
The US SC further held that under the neutrality principle,
aid that is offered to a broad range of groups or persons
without regard to religion are valid. One way to assure the
said neutrality is through the principle of private choice,
wherein the government is not considered to have
provided any support of religion when aid to schools, even
if direct, is a} neutrally available and b) before reaching or
benefitting any religiou3 school, first passes through the
hands of numerous private citizens who are free to direct
the aid elsewhere. (Mitchell v. Helms, 530 US 793, 2000)
Page 116 of 320
POLITICAL LAW
FREE EXERCISE CLAUSE
It embraces two concepts:
1. freedom to believe (absolute) and
2. freedom to act on one's belief (may be regulated by·
the state}.
The absolute freedom to believe carries with it the corollary
that the government, while it may look into the good faith
of a person, cannot inquire into a person's religious
pretensions. The moment however, belief flows over into
action, it becomes subject to government regulation.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011 ).
Benevolent Neutrality
The Constitution adheres to the benevolent neutrality
approach that gives room for accommodation of religious
exercises as required by the Free Exercise Clause.
Although morality contemplated in laws is secular,
benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend
compelling state interests (Estrada v. Escritor AM. No. P- ,,...
02-1651, 2006).
Legislation whose effect or purpose is to impede the
observance of one or all religions
Any legislation whose effect or purpose is to impede the '
observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though
the burden may be characterized as being only indirect.
But if the State regulates conduct by enacting, within its
power, a general law which has for its purpose and effect
0
to advance the states secular goals, the statute is valid
despite
("
the state can accomplish its purpose without imposing .
such burden (Victoriano v. Elizalde Rope Workers' Union,
G.R. No. L-25246, 1974)
Although the State rr.ay not, by statute, wholly deny the
right to preach or disseminate religious views, it may, by
non-discriminatory legislation, regulate the times, the
places, and the manner of soliciting upon its streets.
(Cantwell v. Connecticut, 310 U.S. 296, 1940).
A law advancing a legitimate governmental interest is not
necessarily invalid as one interfering with the free exercise
of religion merely because it also has an incidental and
detrimental effect on the same. (Centeno v. Villalon- r
Pornillos, G.R. No. 113092, 1994). ~.;
~.
 ATENEO CENTRAL
BAR OPERATIONS 2019
The government cannot certify food as halal - only the
religion can do this. (Islamic Da'wah Council of the
Philippines, Inc. v. Office of tho Secretary, G.R. No.
153888, 2003).
The non-establishment clause calls for government
neutrality in all religious matters and governmental reliance
on religious justification is prohibited. Recognizing the
religious nature of the Filipinos and the elevating influence
of religion in society, the Philippine Constitution's religion
clauses prescribe a benevolent neutrality and not a strict
one. Benevolent neutrality recognizes that the government
must pursue its secular goals and interests, but at the
same time, strive to uphold religious liberty to the greatest
extent possible within flexible constitutiona! limits. Law-
based morality is secular, but benevolent neutrality could
allow for accommodation of religion-based morality,
provided that doing so would not offend compelling state
interests. (Ang ladlad v. COMElEC, G.R. No. 190582,
2010). . upheld the TRO it previously issued in June 2015 which
State-sponsored distribution of contraceptives
under the RH law does not violate the guarantee. of
religious freedom.
Matters dealing with "faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a church ...
are unquestionably ecclesiastical matters which are
outside the province of the civil courts." The jurisdiction of
the Court extends only to public and secular morality.
Stated otherwise. while the Court stands without authorny
to rule on ecclesiastical matters, as vanguard of the
Constitution, it does have authority to determine whether
the RH law contravenes the guarantee of religious
.......
t: .:.
freedom .
While the Constitution prohibits abortion. laws were
enacted allowing the use of contraceptives. To some
medical practitioners, however, the whole Idea of using
contraceptives is an anathema. Consistent with the
principle of benevolent neutrality, their beliefs should be
respected, · ·
-~- _.: In the same breath that the establishment clause restricts
what the government can do with religion, it also limits what
;;.. ..:, religious sects can or cannot do with the government. They
can neither cause the governnient to adopt their particular
doctrines as policy for everyone, nor can they not cause
the government to restrict other groups. To do so, in simple
terms, would cause the State to adhere to a particular
religion and, thus, esteblishlnq a state religion.
: .. : Page 117 of 320
~-J
POLITICAL LAW
However, the RH law violates the guarantee of religious
freedom by compelling medical health practitioners,
hospitals, and health care providers, under pain of penalty,
to refer patients to other institutions despite their
conscientious objections.
The Court is of the view that the obligation to refer imposed
by the RH Law violates the religious belief and conviction
of a conscientious objector. Once the medical practitioner,
against his will, refers a patient seeking information on
modern reproductive health products, services,
procedures and methods, his conscience is immediately
burdened as he has been compelled to perform an act
against his beliefs. As Commissioner Joaquin· A. Bernas
has written, "at the basis of the free exercise clause is the
respect for the inviolability of the human conscience."
(lmbong v. Ochoa, G.R. No. 204819, 2014).
The Supreme Court denied the motion to lift the TRO and
barred the Department of Health (DOH) from acquiring and
distributing contraceptive products lmplanon and lmplanon
NXT and ordered the FDA to determine whether the
aforementioned drugs are safe and non-abortifacients.
(Alliance for the Family Foundation, Philippines, Inc.
"(ALFI), et al. v. Hon. Janette L. Garin, et al., G.R. No.
217872, 2016)
TESTS
1. Clear and Present Danger Test
TI1e only justification for a. restraint or limitation upon
religious freedom is the presence of a clear and present
danger of a substantive evil to public safety, peace, or
order. The State has a right to prevent and punish activities
that would incite violence and breach the peace in order to
protect others of their equal right to exercise their liberties.
(Cantwell v. Connecticut 310 U.S. 296, 1940; also
discussed in Ebralinag v. Superintendent, G.R. No. 95770,
1993).
2. Benevolent Neutrality - Com::,elling State Interest
Test
Government actions that substantially burden a religious
practice must be justified by a compelling governmental
interest. (Employment Division v. Smith, 494 U.S. 872,
1990).
Using the compelling state Interest test from a
benevolent neutrality stance
The state has the burden to justify any possible sanction.
This step involves three steps: (SPL)
 ATENEO CENTRAL
BAR OPERATIONS2019
1. The courts should look into the Sincerity of the
religious belief wit:,out inquiring into the truth of the
belief
2. The State has to establish that its fy_rposes are
legitimate and compelling
3. The State used the Least intrusive means possible
In the above circumstances, the State undertakes the
burden of presenting evidence of its compelling interest to
override respondent's religious belief. Further, the State
has to show that the means it has adopted in pursuing the
said interest is the least restrictive to respondent's
freedom. (Estrada v. Escrltor, A.M. No. P-02-1651, 2003).
The free exercise of religion enloys a preferred position in
the hierarchy oi rights. The State's broad interest in
protecting the institutions of marriage and the family is not
a compelling Interest enforcing the concubinage charges.
(Estrada v. Escritor, A.M. No. P-02-1651, 2003). · opposed to war, but when specifically asked about his
The free exercise clause does not relieve one of the
obligation to comply with a law that incidentally forbids {or
requires) the performance of an act that his religious belief
requires (or forbids}:
A. If the law is not specifically directed to reli~ious
prac:tlce
B. If the law is constitutional as applied to those who ,
engage in the specified act for non-religious purposes
If the law is not specifically directed to religious practice
. and is applied equally to all, regardless of whether they do
the act for religious or non-religious purposes, it does not
offend the free exercise clause. The balancing of interests
test, whereby government actions that substantially
burden a religious practice must be justified by a
compelling governmental Interest, is inapplicable to an
across-the-board criminal prohibition of a particular form of
conduct. Otherwise, this would create an extraordinary
right to Ignore general laws in the name of religion for as
long as no compelling St::ite interest intervenes.
(Employment Division v. Smith, 494 U.S. 872, 1990).
The US SC held that under the free exercise clause, a law
that burdens religious practice need not be justified by a
compelling governmental interest, if it is a) neutral and b)
of general applicability. However, when the law is not
neutral or not of ge;,eral application, the same must
undergo the most riqorous of scrutiny: 1) It must be justified
by a compelling governmental interest 2) It must be
narrowly tailored to advance the said interest (Church of
The Lukumi Babalu Aye, Inc., et al. v, City Of Hialeah, 508
U.S. 520, 1993).
Page 118 of 320
POLITICAL LAW
3. Conscientious Objector Test
A person who for moral or religious reasons is opposed to
participating in any war, and who may be excused from
military consc:riptlon but remains subject to service in civil
work for the nation's health, safety or interest. (Black's Law
Dictionary, 9th ed).
Escritor was the court interpreter at the RTC of Las Pinas.
A complaint for disgrnceful and immoral conduct under the
Revised Administrative Code was filed against Escritor
because of living with a man not her husband. As a
defense, she asserted that this conjugal arrangement was
in conformity with her religious congregation which was the
Jehovah's witnesses. In discussing the Free Exercise
Clause, the court tackled United States v. Seeger, which
involved four men who claimed "conscientious objector"
status in refusing to serve in the Vietnam War. One cf the
four, Seeger, was not a rr.ember of any organized religion
belief in a Supreme Being, Seeger stated that "you could
call (it) a belief in a Supreme Being or God. These just do
not happen to be the words that I use." . Forest Peter,
another one of the four claimed that after considerable
meditation and reflection "on values derived from the
Western religious and philosophical tradition," he
determined that it would be "a violation of his moral code
to take human life and that he considered this belief
superior to any obligation to the state." The Court avoided
a constitutional question by broadly interpreting not the
Free Exercise Clause, but the statutory definition of religion
in the Universal Military Training and Service Act of 1940
which exempt from combat anyone "who, by reason of
religious training and belief, is conscientiously opposed to
participation in war in any form." (Estrada v. Escritor A.M.
No. P-02-1651, 2.006. See also Gerena v. Secretary of
... ,.;;;·
',
Education, G.R. No. L-13954, 1959).
Conscientious Objection to Military Service
As seen in U.S. v. Seeger, supra, it may also be used as a
ground for exemption from compulsory military service. It
also Includes those with a sincere and meaningful belief
which occupies in the life of its possessor a place parallel
to that filled by the God of those admittedly qualifying for
the exemption.
. ~
Other Doctrines t. .r:
To allow the Muslim employees in the Judiciary to be
excused from work from 10:00 a.m. to 2:00 p.m. every
Friday during the entire calendar year would mean a :=. :..
diminution of the prescribed government working hours.
The performance of religious practices should not
prejudice the court and the public. The remedy of the ... J.
Muslim employees, with respect to their request to be
. ~ ..:
 ATENEO CENTRAL
BAR OPERATIONS 2019
excused from work is legislative. (Re: Request of Muslim
Employees in Different Courts in lligan City (Re: Office
Hours) AM. No. 02-2-10-SC, 2005).
Where the complete separation of civil and ecclesiastical
authority is insisted upon, the civil courts must not unduly
intrude in matters of · an ecclesiastical nature .. The
excommunication of members of a religious organization is
a matter best left to the discretion of the officials, laws, and
canons of the said organization. It is not for the courts to
exercise control over Church authorities in the
performance of their discretionary and official functions. In
disputes · involving religious institutions, one area that
courts should not touch is doctrinal and disciplinary
differences. The power of excluding from the church those
allegedly unworthy of membership is unquestionably an
ecclesiastical matter that is outside the province of civil
courts. (Taruc v, Bishop, G.R. No. 144801, 2005).
A case involving a minister who failed to account fo, funds
and was dismissed is not an ecclesiastloal affair since it did
not involve doctrines or religious teachings. (Austria v.
NLRC, G.R. No. 124382, 1999).
Other Constitutional Provisions Expressing Non-
Establishment
1. Art VI, Sec 29 - no public money or property given to
religious sect, minister or religious personnel (except·
for those assigned to Army, penal institution,
government orphanage or leprosarium)
2. Art 11, Sec 6 - Separation of church and State is
inviolable
3. Art IX-C, Sec 2(5) - No religious sects can be
·~. :· registered as political parties ·
' ..,,.••
i.:
.... J Constitutional Exceptions to · Non-Establishment
Clause · Manglapus, G.R. No. 88211, 1989).
1. Art VI, Sec. 28(3) - charitable institutions, churches,
etc., and all lands, btJildings, improvements actually,
x; ..·' directly and exclusively used for religious, charitable,
or educational purposes exempt from taxation
2. Art VI, Sec. 1(2) - Cited above: the Armed Forces,
penal institution, government orphanage or
leprosarium
3. Art XIV, Sec 3(3) -At the option in writing of parents
or guardians, religion can be taught in public
elementary and HS within regular class hours
4. Art XIV, Sec 4(2) - usually there is citizenship
requirement for ownership of educational institutions
.~· ·'
(30%), but not for those established by religious
---· groups and mission boards
·-, )
" ....· Page 119 of 320
POLITICAL LAW
LIBERTY OF ABODE AND
FREEDOM OF MOVEMENT
The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public
safety or public health, as, may be provided by law. (1987
Const, art. 3, §6)
LIMITATIONS
CONDITIONS FOR VALID
RIGHT
CURTAILMENT
Liberty of• Lawful order of the court; and
abode • Within the limits prescribed by law.
• Lawful order of the court; or
Right to • May only be done on the basis of the
interest of national security, public
travel
safety, or public health
• Must be provided by law.
-
Rights Guaranteed
1. Freedom to choose ar.d change one's place of abode
2. Freedom to travel within the country and outside ·.
. The UDHR and ICCPR treat the right to freedom of
movement and abode within the territory of a state,- the
right to leave a country, and the right to enter one's country
as separate and distinct rights. The Declaration speaks of
the "right to freedom of movement and residence within the
borders of each state". It would therefore be inappropriate
to construe the limitations to the right to return to one's
country in the same context as those i::,ertainir,g to the
liberty of abode and the right to travel. (Marcos v.
The Mayor of a rr.unlcipality does not have the right to force
citizens of the Phlllppines to change their domicile from
one locality to another, even if they are considered women
of "ill repute." (Villavicencio v. Lukban, G.R. No. L- 14639,
1919).
RIGHT TO TRAVEL
(a) Watch-Lists and Hold Departure Orders
A person facing criminal charges may be restrained by the
Court from leaving too country or, if abroad, compelled to
return. Article 111, Section 6 of the 1987 Constitution should
be interpreted to mean that while the llberty of travel may
be impaired even without Court Order. the appropriate
executive officers or administrative authorities ore not
armed with arbitrary discretion to impose limitations. They
 -- ~- . . - --- .... -. ---
ATENEO CENTRAL
BAR OPERATIONS 2019
can impose limits only on the basis of "national security,
public safety, or public health" and "as may be provided by
law." a limiting phrase which did not appear in the 1973
text. Article 111, Section 6 of the 1987 Constitution should
by no means be construed as delimiting the inherent power
of the Courts to use all means necessary to carry their
orders into effect in criminal cases pending before them.
When by law jurisdiction is conferred on a Court or judicial
officer, all auxillary writs, process and other means
necessary to carry it into effect may be employed by such
Court or officer. Petitioner is facing a criminal charge. He
has posted bail but has violated the conditions thereof by
failing to appear before the Court when required. Wai':ants
for his arrest have been issued. Those orders and
processes would be rendered nugatory if an accused were -,
to be allowed to leave or to remain, at his pleasure, outside
the territorial confines of the country. Holding an accused
in a criminal case within the reach of the Courts by
preventing his departure from the Philippines must be
considered as a valid restriction on his right to travel so that
he may be dealt with in accordance with law. The offended
party in any criminal proceeding is the People of the
Philippines. It is to their best interest that crirninat
prosecutions should run their course and proceed to finality
without undue de'ay, with an accused holding himself
amenable at all times to Court Orders and processes.
(Silverio v. CA, G.R. No. 94284, 1991).
Department Circular Mo. 41 was bereft of legal basis
because of the absence of a law authorizing the Secretary .
of Justice to issue Hold Departure Orders (HOO), Watch
List Orders (WLO), or Allow Departure Order (ADO). The
issuance of DOJ Circular No. 41, without a law to justify its
action, is an unauthorized act of the DOJ of empowering
Itself under the pretext of dire exigency or urgent necessity
(Genuino v. De Lima, G.R. No. 197930, 2018).
RETURN TO ONE'S COUNTRY
The right to return to one's own country guaranteed under
International Law is separate and distinct from fhe
constitutional right to liberty of abode and travel. The Bill of
Rights makes no mention of the right to return to one's own
country. Such guarantees are not inflexible and may be
subject to limiti:ltion should the paramount national interest
so require. The President po.sesses residual powers
inherent in her duty to protect the general welfare. The
extent of her powers is not limited to those expressly
conferred by the Constitution. (Marcos v. Manglapus, G.R.
No. 88211, 1989).
Page 120 of 320
POLITICAL LAW
RIGHT TO INFORMATION
The right of the people to information on matters of public
concern shall be recognized. (Phil. Const., art. 3, § 7).
LIMITATIONS
Rights Guaranteed
1. Right to information on matters of public concern
2. Right of access to official records and documents
The people have the right to information on matters of
public concern, and access to official records shall be
allowed to citizens as may be provided by law. It is a self-
executing provision. The :ight to information is a public
right - and every citizen is entitled thereto. Civil service
eligibility is a matter of public concern; there is nothing
secret about it. (Legaspi v. CSC, G.R. No. L-72119, 1987).
Although citizens are afforded the right to information and,
pursuant thereto, are entitled to "access to official records,"
the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts,
summaries and the like in their desire to acquire
information on matters of pubhc concern. Only access to
the records is permitted. Otherwise, they would unduly
burden the agencies with the preparation of their requested
lists or summaries. (Valmonte v. Belmonte, G.R. · No.
74930, 1989).
Limitations
The government has discretion with respect to the
authority to determir.e what matters are of public concern .· ,.
and the authority to determine the manner of access to ' ,
them.
A distinction has to be made between the discretion to
refuse outright the disclosure of or access to a particular
information and the authority to regulate the manner in
which the access is to be afforded.
• The first is a limitation upon the availability of
access to the information sought, which only the
Legislature may impose.
• The second pertains· to the government agency
charged with the custody or public records.
Its authority to regulate access is to be exercised solely to ,.
'v . .:·
the end that damage to, or loss of, public records may be
avoided, undue interference with the duties of said
agencies may be prevented, and more im!)Ortantly, that the
exercise of the same constitutional right by other persons
shall be assured.
 ATENEO CENTRAL
BAR OPERATIONS 2019
While the manner of examining public records may be
subject to reasonable regulation by the government
agency in custody thereof, the duty to disclose the
information of publlc concern, and to afford access to
public records cannot be discretionary on the part of said
agencies. Certainly, its periormance cannot be made
contingent upon the discretion of such agencies. (Legaspi
v. CSC, G.R. tJo. L-72119, 1987).
In every case. the availability of access to a particular
public record must be circumscribed by the nature of the
information sought, i.e.,
(a) Being cf public concern or one that involves public
interest. and,
(b) Not being exempted by law from the operation of the
. constitutional guarantee.
The threshold question ts, therefore, whether or not the
information sought is of public interest or public
concern. In determining whether or not a particular
information is of public concern there is no rigid test which
can be applied. "Public concern" like "public interest" is a
term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or
simply because such matters naturally arouse the interest
of an ordinary citizen. In the final analysis, it is for the courts
to d.etermine on a case by case basis whether the matter
at issue is of interest or importance, as it relates to or
affects the public. (Legaspi v. CSC, G.R. No. L-72119,
1987).
Exceptions (BENT DISC)
1. Banking transactions
1".... -..· 2. Executive Sessions
3. National Security matters
4. Trade secrets
5. Diplomatic correspondence
,....,..
'·
6. Intelligence information
7. Suprem3 Court deliberations
8. Closed Door cabinet meetings
There are certain classes of information which may be
withheld from the public and even from Congress. These
1
,· ...- J..
.::.:.,.,..,~ are national security matters or confidential diplomatic
matters, trade secrets and banking transactions, the
identity of informants in criminal investigations, confidential
or classified matters which come to the knowledge of
public officials by reason of their office. (Chavez v. PCG~.
G.R. No 130716, 1998).
. .., Page 121 of 320
POLITICAL LAW
The chemical composition of special lubricants is a trade
secret. The ingredients constitute the very fabric of the
company's business. To compel its disclosure is to cripple
their business and to place It at an undue disadvantaqe.
Trade secrets should receive greater protection from
discovery because they deserve economic value from
being generally unknown and not readily ascertainable by
the public. (Air Philippines v. Pennswell, Inc, G.R. No.
172835, 2007).
The COMELEC may not deny a request to disclose the
names of the nominees of participating party-lists in an
election. The COMELEC may not show the names of the
nominees in the "Certified List." However, nothing in RA
7941 prohibits the COMELEC from disclosing or even
[)Ublishing through mediums other than the "Certified List."
The identity of candidates for an elective office is a matter
of public interest. (Bantay Republic Act or BA-RA 7941 v.
COMELEC, G.R. No. 177271, 2007).
I
It is always necessary, given the highly important and
complex powers to fix tariff rates vested in the president,
that recommendations submitted for the President's
consideration be well-thought out and well-deliberated.
The Court has expressly recognized in Chavez v. Public
Estates Authority that "a frank exchange of exploratory
ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power."
In Almonte v.. Vasquez the Court has stressed the need for
confidentiality and privacy, stating thusly: "A President and
those who assist him must be free to explore alternatives
in the process of shaping policies and making decisions
and to do so in a way many would be unwilling to express
except privately." Without doubt, therefore, ensuring and
promoting the free exchange of ideas among the members
of the committee tasked to give tariff recommendations to
. the President were truly imperative. (Sereno v. Committee
on Trade and Related Matters of the National Economic
and Development Authority, G.R. No. 175210, 2016).
It is the general policy of the State to adopt full public
disdosure of all transactions involving matters of public
interest. The very existence of the MTRCB is public in
nature - thus, there can be no valid claim to privacy. The
decisions of the board are made in the exercise of public
functions; hence they assume a public character. The right
" to privacy belongs to the individual acting in his private
capacity and not to· a governmental agency or officers
tasked with, and acting in, the discharge of public duties.
As a matter of public right, access to information or official

A TENEO CENTRAL
BAR OPERATIONS 2019
records cannot tie made dependent upon the discreti on of
the agency involved, unless the law itsetf provides
otherwise. (Aquino-Sarmiento v. Morato, G.R. No. 92541,,
1991).
PUBLICATION OF LAWS AND REGULATIONS
The very first clause of Section I of Commonwealth Act 638
reads: "There shall be published in the Official Gazette ... •
The word "shall" used therein imposes upon respondent
officials an imperative duty. That duty must be enforced if
the Constitutional right of the people lo be informed on
matters of public concern is to be given substance and ·
reality. The law itself makes a list of what should be
published in the Official Gazette. It Is needless to add that
the publication of presidential issuances "of a public
nature" or "of general applicability" is a requirement of due
process.
It is a rule of law that before a person may be bound by
law, he must first be officially and specifically informed of
its contents. Publication is necessary to apprise the public
of the contents of [penal] regulations and make the said
penalties binding on the persons affectedthereby. (Tanada
v. Tuvera, G.R. No. L-63915, 1985).
ACCESS TO COURT RECORDS
Pleadings and other documents filed by the parties are not
matters of public concern or interest. Access to court
records may be permitted at the discretion and subject to
the supervisory and protective powers of the court. Only
those who are "interested persons" who have a legitimate
reason for accessing the recorc s may ask the courts to
access pleadings. (Hilado v. Judge Reyes, G.R. No.
163155, 2006).
Limitation on access to court records coverts other matters
in connection with the transaction of any official business
by the court, and includes all evidence it has received in a
case. In determining whether a particular information is of
public concern. there is no right test. In the final analysis,
it is for the courts to determine on a case to case basis
whether the matter at issue is of interest or importance as
it relates to or affect the public. (Hilado v. Judge Reyes,
G.R. No. 163155, 2006).
Court deliberations are traditionally recognized as
privileged s.ommunicatlons (deliberative process
privilege). This privilege may be Invoked by judges and
also by court officials and employees who are privy to
these deliberations. It is understood that the rule extends
to documents and other communications which are part of
or are related to the deliberative process, However, to
Page 122 of 320
---····---------------------
POLITICAL LAW
invoke the privilege, there must be a showing that the
document is both predeclsional and deliberative. Court
records which can be shown to possess both these
qualities cannot be the subject of subpoena. (In Re:
Production of Court Records and Documents and the
Attendance of Court officials and employees as witnesses
under the subpoenas of Feb 10,2012 and the various
letters for the Impeachment Prosecution Panel dated Jan
19 ar.d 25, 2012, 2012).
A. Predecislonal - refers to communications made in the
attempt to reach a final conclusion
B. Deliberative - refers to information whose disclosure
would discourage candid discussion within the agency
Presidential Cornmunicatlons Privilege
Applies to decision-making of the President; rooted in the
constitutional prindple of separation of power and the
President's unique constitutional role; applies to
documents in their entirety, and covers final and post-
decisional materials as well as pre-deliberative ones;
meant to encompass only those functions that form the
core of presidential authority.
Requisites:
1. The communications relate to a "quintessential and
non-delegable power" of the President
2. The communications are "received" by a close advisor
of the President.
3. There is no adequate showing of a compelling need
that would justify the limitation of the privilege and cf
the unavailability of the information elsewhere by an
appropriate investigating authority. (Neri v. Senate
Committee, G.R. No. 180643 2008).
,· ~
'
RIGHT TO INFORMATION RELATIVE TO:
(a) Government contract negotiations
{See: Chavez v. PCGG under Right to Information)
(b) D!plomatic neqotiatlons • It is clear that while the final
text of the JPEPA may not be kept perpetually confidential
- since there should be "ample opportunity for discussion
before a treaty is approved" - the offers axchanged by the
parties during the negotiations continue to be privileged
even after the JPl:PA is published. It is reasonable to
conclude that the Japanese representatives submitted
their offers with the understanding that "historic
confidentiality" would govern the same. Disclosing these
offers could impair the ability of the Philippines to deal not
only with Japan but with other foreign governments in
future negotiations. (Akbayan v. Aquino, G.R. No. 170516,
2008).
 ATENEO CENTRAL
BAR OPERATIONS 2019
Chavez seeks to compel the Public Estates Authority to
disclose information regarding its negotiations with
potential holders of the said estates even prior to final
agreement. The PEA refuses to disclose the information
claiming that the right to information does not include intra-
agency communications and recommendations. Chavez
filed a case to compel the PEA to divulge the same. The
Court held that while evaluations and reviews are on-
going, there are still no official acts, transactions, or
decisions. However, the moment the committee makes its
"official recommendation." there is now a definite
propositlon, and the right to information begins to attach. It
does not require that the contracts be consummated first . ·
before the right to information to be invoked. (Chavez v.
Public Estates Authority, G.R. No. 133250, 2002).
Information regarding negotiations for treaties and
executive agreeme.nts prior to conclusion of the
agreement is privileged information. (Senate v. Ermita,
G.R. No. 169777, 2006).
An office who gave out information has no obligation to
give a · summary of such information. (Valmonte v,
Belmonte, G.R. No. 74930, 1989).
The right to information is paramount, and that the
wiretapping issue is subservient to this right. The "Hello
Garci" tapes should be played, because prohibiting its
airing would be prior restraint.
Other Constitutional µrovislons related to right to
Information
Article II, Sec 28 - Subject to reasonable conditions
prescribed by law, the State adopts and implements a
< ·,~ policy of full public disclosure of all its transactions
l
..........; Involving public Interest.
Other Types of Information
According to the case of Chavez v. PEA, G.R. No. 133250,
2002, the right tc information also does not cover the
following:
(. ~)
<,» 1. Matters recognized as privileged information under
the separation of powers; · In cases of CSC employees (e.g., SSS):
2. information on military and diplomatic secrets
3. Information affecting national security;
1·...,.v!. 4. Information on investigations of crimes by law
enforcement agencies before the prosecution of the
I -.
';;_.) accused.
The right may also be subject to other limitations that
Congress rnay impose by law (Chavez v. PEA, supra).
Page 12~ of 320
------------~------------·-
POLITICAL LAW
RIGHT TO ASSOCIATION
The right of the people, Including those employed in the
publi,;- and private sectors, to form unions, associations, or
societies for purposes not contrary to law, shall not be
abridged. (Phil. Const., art. 3, § 8)
• The right to form associations shall not be impaired
without due process of law and is thus an aspect of the
right of liberty. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011 ).
• It is also an aspect of the freedom of contract. In
addition, insofar as the associations may have for their
object the advancement of beliefs and ideas, the
freedom of association is an aspect of the freedom of
speech and expression, subject to the same limitation.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011 ).
• The right also covers the right not to join an association.
(Be, nas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011 ).
• The right to unionize or to form organizations is now
explicitly recognized and granted to employees in both
the governmental and the private sectors. Specifically
with respect to government employees, the right to
unionize is recognized in Paragraph (5), Section 2,
Article IX-B which provides that "(t)he right to self-
organization shall not be deniec to government
employees."(TUCP v. NHC, G.R. No. L-49677, 1989).
General Rule (Public v, Private Employees):
'
The right to strike Is not essential to the right of
association. To grant employees of the public sector the
right to strike, there must be a clear and direct legislative
authority therefor. In the absence of any express legislation
allowing government employees to strike, recognizing their
right to do so, or regulating the exercise of the right,
employees in the public service may not engage in strikes,
walkouts and temporary work stoppages like workers in the
private sector. (Bangalisan v. CA, G.R. No. 124678, 1997).
It is relevant to state at this point that the settled rule in this
jurisdiction is that employees in the public service may not
engage in strikes, mass leaves, walkouts, and other forms
of mass action that will lead in the temporary stoppage or
disruption of public service. (Soclal Se.curity System
Emplcyees Association {SSEA) v. Court of Appeals, G.R.
No. 85279, 1989).
-··-· , .....
 ATENEO CENTRAL
BAR OPERATIONS 2019
A closed shop agreement is legal since it is a valid form of
union security. (Villar v, Inciong, G.R. No. L-50283-84,
1983).
Prohibiting managerial employees from forming unions is
valid because the legal prohibition has a valid purpose
which is ensuring freedom of unions. The Constitution only
intended to restore the right of supervisory employees to
form unions. The rationale supposedly was that
managerial employees act in a confidential capacity and
may thus lead to conflict of interest; the unions might also
become company-dominated. (United Pepsi Cola v.
Laguesma, G.R. No. 122226, 1998).
This Court's decision in Victoriano vs. Elizalde Rope
Workers' Union, 59 SCRA 54, upholding the right of
members of the IGLESIA NI KRISTO sect not to join a
labor union for being contrary to their religious beliefs,
does not bar the members of that sect from forming
their own union (Kapatiran sa Meat and Canning Division
v. Ferrer Calleja, G.R. No. 8291·\., 1988).
Compulsory membership of all lawyers in the Integrated
Bar of the Philippines does not violate the right of
association (In Re: Edillon, A.M. No. 1928, 1978).
Other constitutional provision related to the right to
association:
A:1. XIII, Sec. 3 ,r 2- The State shall guarantee the rights of
all workers to self-organization, collective barfJaining and
negotiations, and peaceful concerted activities, including
the right to strike in accordance with law.
EMINENT DOMAIN
CONCEPT
Private property shah not be taken for public Lise without
_iust compensation. (Phil. Const., art. 3, § 9).
The State has the inherent power of eminent domain. It
means the ultimate right of the soverelqn power not only
over public property but also over the private property of all
citizens within its territorial sovereignty. Section 9 is NOT
a grant of this power to the State but rather a limitation to
it. (Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011 ).
In the hands of Congress the scope of the power is, like
the scope of legislative power itself, plenary. It is as troac
as the scope of police power itself. It can thus reach every
form of property, which the State might need for public use. -,
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011).
Page 124 of 320
POLITICAL LAW
Power of Eminent Domain ·
The right of the soverelqr- power to app~~priate, ~o~ only
public but even private property of all c1t1zen~ within t~e
territorial sovereignty for public purposes. This power is
exercised by the national government but may be
delegated to local governments and public utilities.
Th~ power of eminent domain is available only when the
owner does not want or opposes the sale of his property.
Thus if a valid contract exists between the government
and the owner, the government cannot exercise the power
of eminent domain as a substitute to the enforcement of
the contract.
Where the lar.downer agrees voluntarily to the taking of his
property by the government for public use, he th~r~by
waives his right to the institution of & formal expropna~1on
proceeding covering such property. Fai'ure for a Ion~ t1~e
of the owner to question the lack of expropriation
proceedings covering a property that the government had ·
taken constitutes a waiver of 'his right to gain back
possession. The landowner's remedy in such case is an
action for the payment of just compensation, not ejectment.
{Republic of the Philippines v. Primo Mendoza and Maria
Lucero, G.R. No. 185091, 2010).
The exercise of the power of eminent domain by a local
government unit is now ·governed by Section 19 of
Republic Act 7160. For properties under expropriation, the
law now requires the deposit of an amount equivalent to
fifteen percent {15%) of the fair market value of the
property based on its current tax declaration. (Knecht v.
Municipality of Cainta, G.R. No. 145254, 2006).
f ..'~
t __.:
Expropriation is not limited to the acquisition of real
f '
property with a corresponding transfer of . titl~ . or ; .~
possession. The right-of-way easement resulting m a
restriction or limitation on property rig:-its over the land
· traversed by transmission lines also falls within the ambit
.
·~.· .,,
· of the term expropriation. The ownership of land extends
to the surface as well as to the subsoil under it.
Underground tunnels impose limitations on the own~r·s
use of tr.e property for an indefinite period and deprive
them of its ordinary use. Notwithstanding the fact that N PC
only occupies the sub-terrain portion, it is liable to pay not
merely an easement fee but rather the full compensation
for land. The nature of the easement deprives the owners
of its normal beneficial use. (NPC v. Lucman Ibrahim, G.R.
No. 168732, 2007).
c ::
 ATENEO CENTRAL
BAR OPERATIONS 2019
The power of eminent domain is not an unlimited power.
Section 9, Article Ill of the 1987 Constitution sets down the
essential limitations upon this inherent right of the State to
take private property, namely: (a) that the taking must be
for a public purpose: and (b) that just compensation must
be paid to the owner. The State must first establish that the
exercise of eminent domain is for a public purpose, which,
here, is already settled. What remains to be determined is
the just compensation. (EPZA v. Estate of Salud Jimenez,
G.R. No. 188995, 2011).
The owner is entitled to legal interest from the time of the
taking of the property until the actual payment in order to
place the owner in a position as good as, but not better
than, the position he was in before the taking occurred.
(EPZA v. Estate of Salud Jimenez, G.R. No. 188995,
2011).
Who May Exercise (CELPQ)
1. Congress
2. Executive, pursuant to legislation enacted by
Congress
3. Local government units, pursuant to an ordinance
enacted by their respective leglslativP-bodies (under
LGC)
4. Public corporations, as may be delegated by law
5. Quasi-public corporations e.g .. PNR, PLOT,
Meralco.
The delegated power of eminent domain of local
government is strictly speaking not a power or eminent but
of inferior domain--a share merely in eminent domain.
Hence, it is only as broad as the authority delegated to it.
(Bernas, The 1987 Philippine Constitution: A requirements. The exercise of eminent domain cannot
Comprehensive Reviewer, 2011).
The exercise of the right of eminent domain, whether
directly by the State or by its authorized agents, is
necessarily in derogation of private rights. It is one of the.
.•·.·..,;.,I~· harshest proceedings known to the law. Consequently,
when the sovereign delegates the power to a political unit
or agency, a strict construction will be given against the
agency asserting the power. The authority to condemn is
~.;) to be strictly construed in favor of the owner and against
the condemnor. When the power is granted, the extent to
which it may be exercised is limited to the express terms
or clear implication of the statute in which the grant is
contained. Corollarily, the respondent, which is the
condemnor, has the burden of proving all the essentials
·-~·
•• ·!
necessary to show the right of condemnation. It has the
burden of proof to establish that it has complied with all the
{ : requirements provided by law for the valid exercise of the
'-..,;
Page 125 of 320
. '
POLITICAL LAW
power of eminent domain. (Jesus is Lord School v.
Municipality of Paslg, G.R. No. 152230, 1974).
Heirs of JBL Reyes filed a case for unlawful detainer
against Abiog & Maglonso; they obtained a writ of
execution. However, during the pendency of the case, the
City of Manila sought to expropriate the same properties.
The CA issued protective orders, requiring the parties to
maintain the status quo untll the expropriation is resolved.
The heirs question the legality and validity of the
expropriation. The Local Government Code and the
Charter of the City of Manila empower the same to
expropriate private property for its urban land reform and
-, housing program; however, there are other laws to be
complied with. RA No. 7279 (Urban Development &
Hou~,ing Act) lays down the mandatory priority in the
acquisition of lands:
1. Those owned by the government
2. Alienable lands of the publlc domain
3. Unregistered, idle, or abandoned lands
4. Those within declared Areas of Prior:ty Development,
Zonal Improvement, Slum Improvement, or
Resettlement Program sites Bagong Lipunan
lmpro·,ement Sites and Services (BLISS) w/c have not
been acquired
5. Privately owned lands (last in the priority)
Further, the same Act provides that expropriation is to be
resorted to only when other modes of acquisition
(community mortgage, land swappinp, land assembly or
consolidation, land banking, donation, joint venture,
negotiated purchase) have already been exhausted. The
City of Manila failed to comply with any of the aforesaid
override the guarantees of due process conferred upon the
property owners. (Heirs of JBL Reyes v. City of Manila,
G.R. Nos. 132431 & 137146, 2004).
Requisites: (TaPuCom)
1. There is a I1!l!.i!lil. of orivate property
2. Taking is for Public use
3. Payment of just Compensation
Requisites before an LQU can exercise the power of
eminent domain (OPJO):
1. An ordinance is enacted by the local legislative
council authorizing the local chief executive, in behalf
of the LGU, to exercise the power of eminent domain
or pursue expropriation proceedings over a particular
private property .
2. The power of eminent domain is exercised for
public use, purpose or welfare, or for the benefit
of the poor and the landless.
ATENEO CENTRAL
BAR OPERATIONS 2019
3. There is payment of just compensation, as required
under Section 9, Article Ill of the Constitution, and
other pertinent laws.
4. A valid and definite offer has been previously made to
the owner of the property sought to be
expropriated, but said offer was not accepted.
There Is Taking of Private Property
The power of eminent domain n'ust be distinguished from
police power. When the State exercises "police power,"
property is merely "regulated." There is no transfer of
ownership. By eminent domain, property Is "taken." There
is transfer of ownership. "Regulotion" is not compensable
but "taking" must be compensated. (Bernas, The 1987
Philippine Constitution: A Comprehensive Reviewer,
2011 ).
The power to regulate does not include the power to
prohibit or confiscate. It does not include the power to take
private property for public use. If property is to be taken
under the authority of the police power, it must be for the
purpose of being destroyed for the protection of the public
welfare. (City Government of QC v. Judge Ericta. G.R. No.
L-34915, 1983).
Elements of Taking (BEAPP)
1. Utilization of the property must be in such a way as to
oust the owner and deprive him of the Beneficial
enjoyment of his property.
2. The expropriator Enters the property
3. Entry is made under warrant or color of legal Authority
4. Property is devoted to Public use
5. The entrance must be Permanent (Republic v. Vda. de
Castellvi, G.R. No. L-20620, 1974).
While the power of erninent domain often results in the
taking of properly, "taking" may include trespass w:·:hout
actual eviction of the owner, material impairment of the
value of the property or prevention of the ordinary uses for ,
which the property was intended such as the establishment
of an easement. A regulation which substantially deprives
the owner of his proprietary rights and restricts the
beneficial use and enjoyment for public use amounts to
compensable taking. (Didipio Earth Savers et ai. v.
Secretary, G.R. No. 157882, 2006).
An ordinance which permanently restricts the use of
property such that it can no longer be used for any
reasonable purpose is beyond regulation and constitutes ·
taking of property. (People v. Fajardo, G.R. No. L-12172,
1958).
Page 126 of 320
POLITICAL LAW
The c;onstruction of floodwalls causes the deprivation and
dispossession of the property. True, no burden was
imposed, and title still belonged to the owner. But the
nature and eHect of floodwalls would deprive the owner of.
the normal use of the remaining areas. It would prevent
ingress and egress to the property. (Republic v. Andaya,
G.R. No.160656, 2007). .
In totally prohibiting respondents from collecting parking
fees from the public for the use of the mall pal"king facilities,
the State would be acting beyond the bounds of police
power. [Thus. in this case, there was "taking" on the part of
the State.) (Office of the Solicitor General vs. Ayala Land,
Incorporated, G.R. No. 177056, 2009).
There is "taking" when the expropriator enters private
property not only for a momentary period but for a more
permanent duration, or for the purpose of devoting the
property to a public use in such a manner as to oust the
owner and deprive him of all beneficial enjoyment thereof.
In this context, there was taking when the MIAA occupied
, a portion thereof for its expanded runway. (MIAA v.
Rodriguez, G.R. No. 16183, 2006).
There was a 'ull taking on the part of NPC, notwithstanding
that the owners were not completely and actually
dispossessed. It is settled that the taking of private
property for public use, to be compensable, need not be an
actual physical taking or appropriation. NPC constructed a
tunnel underneath the land of the Heirs of Macabangkit
without going through formal expropriation proceedings
and without procuring their consent or at least informing
them beforehand of the construction. NPC's construction . •,
{ ;
adversely affected the owners' rights and interests
because the subterranean intervention by NPC prevented ,·-...
them from introducing any developments on the surface,
t . ,.':i
and from disposing of the land or any portion of it, either by
sale or rnortqaqe, (NAPOCOR v. Heirs of Macabangkit
Sangkay, G.R. No. 165828, 2011). ,'
Compensable takin~1 includes destruction, restriction,
diminution, or interruption of the rights of ownership or of
the commcn and necessary use and enjoyment of the
property in a lawful manner, lessening or destroying its
. value. It is neither necessary that the owner be wholly
deprived of the use of his property, nor material whether '='.... ,
the property is removed from the possession of the owner,
or in any respect changes hands. (NAPOCOR v. Heirs of
Mabangkit Sangkay, G.R. No. ·165828, 2011).
'v -~-
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

· Matters reviewed by courts insofar as expropriation is

concerned: (AdNePub) EXPANSIVE MEANING OF PUBLIC USE
1. The adeguc1cy of the compensation Public use, as an eminent domain concept, has now
2. The necessity of the taking acquired an expansive meaning to include any use that is
3. The "public use" character of the taking of "usefulness, utility, or advantage, or what is
productive of general benefit of the public." (Ouano, et.
LGUs v. National Government al. v. Republic, G.R. No.168770, 2011).
NATIONAL
LG Us · The term "public use" has acquired a more comprehensive
GOVERNMENT
coverage. To the literal import of the term signifying strict
On the part of local Thus, pursuant to Section use or employment by the public has been added the
government units, 2 of Rule 67 of the 1997 broader notion of indirect public benefit or advantage,
expropriation is also Revised Rules of Civil Specifically, urban ren€:wal or redevelopment and the
governed by Section 19 of Procedure construction of low-cost housing is recognized as a public
the Local Government (See also: Robern
purpose, not only because of the expanded concept of
Code. Development Corporation
public use but also because of specific provisions in the
v. Quitain).
Constitution. (Sumulong v. Guerrero, G.R. No. 48685,
1. The filing of a 1. The filing of a 1987).
complaint for complaint for
expropriation sufficient expropriation sufficient Public use means "public usefulness, utility or advantage,
in form and substance; in form and substance; or what is productive of general benefit: so that any
and and appropriating of private property by the State under its right
2. The deposit of the 2. The making of a of eminent domain for purposes of gret:Jt advantage to the
amount equivalent to deposit equivalent to community, is a taking for public use." (Gohld Realty Co. v.
15% of the falr market the assessed value of
Hartford, 104 A. 2d 365, 368-9 Conn., 1954; Bernas, The
value of the property to the property subject to
·· 1987 Philippine Constitution: A Comprehensive Reviewer,
be expropriated based expropriation.
on its current tax 3. 2011 ).
Upon compliance with
declaration (lioilo v. the requirements the
Legaspi, G.R. No. issuance of the writ of Effect If public use for the taking ceases
154614, 2004). possession becomes If the genuine public necessity - the very reason or
"ministerial'' (Biglang- condition as it were - allowing, at the first instance, the
awa v. Baca/la, G.R. expropriation of a private land ceases or disappears, then
Nos. 13992'/ and there is no more cogent point for the government's
' ' 139936, 2000). retention of the expropriated land. The same legal situation
,,.-':'\ should hold if the government devotes the property to
'"-·· General Rule: In the case of LGUs, entry into the property another publlc use very much different from the original or
may be made before payment provided that a deposit is deviates from the declared purpose to benefit another
".. .;,•
made in an amount set by the court (15%). private person. It has been said that the direct use by the
.·· .... state of its power to oblige landowners to renounce their
........· Taking is for public use productive possession to another citizen, who will use it
Public use - synonymous with public welfare as the latter predominantly for that citizen's own private gain, is
!. ~i
term is used in the concept of police power (e.g., land offensive to our laws.
reform and socialized housing).
A conc1emnor should commit to use the property pursuant
Urban renewal or redevelopment and the construction of to the purpose stated in the petition for expropriation,
low-cost housing is recognized as a public purpose, not failing which it should file another petition for the new
only because of the expanded concept of public use but purpose. If not, then it behooves the condemner to return
also because of specific provisions in the Constitution. the said property to its private owner, if the latter so
Housing is a basic human need. Shortage in housing is a desires. We suggested as much in Heirs of Moreno and in
matter of state concern since it directly and significantly Tudtud and more recently in Lozada, Sr. Expropriated
affects public health, safety, the environment and in sum, lands . should be differentiated from a piece of land,
the general welfare. (Manapat v. CA, G.R. No. 110478, ownership of which was absolutely transferred by way of

.- . ... ;/
2007) . an unconditional purchase and sale, contract freely entered
Page 127 of 320

...
. ;
 ···---- ·-· .. - --- - .. -. ---------··---
ATENEO CENTRAL
BAR OPERATIONS 2019
by two parties. on;;m1out obliqafion to buy and the other
without the duty to sell. In that case, the fee simple concept
really comes into play. There is really no occasion to apply
the "fee simple concept" if the transfer is conditional.
The taking of a private land in expropriation proceedings is
always conditioned on its continued devotion to its public
purpose. As a necessary corollary, once the purpose is
terminated or peremptorily abandoned, then the
former owner, if he so desires, may seek its reversion,
subject of course to t're return, at the very least, of the
just compensation received. (Ouano, et. al. v. Republic,
G.R. No.168770, 2011).
JUST COMPENSATION
(a) DETERMINATION
It is just if the owner receives a sum equivalent to the
market value of his property and if it is paid within a
reasonable period, Market value is generally defined as the
fair value of the property as between one who desires to
purchase and one who desires to sell.
If municipal property is acquired in its corporate or private
capacity, the State must pay just compensation. But ·.tit is
any other property such as public buildings or held by the
municipality for the State in trust for the inhabitants, the ,
State is free to dispose of it at will, without any
compensation. (Land Bank v. Spouses Orilla, G.R. No.
157206, 2008).
Just cornpensation is defined as the full and fair equivalent
of the property taken from its owner by the expropriator.
The measure is not the taker's gain, but the owner's loss.
The word "just" is used to intensify the meaning of the word
"compensation" and to convey thereby the idea that the
equivalent to be rendered for the property to be taken shall
be real, substantial, full and ample. (Republic of the
Philippines, represented by the National Irrigation
Administration v. Rural Bank of Kabacan Inc., G.R. No.
185124, 2012).
Just compensation is the fair market value of the property.
Fair market value is that "sum of money which a person
desirous but not compelled to buy, and an owner willing but
not compelled to sell, would agree on as a price to be given
and received therefor." (NAPOCOR v. Ong Co, G.R. No.
166973, 2009).
Among the factors to be considered in arriving at the fair
market value of the property are the cost of acquisition, the
current value of like properties, its actual or potential uses,
and in the particular case of lands, their size, shape,
Page 128 of 320
. : . - ·-
POLITICAL LAW
location, and the tax declarations thereon. The measure is
not the taker's gain but the owner's loss. To be just, the
compensation must be fair not only to the owner but also
to the taker.
To determine just compensation, the trial court should first
ascertain the market value of the property, to which should
be added the consequential damages after deducting
therefrom the consequential benefits which may arise from
the expropriation. If the consequential benefits exceed the
consequential damages, these · items should be
disregarded altogether as the basic value of the property
should be paid in every case. The award of consequential
damages is not tantamount to unjust enrichment. (Republic
v. CA, G.R. No. 160379, 2009).
The general rule is that the just compensation to whlch the
owner of the condemned property is entitled to is the
market value. The general rule, however. is modified
where only a part of a certain property is expropriated. In
such a case, the owner is not restrlcted to compensation
for the portion actually taken, he is also entitled to
recover the consequential damage, if any, to the
remaining part of the property. In thi3 case, petitioner
contends that BPl's building was "never taken" by
petitioner, and that to award consequential damages for
the building was unfounded and without legal basis.
Petitioner's contention Is unmeritorious. No actual taking of
the remaining portion of the real property is necessary to
grant consequential damages. If as a result of the
exproprtatlon made by petitioner, the remaining lot of
private respondent suffers from impairment or decrease in
value, consequential damages may be awarded to private
respondent. (DPWH v. BPI, G.R. No. 203039, 2013).
The tax benefit granted to the establtshmsnts can be
deemed as their just compensation for private property
taken by the State for public use. The taxation power can
also be used as an implement for the exercise of the power
of eminent domain. (Commissioner of Internal Revenue v.
Central Luzon Drug Corporation, G.R. No. 159647, 2005).
The Court also upheld the CA ruling, which deleted the
incluslon of the value of the excavated soil In the payment ', '.!.'·
for jus! compensation. There is no legal basis to separate
the value of the excavated soil from that of the expropriated
properties. In the context of expropriation proceedings, the
soil has no value separate from that of the expropriated
land. Just compensation ordinarily refers to the value of the
land to compensate for what the owner actually loses.
Such value could only be that which prevailed at the time
of the taking. (Republic of the Philippines, represented by
 ATENEO CENTRAL
BAR OPERATIONS 2019
the National Irrigation Administration v. Rural Bank of
Kabacan lnc., G.R. No. 1.85124, 2012).
The determination of "just compensation" in eminent
domain case is a judicial fur.ction. The executive
department or the legislature may make the initial
. determinations, but when a party claims a violation of the
guarantee in the Bill of Rights that private property may not
be taken for public use without just compensation, no
statute. decree, or executive order can mandate that its
own determination shall prevail over the court's findings.
Much less can the courts be precluded from looking into
the "just-ness" of the decreed compensation. (Land Bank
v. Dumlao, et. al., G. R. No. 167809, 2009).
The formula for determination of just compensation to
landowners doesn't include the factor for inflation rate, as
inflation is properly accounted for through payment of
interest on the amount due to the landowner. and through
the award of exemplary damages and attorney's fees in
cases where there was irregularity in tho taking of property.
(National Power Corporation v. Manalastas, G.R. No.
196140, 2016).
Reckoning period
The value of the property must be determined either as of
the date of the taking of the property or the filing of the
complaint, "whichever came first." (Eslaban v. De
Onorio, G.R. No. 146062, 2001).
The time of the taking may be reckoned on October 24,
1994, the date of the filing of the complaint. Although the
.·. plaintiff took possession of the property in 1991, due to a
'
'· .: lease contract executed between plaintiff and defendant,
the intention to expropriate was manifested only upon the
filing of the complaint. (PNOC v. 11.Aaglasang, G.R. No.
155407, 2008).
'.\ ,t'
·. for cases involving national government Infrastructure
Just compensation in agrarian cases
In determining just compensation, the cost of acquisition of
the land, the current value of like properties, its nature,
actual use and income, the sworn valuation by the owner,
the tax declarations, and the assessment made by
\:...• government assessors, shall be considered. The social
and economic benefits contributed by the farmers and the
farm workers and by governr,ent to the property as well as
the non-payment of taxes or loans secured from any
govt;imment financing institution on the said land shall be
considered as additional factorsto determine its valuation.
(RA 6657, sec. 17. otherwise known as Comprehensive
Agrarian Reform Law of 1988).
Page 129 of 320
POLITICAL LAW
Effect of non-payment of just compensation
Non-payment of just compensation does not entitle the
private landowners to recover possession of their
expropriated lot. But, th~ prolonged occupation of the
government without instituting expropriation proceedings
will entitle the landowner to damages. Such pecuniary loss
entitles him to adequate cornpensat'on in the form of actual
or compensatory darnaqes, which in this case should be
the legal interest (6%) on th~ value of the land at the time
of taking, from said point up to full payment. (City of lloilo
v. Besana, G. R. No. 168967, 2010).
While the prevailing doctrine is that "the non-payment of
just compensation does not entitle the private landowner
to recover possession of the expropriated lots, however, in
cases where the government failed to pay just
compensation within five (5) years from the finality of the
judgment in the expropriation proceedings, the owners
concerned shall have the right to recover possession of
their property. This is in consonance with the principle that
"the government cannot keep the property and dishonor
the judgment." To be sure, the five-year period limitation
will encourage the government to pay Just compensation
punctually. This is in keeping with justice and equity. After
all, it is the duty of the government, whenever it takes
property from private persons against their will, to facilitate
the payment of just compensation. We defined just
compensationas not only the correct datermination of the
amount to be paid to the property owner but also the
payment of the property within a reasonable time. Without
prompt payment, compensation cannot be considered
"just." (Republic v. Lim, G.R. No. 161656, 2005).
New System of Immediate Payment under R.A. 8974;
application of the rule
RA 8974 requires that the Government make a direct
payment to the property owner betore the writ may issue
government projects. Moreover, such payment is based on
the zonal valuation of the BIR in the case of land, the value
of the improvements or structures under the replacement
cost method, or if no such valuation is available in case of
utmost urgency, the proffered value of the property to be
seized.
Thus if expropriation is engaged in by the national
government for purposes other than national infrastructure
projects, the assessed value standard and deposit mode
still applies.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Action to Recover Just Compensation v. Action for also be paid to the landowner without delay. (APO v. Land
Damages Bank, G.R. No. 164195, 2011 ).
ACTION TO RECOVER ACTION FOR
Without prompt payment, compensation cannot be
JUST COMPENSATION DAMAGES
considered "just'' inasmuch as the property owner is made
Also known as inverse Seeks to vindicate a legal to suffer the consequences of being immediately deprived
condemnation, has the wrong through damages, of his land while being made to wait for a decade or more
objective to recover the value which may be actual, before actually receiving the amount necessary to cope
of property taken in fact by moral, nominal, with his loss. (Land Bank v. Spouses Orilla, G.R. No.
the governmental defendant, temperate, liquidated, or 157206, 2008).
even though no formal exemplary
exercise of tha power of The Court imposes interest of 12% per annum until
eminent domain has been When a right is exercised payment of just compensation whenever the expropriator
attempted by the taking in a manner not has not immediately delivered the just compensation.
agency conformable wlth the (EPZA v. Pulido, G.R. No. ~88995, 2011).
norms enshrined in
Article 19 and like The concept of delay does not pertain to the ·length of time
provisions on human that elapsed from the filing of the Complaint until its
relatfons in the Civil resofution. Rather, it refers to the fact that property was
Code, and the exercise taken for public use before compensation was deposited
results to the damage of with the court having jurisdiction over the case. There will
another, a legal wrong is be delay if the property was taken for public use before
committed and the compensation was paid or deposited with the court. Hence,
wrongdoer is held between the taking of the property and the actual payment, ':
responsible. legal interests accrue in order to place the owners in a
position as good as the position they were in before the
The two actions are radically different in nature and taking occurred. (National Power Corporation v. Heirs of
purpose. The action to recover Just compensation is based Gregorio Ramoran, G.R. No. 193455, 2016)
on the Constitution while the action for damages is
predicated on statutory enactments. (NAPOCOR v. Heirs · ABANDONMENT OF INTENDED USE AND RIGHT OF
REPURCHASE
of Mabangkit Sangkay, G.R. No. 165828, 2011).
If the property ceases to be used for a public purpose, the
The fact that the owner rather than the expropriator brings property reverts lo the owner in fee simple. (Bernas, The
the action for recovery of just compensation does not 1987 Constitution: A Comprehensive Reviewer 2006).
change the essential nature of the suit as an inverse
condemnation, for the suit is not based on tort, but on the We now expressly hold that the taking of private property,
constitutional prohibiticn against the taking of property consequent to the Government's exercise of its power of
without just compensation. It would very well be contrary eminent domain, is always subject to the condition that the
to the ctsar language of the Constitution to bar the recovery property be devoted to the specific public purpose for
'"·"-'
of just compensation for private property taken for a public which it was taken. Corollarily, if this particular purpose or·
use solely on the basis of statutory prescription. intent is not initiated or not at all pursued, and is
peremptorily abandoned, then the former owners, if they
Effect of delay so desire, may seek the reversion of the property, subject
While confirming the State's Inberent power and right to to the return of the amount of just compensation received.
take private property for public use, this provision at the In such a case, the exercise of the power of eminent ; ~~
·...:.,-•
same time lays down the limitation in the exercise of this domain has become improper for lack of the required
power. When it takes property pursuant to Its inherent right factual justification. (Mactan-Cebu International Airport v.
Lozada, G.R. No. 176625, 2010). ·--....·
and power, the State has the corresponding obligation to
pay the owner just compensation for the property taken.
For compensation to be considered "lust," it must not only
be the full and fair equivalent of the property taken; it must '' ~.

Page 130 of 320

 ATENEO CENTRAL
BAR OPERATIONS 2019
MISCELLANEOUS APPLICATION
Expropriation by local governments
The power of eminent domain is not a valid substitute for
the enforcement of a contract. (Bernas, The 1987
Constitution: A Comprehensive Reviewer 2006).
Essential requisites so LGU can exercise the power of
eminent domain
1. The power of eminent domain is exercised for Public
use, purpose or weifare, or for the benefit of the poor
and the landless.
2. There is Payment of just compensation, as required
under Section 9, Article Ill of the Constitution, and
other pertinent laws.
3. A valid and definite Offer has been previously made to
the owner of the property sought to be expropriated,
but said offer was not accepted.
4. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf cf the
LGU, to exercise the power of eminent domain or
pursue expropriation proceedings over a particular
private property.
l ~':
Limitations on the exercise of the eminent domain
powers of LGUs
• Order of priority in acquiring iand for socialized housing:
Private lands rar,k last in the order of priority for
purposes of socialized housing.
• Other modes of acquisition must first be exhausted.
An LGU like the Municipality of Paranaque, cannot
authorize an expropriation of private property through a
mere resolution of its lawmaking body. The Local
Government Code expressly and clearly requires an
ordinance or a loCRI law for the purpose. A resolution that
merely expresses the sentiment or opinion of the Municipal
Council will not suffice. On the other hand, the principle of
res judicata does not bar subsequent proceedings for the
expropriation of the same property when all the legal
requirements for its valid exercise are complied with.
(Municipality of Paranaque v. V.M. Realty Corporation,
G.R. No. 127820, 1998).
:
-~- ...,
;;
Judicial review
f·.,..._;.~ Matters that may be reviewed by the courts (ANP):
1. The Adequacy of the compensation
2. The Necessity of the taking
3. The "Public Use" character of the taking
If the expropriation is pursuant to a specific law passed by
Congress, the courts cannot question the public use
character of the taking. Any law fixing the amount of just
Page
POLITICAL LAW
compensation Is not binding on the courts because it is a
question of fact which is always subject to review by the
courts.
General Rule: The value must be that as of the time of the
filing of the complaint for exproprtation.
Exceptions:
1. When the filing of the case comes later than the time
of taking and meanwhile the value of the property has
increased because of the use to which the expropriator
has put it, the value is that of the time of the earlier
taking.
2. Where this Court fixed the value of the property as of
the date it was taken and not the date of the
commencement of the expropriation proceedings.
(NPC v. Lucman Ibrahim, G.R. No. '168732, June 29.
200"/)
Exception to the Exceptl,on:
• If the value increased independently of what the
expropriator did, then the value is that of the FILING of
the case.
• Even before compensation is given, entry may be made
upon the property condemned by depositing the money
or an equivalent form of payment' such as government
bonds.
NON-IMPAIRMENT OF CONTRACTS
No law impairing the obligation of contracts shall be
passed. (Phil. Consl, art. 3, § 10)
What constitutes Impairment:
1. If it changes the terms and conditions of a legal
contract either as to the time or mode of performance
2. If it imposes new conditions or dispenses with those
expressed
. 3. If it authorizes for its satisfaction $Omething different
from that provided in its terms.
A mere change in procedural remedies which does not
change the substance of the contract, and which still
leaves an efficacious remedy for enforcement does not
impair the obligation of contracts.
The non-impairment clause of the Constitution must yield
ta the loftier purposes targeted by the Government. Tlrns
·. and again, this Court has said that contracts affecting
public interest contain an implied reservation of the police
power as a postulate of the existing legal order. This
power can be activated at any time to change the
131 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019
provisions of the contract, or even abrogate it entirely, for
the promotion or protection of the general welfare. Such
an act will not militate against the impairment clause, which ,
is subject to and limited by the paramount police power.
(Chavez v. Cornelec, G.R. No. 162777, 2004).
Zoning regulations are superior to contractual restrictions
on the use of property. (Ortigas and Co. v. FEATI Bank,
G.R No. L-24670, 1979). ..
There is nothing in Section 5 © of P.D. No. 902-A
(Rehabllitation Act) authorizing the change or modification
of contracts entered into by the distressed corporation and
its creditors. It merely provides that "all actions for claims
against corporations, partnerships or associations under
management or receivership pending before any court,
tribunal, board or body shall be suspended accordingly."
(Leca Realty v. Manuela Corporation, G.R. No. 166800,
2007).
Even granting that the "agreement'' between the two
governments or their representatives creates a binding
obligation under intemauonet law, it remains incumbent for
each contracting party to adhere to its own internal !aw in
the process of complying with its obligations. The promises
made by a Philippine president or his alter E:!gos to a foreign
monarch are not transubstantiated by divine right so as to
ipso facto render legal rights of private persons obviated.
(Kuwait Airways v. Philippine Airlines, G.R. No. 156087,
2009).
License agreements are not contracts within the purview
of the due process and the no.ti-impairment of contracts
clauses enshrined in the Constitution. (Republic v.
Pagadian City Timber, G.R. No. 159308, 2008).
Timber licenses, permits, and license aqreernents are the
principal instruments by which the State regulates the
utilization and disposition of forest resources to the end
that public welfare is promoted. It cannot be denied that
they merely evidence a privilege granted by the State, and
it does not vest a permanent or irrevocable right. They are
not deemed contracts within the due process of law clause.
(Oposa v Factoran, G.R. No. 101083, 1993; C&M Timber
Corporation v. Alcala, G.R. No. 111088, 1997).
The non-impairment clause does not apply to court
decisions. In a corporate rehabilitation case, the Supreme
Court upheld the validity of an RTC order that a creditor be
paid by dacion en pago, without its approval. The non-
impairment clause may be invoked against a law or
executive issuance declaring the modification of contracts.
Page 132 of 320
POLITICAL LAW
(Pryce Corporatlon v. China Banking Corporation, G.R.
No. 72302, 2014).
CONTEMPORARY APPLICATION OF THE CONTRACT
CLAUSE
Police power is superior to the right to contract. (Bernas,
the 1987 Philippine Constitution: A Comprehensive
Reviewer, 2009).
The parties to a contract cannot, through the exercise of
prophetic discernment, fetter the exercise of the taxing
power of the State. For not only are existing laws read into
contracts in order to fix obligations as between parties, but
the reservation of essential attributes of sovereign power
is also read into contracts as a basic postulate of the legal
order. The policy of protecting contracts against
impairment presupposes the maintenance of a
government, which retains adequate authority to secure
the peace and good order of society. In truth, the Contract
Clause has never been thought as a limitation on the
exercise of the State's power of taxation save only where
a tax exemption has been granted for a valid consideration.
(Tolentino v. Secretary of Finance, G.R. No. 115455,
1995).
FREE ACCESS TO COURTS AND ADEQUA 1 E LEGAL
ASSISTANCE
Free access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any
person by reason of poverty. (Phil. Const., art. 3, § 11 ).
Indigent litigants:
1. whose gross income and that of their immediate family !I• .
do not exceed four thousand (P4,000.00) pesos a
month if residing in Metro Manila, and three thousand
(P3,000.00} pesos a month if residing outside Metro
Manila, and
2. Who do not own real property with an assessed value
of more than fifty thousand (P50,000.00) pesos shall
be exempt from the payment of legal fees (Sec. 19,
Rule 141, Rules of Court).
t'
·, -
~1,. :
,
·. ~
 ATENEO CENTRAL
BAR OPERATIONS 2019
RIGHTS OF SUSPECTS UNDER CUST..QQ!Ab
INVESTIGATION
1. Any person under investigation for the commission of
an offense shall have the right to be informed of his
right to remain silent and to have competent and
independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be
waived except in writing and in the presence of
counsel.
2. No torture, force, violence, threat, intimidation, or any
other means which vitiate the free will shall be used
against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are
prohibited.
3. Any confession or admission obtained in violation of
this or Section 17 hereof shall be inadmissible in
evidence against him.
4. The law shcill provide for penal and civil sanctions for
violations of this section as well as compensation to
and rehabilitation of victims of torture or similar
practices, and their families. (Phil. Const., art. 3, § 12).
Rights of persons under custodial investigation or
Miranda Rights (SCIP)
1. The right to remain Silent- Unlike Section 17 where
the absolute right to remain silent is available to an
. accused, Section 12 gives a person under
investigation the right to refuse to answer any
question.
2. The right to gompetent and independent counsel,
preferably of his own choice - Right to independent
counsel is to ensure an !mpartial lawyer to inform the
accused of his rights, as against experiences during
the Marcos regime (Bernas, the 1987 Philippine
Constitution: A Comprehensive Reviewer, 2009).
When is one not an independent counsel? - Special
I ·~
counsel, public or private prosecutor, counsel of the
police, municipal attorney, mayor, barangay captain,
and any other whose interested may be adverse to
accused (Bernas, the 1987 Philippine Constitution: A
Comprehensive Reviewer, 2009).
3. Right to be Informed of these rights -
Contemplates the transmlsslco of meaningful
information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional
principle. (People v. Rojas, G.R. Nos. L-46960-62,
1987).
4. Right to be Provided with the services of counsel if he
cannot afford the services of one. (People v.
Reyes, 581 SCRA 691, 2009).
Page 133 of 320
POLITICAL LAW
Custodial investigation involves any questioning initiated
'by law enforcement officers after a person has been
taken Into custody or otherwise deprived of his freedom of
actior. in any significant way and begins to operate only
after the investigation ceases to be a general inquiry into
an unsolved crime and begins to focus on a particular
suspect, such that the suspect Is taken into custody, and
the police carries out a process of interrogations that
lends itse!fto eliciting incriminating statements (People v.
Marra, G.R. No. 108494, 1994).
AVAILABlLITY
The right becomes available where the "investigation is
no longer a general Inquiry into an unsolved crime but
has begun to focus on a particular suspect, the suspect
has been taken into police custody, the police carry out a
process of interrogation that lends itself to eliciting
incriminating statements." (Escobedo v. Illinois, 378 U.S.
478, 1964).
It commences when a person is taken into custody and
singled out as a suspect in the commission of a crime
under investigation. (People v. Reyes, G.R. No. 178300,
2009).
RA 7438 however, has extended the guarantee to
individuals who have not been formally arrested but has
been merely "Invited for questioning." (Bernas, The
1987 Philippine Constitution: A Comprehansive Reviewer,
2011 ).
Scope
APPLIES TO DOES NOT APPLY TO
Testimonial Body of the accused when it is
compulsion proposed to be examined.
e.g., urine sample,
photographs, measurements,
garments
(People v. Gamboa, GR
91374, '/991).
Non-availability
The rights are not available before govemment
investigators become involved {Bernas, The 1987
Philippine Constitution: A Comprohensive Reviewer,
2011):
1. Admissions made in administrative investigations
. conducted by the Philipplne Airlines {People v. Judge
Ayson, G.R. No. 85215, 1989).
2. Admissions made to private individuals (People v.
Tawat, G.R. No. L-62871, 1984 ).
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

3. Persons undergoing audit (Navallo v. Sandiganbayan, offense (police, OOJ, context of a formal
G.R. No.97214, 1994) . NBI) investigation.
4. Verbal admissions made to a radio announcer who 4. Statements made to a
was not part of the investigation (People v. Ordono, private person. ·
G.R. No. 132154, 2000). 5. Signing of arrest
5. Admissions made to a mayor who is approached not reports and booking
as mayor but as confidante (People v. Zuela, G.R. No. sheets.
112177, 2000).
6. An interview recorded on video in the presence of
newsmen, but the court warned that trial courts should The criminal process includes .
admit similar confessions with extreme caution. 1. the investigation prior to filing of charges,
(People v. Endino, G.R. No. 133026, 2001 ). 2. the preliminary examination
7. Persons who voluntarily surrender, where no written 3. investigation after charges are filed, and
confession was sought to be presented in evidence as 4. the period of trial.
a result of a formal custodial investigation (People v.
Taylaran, G.R. No. L-49149, 1981). The Miranda rights when the inquiry is under the control of
8. Spontaneous statements, not elicited through police officers (first 3) because the psyc.hological if not
questioning by the authorities, but given in an ordinary physical atmosphere of custodial investigations, in the
manner whereby the accused orally admits having absence of proper standards, is inherently coercive. As an
committed the crime (People v. Baloloy, G.R. No. exception. even after charges are filed, the police might stiil
1407 40, 2002). attempt to extract confessions or admissions from the
9. Person in a police line-up not entitled to counsel. accused outside of judicial supervision. Outside this
(Gamboa v. Judge Cruz, 162 SCRA 642, 1988). exception, Sections 14 and 17 ere applicable. (Bernas,
10. Administrative proceedings (First Class Cadet Aldrin The 1987 Philippine Constitution: A Comprehensive
Jeff P. Cudia of the PMA v. The Superintendent of Reviewer, 2011 ).
PMA, G.R. No. 211362, 2015)
11. Signing of arrest reports and booking sheets. It is not REQUISITES
an extra-judicial statement and cannot be the basis of The rights under this section are available to "any person
a judgment of conviction. The Booking Sheet is merely under investigation for the commission of an offense".
a statement of the accused's being booked and of the These rights, following the ruling in Escobedo v. Illinois,
date which accompanies the fact of an arrest (People were seen as beginning to be available only when "the
v. Morico, G.R. No. 92660, 1995 citing People v. investigation is no longer a general inquiry into an unsolved
Bandin, G.R. No. 104494, 1993). crime but has begun to focus on a particular suspect, the
suspect has been taken into police custody, the police
Summary carry out a process of interrogations that lends itself to
eliciting incriminating statements". Although the 1986
WHEN AVAILABLE WHEN NOT AVAILABLE
deliberations. together with the Ga Iman case, leads to the
1 . After a person has 1. During a police line-up conclusion that the rights are available if a person is
been taken into Exception: Once there already In custody as a suspect, or if the person is the
custody is a move among the suspect, even if he is not yet deprived in any significant
2. When a person is way of his liberty, jurisprudence under the 1987
investigators to elicit
deprived of his freedom Constitution has consistently upheld the stricter view
admissions or
of action in · any confessions from the pronounced in Escobedo. (Bernas, The 1987 Philippine
significant w'3y suspect. Constitution: A Comprehensive Reviewer, 2011).
3. When a person is 2. During administrative r '

merely "invited" for investigations. The rights are available "after a person has been taken into
questioning (R.A. No. 3. Confessions made · by custody or otherwise deprived of his freedom of action in :f ).
any significant way." (People v. Loveria, G.R. No. 79138, .·........-
7438) an accused at !he time
4. The investigation is 1990).
he volunldrily
being conducted by the surrendered to the
government with police or outside the The moment a police officer tries to elicit information from : .._
the suspect, a counsel should at that juncture, assist the .....~
respect to a criminal
suspect, unless he waives this right in writing and in the
Page 134 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
presence of counsel. If the participanon of the lawyer was
limited to notarization of a suspect's confession, in legal
contemplation, that is not considered to be fhe kind of legal
assistance that should be accorded to the suspect. (People
v. Rapeza, G.R. No. 169431, 2007).
Exclusionary rule
Any confession or admission obtained in violation of this
section shall be inadmissible in evidence against the
accused. (Section 12, par. 3) Any evidence obtained by
virtue of an illegally obtained confession is also
inadmissible, beinq the fruit of a poisonous tree.
Infractions of the so-called Miranda rights. render
inadmissible only the extrejudicial confession or admission
made during custodial investigation. (People v. Malimit,
G.R. No. 109775, November 14, 1996)
Provision covers both admissions and confessions:
• Admission - act, declaration, or omission of a
party as to a relevant fact
• Confession - declaration of an accused
acknowledging his guilt of the offense charged, or
,, ....
of any offense necessarily ir,cluded therein
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
Anent appellant's claim of denial of due process allegedly
because he was not assisted by counsel during the
investigation and inquest proceedings, the Court cannot
accord credence to the same. Ascorrectly observed by the
CA, this issue cannot be raised for the first time on appeal
without offending the basic rules of fair play, justice and
due process. Besides, the fact that he was not assisted by
counsel during the investigation and Inquest proceedings
does not in any way affect his culpability. It has already
been held that "the Infractions of the so-called Miranda
rights render inadmissible only the extrajudlcial
confession or admission made during custodial
investigation." Here, appellant's conviction was based not
on his alleged uncounseled confession or admission but
on the testimony of the prosecution witness (People v. Bio,
G.R. No.195850, 2015), . state, then it will be held to be due process of law. (U.S. v.
WAIVER
Requisites of a valid waiver: (WIP)
1. Waiver should be made in Writing
2. Made voluntarily, knowingly and Intelligently
l t
3. Waiver should be made in the Presence of counsel
'C.';''
(Morales v. Enrile, 121 SCRA 538, 1983).
\~ ..;;
Requisites of a valid extra-Judicial confession:
(WAVES)
Page 135 of 320
POLITICAL LAW
1. Made in Writing
2. Made with the Assistance of competent and
independent counsel
3. Voluntary
4. Must be Express
5. Signed, or if the confessant does not know how to read
and write, thumb marked by him (People v. Olivarez,
Jr., G.R. No. 77865. 1998).
Under Section 12, par. 2, torture, force, etc. are
prohibited because they:
• Vitiate truth
'• Are an assault on the dignity of the person
RIGHTSOF lHE ACCUSF.D
1. CRIMINAL DUE PROCESS
1. No person shall be held to answer for a criminal
offense without due process of law.
2. In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance
of witnesses and the production of evidence in· his
behalf. However, after arraignrner,t, trial may proceed
notwithstanding the absence of the accused provided
that he has been duly notfied and his failure to appear
ls unjustifiable. (Phil. Const., art. 3, § 14).
Concept
As to procedural due process, the requirement that no
person shall be held to answer for a criminal offense
without due process of law simply requires that the
procedure established by law be followed. If that procedure
fully protects life, liberty and property of the citizens in the
Ocampo, G.R. No. L-5527, 1910). This presupposes that
the penal law being applied satisfies the substantive
requirements of due process. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011).
Another aspect of due process is the right to be tried by an
impartial judge (cold neutrality of an independent, wholly-
free, disinterested and impartial tribunal) (Bernas, The
1987 Philippine Constitution: A Comprehensive Reviewer,
2011).
ATENEO CENTRAL
BAR OPERATIONS 2019
Rights of a person charged with a criminal offense:
(FISHI-CD)
1. Right to Face the witnesses
2. Right to be presumed Innocent
3. Right to have a Speedy, impartial and public trial
a. The right to speedy trial is considered violated
only when the proceeding is attended by
vexatious, capricious and oppressive delays.
' I
Courts are required to do more than a
mathematical computation of the number of
postponements of the scheduled hearings of
the case and to give particular regard to the
facts and circumstances peculiar to each
case. (Nelson Imperial, et al. v. Maricel M.
Joson, et al.; Santos 0. Francisco v. Spouses
Gerard and Maricel Joson Nelson; Imperial, et
al. v. Hilarion C. Felix, et al., G.R. Nos.
160067, 170410, 171622, 2010}.
4. Right to be Heard by himself and counsel .
5. Right to be Informed of the nature and cause of the
accusation against him
6. Right to have Compulsory process 'to secure the
attendance of witness and the production of evidence
In his behalf .
7. Right to Due process of law (Phil. Const., art. 3, § 14 ,r
2).
2. BAIL
All persons. except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is
strong, shall, be•ore conviction, be ballablo by sufficient
sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even ·
when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required. (Phil.
Const., art. 3, § 13).
Concept , (
1. To honor the presumption of innocence until his guilt is
proven beyond reasonable doubt
2. To enable him to prepare his defense without being
subjected to punishment before conviction (Cortes v.
Catral, 270 SCRA 1, 1997).
General Rule: All persons actually detained shall, before
conviction be entitled to bail. (Phil. Const., art. 3, § 13).
. Page 136 of 320
. POLITICAL LAW
Exceptions:
1. Persons charged with offenses punishable by
reclusion perpetua, life imprisonment and .death, when
evidence of guilt is strong
2. Persons who are members of the AFP. facing a court
martial
If convicted by the trial court, bail is only discretionary
pending appeal (See Magno v. Abbas, 13 SCRA 233,.
1965; Comendador. et al. v. Villa,·GR 93177, 1991).
Under Section 13, Article 3, before conviction, bail is
either:
A. A matter of right: When · the offense charged is
punishable by any penalty lower than reclusion
perpetua. To this extent, the right is absolute.
B. A matter of discretior.: When the offense charged is
punishable by reclusion perpetua, it shall be denied if
the evidence of guilt is strong. Once it is determined
that the eviden.:::e of guilt is not strong, bail becomes a
matter of right. (People v, Nltcha, G.R. No. 113517,
1995). .
• Discretion refers to the court's discretion to .
determine whether or not the evidence of guilt is
strong.
• Do not confuse interpretation of Bail under Bill of
Rights with the interpretation of Bail under Rule
114 of the Revised Rules of Criminal Procedure
as to:
A. Bail as a Matter of Right (Sec 4 ),
8. Bail as a Matter of Discretion {Sec 5),
C. Non-Bailable offenses (Sec 7).
Purpose'
~. . •..
The main purpose of bail is to relieve an· accused from the
rigors of imprisonment until his conviction and secure his
appearance at the trial. Thus, as bail is Intended to secure
~
one's provisional liberty, the same cannot be posted before ~,.)
custody over him has been acquired by the judicial
authorities, either by lawful arrest or voluntary surrender.
Only those who have been either arrested, detained, or
otherwise deprived of their freedom, will ever have the
occasion to seek the protective mantle extended by the
right to bail. But the person seeking provisional release
· · need not wait for a formal complaint or information to be
filed against him. (?&deranga v. Court of Appeals, G.R. No.
115407, 1995).
I .,
''..1-"
,;. ;;
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

· A person is considered to be "in the custody of law"
when:
1. He is arrested by virtue of a warrant of arrest or by
warrantless arrest;
2. He has voluntarily submitted himself to the jurisdiction
of the court by surrendering to the proper authorities
The SC held that when the person has actually posted a
bail bond, which was accepted by the court, he has
effectively submitted himself to the jurisdiction of the court
over his person. (Pader-anga v. Court of Appeals, G.R No.
115407, 1995).
If appellant Escapes from prison or confinement
If appellant Jumps bail
If appellant Flees to another country during the
pendency of the appeal (ROC, Rule 124, § 8; Rule 125,
§ 1 ).
Apart from bail, a person may attain provisional liberty
through recognizance, which is an obligation of record
entered into by a third person before a court, guaranteeing
the appearance of the accused for trial. It is in the nature
of a contract between the surety and the state. (People v.
Abner, G.R. No. L-2508, 1950) ·

~trong evidence means evident proof or presumption
is great
• Evident proof means clear, strong evidence which leads
a well-guarded dispassionate Judgment to the
conclusion that the offense has been committed as
charged, and that the accused is the guilty agent.
Since the grant of bail is discretionary and can only be
determined by judicial findings, such discretion can only be
exercised after evidence is submitted to the court, the
petitioner has the right of cross examination and to
introduce his own evidence in rebuttal. (Santos v. Judge
How, AM./ RTJ-05-1946, 2007).

• Presumption is great when the circumstances testified A mere claim of illness is not a ground for bail. Bail is not a
to are such that the inference of guilt naturally to be
sick pass for an ailing or aged detainee or prisoner needing
drawn therefrom is strong, clear, and convincing to an
medical care outside the prison facility. (People v.
unbiased judgment and excuses all reasonable
probability of any other conclusion. (People v. Judge Fitzgerald, G.R. 149723, 2006}.
Cabral, G.R. No. 131909, 1999).
'BUT SEE: Accordingly, we conclude that the
Other rights in relation to bail: Sandiganbayan arbitrarily ignored the objective of bail to
1. The right to bail shall not be impaired even when the
ensus the appearance of the accused durino the trial· and
unwarrar.tedly disregarded the clear showing of the fraqile
privilege of the writ of habeas corpus is suspended;
health ancJ advanced age of Enrile. As such, the
2. Excessive bail shall not be required (Phil. Const., art.
Sctndiganbayan gravely abused its discretion in denying
3, § 13).
Enrile's Motion to Fix Bail. (Juan Ponce Enrile v.
Sandigar,bayan, G.R. No. 213847, 2015)
Factors to ·be considered in setting the amount of bail:
(F3P3 WANC)
Bail in deportation proceedings
0. Financial Ability of the accused to give bail
As a general rule, the constitutional right to bail is available
1. Forfeiture of other bail
only in criminal proceedings. Thus, they do not apply in
2. The accused was a Fugitive from justice when arrested
deportation proceedings, which are administrative in
3. Probability of the accused appearing at tile trial
nature. However, see Mejoff v. Director of Prisons where
4. Penalty for the offense charged
the court applied the general principles ·Jf international law
5. Pendency of other cases where the accused is on bail
r. -. found in the UDHR and ordered reieased under a bond in
6. Character and reputation of the accused
a Habeas Corpus petition (Bernas, The 1987 Philippine
7. Age and health of the accused
Constitution: A Comprehensive Reviewer, 2011).
8. Weight of the evidence against the accused
9. Nature and circumstance of the offense (ROC, Rule
Ball in extradition cases
114,§6).
Our extradition law does not provide for the grant of bail to
·~,, ';, Where the right to bail exists, it should not be rendered an extraditee. There Is no provision prohibiting him or her
';'··
nugatory by requiring a sum that is excessive. (De La from filing a motion for bail, a right to due process under
,·. - ' Camara v, Enage, G.R. Nos. l-32951~2, 1971 ). the Constitution.
•:_.)

Waiver (FEJ) However, an extradition proceeding, while ostensibly

..• ,
administrative, bears all earmarks of a criminal process. A

··... )
Page 137 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

potential extradltee may be subject to arrest, to a Right to Compulsory process to secure the attendance
prolonged restraint of liberty, and forced to transfer to the of witnesses (Bernas. Tho 1987 Constitution: A
demanding state followir,g the proceedings. Comprehensive Reviewer 2011 ).

The standard used in granting bail in extradition cases is 5. ASSISTANCE OF COUNSEL

"clear and convincing evidence." This standard should be
lower than proof beyond reasonable doubt but higher than
preponderance of evidence. The potential extradilee must
prove by "clear and convincing evidence" that he is not a
flight risk and will abide with all the orders and processes
of the extradition court, and that there exist special,
humanitarian, and compelling reasons for him to be
released on bail. (Government of Hong Kong v. Olalia, Jr.,
G.R. No.153675, 2007).
3. PRESUMPTION OF INNOCENCE
Its principal effect is that no person shall be convicted
unless the prosecution has proved him guilty beyond
reasonable doubt (Bernas, The 1987 Constitution: A
Comprehensive Reviewer 2011 ).
The Constitution does not prohibit the legislature from
providing that proof of certain facts leads to a prima facie
presumption of guilt, provided that the facts proved have a
reasonable connection to the ultimate fact presumed. (U.S.
v Luling, 34 Phil. 725, 1916).
' 1998).
Presumption of innocence persists even when them is
conviction by lower court and case Is still on appeal. Such
presumption is not destroyed until there Is prcof that
accused is guilty beyond reasonable doubt based on
evidence. (Bernas, The 1987 Constitution: A Purposes of this right:
Comprehensive Reviewer 2011 ).
Equipoise rule
If the accused appears at the arraignment without counsel,
the judge must:
Inform the accused that he has a righi to a counsel
before arraignment
Ask the accused if he desires the aid of counsel
If the accused desires counsel, but cannot afford one,
a counsel de officio must be appointed
If the accused desires to obtain his own counsel, the
court must give him reasonable time to get one (U.S. v.
Gimeno, 1 Phil. 236, 1905).
Pre-arraignment duties of judge: (ROC, Rule 116, § 6)
Inform accused that he bas the right to have his own
counsel before being arraigned
After giving such information, to ask accused whether
he desires the aid of counsel
If he so desires to procure the services of counsel, the
court must grant him reasonable time to do so
If he so desires to have counsel but is unable to employ
one, the court must assign a counsel de officio to
defend him (People v. Agbayani, G.R. No. 122770,
6. RIGHT TO BE INFORMED
To furnish the accused with a description of the charge
against him as will enable him to make his defenses
2. To avail himself of his conviction or acquittal aqainst a I-.,,
\.._.,
!..

When evidence of parties are evenly balanced, it should tilt further prosecution for the same cause
in favor of accused Find constitutional presumption of 3. To· inform the court of the facts alleged (U.S. v. J
. ':.s
innocence should prevail (Corpuz v. People, G.R. No. Karelsen, 3 Phil. 223, 1904).
180016, 1991 ).
If the information fails to allege the material elements of the
4. RIGHT TO BE HEARD offense, the accused cannot be convicted thereof even if ( '.·.

Includes the right to be present at the trial from arraignment the prosecution is able to present evidence during the trial
to promulgation of sentence. (U.S. Beecham, 23 Phil. 259, with respect to such elements.
1972). After arraignment, trial may proceed
notwithstanding absence of accused. Th9 real nature of the crime charged is determined from
the recital of facts in the information. It is not based on the
Elements: (PIC3) caption, preamble or from the cited provision of law
allegedly violate<!. {People v. Labado, 98 SCRA 730,
Right to be Present at the trial;
1980).
Right to Counsel;
Right to an lrnparttal judge;
General Rule: It is unnecessary to state in the information
Right of Confrontation; ·-.... ..
the precise date that the offense was committed ;;'

i
Page 138 of 320 <.,
 ATENEO CENTRAL
BAR OPERATIONS 2019
Exception: when it is an essential element of the offense.
(Peoplev. Bugayong, G.R. No.126518, 1998).
When the time given in the complaint is not essential, it
need not be proven as alleged. The complaint will be
sustained if there is proof that the offense was committed
at any time within the period of the statute of limitations and
before the commencement. of the action. The date of
commission is not an element of rape. The gravamen of
rape is carnal knowledge of a woman. (People v. Rafon.
G.R.No. 169059,2007)
Under Sections 6 and 8 of Rufe 110 of Rules of Criminal
Procedure, an information must contain the:
Name of the accused
Designation given to the offense by statute
Statement of acts or omissions constitutlng the offense
Name of offended party
Approximate time and date of commission of offense
Place where offense was committed
Void for vagueness and strict scrutiny
Cannot apply to criminal statute; prosecution may be
hampered if such were to apply, and no prosecutions
would be conducted. The courts cannot contemplate a
situation as if third parties were before it. (Spouses ·
Romualdez 11. COMELEC, G.R. No. 167011, 2008).
In a situation where a court (in a fused action for the
enforcement of criminal and civil liability) may validly order
an accused-respondent to pay an obligation arising from a
contract, a person's right to be noiified of the complaint,
and the right to have the complaint dismissed if there Is no
(1 cause of action, are completely defeated. If the accused-
· ... 1•
respondent is completely unaware of the nature of the
liability claimed against him or her at the onset of the case,
he is blindsided. It is a clear violation of a person's right to
due process. (Gloria S. Oyv. People of the Philippines, GR
No. 189081, August 10, 2016)
RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TnJAL
7. Right to Speedy Trial
Factors used in determining whether the right to a
speedy trial has been violated:
7. Time expired from the filing of the information
8. Length of delay involved
9. Reasons for the delay
10. Assertion or non-assertion of the right by the accused
Page 139 of 320
POLITICAL LAW
11. Prejudice caused to the defendant (Bernas. The 1987
Constitution: A Comprehensive Reviewer 2011 ).
RP.medy if the right to speedy trial was violated:
He can move for the dismissal of the case
If he is detained, he can file a petition for the issuance
of writ of habeas corpus (Bernas, The 1987
Constitution: A Oornprehenslve Reviewer 2011).
Dismissal based on the right to speedy trial -
If the dismissal is valid, it amounts to an acquittal and
can be used as basis to claim double jeopardy. This
would be the effect even if the dismissal was made with the
consent of the accused {Bernas, The 1987 Constitution: A
Comprehensive Reviewer 2011 ).
Speedy Trial v. Speedy Disposition of Cases
The right to a speedy trial Is available only to an accused
and is a peculiarly criminal law concept, while the broader
right to a speedy disposition of cases may be tapped in any
proceedings conducted by state agencies. In this case, the
appropriate right involved is the right to a speedy
disposition of cases, the recovery of ill-gotten wealth being
a civil suit. (Coconut Producers Federation, Inc. et al. v.
Republic of the Philippines; Wigberto E. Tanada, et "al.,
intervenors; Danilo S. Ursua v. Republic of the Philippines,
. G.R. Nos. 177857-58 & G.R. No. 178193, 2012).
Right to Impartial Trial
The accused is entitled to the "cold neutrality of an
impartial judge." It is an element of due process.
Example: When a judge has previously convicted a person
of a crime i.e .• arson, he should disqualify himself from
hearing another case involving the same person, but with
-, a different crime, i.e., malversation (Ignacio v. Villaluz,
G.R. No. L-37527-52, 1979).
Right to Public Trial
The attendance at the trial is open to all irrespective of their
relationship to the accused. However, if the evidence to be
adduced is offensive to decency or public morals, the
public may be excluded. (Garcia v. Domlngo, G.R. No. L-
30104, 1973).
The purpose is to serve as a "safeguard against any
attempt to employ our courts as instruments of
prosecution." The knowledge that every trial is subject to
the contemporaneous review in the forum of the public
opinion is an effective restraint on possible abuse of
ATENEO CENTRAL
BAR OPERATIONS 2019
judicial power. (Garcia v. Domingo, G.R. No. L·30104,
1973).
The right of the accused to a public trial is not violated if
the hearings are conducted on Saturdays, either with the
consent of the accused or if he failed to object thereto.
8. RIGHT OF CONF~ONTATION
Purposes of this right:
To afford the accused an opportunity to cross-exarnlne
the witness . Veneracion, 269 SCRA 371, 1997).
To allow the judge the opportunity to observe the
conduct or demeanor of the witness (Bernas, The 1987
Constitution: A Comprehensive Reviewer 2011 ). ' (People v. Snlas, 143 SCRA 163, 1986)
'
Exceptions to the right to face witnesses:
The admissibility of "dying declarations"
Trial in absentia under Section 14(2)
With respect to child testimony (Bernas, The 1987
-Constitution: A Comprehensive Reviewer 2011 ).
Notes:
• If the failure of the accused to cross-examine a witness
is due to his own fault or was not due to the fault of the
prosecution, the testimony of the witness should be
excluded.
• It Is demandable only during trials. Thus, it cannot be
availed of during preliminary investigations.
• Right of confrontation is available during trial which
begins only upon arraignment.
9 COMPULSORY PROCESS
The 1973 and 1987 Constitutions expanded the right to
compulsory process wh!ch now includes the right to
secure the production of evidence in one's behalf. By .
analogy, U.S. v. Ramirez which laid down the requisites
for compelling the attendance of witnesses, may be
applied to this expanded concept. Thus, the movant must
show:
A. that the evidence is really rr.aterial:
B. that he is not guilt:1 of neglect in previously obtaining
the production of such evidence;
C. that the evidence will be available at the time desired:
cind
0. that no similar evidence could be obtained (Bernas,
The 1987 Constitution: A Comprehensive Reviewer
2011 ).
Page 140 of 320
POLITICAL LAW
Includes:
• Right to Secure Attendance of Witnesses
• Right to Production of Other Evidence
10. TRIAL IN ABSENTIA
Requisitas: (ANU)
The accused has been validly Arraiqnedand
Accused has been duly Notified ·
His failure to appear is Unjustifiable. (Parada v.
This Is allowed to speed up disposition of criminal cases.
Exceptions:
If the accused, after arraignment, has stipulated that he
is indeed the person charged with the offense and
named In the information; and that any time a witness
refers to a name by which he is known, the wimess .is
to be understood as referring to him.
The accused may waive the right to be present at the
trial by not showing up. However, the court can still
compel the attendance of the accused if necessary, for
identification purposes.
Promulgation of judgment
Wh:le the accused is entitled to be present during
promulgation of judgment, the absence of his counsel
during such promulgation does not affect its validity.
.....
Promulgation of judgment in absentia ls valid provided
that the essential elements are present:
• that the judgment be recorded in ihe criminal docket ..
·•. ·t
• that a copy be served upon the accused or counsel.
Recording the decision in the criminal docket of the \._.'
court satisfies the requirement of notifying the accused
of the decision wherever he may be. (Estrada v.
People, G.R. No. 162371, 2005).
WHEN PRESENCE OF THE ACCUSED IS A DUTY
1. Arraignment and Plea ·
2. During Trial, for identification
-,
3. Promulgation of Sentence '. ~,.;.,:
s
Exception: Light offense where accused need not ',.v ,
personally appear.
 ATENEO CENTRAL
BAR OPERATIONS 2019
RIGHT TO SPEEDY DISPOSl'(ION OF CASES
All persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or
administrative bodies. (Phil. Const., art. 3, § 16).
Speedy disposition of cases is a relative term and must
necessarily be a flexible concept. Factors to consider are:
length of delay, reason for delay, assertion of the right or
failure to assert it, and prejudice caused by delay.
(Caballero v. Alfonso, Jr., 153 SCRA 153, 1987).
The fact finding investigation of the Ombudsman lasted
nearly 5 years and 5 months. It is clear that the
Ombudsman had taken an unusually long period just to.
investigate the criminal complaint and to determine
whether cases be filed against the respondents. It is
incumbent for the State to prove that the delay was
reasonable which it failed. At no time should the progress
and success of the preliminary investigation of a criminal
case be made dependent upon the ratification of a treaty
by the Senate that would provide to the prosecutorial arm
of the State, alreedy powerful and overwhelming in terms
of its resources, an undue advantage unavailable at the.
time of the investigation. To allow the delay under those
terms would definitely violate fair play and nullify due
process of law. The guarantea of speedy disposition of
cases under Section 16 of Article Ill applies to all cases
pending before all judicial, quasi-judicial or administrative
bodies. Thus, the fact-finding investigation should not be
deemed separate from the preliminary investigation
conducted by the Ombudsman if the aggregate time spent
for both constitutes inordinate and oppressive delay in the
disposition of the case. (People v. Sandiganbayan, G.R.
Nos. 188165 & 189063, 2013).
Speedy Trial v, Speedy Disposition of Cases
SEC.16 (SPEEDY .
SEC. 14 (SPEEDY iRIAL)
DISPOSITION)
,~ ,
f ,,
... .)
Only applies to the trial Covers all phases of
phase of criminal cases judicial, quasi-judicial and
administrative
proceedings
<. ,i Page 141 of 320
-------------------------------··-·-------·--
POLITICAL I.AW
RIGHT AGAINST SELF-INCRIMINATION
No person shall be compelled to be a witness against
himself. (Phil. Const., art. 3, § 17)
Concept
It was established on the grounds of public policy {if the
party were required to testify, it would place the witness
under the strongest temptation to commit perjury) and
humanity (it would prevent the extorting of confessions by
duress). It is the duty of the prosecution, in order to convict
one of a crime, to produce evidence showing guilt beyond
reasonable doubt. The accused cannot be called upon,
either by express words or acts, to assist in the production
of evidence. The silence of the accused should not be
taken as proof against him. Further, the accused has the
right to rely on the presumption of innocence until the
· prosecution proves him guilty of every element of the crime
with which he is charged. /United States v. Navarro, G.R.
No. 1272, 1904).
The right against self-incrimination is mandatory, as it
secures to a defendant a valuable and substantive right. It
is not merely a formal technical rule and the enforcement
of which is left to the discretion of tho court. The court may
not extract from an admission of guilt from the defendant's
own lips and against his will. The court may not resort to
compulsory disclosure, directly or indirectly, of facts usable
against him as a confession of the crime or the tendency
of which is to prove the commission of the crime.
Thus, the accused has:
• The right to forego testimony
• The right to remain silent, unless he chooses to
take the witness stand thr0ugh the exercise of his
own free will. The rule may apply even to a co-
defendant in a joint trial. (Chavez v. Court of
Appeals, G.R. No. L-29169, 1968).
Scope and coverage
Prohibits the use of physical or moral compulsion to
extort communications from the accused
The Constitutional guarantee does not include the body of
the accused as evidence, when the same may be material.
Thus, the provision is against legal precesses that extract
from the defendant's own lips, against his will, an
admission of guilt. The kernel of the privilege is testimonial
, compulsion and not any other compulsion. A physical
examination for evidence is similar to introducing stolen
property taken from the person of the thief. {United States
v, Tan Teng, G.R. No. 7081, 1912).
.. -- .. --··-- - .
ATENEO CENTRAL
BAR OPERATIONS 2019
Prohibits compulsion to perform positive testimonial
acl
The Constitutional guarantee is not limited to giving of
declaration, but extends to other means where one
effectively constitutes a witness against himself such as: 1)
testifying, 2) furnishing evidence, 3) being a witness. .
Thus, the privilege is not limited precisely to testimony or
giving of oral testimony, but extends to all fLJrnishing of
evidence by other means than by word of mouth. It
Includes the divulging of any fact which the accused has a .
right to hold secret. Writing is something more than a
mechanical act, as it requires application of intelligence
and attention. The witness ls compelled to write, create,
make, or prepare, by means of the act of writing, evidence
which does not yet exist and will be later on used against
him as falsifier. Simply put, what is required in the instant
case is for the petitioner to perform a positive. testimonlal
act. to write and give a specimen of his handwriting for the
purpose of comparison, which sets it apart from other
cases, where the accused did not have to do anyttiing but
be examined.
Self-incrimination clause covers documentary
evidence.
This does not apply to "records required by law to be kept
which are the appropriate subjects of governmental
regulation and where restrictions are validly established.
(Shapiro v, United States, 335 U.S. 1. 1948).
Proceedings for forfeiture of property are doemed
criminal or penal and, thus, the right against self-
incrimination is applicable.
"Forfeiture" is a divestiture of property, without
compensation, in consequence of a default or an offense.
It Is imposed by way of punishment, not by the mere
conviction of the parties, but by the law-making power, to
insure a prescribed course of conduct (Cabal v. Kapunan.
G.R. No. L-19052. 1962).
Unlike the search and seizure clause, which protects both
natural persons and corporations, the privilE;ge against
self-incrimination is a personal one, applying only to
natural individuals (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011 ).
The rule has been established that refusal of an accused
to be a witness or of a witness to answer should in no
manner be used against them The accused has the right
to forego testlrnony and remain silent, unless he takes the
witness stand out of his own free will The right against self-
Page 142 of 320
POLITICAL LAW
incrimination now comes within · the right to privacy.
(Pascual Jr. v. Board ofExaminfirs, G.R. No. L-25018, May
~ 26, 1969).
The right agains"t self-incrimination has been
expanded to cover other forms of proceedings or
compulsion:
1. It extends to all proceedings sanctioned by law
2. It extends to all cases in which punishment is sought to
be visited upon a witness, whether a party or not
3. It extends to both the accused, as well as a mere
witnesses in a prosecution
4. It protects equally in civil cases when incriminating
questions are asked
5. It applies to all kinds of courts
6. It covers litigious or non-litigious proceedings ·
7. It covers proceedings ex parte or otherwise
8. It covers all forms of interrogation before the courts
9. It extends to investigations conducted by legislative
bodies
10. it now prohibits rendering incriminatory handwriting
specimens (Beltran v. Samson. G.R. No. 32025, 1929).
International and Foreign laws
Article 14(3)(g) of the ICCPR states that [no one shall] be
compelled to testify against himself or to confess guilt. (UN
International Covenant on Civil and Political Rights).
No person shall be compelled in any criminal case to be a
witness against himself. (5th Amendment, US
Constitution).
APPLICATION
1. In criminal cases
2. In all other government proceedings, including civil
actions and administrative or legislative irwestigations.
(Bernas, The 1987 Constitution: A Comprehensive ' '
Reviewer 2011 ).
I:_ (
The right may be invoked from the moment the accused is
asked to testify. A witness may assert the right only when
an incriminating question is asked. (Bernas, The 1987
Constitution: A Comprehensive Reviewer 2011 ).
Only natural persons can invoke the right. Juridical
persons are subject to the visitorial powers of the state in '"\.
order to determine compliance with the conditions of the t, . . ~
charter granted to them. {Bernas, The 1987 Constitution:
A Comprehensive Reviewer 2011).
r ·.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Prohibited v. Not Prohibited Examinations 2. Transactional immunity - grants immunity to the

PROHIBITED
What is prohibited is the
use of physical or moral
compulsion to extort
communication from the
witness or to otherwise elicit
evidence which would not
exist were it not for the
actions compelled from the
witness.
The accused cannot be
compelled to produce a
private document in his
possession that might tend
to incriminate him.
Obtaining a sample of the
handwriting of the accused
would violate this right if he
is charged for falsification.
(See U.S. v. Tan Teng, 23 Phil 145, 1912; People v,
Otadora, 86 Phil. 244, 1950; Bernas, The 1987
Constitution: A Ccmprehensive Reviewer 2011 ).
NOT PROHIBITED
The right does not prohibit
the examination · of the
body of the accused or the
use of findings with
respect to his body as
physical evidence.
However, a third person in
custody of the document
may be compelled to
produce it.
Fingerprinting of an
accused would not violate
the right against self-
incrimination.
witness from prosecution for an offense to which his
compelled testimony relates.
It is beyond dispute that said law belongs to the first type
of immunity statutes (use immunity). It grants merely
immunity from use of any statement given before the
Board, but not immunity from prosecution by reason or on
the basis thereof. Merely testifying and/or producing
evidence do not render the witness immune from
prosecution notwithstanding his invocation of the right
against s&lf- incrimination. He is merely saved from the use
against him of such statement and nothing more. Stated
otherwise ... he still runs the risk of being prosecuted even
if he sets up his right against self- incrimination. The
dictates of fair play, which is the hallmark of due process,
demands that private respondents should have been
informed of their rights to remain sllent and warned that
any and all statements to be given by them may be used
against them. This, they were denied under the pretense
that they are not entitled to it and that the Board has no
obligation to so inform them. (Galman v. Pamaran, G.R. .
Nos. 71208-09 & 71212-13, 1985).
RIGHT AGAINST DOUBLE JEOPARDY

Incriminating question No person shall be twice out in jeopardy of punishment for

A question tends to incriminate when the answer of the the same offense. If an act is punished by 2 law and an
accused or the witness would establish a fact, which would ordinance, conviction or acquittal under either shall
be a necessary link in a chain of evidence to prove the constitute a bar to another prosecution for the same act.
commission of a _crime .by the accused or the witness. (Phil. Const., art. 3, § 21) 1
(lsabela Sugar Co. v, Macadaeg, 98 Phil. 995, 1953).
Section 7 of RA 10175 which provides for prosecution
·"····'\, Accused v. Ordinary Witness under both the Revised Penal Code and the Cybercrime
\", ..'!' Prevention Act was assailed as unconstitutional for
ACCUSED ORDINARY WITNESS violating the rule on double jeopardy. The provision was
declared unconstitutional as to Section 4(c)(4) on Libel and
Can refuse to take the Cannot refuse to take the
Section 4(c)(2) on Child Pornography. However, with
witness stand altogether witness stand. He can only
respect to the other prohibited acts, the Court left the
by invoking tne right rafuse to answer specific
questions that would determination of the correct application of Section 7 to
against self-incrimination.
»: ~,·' incriminate him in the actual cases. In relation to Secticn 4(c)(4) on Libel, the
commission of an offense. Court said that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical
(Bernas, The 1987 Constitution: A Comprehensive
material cannot be the subject of two separate libels. The
Reviewer 2011 ).
two offenses, one a violation of Article 353 of the Revised
Penal Code and the other a violation of Section 4(c)(4) of
IMMUNITY STATUTES R.A. 10175 involve essentially the same elements and are
1. Use· immunity - prohibits use of witness' compelled in facl one and the same offense. Charging the offender
testimony and its fruits in any manner in connection under both laws would be a blatant violation of the
with the criminal prosecution of the witness. proscription against double jeopardy. As to Section 4(c)(2)
I >
·.~-~ ..~;' on 'Child Pornography, the Court said that Section 4(c)(2)
merely expands the ACPA's scope so as to include
•·' ....:/' Page 143 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
POLITICAL LAW

identical activities in cyberspace. As previously discussed, Ylagan, 58 Phil. 851, v. Balisacan, G.R. No. L-
ACPA's definition of child pornography in fact already 1993} 26376, 1966)
covers the use of "electronic, mechanical, digital, optical, 3. If the information for an
' magnetic or any other means." Thus, charging the offender offense cognizable by
under both Section 4(c)(2) and ACPA would likewise be th!'} RTC is filed with the
tantamount to a violation of the constitutional prohibition MTC. There is no
against double jeopardy. (Disini v. Sec. of Justice, G.R No. jurisdiction here. (People
203335, 2014) v. lbasan, Sr., 129 SCRA
695, 1984)
Kinds of Jeopardy
4. If a complaint filed for
SAMEOFFESE SAME ACT preliminary investigation
is dismissed. (People v.
"No person shall be twice "When an act is punished by Oaco, L-17212, 1962)
put in jeopardy of a law and an ordinance,
punishment for the same conviction or acquittal under
offense." either shall constitute a bar The first jeo:,ardy must have been terminated.
to another prosecution for 1. Acquittal;
the same act." 2. Conviction; or
3. Dismissal without the express consent of the accused
Conviction, acquittal, or Only conviction or acquittal • Dismissal based on violation of the right to a
dismissal of the case - not dismissal without the speedy trial amounts to an acquittal
without the express express consent of the • Dismissal based on demurrer to evidence is a
consent of the accused accused - will bar a dismissal on the merits ( .
will bar a subsequent subsequent prosecution.
• Dismissal on motion of the prosecution,
prosecution.
subsequent to a motior. for reinvestigation
filed by the accused
Requisites • Discharge of an accused to be a state witness.
1. A first jeopardy must have attached prior to the second. This amounts to an acquittal.
2 The first jeopardy must have been terminated. • Dismissal on the merits
3. The second jeopardy must be for the same offense as
that in the first. (Bernas, The 1987 Constitution: A If the first dismissal was based on the merits. there should
Comprehensive Reviewer, 2011) be no second prosecution. If the first dismissal was not
based on the merits and was erroneous, one should look v .:
First jeopardy must have attached
at whether the dismissal was with the consent of the
WHEN JEOPARDY WHEN JEOPARDY DOES accused. If not, there should be no second prosecution.
ATIACHES NOT ATIACH (Bernas, The 1987 Philippine Constitution: A ·
Comprehensive Reviewer, 2011)
(Code: CICAP) 1. If information does not
1. A person is ,g,harged charge any offense The second jeopardy must be for the same offense,
2. Under a complaint or (People v. Judge one that includes or is necessarily included in the first
Information sufficient Cor.sulta, :..-41251, offense or is an attempt or frustration of the first.
in form and substance 1976) (Bernas, The 1987 Philippine Constitution: A
., \
to sustain a conviction 2. If, upon pleading guilty, Comprehensive Reviewer, 2011)
3. Before a court of the accused presents
&,ompetent evidence of complete Same Offense
Jurisdiction self-defense, and the 1. Exact identity between the offenses charged in the first
4. After the person is court thereafter acqults and second cases.
Arraigned him without entering a 2. One offense is an attempt to commit or a frustration of
5. Such person enters a new plea of not guiity for the other offense.
valid flea. (People v. accused. There is no 3. One offense is necessarily Included or necessary
valid plea here. (People includes the other. . "·
:
'-.,,,
"

Page 144 of 320 ..

l -·'
 ATENEO CENTRAL
BAR OPERATIONS 2019
4. The situation is different when one act violates two
different statutes or two different provisions of a statute.
The rule in such a case is that if the 011e act results in
two different offenses, prosecution under one Is a bar
to prosecution under the other. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2011 ).
Same evidence test
Whether the evidence needed in one case will support a
conviction in the other. (U.S. v. Tan Oco, 34 Phil. 772,
1916)
However, this applies only in a more general sense, hence
it is the test laid down under Section 9 of Rule 117 of the
Revised Rules of Criminal Procedure that should apply.
This states that one offense must necessarily be induded
in the other, i.e., whether one offense Is identical with the
other or whether one offense necessarily includes or is
necessarily included in the other. Identity of offenses does
not require one-to-one correspondence between the facts
and law involved in the two charges. (Bernas, The 1987
Philippine Constitution: A Comprehensive Reviewer, 2011)
.
;":
·'
"
'\
•.I Supervening Facts
A conviction for an offense will not bar a prosecution for an
offense which necessarily includes the offense charged in
the former information where:
1. The graver offense developed due to a supervening
fact arising from the same act or omission constituting
the former charge. · violation of the right to a speedy trial or on a demurrer
2. The facts constituting the graver offense became
known or were discovered only after the filing of the
former information.
3. The plea of guilty to the lesser offense was made
without the consent of the prosecutor and the offended
party. (ROC, Rule 117, § 7)
·-·'
If the facts could have been discovered by the prosecution
but were nm discovered because of the prosecution's
incompetence, it would not be considered a supervening
event.
., ' f.
If the accused appeals his conviction, he waives his right
t~ ~
-, _, to plead double jeopardy. The whole case will be open to
review by the appellate court. It may even increase the
penalties imposed on the accused by the trial court. (Trono
v. US, 11 Phil. 726, 1905)
L.,",
Page 145 of 320
·,..__;
POLITICAL LAW
MOTIONS FOR RECONSIDERATIONAND APPEALS
Motions for Reconsideration
At any time before a Judgment of conviction becomes final,
the court may, upon motion of the accused or at its own
instance, but with the consent of tho accused, grant a new
trial or reconsideration. (ROC, Rule 121, § 1)
"From the phraseology of the rule, it is evident that a motion
for new trial or a motion for reconsideration applies when
the judgment is one of conviction; and it is the accused, not
the prosecution which avails of the same." (Riano, Criminal
Procedure, 583, 2014) ·
Appeals
Any :)arty may appeal from a judgment or final order,
unless the accused will be placed in double Jeopardy.
(ROC, Ruis 122, § 1)
General Rule: The prosecution may not appeal an
acquittal, and an acquittal is immediately ·,inal. (ROC, Rule
120, § 7)
Exception: The prosecution may appeal an order of
dismissal when:
1. The dismissal is on motion or with the express consent
of the accused. (ROC, Rule 117, § 7)
• Exception to the Exception: If motion is based on
to evidence. (People v. Velasco, G.R. No. 140633,
2002)
2. The dismissal does not amount to an acquittal or
dismissal on the merits. (People v. Salico, 4 Phil. 722,
1949)
3. The question to be passed upon is purely legal.
(People v. Desalisa, L-15516, December 17, 1966)
4. The dismissal violates the rlgh~ of due process of the
prosecution. (People v. Sandiqanbayan et. al., G.R.
No. 164577, 2010)
5. The dismissal or acquittal was made with grave abuse
of discretion. (People v. Sandiqsnoayan et. al., G.R.
No. 164577,2010)
Although, as a rule, rJismlssal of a criminal case may be
used to abate an administrative case based on the same
facts, the same does not hold true if it were the other way
around, that is, the dismissal of the administrative case is
being invoked to abate the criminal case. However, if the
two actions are based on the same facts and evidence,
such as in this case, dismissal in administrative case may
····-·--·----- ··-------------------·
ATENEO CENTRAL
BAR OPERATIONS 2019
POLITICAL LAW

be used to negate criminal liability. (People v. Exceptions:

Sandiganbayan et. al., G.R. No. 164577, 2010).
Effect of an accused's appeal of his conviction
1. Waiver of right to double jeopardy
2. The appellate court may place a penalty higher than·
that of the original conviction. (Trono v. United States,
199 U.S. 521, 26 S.C.T.121, 50 L. Ed. 2920, 1905)
DISMISSAL WITH CO~SENT OF ACCUSED
General Rule: Equivalent to a waiver of the defense of
double jeopardy.
Exception: When motion is based on:
Provisional Dismissal
A case shall not be provisionally dismissed except with the
express consent of the accused and with notice to the
offended party. (ROC, Rule 117, § 8).
The provisional dismissal of offenses punishable by
imprisonment not exc•,eding 6 years or a fine of any
amount, or both. shall become permanent 1 year after
issuance of th,3 order without the case having been
revived. With respect to offenses punishable by
imprisonment of morn than 6 years, their provisional
dismissal shall become permanent 2 years after issuance
of the order without the case having been revived.
A motion of the accused for a provisional dismissal of a
case is an express consent to such provisional dismissal.
If a criminal case is provisionally dismissed with the
express consent of the accused, the case may be revived
only within the periods provided in the new rule. On the
other hand, if a criminal case is provisionally dismissed
without the express consent of the accused or over his
objection, the new rule would not apply. The case may be
1. Punishment for a crime.
2. Personal military or civil service in the interest of
national defense. .
3. In naval enlistment, a person who enlists in a merchant
ship may be compelled to remain in service until the
end of the voyage. ·
4. Posse Comitatus (every able-bodied person is
ultimately responsible for keepinq peace) for the
apprehension of criminals. · .
5. Return to work order issued by the DOLE Secretary or
the President. Minors under panla potestas are obliged
to obey their parents. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 152, 2011)
RIGHT AGAINST EXCESSIVE FINES AND CHUEL
AND INHUMAN PUNISHMENT
Excessive fines shall not be imposed, ncr cruel, degrading
or inhuman punishment inflicted. Neither shall death
penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides
for it. Any death penalty already imposed shall be reduced
to reclusion perpetua. (Phil. Const., art. 3, § 19(1 ))
"It has been held that to come under the constitutional ban
on excessive and inhuman punishment, the punishment
must be 'flagrantly and plainly oppressive,' 'wholly
disproportionate to the nature of the offense as to shock
the moral sense of the community." (Peop!e v. Estoista, 93
Phil. 647, 1953)
Cruel and inhuman :1
'.__,.;·
It involves torture or lingering suffering (e.g., being drawn
( ·::
and quartered). -,:
Degrading. ... )

revived or refiled even beyond the prescribed periods , It exposes a person to public humiliation (e.g., being tarred
and feathered, then paraded throughout town).
subject to the right of the accused to oppose the same on
the ground of double jeopardy or that such revival or
refiling is barred by the statute of limitations. (People v. Excessive fine
Panfilo Lacson, G.R. 149453, 2003) When under any circumstance, the fine is disproportionate
to the offense.
! "-
1.• ... v=
INVOLUNTARY SERVITUDE Guides for detemalning whether a punishment is
"cruel and unusual":
Involuntary servitude ~. It must not be so severe as to be deg, ading to the
Every condition of enforced or compulsory service of one dignity of human beings.
to another no matter under what form such servitude may 2. It must not be applied arbitrarily.
be disguised. (Rubi v. Provincial Board, 39 Phil. 660, 3. It must not be unacceptable to contemporary society. '·,
I.
1919) ~
.... ....
4. It must not be excessive.

Page 146 of 320

....
 ATENEO CENTRAL
BAR OPERATIONS 2019
Note:
• It must serve a penal purpose more effectively than a
less severe punishment would (Brennan concurring in
Furman v. Georgia, 408 U.S. 238, 1972)
• R.A. 9346 prohibited the imposition of the death
penalty. Only by an Act of Congress can it be reborn.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 154, 2011)
Death Penalty
Death penalty was abolished because:
• It inflicts traumatic pain not just on the convict but also
on his family, even if the penalty is not carried out.
• There was no convincing evidence that it is effect!ve
as a deterrent of serious crime.
• Penology favors reformative rather than vindictive
penalties.
• Life is too precious a gift to be placed at the discretion
of a human judge.
• The law itself, by imposing so many safeguards before
such is carried out, manifests a reluctance to impose
it. (Bernas, The 1987 Philippine Cc,nstitution: A
Comprehensive Reviewer, 154, 2011)
Legislature may re-impose i~. subject to the following
conditions:
• That Congress defines what is meant by heinous
crimes.
That Congress specify and penalize by death, only
those crimes that qualify as heinous in accordance with
the definition set in heinous crimes law or death penalty
law.
• That Congress, in enacting this death penalty bill, be
singularly motivated by "compelling reasons involving
heinous crimes." {People v. Echegaray, G.R. No.
117472, 1997)
Under RA 7659: Heinous crimes are those which are
grievous, odious, and hateful: and by reason of their
manifest wickedness, viciousness, atrocity, and perversity,
... ,..;.,· are repugnant and outrageous to the common standards
and norms of decency and morality in a just, civilized, and
ordered society. (People v. Echegaray, G.R. No. 117472,
1997)
The duty of a judge when an accused pleads guilty to a
capital offense Is to look into the evidence to see if death
is the proper penalty. (People v. Vinuya, G.R. No. 125925.
...._," 1999)
Page 147 of 320
POLITICAL LAW
NON-IMPRISONMENT FOR DEBTS
No person shall be imprisoned for debt or non-payment of
a poll tax. (Phil. Const., art. 3, § 20)
Debt
A contractual obligation, whether express or implied,
resulting in any liability to pay money. Thus, all other types
of obligations are not within the scope of this prohibition.
(Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 159, 2011)
If an accused fails to pay the fine imposed upon him, this
may result In his subsidiary imprisonment because his
liability is ex delicto and not ex contractu. (Alejo v. Judge
lnserto, AM. 1098 CFI, 1976)
A debtor may be imprisoned if the fraudulent debt
constitutes a crime such as estafa and has been duly
convicted. (Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
EX POST FACTO LAWS AND
.BILLS OF ATTAINDER
No e::.< post facto law or bill of attainder shall be enacted.
(Phil. Const., art. 3, §22)
Ex post facto law
1. Make~ an action done before the passing or the law,
and which was innocent when done, criminal, and
punishes such action.
2. Aggravates the crime or makes it greater than when it
was committed.
3. Changes the punishment and inflicts a greater
punishment than that which the law annexed to the
crime when lt was committed.
4. Alters 1he legal rules of evidence and receives less
testimony than the law required at the time of the
commission of the offense ir: order to convict the
accused.
5. Assumes to regulate civi1 rights and remedies but in
effect imposes a penalty or deprivation of a right, which
when done was lawful.
6. Deprives a person accused of a crime of some lawful
protection to which he has become entitled such as the
protection of a former conviction or acquittal, or a
proclamation of amnesty. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011)
 ATENEO CENTRAL
BAR OPERATIONS 2019
The prohibition on ex post facto laws only applies to
retrospective penal laws. (Bernas, The 1987 Pnilipp.ne
Constitution: A Comprehensive Reviewer. 201 ·1)
Characteristics of an ex post facto law:
1. Refers to criminal matters
2. Retrospective
3. Causes prejudice to the accused (Bernas, The 1987
Philippine Constitution: A Comprehensive Reviewer,
2011)
Instances when the prohibition ,on ex-post facto laws
is inapplicable:
1. Extradition treaty .
2. Probation law
3. Change of court Jurisdiction
4. House rental law (Wright v. CA, 1994; Fajardo v. CA,
1999; Lacson v, Executive Secretary, 1999; Juarez v.
CA, 1992)
Bill of attainder
An act by the legislature that inflicts punishment without
judicial trial. (Cummings v. Missouri, 4 Wall 277, 323 US,
1867)
The bill of attainder does not need to be directed. at a
specifically named person. It may also refer to easily
ascertainable members of a group in such a way as to
inflict punishment on them without judicial trial. (Cummings'
v. Missouri, 4 Wall 277, 323 US, 1867)
Elements (LINaW)"
1 . There must be a Law
2. The law Imposes a penal burden
3. On a Named individual or easily ascertainable
members of a group
4. The penal burden Is imposed directly by the law
Without judicie.l trial. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Re'tiewer, 2011)
Petitioners challenge Section 20 of the Cybercrime
Prevention Act, alleging that it is a bill of attainder. The
argument is that the mere failure to comply constitutes a
legislative finding of guilt, without regard to situations
where non-compliance would be reasonable or valid. The
Section was upheld. Since the non-compliance would be
punished as a violation of PO 1829, Section 20 necessarily
incorporates elements of the offense which are defined
therein. If Congress had intended for Section 20 to
constitute an offense in and of itself, it would not have had
to make reference to any other statute or provision. Thus,
the act of non-compliance, for it to be punishable, must still
be done "knowingly or willfully." There must still be a
Page 148 of 320
POLITICAL LAW
judicial determination of guilt, during which, as the Solicitor
General assumes, defense and justifications for non-
compliance may be raised. Thus, Section _20 is valid
insofar as it applies to the provisions of Chapter IV which
are not struck down by the Court. (Disini v. Sec. of Justice,
G.R.No.203335,2014)
WRIT OF HABEAS CORPUS
The privilege of the writ of habeas corpus shall not be
suspended except in cases of invasion or rebellion when
the public safety requires it. (Phil. Const., art. 3, § 15)
A writ directed to the person · detaining another,
commanding him to produce the body of the prisoner at a
designated time and place, with the day and cause of his
caption and detention, to do, submit to, and receive
whatever the court or Judge awarding the writ shall
consider in the behalf (Sombong v. CA, G.R. No. 111876,
1990).
Privilege of the writ of habeas corpus
The right to have an immediate determination of the
legality of the deprivation of physical liberty.
The writ is never suspended. It always issues as a matter
of course. What is suspended Is the privilege of the writ.
It requires deprivation of personal liberty:
• Physical compulsion or coercion
• Duress
• Extsrnel moral compulsion
• Founded on groundless fear
• Erroneous belief in the existence of an imaginary
power of an imposter to cause harm if not blindly
obeyed
• Any psychclogical element that may curtail the
mental faculty of choice or the unhampered
exercise of the will
Suspension of the privilege of the writ of habeas
corpus
The President may suspend the privilege for a period not
exceeding 60 days. The grounds for the suspension of the
privilege are:
A. Actual invasion or actual rebellion
B. When the public safety requires the suspension
The suspension shali apply only to persons judicially
charged for rebellion or offenses inherent in or directly
connected with invasion. The crimir,al charge has to be
filed In court within 3 days because, otherwise, the person
shall be released. Thus, the suspension of the privilege will
not apply until such persons are placed in the custody of a
···.--'
 ATENEO CENTRAL
BAR OPERATION3 2019 POLITICAL LAW

judicial officer. Congress is given the power to revoke the
suspension and the President may not set aside such
revocation. Congress, upon the initiative of the President,
may also extend tile suspension. The Supreme Court,
upon the initiative of any citizen, may review the sufficiency
of the factual basis of the suspension and must promulgate
its decision thereon within 30 days from filing.
What is suspended by the Executive is the privilege of the
writ and not the writ itself.
The Supreme Court has the power:
1. To determine arbitrariness in the manner of arriving at
the suspension
2. To determine the sufficiency or the factual basis of the
suspension
WRITS OF AMPARO, HABEAS DATA,
AND KALIKASAN
WRIT OF AMPARO
A remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or
of a private individual or er'itity. (Sec. of Defense v. Manalo,
586 SCRA 42, 2006).
The Writ of Amparo does not cover threats to property. To
be entitled to a Writ of Amparo, petitioners must prove that
their rights to life, liberty, and security are being violated or
threatened by an unlawful act or omission. The intrusion
into their farm was merely a violation of property rights.
(Pador v. Arcayan, G.R. No. 16346, 2013).

The SC is empowered to determine whether. in fact, actual Examples of property rights not covered are:
invasion and rebellion exists and whether public safety
requires the suspension • Right to be restituted of personal belongings. It is
already subsumed under the general rubric of property
Habeas corpus cannot be used when: rights which are no longer protected by the writ of
1. To question the conditions of confinement; amparo. (Roxas v. Arroyo, G.R. No. 183155, 2010)
2. Once charges have been filed in court. • Merely seeking protection of property rights, like land in
possession of the petitioners (Castillo v. Cruz, G.R. No.
Limitations to the writ of habeas corpus 182165, 2009)
EXTENDS TO DOES NOT EXTEND TO • Violent incidents purely property-related such as acts of
terrorism in relation to a disputed land (Tapuz v. Hon.
All cases of illegal Questions of conditions of
.Judge del Rosario, G.R. No. 182484, 2006)
confinement or detention by confinement; but only .to
which any person is the fact and duration of
deprived of his liberty, or by confinement. Two-fold Burden for Public Authorities
which the rightful custody of
The burden for the public authorities to discharge in these
any person is withheld from It is not a means for the
the person entitled to it. situations, under the Rule on the Writ of Amparo, is two-
redress of grievances or to
seek injunctive retlef or fold.
It is essential to inquire into damages. (Jr. re: Major 1. The first is to ensure that all efforts at disclosure and
-. ::~ all manner of involuntary Aquino, G.R. 174994, ' investigation are undertaken under pain of indirect
restraint and to relieve a 2007). contempt from this Court when governmental efforts
person from it if such r.re less than what lhe individual situations require.
restraint is illegal. 2. The second is to address the disappearance, so that
- the life of the victim Is preserved and his or her liberty
and security restored. (Razon v. Tagitis, G.R. No.
182498, 2009).

The remedy of the writ of amparo provides rapid judicial

relief as it partakes of a summary proceeding that requires
only substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of evidence,
or administrative responsibility requiring substantial

Page 149 of 320

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

evidence that will require full and exhaustive proceedings. data or information regard:ng the person, family, home and
(Razon v. Tagitis, G.R. No. 182498, 2009). correspondence of the aggrieved party. (Sec.1)

Who may File

The framers of t'le Amparo Rule never Intended Section
1. The aggrieved party
5(c) to be complete in every detail in stating the threatened
2. In cases of extralegal killings and enforced
or actual violation of a victim's rights. As in any other disappearances: .
initiatory pleading, the pleader must of course state the a.' any member of the immediate fmaily of the
ultimate facts constituting the cause: of action, omitting the aogrieved party (spouse, children and parents)
evidentiary details. In an Amparo petition, however, this b. any ascendant, descendant or collateral relative of
requirement must be read in light of the nature and thr aggrieved party within the 4th civil degree· of
purpose of the proceeding, which addresses a situation of consanguinity or affinity in degault of those
uncertainty; the petitioner may not be able to describe with mentioned in par.(a) (Sec.2)
certainty how the victim exactly disappeared, or· who
actually acted to kidnap, abduct or arrest him or her, or Where to File
where the victim is detained, because these Information , RTCwhere:
may purposely be hidden or covered up by those who
1. The petitioner resides
2. respondent resides, or
caused the disappearance. Section 5(e) merely requires
3. that which has jurisdiction over the place where the
that the Amparo petitioner (the respondent in the present data or information Is gathered, coliected or stored, at
case) allege "the actions and recourses taken to determine the option of the petitioner
the fate or whereabouts of the aggrieved party and the 4. Supreme Court
identity of the person responsible for the threat, act or 5. Court of Appeals
omission." (Razon v. Tagitis, G.R. No. 182498, 2009). 6. Sandiganbayan

The petitioner in an amparo case has the burden of proving
by substantial evidence the indispensible element of
government participation. (Spouses Mmtin and Santiago v.
Tulfo, G.R. No. 205039, 2015). ·
Elements of an Enforced Disappearance
(1) That there be an arrest, detention, abduction or any
form of deprivation of iiberty;
(2) That it be carried out by, or with the authorization,
support or acquiescence of, the State or a political
organization;
(3) That it be followed by the· State or political
organization's refusal to acknowledge or
give information on the fate or whereabouts of the
person subiect of the amparo
petition; and
(4) That the intention for such refusal is to remove the
subject person from the protection of the law for a
prolonged period of time. (Section 3(g) R.A. No. 9851:
Mison v. Gallegos, G.R. No. 210759, 2015)
~OF HABEASDATA
Habeas Data
The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or security
is violated or threatened by an unlawful act or omission of
a public official or employee, or of a private individual or
entity engaged in the gathering, collecting, or storing of
Page 150 of 320
Where Writ must be Returned
1. If issued by the RTC or any judge thereof, it shall be
returnable before such court or judge
2. If issued by the CA or Sandiganbayan or any of its
justices, it may be returnable before such court or any
justice thereof, or to any RTC of the place where the
petitioner/responC:ent resides, or that which has
Jurisdiction over the place where the date or information
is gathered, collected or stored
3. If issued by SC or any of its justices, it may be
returnable before such court or any justice thereof, or
· before the CA, SB or any of its justices, or to any RTC
of the place where the petitloneorespcndent resides, or
that which has jurisdiction over thr place where the date
n,
' ~
··-·
or information is gathered, collected or stored (Sec.4)
Where Enforce::tble
Anywhere in the Philippines (Sec.4)
......,
Petition
I. Verified
II. Must contain:
A. personal circumstances of the petitioner and the
respondent
! :-
B. manner the right to privacy is violated or threatened ;._ ~'-;
and how it affects the right to life, liberty or security
of the aggrieved party
C. actions and recourses taken by the petitioner to
secure the data or information
._,,.;
D. the location of th efiles, registers or databases, the
government office, and the person in charge, in
possession or in control of the data or information,
if known
. .:..'
 ' ,;
ATENEO CENTRA~
BAR OPERATIONS 20·19
E::. the reliefs prayed for • which may include the
updating, rectification, suppression, or destruction
of the database or information or files kept by the
respondent (in case of threats, the relelf may
include a prayer for an order enjoining the act
complained of)
F. such other relevant reliefs as are just and equitable
(Sec.6)
Issuance of the Writ
Court shall order the issuance of the writ if on its face it
ought to issue. The clerk of court shall issue the writ under
the seal of the court and cause it to be served within 3 days
from its issuance, or in case of urgont necessity. the
justlce~udge may issue the writ under his own hand, and
may deputize any officer or person to serve it. The writ shall
also set the date and time for summary hearing of the
petition which shall not be later than 10 work days from the
date of its issuance. (Sec. 7)
Effect when Writ Refused to Issue or Serve
Person who refuses to issue writ after Its allowance or to
serve the same, shall be punished by the court, or justice
for contempt without prejudice to other disclplinary action
(Sec.8)
;,
(·
•·. " days from its enforcement, make a verified return to the
How Writ Is Served
Writ shall be served upon the respondent by the officer or
person deputized by the court. justice or judge who shall
retain a copy on which to make a return of service. In case
the writ cannot be served personally on the respondent,
the rules on substituted service shall apply. (Soc.9)
Return
Respondent shall file a verified written return with
supporting affidavits within 5 work days from service of the
~·- L writ (period may be extended by the Court for justtfiable
reasons) The return shall contain:
A. lawful defenses such as national security, state secrets,
privileged communication, confidentiality of the source
of information of media and others;
· B. in case of respondent in charge, in possession or in
control of the data or information subject of the petition
(i) disclosure of the date or information about the
petitioner, the nature of such data or information
..,.··_.,.·,.,,
{·
and the purpose for its cotlecdon;
(ii) the steps or action taken by respondent to
ensure the security and confidentiality of the
data or Info
.:
;;
... -
;•,
(iii)the currency and accuracy of the data or info
~ ..• J held· ·
C. other allegations relevant to the resolution of the
proceeding
Contempt
Court may punish a person who commits contempt by
making a false return or refusing to make a return, or
Page 151 of 320
POLITICAL LAW
otherwise disobeys or resists a lawful process or order of
the court. (Sec. 11)
When Defenses may be heard In Chambers
A hearing in chambers may be conducted where the
respondent invokes the defense that the release of the
data or information in question sha,I compromise national
security or state secrets, or when the data or information
cannot be divulged to the public due to its nature or
privileged character. (Sec. 12)
Filing of Return
In case the respondem fails to file a return, the court,
justice or judge shall proceed to hear the petition ex parte,
granting the petitioner such relief as the petition may
warrant unless the court in its discretion requires the
petitioner to submit evidence (Sec. 14)
Judgment
. After summary hearing the court shall render judgment
within 10 days from the time the petition is submitted for
decision. (Sec. 16)
Return of Service
The officer who executed the final judgment shall, within 3
court. The return shall contain a full statement of the
proceedings under the writ and a complete inventory of the
database or information, or documents and articles
inspected, updated, rectified, or deleted, with copies
served on the petitioner and the respondent. The officer
shall state in the return how the judgment was enforced
and complied with by the respondent, as well as all
objections of the parties regarding the manner and
regularity of the service of the writ. (Sec. 17)
Effect of Filing a Criminal Action
When a criminal action has been commenced, no separate
petition for the writ shall be flied. The reliefs under the writ
shall be available to an aggrieved party by motion in the
criminal case.(Sec.22)
Appeals
Any party may appeal from the Judgment or final order to
the SC under Rule 45 to raise questions of fact or law or
both. The period of appeal shall be 5 work days from date
of notice of the judgment or final order. It shall have the
same priority as habeas corpus and amparo cases. (Sec.
19)
WRIT OF KALIKASAN
The writ is a remedy ava!lable to a natural or juridical
person, entity authorized by law, people's organization,
, non-governmental organization, or any public interest
group accreditect by or registered with any government
agency, on behalf of persons whose constitutional right to
a balanced and healthful ecology is violated, or threatened
.--------------- ---·-·--· ··- .....

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

with violation by an unlawful act or omission of a public Reliefs available

official or employee. or private individual or entity. Involving
environmental damage of such magnitude as to prejudice •
the life, health or property of inhabitants in two or more
cities or provinces. (A.M. No. 09-06-08-SC Section 1, Rule
7).
Where to file
The petition shall be filed with the Supreme Court or with
any of the stations of the Court of Appeals. (A.M. No. 09-
06-08-SC Section 3, Rule 7).
·contents of the petition
A.The personal circumstances of the· petitioner;
B.The name and personal circumstances of the
respondent or If the name and personal circumstances
are unknown and uncertain, the respondent may be
described by an assumed appellation;
C. The environmental law, rule or regulation violated or
threatened to be violated, the act or omission
complained of, and the environmental damage of such
magnitude as to prejudice the life, health or property of
inhabitants in two or more citres or provinces.
D. All relevant and material evidence consisting of the
affidavits of witnesses, documentary evidence,
scientific or other expert studies, and if possible, object
evidence;
E. The certification of petitioner under oath that: (1)
petitioner has not commenced any action or filed any
claim involving the same issues in any court, tribunal
or quasi-judicial agency, and no such other action or
claim is pending therein; (12) if there Is such other
pending action or claim, a complete statement of its
present status; (3) If petitioner should learn that the
same or similar action or claim has been filed or is
pending. petitioner shall report to the court that fact
within five (5) days therefrom; and
F. The reliefs prayed for which may include a prayer for
the issuance of a TEPO. (A.M. No. 09-06-08-SC
Section 2, Rule 7).
Within 60 days from the time the petition is submitted for
decision, the court shall render judgment granting or
denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the
following:
(5) Directing respondent to permanently cease and desist
from committing acts or neglecting the performance of
a duty in violation of environmental laws resulting in
environmental destruction or damage;
(6) Directing the respondent public official, government
agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(7) Directing the respondent public official, government
agency, private person or entity to monitor strict
compliance with the decision and orders of the court;
(8) Directing the respondent public official, government
agency, or private person or entity to make periodic
reports on the execution of the final judgment; and
(9) Such other reliefs which relate to the right of the people
to a balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of . the
environment, except the award of damages to
individual petitioners. (A.M. No. 09-06-08-SC Section
15, Rule 7).
---- end of topic ---
~ ;::_ ..;

Within 3 days from the date of filing of the petition, if the

petition is sufficient in form and substance, th& court shall
give an order: (a) issuing the writ; and (b) requiring the
respondent to file a verified return as provided in Section 8
of this Rule. The clerk of court shall forthwith issue the writ
under the seal of the court including the issuance of a
cease and desist order and other temporary reliefs
effective until further order. (A.M. No. 09-06-08-SC Section
5, Rule 7).
. .._.·

,.
Page 152 of 320 -~. ,,.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

VII. CITIZENSHIP 3. Therefore, the provision on election of citizenship under

TOPIC OUTLINE UNDER THE SYLLABUS
A. Who are Filipino Citizens
B. Modes of Acquiring Citizenship
C. Loss and Re-acquisition of Philippine Citizenship
0. Dual Citizenship and Dual Allegiance
E. Foundlings
WHO ARE FILIPINO CIJIZENS
1. Those who are citizens of the Philippines at the time of
the adoption of the 1987 Constitution.
2. Those whose fathers or mothers are citizens of the
Philippines.
3. Those born before January 17, 1973 of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority.
4. Those who are naturalized in accordance with law.
(1987 Const, art. 4, § 1)
Rule for an illegitimate child of a foroign mother
If the father is unknown, follow the mother's citizenship.
..
"·.,. • If the father is known and is Filipino, the illegitimate child
is considered Filipino after proving the paternity.
(Tecson v. COMELEC, G.R. No. 161434, March 3,
2004)
' the 1987 Constitution only applies to those persons
who were born under the 1935 Constitution.
4. Ir. order for the children to elect Filipino citizenship, the
mothers must have been Filipinos at the time of their
rnarriaqe.
5. The election must be made within a reasonable period
after reaching the age of majority. (Cuenco v. Sec. of
Justice, 5 SCRA 108; Bernas, The 1987 Philippine
Constitutlon: A Comprehensive Reviewer, 2011)
NATURALIZATION AND OENATURALIZATION
Who are natural born citizens?
1. Citizens of the Philippines from birth who do not need
to perform any act to acquire Philippine citizenship
2. Those who elect Philippine citizenship
3. Repatriated (1987 Const, art. 4, § 2)
Effects of naturalization:
1. The legitimate minor children of the naturalized father
become Filipinos as well.
2. The wife also becomes a Filipino citizen, provided that
she does not have any disqualification which would bar
her from being naturalized.

Qualifications
MODES OF ACQUIRING CITIZENSHIP
1. Not less than twenty-one years of age on the day of
1. Jus Soll - Acquisition cf citizenship on the basis of
the hearing of the petition;
place of birth.
2. Resided in the Philippines for a continuous period of
2. Jus Sanguinis -Acqulsltlon of citizenship on the basis
1 C years or more;
of blood relationship.
3. Of good moral character; believes In the principles
3. Naturalization - the legal act of adopting an alien and
underlying the Philippine Constitution; conducted
clothing him with the privilege of a native-born citizen
himself in a proper and irreproachable manner during
(Tecson v, COMELEC, 424 SCRA 277; Bernas, The
the entire period of his residence towards the
1987 Philippine Constitution: A Comprehensive
government and community
Reviewer, 2011 ed.) ·
4. Must own real estate in the Philippines worth P5,000
,: ';
The Philippines follows jus sanguinis and naturalization. or more OR must have lucrative trade, profession, or
(.;)
lawful occupation;
Naturalization is a mode for both acquisition (governed by
CA 473) and reacquisition (governed by CA 63) of 5. Able to speak or write English or Spanish or anyone of
Philippine citizenship. · · the principal languages; and
6. Enrolled his minor children of school age in any of the
Election of Philippine citizenship recognized schools where Phhlppine history,
government and civics are taught or prescribed as part
1. Prior to the 1973 Constitution - If a Filipina married an
of the school curriculum, during the entire period of the
alien, she loses her Filipino citizenship. Hence, her
residence in the Philippines required of him. (Sec. 2,
child would have to elect Filipino citizenship upon
CA 473)
reaching the age of majority.
2. Under the 1973 Constitution - Children born of Filipino
mothers were already considered Filipinos.

: ~ Page 153 of 320

'~......,
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Special Qualifications 6. Express Renunciation of citizenship (C.A. No. 63, sec.

ANY will result to reduction of the to-vear period to 5 1)
years
1. Having honorably held office under the Government of Modes of re-acquiring citizenship (CoRN):
the Philippines or under that of any of the provinces, 1. Direct act of Congress
cities, municipalities, or political subdivisions thereof; 2. Naturalization · .
2. Established a new industry or introduced a useful 3. Repatriation (C.A. No. 63, sec. 2)
Invention in the Philippines;
3. Married to a Filipino woman;
Repatriation
4. Engaged as a teacher in the Philippines in a public or
recognized private school not established for the Natural-torn Filipinos who are deemed to have lost their
exclusive instruction of children of persons of a citizenship may re-acquire the same via repatriation
particular nationality or race. in any of the branches of proceedings. This involves taking an oath of allegiance and
education or industry for a period of 2 years or more; fifing the same with the civil registry. (C.A. No. 63, sec. 4)
or
Repatriation is not a matter of right, but it is a privilege
5. Born in the Philippines (Sec. 3, C.A. 473).
granted by the State. The State has the power to prescribe
by law the qualifications, procedure, and requirements for
Direct Naturalization Derivative repatriation. It has the power to detennine if an applicant
Natura llzation for repatriation meets the requirements of the law for it is
an inherent power of the State to choose who will be its
Citizenship is acquired by an Citizenship conferred
citizens, and who can reacquire citizenship once it is lost.
alien through: on:
(Tabasa v. CA, G.R. No. 125793, August 29, 2006)
1. Judicial naturalization 1. Wife of naturalized
under CA 473 husband As distinguished from the lengthy process of naturalization,
2. Administrative 2. Minor children of repatriation simply consists of the takir.g of an oath of
naturalization under RA naturalized person allegfance to the Republic of the · Philippines and
9139 3. Alien woman upon registering said oath in the Local Civil Regi&try of the place.
3. Legislative naturalization marriage to a where the person concerned resides or last resided. He
in the form of a law national would not even need to fife a petition in court. (See
enacted by Congress, Bengson IB v. HRET, G.R. No.142840, 2007)
bestowing Philippine
citizenship to an alien. RA 9255 v. RA 8171
RA 9225 ,·'
LOSS AND RE-ACQUISITION OF PHILIPPINE (Citizen Retention and
RA 8171 t......~
CITIZENSHIP (Repatriation)
Re-acquisition Act)
r:
t, _.)

Marriage of a Filipino with an alien Citizens who lost their The only persons entitled lo
citizenship by rear.on of · repatriation are the
General Rule: The Filipino retains Philippine citizenship their naturalization as following:
Exception: By their act or omission they are deemed, citizens of a foreign 1. Filipino women who lost
under the law, to have renounced it. (1987 Const, art. 4, § country are deemed to their Philippine ()
4) have reacquired their citizenship by marriage
<
Philippine citizenship to aliens 'f.... /

How citizenship is lost: (CANDOR) upon taking the oath of 2. Natural-born Filipinos,
allegiance. including their minor
1. Cancellation of certificates of naturalization children who lost their
2. Serving in the Armed forces of an enemy country Philippine citizenship on t ._,
\ __i
3. Naturalizationin a foreign country account of political or
4. Being a Deserter of the armed forces of the country economic necessity
5. By subscribing to an Oath of allegiance to the laws or
constitution of a foreign country '

Page 154 of 320 .. .. .,.

1 •• --· • --- "

 ATENEO CENTRAL
BAR OPERATIONS 2019
Exception to those entitled to be repatriated: (OVM2)
1. Person Opposed to organized government or affiliated
with any association or group of persons who uphold
and teach doctrines opposing organized government;
2. Person defendinq or teaching the necessity or propriety
of Violence, personal assault, or association for the
predominance of their ideas;
3. Person convicted of crimes involving Moral turpitude;
or
4. Person suffering from Mental alienation or incurable
contagious diseases.
The Court held that the Constitutional Commission
provided for an exception to the actual residency
requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in effect declared that
qualified Filipinos who are not in the Philippines may be
allowed to vote even though they do not satisfy the
residency requirement in Section 1, Article V of the
Constitution. (Loida Nicolas-Lewis v. COMELEC, G.R. No.
162759, August 4, 2006, citing Macalintal v. COMELEC)
Reckoning point of determining or establishing the
. . ...
domicile of a person who was repatri&ted under R.A.
No. 9225
The domicile is not established strictly from the time that a
person was repatriated under R.A. No. 9225. The Court
said that other evidence may be admitted to determine the
time that domicile is established. Also, Issue of residence
could be decided particularly on the facts-of-the-case
basis, as what would a series of jurisprudence would also
dictate. Hence, domicile cannot strictly be established only
from a person's repatriation. (Poe-Llamanzares v.
Comelec et al., G.R. Nos. 221697 & 221698-700, March 8,
! ·... 2016)
DUAL CITIZENSHIP AND DUAL ALLEGIANCE
Derivative Citizenship
The unmarried child {whether legitimate, illegitimate or
adopted) below 18 years old of those who re-acquired the
citizenship shall likewis3 be deemed as citizens of the
Philippines. (RA 9225,.sec. 4)
R.A. 9225 provides that a Filipino who has previously
renounced his Filipino citizenship can reacquire it without
renouncing his foreign citizenship. Likewise, a Filipino who
acquires foreign citizenship after the effectivity of RA.
9225 retains his Filipino citizenship. R.A. 9225 is a law .
about dual citizenship not dual allegiance. (AASJS v.
!~ :
'·, ...; Datumanong, G.R. No. 160869, May 11, 2007)
,! i Page 155 of 320
<.....~
-----------~----~--------
POLITICAL LAW
R.A. 9225, however, requires that those who acquired dual
citizenship must specifically renounce foreign citizenship
upon filing of candidacy.
Dual Citizenship v. Dual Allegiance
DUAL CITIZENSHIP DUAL ALLEGIANCE
Result of the concurrent A person simultaneously
application of the laws of owes, by some positive
two or more states, a person act, loyalty to two or more
is simultaneousiy states.
considered a citizen of
those states.
'
Involuntary and legal Voluntary and illegal
~·
Unlike those with dual allegiance, who must, therefore, be
subject to strict process with respect to the termination of
their status, for candidates with dual citizenship, it should
suffice if, upon the filing of their certificates of candidacy,
they elect Philippine citizenship to terminate their status as
persons with dual citizenship considering that their
condition is the unavoldable consequence of conflicting
laws of different states. (Mercado v, Manzano, G.R. No.
135083. May 26, 1999)
The continued use of foreign passport render the
renunciation of foreign citizenship nugatory. The
renunciation of foreign citizenship must be complete and
unequivocal. The requirement that the renunciation must
be made through an oath emphasizes the solemn duty of
the one making the oath of renunciation to remain true to
what he has sworn to. Allowing the subsequent use of a
foreign passport because it is convenient for the person to
do so is rendering the oath a hollow act. It devalues the act
of taking of an oath, reducing it to a msre ceremonial
formality. (Maquiling v. COMELEC, G.R. No. 195649,
2013).
FOUNDLINGS
As a matter of law, foundlings are, as a class, natural-born
citizens. While the 193~ Constitution's enumeration is
silent as to foundlings, there is no restrictive language
which would definitely exclude foundlings either. No such
intent or language permits discrimination against
foundlings. On the contrary, all three Constitutions (1935,
1973, 1987) guarantee the basic right to equal protection
of the laws. All exhort the State to render social justice
(Poe-Llamanzares v. COMELEC, G.R. No. 221697 2016).
-·--···
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

VIII. LAW ON PUBLIC OFFICERS GENERAL PRINCIPLF.S

TOPIC OUTLINE UNDER THE SYLLABUS Public Office

The right, authorily, and duty created and conferred by law,.
A. General principles by which for c: given period, either fixed by law or enduring
B. Modes of acquiring title to public office at the pleasure of the appointing power, an individual is
C. Kinds of appointment ' invested with some portion of the sovereign functions of
D. Eligibility and qualification requirements the government, ·to be exercised by him for the benefit of
E. Disabilities and lnhibitlons of public officers the public. (Agpalo, Administrative Law, Law on Public
F. Rights and liabilities of public officers Officers and Election Law, 247-48, 2005)
G. De facto vs. de jure officers
H. Termination of official relation Law on Public Officers . .
I. The Civil Service This branch of law deals with public office, its creation,
J. Personnel actions modification and dissolution, as well as the eligibility of
K. Accountability of public officers public officers, the manner of their election or appointment
1. Discipline and assumption of office, their rights.· duties, powers,
a. Grounds inhibitions, and liabilities and the modes of terminating their
b. Jurisdiction official relations.
c. Di~missal, prevennve suspension,
remstatement and back salaries Public Office Refers to Either Two Concepts:
d. Condonation doctrine 1. Functional unit of government - It is within the
2. Impeachment framework of government organization, and refers
3. The Ombudsman to any major functional unit of a department or
a. Functions bureau including regional office.
b. Judicial rt.view in penal proceedings 2. Position - Held by an individual whose functions
4. Office of the Special Prosecutor are defined by law or regulation (Agpalo,
5. The Sa11diganbayan Administrative Law, Law on Public Officers and ·
Election Law, 247, 2005)

Public Office Not ~ Property Right

It is not a property right but a protected right. It cannot be
taken from its incumbent without due process. It is property
In the broad sense since the right to hold office includes
everything o~ pecuniary value to its possessor. The right to
pu?hc ?ffice rs protected by the right to security of tenure,
which rs guaranteed by the Constitution. A public office is
personal to the public officer and is not transmissible to his
heirs upon his death. No heir may be allowed to continue
holding his office in his place. (Segovia v, Noel, 47 Phil.
543, 1925)
.: :.
How created: 'C,_,j

1. By the Constitution (e.~. Office of the President)

' 2. By valid statutory enactments (e.g. Office of the
lnsurance Comrnissloner)
(: ·,
3. By authority of the law (e.g. the Davide Commission) ,_ ;,•

Essential characteristics of "public office:" .{ .-

!.;.._ i}
1. Authority conferred by law;
2. Fixed tenure of office;
3. Power to exercise some of the sovereign functions of
government; . .· -,
4. Key element of such test is t.hat "officer ts carrying out \.J;
a sovereign function;"
' >
5. Essential elements to establish public position as i:._'.,
"public office" are:

Page 156 of 320 { ...

·-------------- ... ·-"

 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

a. Position must be created by Constitution,
legislature, or through authority conferred by
legislature;
b. Portion of sovereign power of government
must be· delegated to position;
c. Duties and powers must be defined, direcUy or
impliedly, by legislature or through legislative
authority;
d. Duties must be performed independenUy
without control of superior power other than
law; and · agencies, divisions, subdivisions, or instrumentalities.
e. Position must have some permanency.
amount. (Code of Conduct and Ethical Standards of Public
Officers)
Officer means any person holding any public office in the
govt. of the RP by virtue of an appointment, election, or
contract (executed bet. private person and government.
(RA 7000)
Employee
A person in the service of govemmont 01 any of its
(1987 Administrative Code)

Elements of Public Office: (LSCIP)

1. Created by Law or by authority of law;
2. Possesses a delegation of portion of Sovereign
powers of government, for benefit of the public;
3. Powers conferred and duties imposed defined by
Constitution, legislature, or by its authority:
4. Duties performed Independently and only controlled by
law unless placed under geneml control of superior
office or body; · 3. Greater liability to account for mlsteasance or
5. Permanent or continuous. {State v, Taylor, 144 N.W.
2d. 289, 1966; Javier v, Sandlganbayan, G.R. 147026-
27, 2009).
Public Officer v. Employee, Distinguished
An officer is distinguishable from a mere employee in the
sense that:
1. Position has greater importance, dignity and
independence
2. Required to take an official oath, and to give an official
bond;
nonfeasance in office;
4. Tenure of office Is usually different from that of an
ordinary employee

Public Officer v. Employee, Definitions Classifications of Public Officer

, 1. Constitutional or statutory
Public Officer 2. National or local
A person whose duties, not being clerical in nature, 3. Legislative, executive or judicial
involves the exercise of discretion in the performance of 4. t-ucratlve or honorary
the functions of the government when used with reference 5. Discretionary or ministerial
to a person having authority to do a pertlcular act or· 6. Appointive or elective
perform a particular function in the exercise of government 7. Civil or military
power, officer includes any government employee, agent, 8. De jure or de facto
or body having authority to do so the act or exercise that
function. {1987 Administrative Code) MODES or
ACQUIRING
TITLE TO PUBLIC OFFICE
Any person, by direct supervision of the law, popular
election, or appointment by competent authority, shall take Appointment
part in the performance of public functions in the RP or The act of designation by the executive officer, board, or
shall perform in said government or for any of its branches body to whom that power has been delegated, of the
public duties as an employee, agent, or subordinate individual who is to exercise the powers and functions of a
official, of any rank or class. Temporary performance of given office. It is to be distinguished from the selection or
public function is sufficient to constitute a person a public designation by a popular vote.
official. (RPC, art. 203)
Designation
Includes elective and appointive officials and employees, The mere imposition of new or additional duties upon an
permanent or temporary, whether i11 the classified or officer to be performed by him in a special manner. It
unclassified or exempt service (non-career or career). presupposes that the officer is already in the service by
receivirq compensation, even nominal, from the virtue of an earlier appointment, performing other
!'.' •• government. (Anti-Graft and Corrupt Practices Act) functions.
::..;,_.!,.,

Includes elective and appointive officials and employees, Election

permanent or temporary, whether In the career or non- The act of selecting or choosing a person by popular vote
career service, including military and police personnel. to occupy the office.
( . whether or not they receive compensation, regardless of
·:.....;.
. ' Page 157 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Commission 4. Acceptance by the appointee

It is the written evidence of appointment. 5. Oath and assumption

Appointment v Desianatlon Ad interim appointments are made while Congress is

APPOINTMENT DESIGNATION
As to nature
Executive, Irrevocable Legislative, revocable
As to Effect
Selection of an individual Mere imposition by law of
who is to exercise the additional duties on an
functions of a given office incumbent official
Results in securlty of Does not result in security
tenure when completed of tenure
NOT in sesston or during its recess, whether such recess
is voluntary (before adlournment) or compulsory (when
Congress adjourns). The appointment shall cease to be
effective upon rejection by the COA, or if not acted upon,
at the adjournment of the next session of Congress,
whether regular or special. ·
Temporary or acting appointments are those which last
until a permanent appointment Is issued. The Commission
on Appointments cannot confirm their appointments
because conflrrnatlon presupposes a valid nomination or
ad-interim appointment. Thus, the appointee has no
personality to bring a quo warranto proceedmq because he
is not entitled to office. .

Can be subject of a protest Cannot be subject of a Steps In an ad-Interim appointment (AIAC)

before the CSC protest before the CSC 1. Appointment by the appointing authority
2. Issuance of the commission
As to Effectivity 3. Acceptance by the appointee
4. Confirmation by the CA
connoted permanency implies temporariness
Steps for appointments that do not require
'·~ .
_;

Nature of Appointments confirmation: (AIA)

It is essentially a discretionary power and cannot be
delegated, it must be performed by the officer upon whom
it is vested according to his best lights, the only condition '
bein~ that the appointee should possess the qualifications
required be law. If he does, then the appointment cannot
be faulted on the ground that there are others better
qualified who should have been preferred .(Luego v. Civil
Service Commission, GR No 69137, August 5, 1986)
Requisites for a Valid appointment
1. Position is vacant
2. The appointing authority must be vested with the
power to appoint at the time appointment is made;
3. The appointee should possess all the qualifications
including appropriate civil service eligibility and non of
the disqualifications;
4. The appointee accepts the appointment by taking the
oath and entering into discharge of duty (Garces v. CA,
GR No. 114795, July 17, 1996)
Steps in a regular appointment (NCIAO)
1. Nomination by President
2. Confirmation by Commission on Appointments (In
case of Presidential appointments, this confirmation
applies only to numbers 1 to 5 in the list of Officers that
the President shall appoint (see below))
3. Issuance of the cornmission or the written authority
from a competent source given to the officer as his
warrantfor the exercise of the powers and duties of the
office to which he is commissioned. ·
1. Appointment by the appointing authority
2. Issuance of the commission
3. Acceptance by the appointee .
Absolute Appolntment v. Confirmation Required
_It Is long settled In the law that where the power of
appointment is absolute, and the appointee has been
determined upon, no further consent or approval is
necessary, and the formal evidence ot the appointment,
the commission, may issue at once. However, where the ;~_:·
assent or confirmation of some other officer or body is
required, the commission can issue or the appointment
may be complete only when such assent or confirmation Is
obtained. In either case, the appointment becomes
complete when the last act required of th& appointing
power is performed. Until the process is completed, the ' '
appointee can claim no vested right in the office nor invoke '-...:J
security of tenure. (Corpuz v. CA, G.R. 123989, 1998)
Whe(e the power of appointment is absolute and the
appointee has been determined upon, no further consent
or approval is necessary anti the formal evidence of the
appointment, the commission, may issue at once. The
appointment is deemed complete once the last act
required of the appointing authority has been complied
with. A written memorial that can render title to public office
indubitable is required. This written memorial is known as
the commission. For purposes of appointments to the
judiciary, therefore, the date the commission has been f
signed by the President Is the date of the appointment. . . ....
Such date will determine the seniority of the members of l ....

Page 158 of 320 1. -

 ATENEO CENTRAL
BAR OPERATIONS 2019
~------~----~--------------~----------------------------------------------------·
the Court of Appeals in connection with Section 3, Chapter
is dependent upon the pleasure of the
I of BP 129, as amended by RA 8246. In other words, the
earlier the date of the commission of an appointee, the
more senior he is over the other subsequent appointees.
(Re: Seniority among the four most recent appointments to
the position of Associate Justices of the Court of Appeals,
A.M. 10-4-22-SC, 2010)
Modes and Kinds of Appointment
General Rule: Acceptance of appointment is not
necessary for the completion or validity of appointment.
Exception: Acceptance is necessary to possession of
office, and to enable appointee to the enjoyment and
responsibility of an office.
General Rule: An appointment to an office, once made
and complete, is !10t subject to reconsideration or
revocation.
Exception: An officer is removable at the will of the
appointing power.
Acceptance may be express when it is done verbally 01· in
writing. Acceptance is implied when, without formal
acceptance, the appointee enters upon the exercise of the
duties and functions of an .office.
KINDS OF APPOINTMENT
Kinds of Appointment under the Civil Service Law
1. Permanent appointments - Issued to a person who
meets all the requirements for the position to which he
is being appointed, including the appropriate eligibility
prescribed, in accordance with the provisions of the
. laws, rules, and standards promulqated in pursuance
thereof.
2. Temporary appointments - issued in the absence of
any eligibles, when necessary to public interest, in
.,,_. . ·~
order to fill a vacancy with a person who meets all the
requirements for the position to ·Nhich he/she is being
appointed, except the appropriate civil service
eligibility.
• Appointment in an acting capacity is merely
temporary, one which is good only until another
appointment is made to take its place
• Temporary appointments shall not exceed 12
months.
o The appointee may be replaced sooner if a
qualified civil service eligible becomes
~~
~· l,
:.
available.
'I._ ....} o Where a tempcrary appointee acquires civil
[ ... service eligibility during his tenure as such,
\,..) his temporary appointment does not thereby
automatically become permanent. What is
required is a new appointment.
o Temporary appointment given to a non-civil
''. ,· service eligible is without a definite tenure and
Page 159 of 320
POLITICAL LAW
appointing power.
o Acquisition of civil service eligibility during
tenure of a temporary appointee does not
necessarily translate to permanent
appointment. A new appointment which is
permanent is necessary. (Province of
Camarines Surv. CA, G.R. No.104639, 1995)
o Power of Priesident to make temporary
appointment: The President may temporarily
designate an officer already in the government
service or any other competent person to
perform the functions of an office in the
executive branch, appointment to which is
vested in him by law, when:
1. The officer regularly appointed to the
office is unable to perform his duties by
reason of illness, absence or any other
cause; or
2. there exists a vacancy
• Instances of Temporary Appointment
1. appointee does not possess civil service
eligibility
2. appointment by the President in an
executive office during the absence or
incapacity of the incumbent
3. designation as officer in charge
4. appointment held at the pleasure of the
appointing power
. 3. Regular Appol ntment - made by the President while
Congress is in session and becomes effective after the
nomination is confirmed by the Commission on
Appointments.
4. Provisional appointment - A person who has not
qualified in an appropriate examination but who
otherwise meets the requirements for appointment to
a regular position in the competitive service, whenever
a vacancy occurs and the filling thereof is necessary in
the interest of the servlce and there is no appropriate
register of eligibles at the time of appointment.
5. ~d Interim Appointment- it is made while Congress
is not in session, before confirmation by the CA; it is
immediately effective, and ceases to be valid if
disapproved or by-passed by the CA or until the next
adjournment of the Congress.
6. Midnight Appointment - made by the President or
acting president within 2 months immediately before
the next presidential elections and up to the end of his
term, whether or not it is confirmed by the Commission.
ATENEO CENTRAL
BAR OPERATIONS 2019
Officers that the President Shall Appoint: (E-MA2C-
JC2AR-NL2)
1. Heads of Executive departments
2. Ambassadors
3. Other public Ministers and consuls
4. Officers of the Armed forces from the rank of colonel
or naval captain
5. Other officers whose appointment are vested in him in
the Constitution
a. Regular members of the Judicial and Bar
Council
b. The Chairman and Commissioners: of the Civil
Service Cornmisslon
c. The Chairman and Commissioners cf the
COMELEC
d. The Chairman and Commissioners of the
Commission on Audit ' Exceptions: (CTAP)
e. Members of the Regional Oonsultatlve
Commission
6. Officers whose appointments are Not otherwise
provided for by law
7. Officers whom the president may be authorized by Law
to appoint
8. Officers Lower in rank whose appointments the
Congress, by law, vested in the President
Constitutional Limitations on the Presidential Power to
Appoint:
1. Nepotism (see discussion and exceptions below)
2. Midnight appointments
3. Those relating to an Acting President {Sections 13, 14
and 15 of Art. VII}
The constitutional limitations refer to appointments in the
executive and not the judicial branch of government. (De
Castro v. JBC, C.R. 191002, 2010)
Revocability of Appointment
General Rule: Appointment to an office once made and
completed, is not subject to reconsideration or revocation
because revocation after a complete appointment Is
tantamount to removal.
Exception: Where the appointment is temporary. (Ong v.
Office of the President, GR No 184219, January 30, 2012)
Nepotism
Since a public office is a public trust, created for the benefit
and in the interest of the peoole, appointments thereto
should be based solely on merit and fitness uninfluenced
by any personal or filial consideration.
1. The Constitution prohibits the president from
appointing his close relatives (within the 4th civil
degree by consanguinity or affinity to the president or
his spouse) to high positions In government during his
tenure. No relative of the President, within the 4th civil
degree, shall be appointed to/as:
a. Constitutional Commission
Page 160 of 320
POLITICAL LAW
b. The Office of the Ombudsman.
c. Secretary of a Department
d. Undersecretary of a Department
e. Chairman or Head of Bureaus of Offices
f. Any GOCC
g. Any GOCC subsidiary ·
2. Under the Civil Service Decree, all appointments in the
national, provincial, city, and municipal governments
or in any branch or instrumentality, including GOCCs,
made in favor of the appointing or recommending
authority, or of the chief of the bureau of the office, or
of persons exercising supervision over him, are
prohibited. As used In the Civil Service Law, the term
"relative" and members of the family referred to those
within the 3rd degree of consenquinlty or affinity.
1. Persons employed in Confidential capacity
2. Teachers
3. Physicians
4. Members of AFP
The restriction shall not be applicable to any member who,
after his or her appointment to any position in an office or
bureau, contracts marriage with someone in the same
office or bureau. In this event, the employment or retention
therein of both husband and wife may be allowed.
The mere issuance of appointment in favor of a relative
within the third degree of consanguinity or affinity is
sufficient to constitute nepotism. Also, even if the case is
one of falsification of public document, the requirement of
disclosure of relationship to the appointing power in the
local government units simply aims to ensure strict
. enforcement of the prohibition against nepotism. {Galeos
v. People, G.R. 174730-37, 2011)
The rule on nepotism also applies to designations made in
favor of a relative of the authority making a designation. A
designation accomplishes the same purpose · as
• appointment. (Laurel v. Civil Service Commission, G.R.
No. 71562, 1991)
Vacancy
There is a vacancy when an office is empty and without a
legally quallfied incumbent appointed or elected to it with a
lawful right to exercise its powers and perform its duties.
There can be no appointment to a non-vacant position. ....._ ......
CAUSES: (I RACED PAR2C)
1. Impeachment
2. Removal from office or resignation of the incumbent
3. Abandonment
4. Conviction of a crime
5. Expiration of term
6. Death
7. Permanent disability
8. Acceptance of incompatible office
.....
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

9. Reaching the age limit for judgment or discretion.

10. Recall
11. Creation of a new office It is susceptible of General Rule: It cannot be
delegation and can be deleqated to another
For appointments not needing confirmation, removal may compelled by judicial Exception: Power 0f the
be by President or officer designated by law. If the action. President to conclude
appointment is permanent, removal is allowed only for treaties may be assigned
cause. to a treaty panel, which
can negotiate the treaty on
Pri.nciples of Vacancy his behalf, under his
1. A person no matter how qualifiecl cannot be instructions and subject to
appointed to an office which is not vacant (Costin his approval.
v Quimbo, GR No 32271, January 27, 1983)
2. · One who is legally dismissed from office is, by
fiction of law, deemed not to have vacated his Ministerial v. Discretionary Powers:
office (Femendez v Cuneta, GR No 14392, May Constitutional Duties of Public Officers
30, 1960) . 1. Tc be accountable to the people, to serve them with
utmost responsibility, Integrity, loyalty, and efficiency;
Powers and Duties af Public Officers to act with patriotism and justice; and to lead modest
Extent of Powers lives;
1. Expressly conferred upon him by the law under 1. 498.Submit a declaration under oath of assets,
which he has been appointed or elected liabilities, and net wort~ upon assumption of officer and
2. Expressly annexed to the office by tile law which thereafter as may be required;
created it or some other law referring to it 2. 499.0we the State and Constitution allegiance at
3. Attached to t:,e office as an incident to it all times.

Duties of Public officers, In General

Consequence of Holding Office 1. Duty to obey the law
To hold an office means to possess or to occupy the office, 2. Duty to accept and continue ir. office;
or to be in possession and administration of the office, 3. Duty to accept burden of office;
which implies nothin9 less that" the actual discharge of the 4. Duty as to diligence and care in the performance of
functions and duties of the office. (Funa v. Agra, G.R. official duties; ·
191644, 2013) 5. Duty in choice and supervision of subordinates;
6. Duty to perform official acts honestly, faithfully, and to
Doctrine of necessary implication the best of his ability; .
All powers necessary to the exercise of the power 7. Duty not to use his official power to further his own
•; r. expressly granted are deemed impliedly granted. The fact interest
that a particular power has not been expressly conferred
f·,:.,,.,,;··~. does not necessarily mean that it Is not possessed by the Territorial Limitation and Duration of Authority
officer claiming it. The authority of all public officers is limited and confined to
that territory over which the law, by virtue of which they
":, .- claim, has sovereign force. The authority is limited in its
DISCRETIONARY exercise to that term during which he is by law invested
MINISTERIAL POWERS
POWERS . with the rights and duties of the office.
When it is absolute, When it requires the Alter Ego Principle
certain, and imperative exercise of reason and The acts of the Secretaries of the departments, performed
involving merely execution discretion in determining and promulgated in the reqular course of business are ,
of a specific duty arising how or whether the act unless disapproved or reprobated by the President,
from fixed and designated shall be done or the course
presumptively the acts of the President. (Carpio v
facts. pursued. Executive Secretary, GR No 96409, February 14, 1992)
Note: The law exacting its Note: . The officer is
discharge prescribes and expected to discharge the
defines the time, mode, duty directly and not
and occasion of its through the intervening
'~ }
performance with such mind of another.
·,...; certainty that nothing is left

·,~_.r Page 161 of 320

'., ..::

. ,;
 ATENEO CENTRAL
BAR OPERATIONS 2019
Limits of the Alter Ego Doctrine
There are certain powers that are reserved to the President
which cannot be exercised by the Secretaries of the -,
departments such as:
1. Declaration of Martial Law
2. Suspension of the privilege of writ of habeas corpus
3. Pardoning Power;
4. Purely discretionary powers
Principle of Hold-Over
In the absence of any express of implied constitutional or
statutory provision to the contrary, the public officer is
entiUed to hold office untii his successor shall have been
duly chosen and stiall have qualified.( Lecaroz v.
Sandiganbayan, GR No 130872, March25, 1999)
Effect when law fixes specific date for the end of a term
When the law fixes a specific date for the end of the term,
there is an implied prohlhition against hold-over (Nueno v
Angeles. GR no 89, Febn,ary 1, 1946)
Nature of Officer during Hold-Over
During the period of hold-over, the public officer is a de jure
officer (Bautista v Fajardo, GR No 1 ~799, September 23,
1918)
Classifications of Powers and Duties
As to their Nature
1. Ministerial - the law exacting its discharge prescribes
and defines the time, mode and occasion of its
performance and requires neither judgment nor
discretion. This kind of duty is susceptible of
delegatton.
2. Dtscretlonary-s- a public officer has the right to decide
how and when the duty sh,t1II be performed. A public
officer cannot delegate this kind of duty.
General Rule: Mandamus will not lie for the performance
of a discretionary duty
Exceptions:
a. When the discretion granted is only as to the manner
of its exercise and not the discretion to act or not to act,
the court may require a general action
b. Grave abuse of discretion
As to the obligation of the officer to perform his powers and
duties .
1. Mandatory-· where the provisions of a statute relating
to public officers are intended for the protection of the
citizen and to prevent a sacrifice of his property, and
by a disregard of such provision, his rights might be
and generally would be injuriously affected
2. Permissive - statutes define the time and mode in
which the public officers will discharge their duties, and
those which are obviously designed merely to secure
Pag1:1 162 of 320
'-------------··· ... -·-···
POLITICAL LAW
order, uniformity, system and dispatch in public
business.
As to the relationship of the officer to his subordinates
1. Power of Control - power of an officer to manage,
direct or govern, including the power to alter or modify
or set aside what a subordinate had done in the
performance of his duties and to substitute his
judgment for that of the latter
2. Power of Supervision - it is the power of mere
oversight over an inferior body and does not include
any restraining authority over such body. The officer
merely sees to it that rules are followed but he himself
does not lay down such n.. les, nor does he have the
discretion to modify or replace them.
ELIGIBILITY AND QUAI.IFICATION REQUIREMENTS
Eligibility
state of being legally fit to be chosen.
Eligible
Under the Admln Code, it is used to refer to a person who
obtains a passing grade in a civil service examination and
whose name is entered in the regbter of eligibles from
which appointments must be made. (ADMIN CODE, Book
V, TITLE 1-a, sEC.5, pAR. (8))
Nature of right to hold Public Office
The right to hold public office is not a natural right. It exists
only because and by virtue of some law expressly or
impliedly creating and conferring it.
The qualifications which relate to an office must be
complied with by persons seeking that office. An election
or appointment to office of a person who is ineligible or
unqualified gives him no right to hold the office. ',_
Qualification r :..
·. . . ..
'\
acts which a person is required to do before entering upon
position. Means two things:
1. Endowments, qualities, or attributes that make an
individual eligible for public office
2: Act of entering into performance of public office
.,.........
 A TENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Two Meaninas of Qualification: An officer who misrepresented his or her qualification, e.g.
·. educational attainment and eligibility for government
WHEN REFERRING TO
WHEN USED IN service, is guilty c,f plain and simple dishonesty as it refers
T~~ THE ACT OF ENTERING to the act of intentionally making a false statement on any
SENSE
INTO THE material fact in securing one's appointment. (Momongan v.
ENDOWMENTS,
OR PERFORMANCE OF THE Surnayo, A.M. No. P-10-2767, 2011)
QUALITIES
FUNCTIONS OF A
ATTRIBUTES
PUBLIC OFFICE All public officers and employees shall take an oath or
affirmation to uphold and defend the Constitution. (Phil.
The individual must Failure of an officer to
Const., art. IX-B, § 4)
possess the qualifications perform an act required by
at the time of appointment law could affect the Limits on Legislature's Power to Prescribe
or election and officer's title to the office.
Qualifica!ions:
continuously for as long as
1. The legislature may not reduce or increase the
the official relationship Note:
qualifications prescribed in an exclusive manner by the
continues. • Prolonged failure or
Constitution.
refusal to take the
2. The legislature may prescribe only general
Note: office coul :! result in
qualifications.
• Property qualiticatlons forfeiture of office. 3. The qualifications must be relevant to the office for
may not be imposed for • An oath of office taken which they are prescribed.
the exercise of the right before one who has no
to run for public office. authority to administer
Where a person is prohibited from holding two offices at
• Loss of any of the oath is no oath at all.
the same time, his appointment or election to a second
qualifications during • Once proclaimed and
office may operate to vacate the first or he may be ineligible
incumbency will be a duly sworn in office, a
for the second.
ground for termination. public officer is entitled
to assume office and to A person who accepts and qualifies for a second and
exercise the. functions
incompatible office is deemed to vacate, or by implication,
thereof. The penciency
to resign from the first office. The same rule obtains where
of an election protest is the holding of more than one position is prohibited by
not sufficient basis to
constitutional or statutory provision although the second
enjoin him from
position is not incompatible with the first.
assuming office.
In the absence of constitutional inhibition, Congress has
Formal Qualifications: (CAP CARES) the same right to provide disqualifications that it has to
1. Citizenship provide qualifications for office.
2. Age
3. Political affiliation Those Prescribe db>V the c ons tltI u ti on
4. Civil service examination
POSITION QUALIFICATIONS
5. Ability to read and write
· 6. Residence
1. A natural-born citizen of the
7. Education
Philippines
8. Suffrage
2. A registefed voter
3. Able to read and write
Only accountable public officers or those who are
. entrusted with the collection and custody of public money,
President and 4. At least 40 years of age on the
Vice President day of the election; and
and public ministerial officers whose actions may aff~ct the
rights and interests of individuals are required to grve an
5. A resident of the Philippines
for at least 10 years
official bond. ·
immediately preceding such
election.
Improper notarization is not among the grounds for
disqualification as stated under the OEC and ~GC. Apart
1. A natural-born citizen of the
from the qualific;ations provided for in the Constitution, ~he Philippines
power to prescribe additional qualiflcatlons for elective
2. On the day of the election, is at
.:.. ..•
\'
·
:':!
office and grounds for disqualification therefrom, Senators
least 35 years of age
consistent with the constitutional provisions, is vested in
3. Able to read and write
Conqress. (Amara v. COMELEC, G.R. 19228, 2011)
4. A registered voter; and

..
'• .:
Page 16~ of 320

'·· ;,

.l
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

5. 5. A resident of the Philippines 5. · However, a majority thereof,

for not less than 2 years including the Chairman, shall
immediately preceding the day be members of the Philippine
of the election. Bar who have been engaged
in the practice of law. for at
1. A natural-born citizen of the least 10 years.
Philippines
2. On the day of the election, is at 1. A natural-born citizens of the
least 25 years of agP. Phil;ppines
3. Able to read and write 2. At the time of their
Members of the 4. Except the party-list appointment, at least 35 years
House of representatives, a registered of age
Representatives voter in the district in which he 3. Certified Public Accountants
shall be elected; and with not less than 1 O years of
5. A resident thereof for a period auditing experience, or
· of not less than 1 year members of the Philippine Bar
Chairman and the
immediately preceding the day who have been engaged in the
Commissioners
of the election. practice of law for at least 10
of the COA
years; and
1. A natural-born citizen of the 4. Must not · have been
Philippines candidates for any elective
2. A Men;iber of the SC must be position in the elections
at lease40 years of age; and immediately preceding their
3. Must have been for 15 years or appoint,nent .
Members of the more, a judge of a lower court 5. At no time shall all Members of
SC and lower or engaged in the practice of the Commission belong to the
collegiate court law in the Philippines. same profession.
4 4. A member of the judiciary
must be a person of proven 1. Natural-born citizens of the
competence, integrity, probity Philippines; and
ar.d independence. (1987 2. A majority of whom shall be
Chairman and
Const/, art. VIII, sec. 7(3)) members of the Bar.
Members of the
Commission on
3 The term of office and other
1. Natural-born citizens of the qualifications and disabilities
Phillppines and Human Rights
of the Members of the
2. At the time cf their Commission shall be provided
appointment, at least 35 years bylaw.
Chairman and the of age
Commissioners 3. With proven capacity for public
r:
\ __..

of the CSC administration; and

CIISABILITIES AND INHIBITIONS r .
I 4. 4. Must not have been
candidates for any elective OF PUBLIC OFFICERS
position in the elections
immediately preceding their Disqualification
appointment. It is the presence of circumstances and qualities which
,, . ~-~.
.t" "::
makes an individual ineligible from holding a public office. (

·1. Natural-born citizens of the Lack of disqualifications is it~elf a qualification.

Philippines and
2. At the time of their Disqualifications: (IM RIPE C20RN LG)
appointment, at least 35 years 1. Mental or physical Incapacity
Chairman and the of age 2. Misconduct or crime
Commissioners 3. Holders of a college deqree; 3. Removal or suspension from office
of the COA and 4. Impeachment
4. Must not have been
candidates for any elective
5. Previous tenure of office
6. Being an Elective official
(,_:., :,
positions in the immediately , 7. consecuuve terms
l -.
preceding elections 8. Having been a Candidate for any elective position (...,!•'
9. Holding more than One office
Page 164 of 320

ATENEO CENTRAL
BAR OPERATIONS 2019
10. Relationship with the appointing power
11. Office Newly created or the emoluments of which have
been increased · 4'.: No Member of a Constitutional Commission shall,
12. Grounds under the Local Government Code
General Rule: Appointive and elective officials cannot hold
multiple employment or office during their tenure.
Exception: Appointive officials may hold other office when
allowed by law or by the primary functions of their
positions. (Sec 7, Art IX-8)
Exception to holding multiple offices:
1. Those provided for under the Constitution, such as:
a. President as head of NEDA (Art XII, Sec. 9)
b. · VP may be appointed as Cabinet Member (Art
VII, Sec. 3)
c. VP as Acting President (Art VII, Sec. 7)
d. In and ex-officio capacity (CLU v. Exec. Sec.•
G.R. No.83896, 1991)and
2. Posts occupied by Executive officials specified in
Section 13, Article VII without addltlonal compensation
in ex officio capacities as provided by law and as
required by the primary functions of the officials'
offices. (Funa v. Agra, G.R. 191644, 2013)
Genaral Disqualifications under the Constitution:
1. No candidate who lost in an election shall, within one
year after such election, be appointed to any office in
Government. (Phil. Const. art. IX-B, §VI)
2. No elective official shall be eligible for appointment or
designation in any capacity to any public office or
position during his tenure. (Phil. Const., art. IX-B, §
7(1))
3. Unless otherwise provided by law or by the primary
functions of his position, no appointive official shall
hold any other position in Government. (Phil. Const.,
art. IX-B, § 7(2))
Special Disqualifications under the Constitution:
1 . The President, Vice-president, the Members of the
Cabinet, and their deputies or assistants shall not,
unless otherwise provided in the Constitution, hold any
'v-• .) other office or employment during their tenure. (Phil.
Const. art. VIII, §13) · office or employment during their tenure.
2. · No Senator or Member of the House of
Representatives may 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, during hi~ term, without forfeiting his seat.
Neither shall he be appointed to any offlce which may
have been created or the emoluments thereof increase
during the term for which he was elected. (Phil. Const.
art. VI,§ 13)
3. The Members of the Supreme Court and of other
courts established by law shall not be designated to
Page 165 of 320
.• ...
POLITICAL LAW
an, agency performing quasi-judicial or administrative
functions. (Phil. Const. art. VIII, § 12)
during his tenure, hold any other office or employment.
(Phil. Const. art. IX-A, § 2) The same disqualification
applies to the Ombudsman and his deputies. (Phil.
Const. art. XI, § 8)
5. The Ombudsman and his Deputies shall not be
qualified to run for any office in the election
immediately succeeding their cessation from office.
(Phil. Const. art. XI, § 11)
6. Members of Constitutional Commissions, the
Ombudsman and his deputies must not have been
Candidates for any elective position in the elections
immediately preceding their appointment. (Phil. Const.
art. IX-8, IX-C, IX-0, §. 1; art. XI, § 8)
7. Members of the Constitutional Commissions, the
(;mbudsman and his deputies are appointed to a term
of soven (7) years, without reappointment. {Phil.
Const. art. IX-8, § 1 (2); art. IX-C, § 1 (2); Art. IX-D, §.
1 (2); art. IX, §11)
8. The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not
during his tenure be appointed as Members of the
Constitutional Commissions, or the Office of the
Ombudsman. or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including
government-owned or controlled corporations (Phil.
Const.art. VII,§ 13, Art. VII}
PD 807, Sec. 49 prohibits the appointment of a Senator or
Congressman to any office which may hove been created
or emoluments thereof increased during the term tor which
he was elected.
When the Constitution has attached a disqualification to
the holding of any offlce,Congress cannot remove it under
the power to prescribe qualifications as to such offces as
it may create. The Constitution imposes limitations on the
right of certain officials to hold more than one office at the
same time.
1. The President, Vice President, Members of the
Cabinet, their deputies or assbtants shall not, unless
otherwise provided in the Constitution, hold any other
2. A Senator or Member of the House of Representatives
may not hold any office or employment in the
Government, or any subdivision, agency, or
instrumentality, includ\ng GOCCS or their subsidiaries,
during his term (not tenure) without forfeiting his seat.
3. The members or the Supreme Court and of other
courts established bylaw shall not be designated to
any agency performing quasi-judicial or administrative
functions.
4. A member of the Constitutional Commission shall not,
during his tenure, hold any other office or employment.
5. During their tenure, the Ombudsman and his deputies
are subject to the same disqualiticatlons and
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

prohibitions as provided for members of the in a any of their

Constitutional Commissions. . . subsidiaries." (Local
6. Unless otherwise allowed by law or by the pnmary
Government Code, Sec.
functions of his position, no appointive official shall
94)
hold any other office or employment in t_he govemm~nt
or any subdivision, agency, or instrumentality,
including GOCCs or their subsldiaries. . . . Power of Congress to Prescribe Disqualifications
7. No member of the armed forces in the active service In the absence of constitutional inhibition, Conwess has
shall, at any time, be appointed or designated in any the same right to provide disqualifications that u has to
capacity to a civilian po!!ition in the government provide qualifications for office.
including GOCCs or any of their subsidiaries.
Restrictions . ·
Soolls Svstems and Political Lame Ducks 1. Congress may not add disquaiifications where the
Constitution has provided them in such a way as to
SPOILS SYSTEM POLITICAL LAME
indicate an intention that the disqualifications provided
DUCKS
shall embrace all that are to be permitted; and
No elective official shall be 2. When the Constitution has attached a disqualification
No candidate who has lost
eligible for appointment or to the holding of any office, Congress cannot remove
in any election shall, within
designation in any it under the power to prescribe qualifications as to such
one year after such
capacity to any public offices as it may create
election, be appointed to
office or position during his any office in the
tenure. (1987 Const, art. Divestment
Government of any
IX-8, sec. 7) When a public official is in a conflict-of-interest situation.
government-owned or
Such official must resign from his· position in any private
controlled corporations or
The disqualification business enterprise within 30 days from his assumption of
In any of its subsidiaries.
subsists only during the office and/ or divest himself of his shareholdings or interest
( 1987 Const, Art. IX-8,
tenure in office of the within 60 days from such assumption.
Sec. 6)
elective official. He may be
appointed provided he Duration of Qualification
Members of the Civil
forfeits his seat Eligibility to an office should be construed as · of a
Service shall not have
cor,tinuing nature and must exist at the commencement of
been candidates for any
Examples of exceptions: the term and during occupancy of the office. The reckoning
elective position In the
1. The Vice point in determining the qualifications of an appointee is
elections immediately
President may be the date of issuance of the appointment and not the date
preceding their
appointed as a of Its approval by the CSC or the date of resolution of the
appointment. (1987 Const,
protest against it (CSC v de la Cruz, GR No 158737,
Cabinet member art. IX-8, sec. 1(1)) August 31, 2004)
2. A Congressman
may sit in the
Judicial and Bar Persons required to take an Oath of Office under the ( .,
Council Constitution '-

3. To be eligible to 1. All public officers and employees

hold any other 2. President, VP, or the acting President
office, the elected 3. All members of the AFr
official must first
Oath of Office
resign from his
office It is a qualifying requirement for a public office. Only when
the public officer has satisfied this prerequisite can his right
Except for losing to enter into the position be considered plenary and
candidates in barangay complete. Until then, he has none at all and for as long as
elections no candidate he has not qualified, the holdover officer is the rightful
occupant.
who lost in any election
shall, within 1 year after
Inhibitions .
such election, be It is a restraint upon the public officer agalns; the doing of
appointed to any office in certain acts which may be legally done by others.

the Government or any Inhibitions under the Constitution

government-owned or 1. The President, Vice-Fresident, Cabinet Members and I '
controlled corporations or their deputies and assistants shal! not, during tenure, l,~·
'--~~~~~~~~--..1~~~~~~~~~~
Page 166 of 320 l \
...,_;,

ATENEO CENTRAL
BAR OPERATIONS 2019
directly or indirectly practice any other profession,
participate in any business or be financially interested
in any contract with the Government. They shall strictly
avoid contlict of interest in the conduct of their office.
2. No Senator or Member of the House may hold any
other office or employment in the Government during
his term without forfeiting his seat
3. No Senator or Member of the House may personally
appear as counsel before any court of justice or before
the Electoral Tribunal, or quasi-judicial and other
administrative bodies
4. No Senator or Member of the House shall directly or
indirectly, be interested financially in any contract with,
or in any franchise or special privilege granted by the
Government, during his term of office
5. No Member of the Constitutional Commission shall,
during his tenure, hold any other office or employment.
Neither shall he engage in the practice of any
profession or in the active managernent or control of
business which in any way may be affected by the
functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or ·
in any franchise or special privilege granted by the
Government during his term ot office. This inhiblfion
applies as well to the Ombudsman and his deputies.
6. No officer or employee in the civil service shall engage,
directly or indirectly, in any electioneering or partisan
political campaign.
Practice of Profession
1. All governors, city and municipality mayors, are
prohibited from practicing their profession or engaging
in any occupation other than the exercise of their
functions as local chief executives;
2. · Sanggunian members may practice their professions,
engage in any occupation, or teach in schools, except
_} during session hours • Sanggunian members who are
also members of the Bar shall not:
a. Appear as counsel before any court in any civil
case wherein a local government unit or any
office, agency or instrumentality of the
'~ r government is the adverse party;
b. appear as counsel in any criminal case
wherein an officer or employee cf the national
or local government is accused of an offense
committed in relation to his office;
c. collect any fee for their appearance in
administrative proceeding involving the local
government until of which he is an official; and
d. use property and personnel of the
Government except when the Sanggunian
member concerned is defending the interest of
the government
3. Doctors of medicine may practice their profession
i ....
·-~· even during official hours of work only on occasions of
emergency, provlded that officials concerned do not
derive monetary compensation therefrom.
Page 167 of 320
.)
!
)
' .
POLITICAL LAW
RIGHTS OF PUBLIC OFFICERS
RIGHT TO OFFICE - JUST AND LEGAL CLAIM TO
EXERCISE POWERS AND RESPONSIBILITIES OF
PUBLIC OFFICE:
1. Right to Wages;
2. Right to Preference in Promotion subject to the
discretion of the appointing authority;
3. · Right to vacation and sick leave;
4. Right to Maternity Leave;
5. Right to Retirement Pay:
o. Other rights: .
1. Right to reimbursement for expenses
incurred in due performance of duty (but
this does not include transportation
allowance for those using government
vehicles);
2. Right to be indemnified against liabilities
they may incur in bona fide discharge of
duties;
3. Right to longevity pay.
4. Right to self-organization
Prohibition on Double Compensation
The purpose of the prohibition against additional or double
compensation for public officials: to manifest a
commitment to the fundamental principle that a public
office is a public trust. It is exoected of a government official
-, or employee that he keeps uppermost in mind the
demands of pub:ic welfare. He is there to render public
service. He is entitled to be rewarded for the performance
of the functions entrusted to him, but that should not be the
overriding consideration. The temptation to further
personal ends, public employment as a means for the
acquisition of wealth, is to be resisted. There must be
awareness on the part of the officer or employee of the
government that he will receive only such compensation as
may be fixed by law. With such a realization, he is expected
not to avail himself of devious or circuitous means to
increase the remuneration attached to his position. (Veloso
v. COA, G.R. 193677, 2011)
Claims for double retirement benefits fall under the
prohibition against the receipt of double compensation
when they are based on exactly the same services and on
the same creditable period. (Ocampo v. Commission on
Audit, G.R '188716, 2013) .
PROMOTION
The movement from one position to another with increase
in duties and responsibilities as authorized by law and
usually accompanied by an increase in pay.
DEMOTION
There is demotion when an employee is appointed to a
position resulting in diminution of duties, responsibilities,
status or rank, which may or may not involve a reduction in
·salary. Where an employee is appointed to a position with
the same duties and responsibilities but with rank and
 ATENEO CENTRAL
BAR OPERATIONS 2019
salary higher tha,7iho';;e enjoyeJ in his previous position,
there is no demotion and the appointment is valid.
(Bautista v. CSC, G.R. 185215, 2010)
Demotion to a lower rate of compensation is equivalent to
removal if no cause is shown for it when it is not part of any
disciplinary action. In this case, demotion is not proper.
NEXT-IN-RANK RULE
The person next in rank shall be given preference in
promotion when the position immediately above his is
vacated.
The concept of next-in-rank does not import any
mandatory or peremptory requirement that the person next
in rank must be appointed to the vacancy. · 183445, 2011)
The appointing authority has the discretion to fill the
vacancy under the next-in-rank rule or by any other method
authorized by law (e.g. by transfer).
HOLD-OVER
When a public officer's term has expired or his services are
terminated, but he should continue holding his office until·
his successor is appointed or chosen And qualifies.
RETIREMENT , have a direct relation to and be connected with the
Retirement has been defined as a withdrawal from office,
public station, business, occupation, er public duty. It
involves bilateral act of the parties, a voluntary agreement '·
between the employer and the employee whereby the
latter, after reaching a certain age, agrees and/or consents
to sever his employment with the former. Retirement plans
create a contractual obligation in which the promise to pay
benefits is made in consideration of the continued faithful
service of the employee for the requisite period. Before a
right to retirement benefits vests in an employee, he must
have met the stated conditions of eligibility with respect to
the nature of employment, age, and length of service. This
is a condition precedent to his acquisition of rights
thereunder. (Reyes v. CA, G.R. 167002, 2011)
If retirement benefits have been given to an entit;
disqualified to receive the same, there is an obligation to
return the amounts under the principle of solutio indebiti
(GSIS v. COA, G.R. No. 138381, 2004).
LIABILITIES OF PUBLIC OFFICERS
General Rule: A public officer is not liable for injuries
sustained by another due to official acts done within the
scope of his authority.
Exceptions: (BM-NID)
1. Bad faith;
2. Malice;
3. Negligence;
4. Death or Injury to persons or damage to property
Page 168 of 320
-------------- ... - .
POLITICAL LAW
Administrative liability is separate from and
independent of criminal liability.
It is a fundamental principle in the law on public officers
that administrative liability is separate from and
independent of criminal liability. A simple act or omission
can give rise to criminal, civil or administrative liability,
each independently of the others. This is known as the
threefold liability rule.
Thus, absolution from a criminal charge is not a bar to an
administrative prosecution, and vice versa. The dismissal
of the administrative cases against the petitioners will not
necessarily result in the dismissal of the criminal
complaints filed against them. (Regidor, Jr. v. People, G.R.
166086-92, 2009; Office of the President v. Cataquiz, G.R.
Proof of damage or actual injury
Proof of damage or actual injury is not required for
administrative liability to attach to a public officer. It is
enough that the act was contrary to the established norms
of conduct for government service. However, an employee
of GSIS who altered IP addresses without authority, not in
the performance of his duties, will not be guilty of qrave
misconduct but conduct prejudicial to the best interest of
service. To constitute misconduct. the act or acts must
performance of official duties. {GSIS v. Mayordomo, G.R.
No. 191218, 2011)
Presumption of good faith in the discharge of official
duties.
Every public official is entitled to the presumption of good
faith in the discharge of official duties. Although a public
officer is the final approving authority and the employees
who processed the transaction were directly under his (
I
· supervision, personal liabllity does not automatically attach v..
to him but only upon those directly responsible for the
unlawfOJI expendituras. {Dlmapilis-Baldoz v. Commission
c
'.. __,
on Audit, G.R. 199114, 2013)
Concept of public office is a public trust
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.
·1.. •• ,1
Election is not a mode. of condoning an administrative
offense, and there is simply no constitutional or statutory
basis in our jurisd:ction 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 v. CA and Binay, G.R.
217126-27, 2015}
".,
' '
 ATENEO CENTRAL
BAR OPERATIONS 201!:J POLITICAL LAW

also the officer de facto, the lawful title and possession are
DE FACTO v DE JURE OFFICERS united.

De Facto Officer Usurper

One whose acts, though not those of a lawful officer, the One who take possession of the office and undertakes to
law, upon principles of policy and justice, will hold valid so act officially without any color of right or authority. either
far as they involve the interests of the public and third actual or apparent. Note that it is the color of authority not
persons where the duties of the office were exercised: the color of title, that distinguishes an officer de facto from
1. without a known appointment or election, but under a usurper. It means that !he authority to hold office is by
circumstance of reputation or acquiescence; some election or appointment, however irregular or
2. with a known and valid appointment or election but the informal.
office failed to conform to a legal requirement:
3. With a known appointment or election but void De Jure v De Facto Officer
because of: A de jure officer has a legal right to the office but he may
a. ineligibility of the officer; or not be in possession of the office; v,hile a de facto officer
b. want of authority of the appointing or electing possesses the office becaus eof color of authority.
authority;
c. irregularity in appointment or election not De Facto v, u suroer
known to the public; or
DE FACTO OFFICER USURPER
4. With known appointment or election pursuant to an
unconstitutional law before adjudged to be such
As to mode of acquiring possession of office
Requisites Officer under any of the 4 One who takes
1. Valid and legitimate office; circumstances mentioned. possession of an office
2. Actual physical possession of the office in good faith; and undertakes to act
3. Color of right or general acquiescence by the public officially without any
authority. either actual or
Legal Effects of Acts of De Facto Officers appatent.
So far as the rights of a third person are concerned, the
lawful acts of a de facto officer if done within the scope and As to color of authority
by the apparent authority uf the office, is considered valid
and binding as if he were the officer IAgally elected and Has color of authority Has neither lawful title nor
qualified for the office and in full possession thereof. color of right or title to
office
Entitlement to Salary
General Rule: Rightful incumbent may recover from a de As to validity of acts
'- .. : facto officer the salary received by the latter during the time
of wrongful tenure even though the latter is in good faith Acts are valid as to the Acts are absolutely void
and under colo of title. public until such time as and can be impeached in
his title to the office is any proceeding at any
Exception: When there is no de jure officer, the de facto adjudged insufficient time, unless and until he
e, .:
officer is entitled to salaries for the period when he actually ' continues to act for so
discharged functions. (Civil Liberties Union v. Executive long a time as to afford a
Secretary, GR No 83896, February 22, 1991) presumption of his right to
act
How De Facto Officer Ousted
A de facto officer may be ousted in a direct proceeding As to entitlement of salaries
where the title will be the principal issue, not in a collateral
action or in an action to which he is not a party. May be entitled to Not entitled to
compensation for services compensation
The proper remedy is to institute quo warranto proceeding rendered
under Rule 66 of the ROC. The title to a public office may -
not be contested except directly, by quo warranto.

De Jure Officer
One who has the lawful right to the office in all respects,
but who has either been ousted from it, or who has never
actually taken possession of it. When the officer de jure is
Page 169 of 320
.----··-·····-··
ATENEO CENTRAL
BAR OPERATIONS 2019
TERMINATION OF OFFICIAL RELATION
Modes of Termination: (TAD PAIR CAIRR)
1. Natural causes: (TAD) . dictate against allowing the same individual to
a. Expiration of the Term or tenure of office -
his/her rights and duties ipso facto ceases,
unless authorized to holdover.
b. Tenure represents the term during which the
incurnbent actually holds office. The tenure
may be shorter (or, in case of holdover, longer)
than the term for reasons within or beyond the
power of the incumbent. However, a term, or
the time during which the officer may claim to
hold the office as of right, is not affected t·y the
holdover. (Valle Verde v. Africa, G.R. 151969,
2009) (See discussion on Part N. Term Limits)
c. Reaching the Age limit (retirement) - 65 years -,
for public officers and employees
d. Death or permanent disability
2. Acts or neglect of officer: (PAIR)
a. Prescription of Right to Office - Quo
warranto is the proper remedy against a public
officer or empioyee for his/her ouster from
office which should be commenced within 1
year after the cause of such ouster; otherwise
the action shall be barred.
b. Abandonment of Office - the voluntary
relinquishment of an office by the holder, with
the intention of terminating his possession and
control tnereof. There are, therefore, two
essential elements of abandonment: first, an
intention to abandon and second, an overt or
"external" act by which the intention is carried
into effect.
Generally, a person holding a public office
may abandon such office by nonuser or
acquiescence. Non-user refers to a neglect to
use a right or privilege or to exercise an office.
However, nonperformance of the duties of an
office does not constitute abandonment where
such nonperformance results from temporary
disability or from involuntary failure to perform.
Abandonment may also result from an
acquiescence by the officer in his wrongful
removal or discharge, for instance, after a
summary removal, an unreasonable delay by
an officer illegally removed in taking steps to
vindicate his rights may constitute an
abandonment of the office. (Canonizado v,
Aguirre, G.R. 133132, 2001)
c. Acceptance of an Incompatible office - It is
a well-settled rule that he who, while
occupying one office, accepts another
Incompatible with the first, ipso facto vacates
Page 170 of 320
POLITICAL LAW
the first office and his title is thereby
terminated without any other act . or
proceeding. Public policy considerations
perform inconsistent and incompatible duties.
The incompatibility contemplated is not the
mere physical impossibility of one person's
performing the duties of the two offices due to
a lack of time or the inability to be in two places
at the same moment, but ~at which proceeds
from the nature and relations of the two
positions to each other as to give rise to
contrariety and antagonism should one person
attempt to faithfully and impartially discharge
the duties of one toward the incumbent of the
other. (Canonizado v. Aguirre, G.R. 133132,
2001).
d. Resignation - Formal renunciation or
relinquishment of office. To constitute a
complete and operative act of resignation, the
officer or employee must show a clear
intention to relinquish or surrender his position
accompanied by the act of relinquishment.
Resignation implies an expression of the
incumbent in some form, express or implied,
of the intention to surrender, renounce and
relinquish the office, end its acceptance by
competent and lawful authority. A "courtesy
resignation" cannot properly be interpreted as
resignation in the legal sense for it is not
necessarily a reflection of a public official's
intention to surrender his position. Rather, it
manifests his submission to the will of the
political authority and the appointing power.
(Ortiz v. COMELEC, G.R. 78957, 1988)
Cessation from office by virtue of intervening / »
resignation did not warrant the dismissal of the ~- ..•-
administrative complaint against the public
officer, for the act complained of had been
committed when he or she was still in the
!
service. (Concerned Citizen v. Catena, A.M.
OCA IPI 02-1321-P, 2013)
3. Acts of the govemment or people: (CAIRR)
a. Conviction of a crime - termination results
when the penalties of perpetual or temporary
absolute dlsqualiticatlon or penalties of
perpetual or temporary special disqualification
are imposed upon conviction by final judgment
in a trial court
b. Abolition of office
c. Impeachment - way of removing the I
\.,
President, Vice President, Members of the
Supreme Court and the Constitutional
Commissions and the Ombudsman.
·.;
 ATENEO CENTRAL
BAR OPERATIONS 2019
d. Removal - ouster of the incumbent before the
expiration of his/her term
Grounds:
i. Members of Congress - each House
may punish its members for disorderly
behavior with the concurrence of 2/3
of ALL its members. Suspension if
imposed shall not exceed 60 days ..
ii. Civil Service Officers or Employees -
for causes provided by law
As a. matter of law, a department
secretary's decision confirming the
removal of an officer under his
authority is immediately executory,
even pending further remedy by the
dismissed public officer. (Dimapilis-
Baldoz v. Commission on Audit, G.R.
199114, 2013)
e. Recall - refers to the election itself by means
of which voters decide whether they should
retain their local official or elect replacement.
The ground for recall is "loss of confidence."
A petitio,1 for recall should be initiated by at
least 25% of the total number of registered
voters of the concerned LGU.
Reorganization
involves the reduction of personnel, consolidation of
offices, or abolitior. thereof by reason of economy or
redundancy of functions. It alters the existing structure of
<»: government offices or units therein, including the lines of
control, authority and responsibility between them to make
the bureaucracy more responsive to the needs of the
public clientele as authorized by law. It could result in the
loss of one's position through removal or abolition of an
office. A valid reorganization for the purpose of economy
or for making the bureaucracy more efficient must pass the
test of good faith; otherwise it is void ab initio. (Pan v. Pena,
G.R. 174244, 2009}
If the reorganization was done in good faith. the abolition
of positions, which resulted in loss of security of tenure of
affected government employees, would be valid. Except
those who hold constitutional offices, which provide for
special immunity as regards salary and tenure, no one can
be said to have any vested right to an office or salary ..
(Banda v. Ermita, G.R. No. 166620, 2010)
The creation of the Truth Commission does not fall within
the President's power to reorganize. Section 31 of the
Revised Administrative Code refers to reductlon of
personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions. These
refer to situations where a body or an office is already
,, 1 existent but a modification or alteration thereof has to be
' 1
:... .i Page 171 of 320
POLITICAL LAW
effected. (Biraogo v. The Philippine Truth Commission,
G.R. 192935-36, 2010).
The extstence of any or some of the following
circumstances may be considered as evidence of bad faith
in the removals made as a result of reorganization, giving
rise to a claim for reinstatement or reappointment by an
aggrieved party:
1. Where there is a significant increase in the number
of positions in the new staffing pattern of the
department or agency conc:erned;
2. Where an office is abolished and others are
performing substantially the same functions is
created;
3. Where incumbents are replaced by those less
qualified in terms of status of appointment,
performance and merit;
4. Where there is a reclassification of offices in the
department or agency concerned and the
reclassified offices perform substantially the same
function as the original offices:
5. Where the remov;,;I violates the order of separation
provided In Section 3 hereof. (Cotiangco v,
Province ofBiliran, G.R. 157139, 2011)
THE CIVIL SERVICE
Scope
Civil Service Commission (CSC)
central personnel agency of the government.
Composition
• Chairman and 2 comrnissloners
• Appointed by the Presldent with consent of the
Commission on Appointments for a term of 7
years, without reappointment.
. Coverage of the Civil Service
All branches, subdivisions, instrumentalities, and agencies
of the government including GOCC with original charters.
Authority of the Civil Service Commission
1. Limited to reviewing appointments on the basis of the
Civil Service Law.
2. Only allowed to check whether the appointee
possesses the appropriate civil eligiuility or the
required qualification. CSC has no discretionary
power.
t.imttatlons to the power to appoint
1. The power does not include authority to make the
appointment itself or to direct the appointing authority
to change the employment status of an employee.
2. No authority to revoke appointment simply because it
' believed that another person is better qualified.
3. No power to pass upon the qualifications or tenure of
t.he appointing officer or declare the latter's position
vacant for an act that produced forfeiture of his office.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

4. Cannot change the tenure of office grantt·i to 3. In the case of appointment by transfer,
appointee such as where the appointing authority reinstatement, or by original appointment, that the
indicated permanent appointment but CSC approved protestant is not satisfied with the written special
as temporary such appointment. -, reasonts) given by the appointing authority.

Appointments to the Civil Service Meaning of "For Cause"

Classifications
1. Career
Characteristics:
1. Entrance based on merit and fitness to be determined
by competitive examinations or based on highly
technical qualifications;
2. Opportunity for advancement to higher career
positions; and
3. Security of tenure
Levels of Positions
1. 1st level: clerical, trades, crafts and custodial service
positions involving non-professional/sub-professional
in a non-supervisory or supervisory capacity requiring
less than 4 years of collegiate studies.
2. 2nd level: professional, technical and scientific
positions in a non-supervisory/supervisory capacity
requiring at least 4 years of college work up to division
chief level.
3. 3rd level: career executive service positions
The position of department manager is not a third level
position which is appointed by the President. For said
reason, a PEZA department manager only needs the
approval of the PEZA Director-General to validate his
appointment or re-appointment. As he need not possess
a CESO or CSEE eligibility, the CSC has no valid and legal
basis in invalidating his appoir,tment or re-appointment.
(Agyao v. CSC, G.R. 182591, 2011)
2. Non-career
Characteristics:
1 . Entrance on bases other than those of the usual test
of merit and fitnes$;
2. Tenure which is limited to:
a. Period specified by law;
b. Coterminous with that of appointing authority;
c. Subject to appointing authority's pleasure; ·
d. Limited to the duration of a particular project.
3. They, however, enjoy constitutional guarantee that
they cannot be removed except for cause and after
due hearing.
Oppositions to Appointment
Any parson who feels aggrieved by the appointment of a
person may file a protest against the appointment.
For reasons which the law and sound public policy
recognized as sufficient warrant for approval, that is, legal
cause, and not merely causes which appointing power in
the exercise of discretion may deem sufficient. The cause
must relate to and affect the administration of the office,
and must be restricted to something substantial in nature.
Revocation or Recall of Appclntment
General Rule: Appointment once made is irrevocable and
not subject to reconsideration.
Grounds when CSC has power to recall, on its own
initiative, an appointment initially approved:
1. Non-compliance with the procedures/criteria provided
in the agency's merit promotional plan
2. Failure to . pass through the agency's
selection/promotion board
3. Violation of the existing collective agreement between
management and employees relative to promotion
4. Violation of other axisting civil service law, rules and
regulations
PERSONNEL ACTIONS
Personnel action
Any action denoting movement or progress of personnel in
the civil service. (EO 292, Rule V, § 1, cited in City Mayor
Debulgado v. CSC, G.R. 111471, 1994).
Includes the following: (PART R2D2)
1. Appointment through certification
2. Promotion
3. Transfer s=
't..~ ..•
4. Reinstatement
5. Reemployment.
6. Detail
7. Reassignment
8. Demotion
It Is the CSC which is empowered to look into the validity
of creation of positions and appointments of personnel
appointed by the Mayor which appointments were
confirmed by the CSC. There being a valid appointment
.I:,.
confirmed by CSC and the concerned personnel having + :.
rendered services, payment of their salaries is proper and
legal. (Tolentino v. Loyola, G.R. 153809, 2011) (
\ .. '

Causes for protesting appointment

1. Appointee not qualified;
2. Appointee is not the next-in-rank;
,
Page 172 of 320 .,,.

'---------------- ----- ..
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Valid personnel actions NeQligence v. Dishonesty

1. Extending temporary appolntrnent, however, this must
NEGLIGENCE DISHONESTY
not amount to removal.
2. Transfer or re-assignment but this must not involve a
In 'the case of public Dishonesty begins when
reduction in rank, status, and salary, without break in
officials, there is an individual intentionally
service.
negligence when there is a makes a false statement in
3. Detail must be made in the interest of public service,
breach of duty or failure to any material fact, or
. absent showing of manifest abuse or improper motive
perform the obligation, and practicing or attempting to
or purpose.
there is gro~s negligence practice any deception or
when a breach of duty is fraud in order to secure his
Personnel actions amounting to removal
flagrant and palpable. examination, registration,
1. Shortening term is removal
Failing to comply with his appointment or promotion.
2. Control does not extend to removal
duty to provide a detailed It should be emphasized
3. Demotion
list of his assets and only when the
4. Denial of optional retirement and refusal to reinstate
business interests in his accumulated wealth
While a temporary transfer or assignment of personnel is
SALN and for relying on becomes manifestly
permissible even without the employee's prior consent, it
the family disproportionate to the
cannot be done when the transfer is a preliminary step
bookkeeper/accountant to employee's income or
toward his removal, or is a scheme to lure him away from
his permanent position, or designed to indirectly terminate
fill out his SALN and in other sources of income
signing the same without and nls failure to properly
his service, or force his renignation. Such a transfer would
checking or verifying the account or explain his
in effect circurr.vent the provision which safeguards the
entries is negligence. other sources of income
tenure of office of those who are In the Civil Service.
(Presidential Anti-Graft does he become
(Garcia v. Lejano, G.R. L-12220, 1960).
Commission and the susceptible to dishonesty.
Office of the President v. (Ombudsman v. Nieto,
Waiver of security of tenure
P/eyto, G.R. 176058, G.R. 185685, 2011)
Acceptance of temporary appointment or assignment,
2011)
without reservations is a waiver of security of tenure.

Good Faith
ACCOUNTABILITY OF PUBLIC OFFICERS Good faith is ordinarily used to describe that state of mind
denoting honesty of intention and freedom from knowledge
DISCIPLINE of circumstanr.es which ought to put the holder upon
Grounds for Discipline: (0000 IPOD MINI MUG) inquiry. In other words, good faith is actually a question of
1. Discourtesy in the course of official duties; intention. Although this ,is something internal, one can
2. Refusal to perform Official duty or render overtime ascertain a person's intention not from his own protestation
service; of good faith, which is self-serving, but from evidence of his
3. Falsification of Official documents; conduct and outward acts. (Dumduma v. CSC, G.R.
~~--
r '
4. Habitual Drunkenness; 182606,2011)
5. lne:fficlency and incompetence in the performance of
official duties; Every public official who signs or initials documents in the
6. Willful refusal to Pay just debts or willful failure to pay course of standard operating procedures does not
taxes due to the ~overnment; automatically become a conspirator in a crime that
7. Oppression; transpired at some stage in which the official had no
8. Dishonesty: participation. (Peralta v. Desierto, G.R. 15315.'2, 2005)
'. ;;
F· ..,' 9. Misconduct;
..- . 10. Disgraceful and Immoral conduct; Even if the dishonest act was committed by the employee
-:: .•..;.' 11. Neglect of duty; prior to entering government service, such act is still a
12 .. Physical or mental Incapacity due to immoral or ground for disciplinary action. (Orbase v, Ombudsman,
vicious habits; G.R. 175115,2009)
13. Conviction of a crime involving Moral turpitude;
14. Being notoriously Undesirable; Misconduct in office .
·~:_ ..:~ 15. Gambling. refers to "any unlawful behavior by a public officer in
.,
·........
lo
.
fl
relation to the duties of his office, wil:ful in character. The
term embraces acts which the office holder had no right to
perform, acts performed improperly, and failure to act in
:~ ;
·- ...· the face of an affirmative duty to act." In grave misconduct,
as distinguished from simple misconduct, the elements of
Page 173 of 320

·----·-·----------------------------------·
 . ··-··· .. ·---------------

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

corruption, clear intent to violate the law, or flagrant Ultra vlres acts
disregard of established rule must be manifest. Corruption acts which are dearly beyond the scope of one's authority.
as an element of grave misconduct consists in the act of They are null and void and cannot be given any effect. The
an official or employee who unlawfully or wrongfully uses doctrine of estoppal cannct operate to give effect to an act
his station or character to procure some benefit for himself which is otherwise null and void or ultra vires. (Acebedo
or for another, contrary to the rights of others. (Gabon v. Optical Company v. CA, G.R. No. 100152, 2000)
Merka, A.M. P-11-3000, 2011)
Jurisdiction in Disciplinary Cases
Grave misconduct 1. Heads of ministries, agencies and instrumentalities,
consists in a government official's deliberate violation of a . provinces, cities and municipalities have jurisdiction to
rule of law or standard of behavior. It is regarded as grave investigate and decide matters ir.volv:ng disciplinary
when the elements of r::orruption, clear intent to violate the action against officers and err.ployees under their
law, or flagrant disregard of established rules are present. jurisdiction.
In particular, corruption as an element of grave misconduct 2. Decision final in case the penalty imposed is
consists in the official's unlawful and wrorigful use of his suspension of not more than 30 days or fine in an
station or character to procure some benefit for himself or amount not exceeding 30 days salary.
for another person, contrary to duty and the rights of 3. Other cases, decision shall be initially appealed to the
others. Rigging by a public official at a bidding in the department head and finally to the Civil Service· .
organization where he belongs is a specie of corruption. Commission and pending appeal, shall be executory
(NPC v. CSC, G.R. 152093, 2012) EXCEPT when the penalty is removal, in which case it
shall be executory only after confirmation by the
Simple neglect of duty department · head.
defined as the failure of an emptoyee to give proper Committee to hear administrative charge against
attention to a required task or to discharge a duty due to public school teacher representative of the teacher's·
carelessness or indifference. On the other hand, gross organization
neglect of duty is characterized by want of even the 4. Civil Service Commission has appellate jurisdiction.
slightest care, or by consclous indifference to the. Case may be filed directly to it; it may decide on the
consequences, and in cases involving public officials, by case or deputize a department or agency
flagrant and palpable breach of duty. Jt is the omission of
that care that even inattentive and thoughtless men never Preventive Suspension and Back Salaries
fail to take on their own property. (Land Bank of the
Philippines vs. San Juan Jr., G.R. 192890, 2013) PREVENTIVE SUSPENSION
Merely a preventive measure, a preliminary step in an
When demolition Is proper and when Improper that administrative investigation. The purpose of the
may constitute liabllit :
~ .......~..,....~~~~~~~~ ....... suspension order is to prevent the accused from using his
WHEN DEMOLITION IS WHEN DEMOUTION IS position and the powers and prerogativeo of his office to
PROPER NOT PROPER influence potential witnesses or tamper with records which
may be vital in the prosecution of the case against him. If
(
A complaint for damages If a Sanggunian resolution after such Investigation, the charge Is established and the
and injunction against the only authorized a Mayor to person investigated is found guilty of acts warranting his ·
members of the Philippine file for unlawful detainer in suspension or removal, then, as a penalty, he is
army cannot be held case of resistance to obey suspended, removed or dismissed. (Villasenor v.
personally accountab!e for the order or to demolish Sandiganbayan, G. R. No. 180700, 2008)
\.... ...
the demolition since the the building using legal
act was done in means, the act of Two kinds of preventive suspension of government
connection with their demolition without legal employees charged with offenses punishable by
official duties in carryinq order is not proper. After removal or suspension:
the AFP prograrn of "Oplan all, the present Local 1. Preventive suspension pending invesug·ation; and i '
Lin is." There was no Government Code does 2. Preventive suspension pending appeal if the penalty
showing that such acts not expressly provide for imposed by the disciplining authority is suspension or
constitute ultra vires acts the abatement of diamtssal and, after review, the respondent is
nor was there a showing of nuisance. (Asilo v. People exonerated.
bad faith on the part of of the Philippines, r:;.R.
petitioners. (Philippine 159017-18, 2011)
Army, 5th Infantry Division
v, Spouses Pamittan, et. '
et., G.R. 187326, 2011)
Page 174 of 320 ~ ,,.;;.
;
 ATENEO CENTRAL
BAR OPERATIONS 2019
Effect of Decision on Suspension When Made Before
or Aft er 90 D ays:
IF THE CASE IS IF THE CASE 15
DECIDED BEFORc 9() DECIDED NOT DECIDED
DAYS WITHIN 90 DAYS
The suspension will last The suspension may not
less than 90 days. exceed the maximum
period of 90 days.
Preventive suspension is merely a preventive measure, a
preliminary step in an administrative investigation; the
purpose thereof is to prevent the accused from using his
position and the powers and prerogatives of his office to
influence potential witnesses or tamper with records which
may be vital in the prosecution of the case against him.
(Ombudsman v. Franctsco, G.R. 172553, 20·11)
lt is now settled that Sec. 13 of Repul:)lic Act No. 3019
makes it mandatory for the Sandiganbayan to suspend any
public official against whom a valid information charging
violation of that law, Book II, Title 7 of the Revised Penal
Code, or any offense involving fraud upon government or
public funds or property is filed. The court trying a case has
neither discretion nor duty to determine whether preventive
suspension is required to prevent the accused from using
his office to intimidate witnesses or frustrate his
prosecution or continuing committing malfeasance in
office. (Villasenor v. Sandiganbayan, G.R. 180700, 2008)
There is no dispute as to the power of the Ombudsman to
place a public officer charged with an administrative
offense under preventive suspension. That power is clearly
confined under Section 24 of R.A. No. 6770. The law sets
forth two conditions that must be satisfied to justify the
issuance of an order of preventive suspension pending an
investigation, to wit:
.· ...
, __..,,,
1. The evidence of guilt is strong; and\
2. Either the following circumstance co-existing with the
first requirement:
a. The charge involves dishonesty, oppression or
grave misconduct or neglect in the performance of
...:,_:.; duty;
b. The charge would warrant removal from the
service; or ·
- ;'
c. The respondent's continued stay in office may
prejudice the case filed against him. (Ombudsman
v. Valeroso, G.R. 167828, 2007)
Prior notice ar.d hearing are not required in the
issuance of" preventive suspension order.
Settled is the rule that prior notice and hearing are not
· required in the issuance of a preventive suspension order.
"t ... .
.,..
(Carabeo v. CA, G.R. 178000/178003, 2009)
! Page 175 of 320
·~ •• .I
POLITICAL LAW
GROUNDS FOR PREVENTIVE SUSPENSION OF
POLICE OFFICERS [RA 8551, SEC. 55] (Preventive
Suspension Pending Crimlnal Case)
The court shall immediately suspend the accused from
office for a period not exceeding 90 days from arraignment:
1. Upon the filing of a complaint or information sufficient
in form and substance against a member of the PNP;
2. For grave felonies where the penalty imposed by law
is 6 years and 1 day or more.
Exception: If it can be shown by evidence that the
accused is harassing the complainant and/or witnesses,
the court may order the preventive suspension of the
accused PNP member even if the charge is punishable by
·. a penalty lower than 6 years and 1 day.
General Rule: The period of preventive suspension shall
not b~ more than 90 days.
Exception: If the delay in the disposition of the case is due
to the fault, negligence or petitions of the respondent.
The preventive suspension may be socner lifted by the
court in the exigency of the service upon recommendation
of the chief, PNP. Such case shall be subject to continuous
trial and shall be terminated within 90 days from
arraignment of the accused.
Back salaries during preventive suspension
General Rule: A public official is not entitled to any
compensation if he has not rendered any service. (Reyes
v. Hernandez, G.R. No. Apr. 8, 1941)
Two conditions before an employee may be entitled to
back salaries in preventive suspension cases:
1. The employee must be found innocent of the charges;
and
2. His suspension must be unjustified or the official was
innocent. (CSC v. Cruz, G.R. 187858, 2011)
The reasoning behind these conditions runs this way:
although an employee is considered under preventive
suspension during the pendency of a successful appeal,
the law itself only authorizes preventive suspension for a
fixed period; hence, his suspension beyond this fixed
period ls unjustified and must be compensated. The rule
on payment of back salaries during the period of
suspension of a member of the civil service who is
subsequently ordered reinstated, is already settled in this
jurisdiction. Such payment of salaries corresponding to the
period when an empioyee is not allowed to work may be
decreed not only if he is found innocent of the charges that
caused his suspension (Sec. 35, RA 2260), but also when
the suspension ls unjustified. {CSC v. Cruz, G.R. 187658,
2011).
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

The mere reduction of the penalty on appeal does not charge against them. (TanJay Water District v. Quinit, Jr.,
entitle a government employee to back salaries if he was G.R. 160502,2007)
not exonerated of the charge against him. If the
exoneration of the employee is relative (as distinguished When an official or employee was illegally dismissed and
from complete exoneration), an inquiry Into the factual his reinstatement has later been ordered, for all legal·
premise of the offense charged and of the offense purposes he is considered as not having left his office. ·
committed must be made. If the administrative offense Therefore, he is entitled to all the rights and privileges that
found to have been actually commitled is of lesser gravity accrue to him by virtue of the office he held. (Galang v.
than the offense charged, the employee cannot be Land Bank, G.R. 175276, 2011)
considered exonerated if the , factual premise for the
imposition of the lesser penalty remains the same. (CSC v. A public officer is not entitled to. reinstatement and back
Cruz, G.R. No. 187858, 2011). salaries, when removal or suspension is lawful. The denial
of salary to an employee during the period of his
Preventive Suspension Pending Investigation v. suspension, if he should later be found guilty, is proper
Aooeal because he had given ground for his suspension. It does
not impair his constitutional rights because the Constitution
PREVENTIVE PREVENTIVE
itself allows suspension for cause as provided by law and
SUSPENSION PENDING SUSPENSION PENDING
the law provides that an employee may be suspended
INVESTIGA 1"10N APPEAL
pending an investigation or by way of penalty. (Bangalisan
Not a penalty. It is a
v. CA, G.R. 124678, 1997)
If the penalty imposed by
measure intended to the disciplining authority is
enable the disciplining A public officer is entitled after his acquittal not only to
suspension or dismissal
authority to investigate reinstatement but also to payment cf the salaries,
and, after review, the
charges against allowances, and other benefits withheld from him by
respondent is exonerated.
respondent by preventing reason of his discharge from the service even if there has
the latter from intimidating been valid suspension from the service pending the
No back salaries shall be
or in any way influencing adjudication of the criminal case. (P/Chief Superintendent
due for the period of
witnesses against him. If Calinisan v. SP02 Roaquin, G.R. 159588, 2010)
preventive suspension
the investigation is not PENDING
finished and a decision is
R'emsta t ement v. Bac kwaQ es:
INVESTIGATION but only
not rendered within that for the period of preventive REINSTATEMENT eACKWAGES
period, the suspension will suspension Pt:NDING
be lifted and the APPEAL, in the event the Restoration to a state or A form Of relief that
respondent will employee is exonerated. condition from which one restores the income that
automatically be ( Gloria v. CA, G.R. had been removed or was lost by ·reason of
reinstated. If after 131012, 1999) separated. One who is unlawfu' dismissal.
Investigation, respondent reinstated assumes the
is found innocent of the position he had occupied
charges and is prior to the dismissal and
'
·~
.

exonerated, he should be is, as an ordinary rule,

reinstated. (CSC v. entitled only to the last
Alfonso, G.R. 179452, salary in that position.
2009) '
Where to file claims for backwages: The claim for recovery
Illegal dismissal, reinstatement and back salaries of back salaries involves settlement of accounts or claims
against the government and should therefore be filed with
Reinstatement the Commission on Audit. i
t ..
the issuance of an appointment to a person who has been
previously appointed to a position in the career service and Amount of Back Salaries
who has, through no delinquency or misconduct, been An illegally terminated civil service employee is entitled to
separated therefrom, or to the restoration of one who has back salaries limited only to a maximum period of five
been exonerated of the administrative charges filed years, and not full back salaries from his illegDI termination
against him. (Galang v. Land Bank, G.R. 175276, 2011) up to his reinstatement. (Ga,ang v. Land Bank, G.R.
. 175276, 2011) .
The rule is settled that back salaries may be awarded to
civil servants only if t'iey have been illegally dismissed and ,' -,
thenceforth ordered reinstated, or to those acquitted of the
Page 176 of 320 ' <;»
 : ...
ATENEO CENTRAL
BAR OPERATIONS 2019
Immunity of Public Officers
Official immunity
Only protects public officials from tort liability for damages
arising from acts or functions in the performance of their
official duties.
Public officers may be sued to restrain them from enforcing
an act claimed to be unconstitutional.
Exceptions: when liability does not devolve ultimately to
the State such as:
1. A petition to require official to do his duty;
2. A petition to restrain him from doing an act;
3. To recover taxes from him;
4. Those where the officer impleaded may by himself
alone comply with the decision of the court;
5. Where the government itself has violated its own laws.
Where a public officer has committed an ultra vlres act, or
where there is a showing of bad faith, malice or gross
negligence, the officer can be held personally accountable
even if such acts are claimed to have been performed in
connection with official duties. (Wylie v, Rarang, G.R.
74135, 1992)
Immunity from sult cannot institutionalize irresponsibility
and non-accountability nor gri:int a privileged status not
claimed by any other official of the Republic. (Republic v.
Sandoval, G.R. 84607, 1993)
Where the public officer is sued in his personal capacity,
state immunity will not apply. (Lansang v. CA, G.R.
102667, 2000)
CONDONATION DOCTRINE
The condonation doctrine is the doctrine that provides that
a reelected official should no longer be made accountable
for an administrative offense committed during his previous
·~.· term.
BERNABE: In Carpio-Morales, the Court abandoned the
"condonation doctrine," explaining that "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
·,
\,, ,.r
. from an offense done during a prior term."
The abandonment should be prospectively applied.
(Dimapilis v. Commission on Elections, G.R. No. 227158,
[April 18, 2017))
·,
:.....
r
)'
Page 177 of 320
POLITICAL LAW
IMPEACHMENT
Impeachment
the power of Congress to remove a public official for
serious crimes or misconduct as provided in the
Constitution. It is a mechanism designed to check abuse
of power. (Chief Justice Renato C. Corona v, Senate of the
Philippines sitting as an Impeachment Court, G.R. No.
200242, 2012)
Who may be impeached: (VP-SOC)
1. President
2. Vice President
3. Supreme Court Justices
4. Constitutional Commission members
5. Ombudsman
Grounds: (GOT BBC)
1. Graft and corruption
2. Other high crimes
3. Treason
4. Betrayal of public trust
5. Bribery
6. Culpable violation of the Constitution
It Is an exclusive list. Congress cannot add to the list
of impeachable offenses.
These officers cannot be charged in court with offenses
that have removal from office as penalty. But after an
offici.:il has been impeached, he can be charged with the
appropriate offense.
. Resignation by an impeachable official does not place him
beyond the reach of impeachment proceedings; he can still
be impeached.
Other public officers and employees -
They may be removed from office as provided by law but,
not by impeachment.
Who may initiate Impeachment case
The House of Representatives has exclusive power to
initiate all cases of impeachment.
Procedure:
1. Filing of verified complaint. Can be filed by:
a. Any member of the House of Representatives
b. Any citizen upon a resolution or endorsement by
any Member of the House
c. By at least 1/3 of all the Members of the House of
Representatives
d. If the verified complaint or resolution of
impeachment was filed by at least 1/3 of all the
Members of the House, it shall constitute the
Articles of Impeachment. Trial in the Senate shall
proceed.
 A TENEO CENTRAL
BAR OPERATIONS 2019
1. Inclusion of complaint in the order of business
within 10 session days
2. Referral to proper Committee within 3 session
days thereafter
3. Submission of committee report to the House
together with corresponding resolution
4. The report should be submitted within 60 days
from referral, after hearing, and by a majority vote
of all its members. . a felony or crime.
5. Calendaring of resolution for consderatlon by the
House
6. Should be done within 10 session days. from
receipt thereof
7. Vote of at least 1/3 of all the members of the
House necessary to:
a. Affirm a favorable resolution with the Articles ·
of Impeachment of the Committee or
b. To override its contrary resolution
Roles of the 3 branches of Government in
impeachment:
1. Senate has sole power to try and decide cases of
impeachment; . Questions on what constitutes as an impeachable offense
2. If the President is on trial, the Chief Justice presides
but does not vote;
3. The Supreme Court can determine it' Congress
committed grave abuse of discretion amounting t0 lack
or excess of jurisdiction (ex. recognizing two
impeachment complaints). i.
i Scope
For impeachment, judgment of conviction requires the
concurrence of 2/3 of all the Members of the Senate.
Only one impeachment proceeding should be initiated
against an impeachable officer within a period of one year:
(Gutierrez v, House Committee on Justice, G.R. 193459,
2011)
The SC found it well-within its power to determine whether
Congress committed a violation of the Constitution or
gravely abused Its discretion in the exercise of its functions
and prerogatives that could translate as lack or excess of
jurisdiction in taking cognizance of two impeachmer.t
complaints that are inquisitorial in function, akin to a
preliminary investigation. (Gutierrez v. House Committee
on Justice, G.R. 193459, 2011).
The 1-year period shall be counted from the time of the
filing of the first impeachment complaint. Impeachment
proceedings pertain to the proceedings in the House of
Representative which commences from the initiation of the
complaint, to the referral to proper committees, to
submission of the report to the House, subsequent
deliberation, and ends with the transmittal of the Article of
Impeachment to the Senate. An impeachment case
pertains to a trial in the Senate which commences at 'the
time the Articles of Impeachment are transmitted to the
Page 178 of 320
---------------· ·-- . --- .
POLITICAL LAW
I '
Upper House. (Gutierrez v. House Committee on Justice,
· .G.~.193459, 2011).
Effects of impeachment: (LOR)
1. Removal from office of the official concerned
2. Disqualification to hold any office
3. Officer still Liable to prosecution, trial, and punishment
if the impeachable offense committed also constitutes
The determination of sufficiency of fotm and substance of
an impeachment complaint is an exponent of the express
constitutional grant of rule-making powers or the House of
Representatives. In the discharge of that power and in the
exercise of its discretion, the House has formulated
determinable standards as to the form and substance ot an
impeachment complaint. Furthermore, the Impeachment
Rules are clear in echoing the constitutional requirements
and providing that there must be a "verified complaint or
resolution," and that the substance requirement is met if
there is "a recital of facts constituting the offense charged
and determinative of the jurisdiction of the committee."
are considered to be purely political questions and thus left
to the sound determination of the legislature. (Gutierrez v.
House Committee on Justice, G.R. 193459, 2011).
· THE OMBUDSMAN
GOCCs with original charters and those organized and
incorporated under the Corporation Code within the
jurisdiction of the Sandiganbayan whenever they are
involved in qraft and corruption. (People v.
Sandiganbayan, G.R. 147706-07, 2005).
· The Ombudsman has the power to grant immunity by itself
and even prior to the filing of information in court. RA 6770
f -
fully recognizes this prosecutory prerogative by '
~ •. _>
empowering the Ombudsman to grant immunity, subject to
"such terms and conditions" as he may determine. The r
'\ .-J
only textual limitation imposed by law on this authority is
the need to take "into account the pertinent provisions of ' ...:
the Rules of Court," - i.e., Section 17, Rule 119 of the \.,
Rules of Court. The rule under RA 6770 clarifies that in ( ">
cases already filed with the courts, the prosecution merely ....
'·.:.
makes a proposal and initiates the process of granting
immunity to an accused-witness in order to use him as a
witness against his co-accused. If there is any distinction
at all between the public prosecutor and the Ombudsman
in this endeavor, it is in the specificity of and the higher
priority Given by law to the Ombudsman's purpose and
objective. This accounts for the Ombudsman's unique
power to grant immunity by itself and even prior to the filing
6~ information in court. a power that the public prosecutor
himself generally does not enjoy. (Quarto v. Ombudsman,
I '.
G.R.•I
169042, 2011 ). ''"'·'.
 ...
ATENEO CENTRAL
BAR OPERATIONS 2019
In the exercise of his duties, the Ombudsman is giv13n full
administrative disciplinary authority. His power is not
limited merely to receiving, processing complaints, or
recommending penalties. He is to conduct investigations,
hold hearings, summon witnesses and require production
of evidence and place respondents under preventive
suspension. This includes the power to impose the penalty
of removal, suspension, demotion, fine, or censure of a
public officer or employee. The provisions in RA 6770
taken together reveal ihe manifest intent of the lawmakers
to bestow on the Office of the Ombudsman full
administrative disciplinary authority. These provisions
cover the entire gamut of administrative adjudication which
entails the authority to, inter alia, receive complaints,
conduct investigations, hold hearings in accordance with
its rules of procedure, summon witnesses and require the
production of documents, place under preventive
suspension public officers and employees pending an
investigation, determine the appropriate penalty imposable
on erring public officers or employees as warranted by the
evidence, and, necessarily, Impose the said penalty. Thus,
it is settled that the Office of the Ombudsman can directly
impose administrative sanctior.s. (Cabalit v. COA, G.R.
180236, 2012)
The Office of the Ombudsman is tasked to exercise
disciplinary authority over all elective and appointive
officials, save only for lmpeachable officers. (Alejandro v.
Office of the Ombudsman Fact-Finding and Intelligence
Bureau, G.R. 173121, 2013).
Composition:
1. OmbudsmanfTanodbayan;
2. Overall Deputy (at least one Deputy each for Luzon,
Visayas and Mindanao).
3. Deputy for military establishment may be appointed
Qualifications: (Ombudsman and Deputies):
1. Natural born citizen of the Philippines
2. At least 40 years old at time of appointment
3. Of recognized probity and independence
4. Member of the Philippine bar
5. Must not have been candidate for any electlve office in
the immediately preceding election
6. For Ombudsman: He must have been for 10 years or
more:
a. A judge OR
b. Engaged in the practice of law in the Philippines
r •.. Disqualifications and Prohibitions:
:-.
; require that proper legal stops are taken by the
1. Cannot hold any other ofi'ice or employment during his
tenure;
2. Cannot engage in the practice of any profession or in
the active management or control of any business
~.......!- which may be affected by the functions of his office;
3. Cannot be financially interested, directly or indirectly,
in any contract with or in any franchise or privilege
granted by the Government, any of its subdivisions,
Page 179 of 320
,
POLITICAL LAW
agencies or instrumentalities, including GOCCs or
their subsidiaries.
Appointment:
1. Ombudsman and deputies
2. By the president from a list of at least 6 nominees
prepared by the Judicial and Bar Council. Vacancies
will be filled from a list of 3 nominees.
3. Appointments do NOi• require confirmation
4. All vacancies shall be filled within 3 months after they
occur.
5. Appointees have 7-year term without reappointment
and are not quallfled to run for any office in the election
succeeding their cessation from office.
6. Other ombudsman officials and employees
a. By the Ombudsman
b. In accordance with Civil Service Law
Functions
Powers, Functions and Duties
1. Investigate on its own, or on complaint by any person,
any act or omission of any public official, employee,
office or agency, when such act or omission appears
to be illegal, unjust, improper, or inefficient.
a. May be done on its own initiative or on complaint
in any form.
b. Such may be delegated.
c. The power to investigate includes the power to
impose preventive suspension. But, this is not a
penalty.
d. Investigate does not mean preliminary
investigation.
e. The complaint need not be drawn up in the usual
form.
f. The illegal act or omission need not be in
connection with the duties of the public officer or
employee concerned.
g. ANY illegal act may be investigated by the
Ombudsman. In this regard, the Ombudsman's
jurisdiction is concurrent with that of the regular
prosecutors.
-, 2. Direct, upon complaint or at its own instance, any
public official or employee of the government, or any
r.ubdlvision. agency or instrumentality thereof, as well
as of any GOCC with original charter, to perform and
expedite any act of duty required by law, or to stop,
prevent and correct any abuse or impropriety in the
performance of duties.
a. The Ombudsman has persuasive. power, and may
officers concerned.
b. The public official or employee must be employed
in:
i. The Government
ii. Any subdivision, agency, or instrumentality
iii. GOCCs with original charters
c. The Special Prosecutor may prosecute before the
Sandiganbayan, judges accused of gmft and
ATENEO CENTRAL
BAR OPERATIONS 2019
corruption. even If they are under the Supreme
Court.
3. Direct the officer concerned to take the appropriate
action against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance
therewith.
a. The Ombudsman does not himself prosecute
cases against public officers or employees.
b. Final say to prosecute still rests in the executive
department.
c. The Ombudsman or Tanodbayan may use
mandamus to compel the fiscal to prosecute.
d. The refusat by any officer without just cause to
comply with an order of the Ombudsman to
remove, suspend, emote, flne, censure, or
prosecute an officer or employee who is at fault or >
who neglects to perform an act or discharge a duty
required by law shall be a ground for disciplinary
action against said officer. (RA 6770, Sec. 15 (3);
Ledesma v. CA, G.R. No. 161629, 2005; Article 11
Sec. 13(3), 1987 Constitution)
4. Direct the officer concerned, in any appropriate case,
and subject to such limitations as may be provided by
law to furnish it with copies of documents relating to
contracts or transactions entered into by his office
involving the disbursement or use of public funds of.
properties, and roport any irregularity to COA for
appropriate action
5. Request any government agency for assistance and
intormation necessary in the discharge of its
responsibilities, and to examine, if necessary,
pertinent records and documents and public matters
covered by its investigation when circumstances so
warrant and with due process.
6. Determine tile cause of mismanagement, inefficiency,
red tape, fraud and corruption in the government and
make recommendations for their elimination and the
observance of hign standards of ethics and efficiency.
7. Promulgate its rules of procedure and exercise such
other powers or perform such functions or duties as
may be provided by law.
The Office of the Ombudsman enjoys fiscal autonomy.
Its approved annual appropriations should be
automatically and regularly released.
Doctrines:
1. The Ombudsman has juri15diction over disciplinary
cases against government employees, which includes
public school teachers. However, Section 9 of the
Magna Carta for Public School Teachers provides that
it must first go to a committee appointed by the
Secretary of Education. (Ombudsman v. Estandarte,
G.R. 168670, 2007).
2. The Office of the Ombudsman has the authority to
determine the administrative liability of an erring public
official or employee, and to direct and compel the head
Page 130 of 320
POLITICAL LAW
of the concerned officer or agency to implement the
penalty imposed. This power to impose administrative
liability is not merely recommendatory but actually
mandatory. (Ombudsman v. Delijero, G.R. 172635,
2010).
3. The enumeration of the powers of the Ombudsman in
the Constitution is not exclusive. Congress may add
additional powers. The Ombudsman Act grants to the
Ombudsman fuller authority; he has the power to
impose the penalty of suspension. (Ombudsman v.
CA, G.R. 160675, 2006).
. 4. The doctrine of qualified political agency does not
apply to the relationship between the Ombudsman and
the Special Prosecutor. The Special Prosecutor may
only file an information only when authorized by the
Ombudsman. (Perezv. Sandiganbayan, G.R. 166062,
2006).
5. In administrative case involving the concurrent
jurisdiction of two or more disciplining authorities, the
body in which the complaint is filed first, and which opts
to take cognizance of the case, acquires jurisdiction to
tne exclusion of other tribunals exercising concurrent
jurisdiction. In this case, since the complaint was filed
first in the Ombudsman, and the Ombudsman opted to
assume jurisdiction over the complaint, the
Ombudsman's exercise of jurisdiction is to the
exclusion of the Sangguniang Bayan exercising
concurrent jurisdiction. Jurisdiction could no longer be
transferred to the Sanggunlang Bayan by virtue of a
subsequent complaint filed by the same complainants.
(Ombudsman vs. Rodriquez, G.R. 172700, 2010).
6. The Office of the Ombudsman shall have disciplinary
authority over all elective and appointive officials of the
Government and its subdivisions, instrumentalities and
agencies, including Members of the Cabinet, local
government. governmant-owned or controlled
corporations and their subsidiaries. except over
officials who may be removed only tiy impeachment or
over Members of Congress, and the Judiciary. (RA r·
7660, sec. 21) However, he Office of the Ombudsman
(
shall have the power to investigate any serious
misconduct in the office allegedly committed by '·'
officials removable by impeachment, for the purpose
of filing a verified complaint for impeachment if
warranted. (RA No. 6770, Sec. 22)
7. An administrative complaint filed against a public
officer before the Ombudsman does not bar an
administrative investigation before the Presidential
Anti-Graft Commission. The jurisdiction of
Ombudsman over administrative complaints are not
exclusive, it may be exercised concurrently with an
authorized agency. (Lacson v. Executive Secretary,
'~.....,
G.R. 165399, 201 ~ ).
8. Appeals from decisions of the Ombudsman in
'.. ,
administrative cases do not stay the execution of the
penalty imposed. This is in accordance with Section 7
Rule Ill of the Rules of Procedure of the Ombudsman
which explicitly states that an appeal shall not stop the
 ATENEO CENTRAL
BAR OPERATIONS 2019
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 In addition,
under Section 13(8) Article XI of the Constitution
authorizes the Ombudsman to formulate its own rules.
(Facura et al. v. CA, et al., G.R. 166495, 2011 ).
9. Section 20 of RA 6770 is merely directory and does
not prohibit the Ombudsman from conducting an
administrative investigation after the lapse of one year,
reckoned from the time the alleged act was committed.
Without doubt. even if the administrative case was filed
beyond the one (1) year period stated in Section 20(5),
the Ombudsman was well withir, its discretion to
conduct the administrative investigation. (Ombudsman
v. Andutan, G.R. 16467.9, 2011).
10. Although the Ombudsman is not precluded by Section
20(5) of RA 6770 from conducting the investigation,
the Ombudsman can no longer institute an
administrative case against a resigned public officer
because the latter was not a public servant at the time
the case was filed. (Ombudsman v. Andutan, G.R.
164679,2011). ' declared invalid, and as such, the CA may Impose
11. Findings of fact by the Office of the Ombudsman when
supported by substantial evidence are conclusive. Any
order, directive or decision Imposing the penalty of
public censure or reprimand, suspension of not more
than one (1) month's salary shell be final and
unappealable. In the same vein, decision of the
Ombudsman absolving a public officer of an
administrative charge is final and unappea!able.
(Tolentino v, Atty. Roy Loyola et. al., G.R. 153809,
2011).
12. It isworth stressing that the Ombudsman's finding of
probable cause does not touch on the issue of guill or
innocence of the accused. It is not the function of the
Office of the Ombudsman to rule on such issue.
Hence, Courts do not interfere in the Ombudsman's
exercise of discretion In determining probable cause
unless there are compelling reasons. (Ganaden v.
Ombudsman, G.R. 170500/170510-11, 2011).
13. It is settled that the Office of the Ombudsman has the
sole power to investigate and prosecute on its own or
on complaint by any person, any act or omission of any
public of:icer or employee, office or agency, when such
.• :
\· }. act or omission appears to be Illegal, unjust, improper
. or inefficient. The power to withdraw the Information
already filed is a mere adjunct or consequence of the
Ombudsman's overall power to prosecute. However,
:f ~ while it is the Ombudsman whc has the full discretion
·-:, .;:
to determine whether or not a criminal case should be
filed in the Sandiganbayan, cnce the case has been
1......:-.
filed with said court, it is the Sandiganbayan, and no
, . longer the Ombudsman, which has full control of the
~-_; case so much so that tt:e Information may not be
dismissed without the approval of said court. Further,
it does not matter whether such filing of a motion to
dismiss by the prosecution Is done before or after the
Page 181 of 320
POLITICAL LAW
arraignment of the accused or that the motion was filed
after a reinvestigation. (City of Tuguerarao v, Ting,
.G.R. 192435-3, 2011 ).
14. The power of the Office of the Ombudsman to
investiyate extends to all kinds of malfeasance,
misfeasance, and non-feasance that have been
committed during his tenure of office by any officer or
employee of the Government, or of any subdivision,
agency or instrumentality thereof, including
government-owned or controlled corporations. (Office
of the Ombudsman v. De Leon, G.R. 154083, 2013).
15. A preliminary investigation partakes of an investigative
or inquisitorial power for the sole purpose of obtaining
information on what future action of a judicial nature
may be taken. Even the action of the Secretary of
Justice in reviewing a prosecutor's order or resolution
via appeal or petition for review cannot be considered
a quasi-judicial proceeding. Hence, Section 14, Artiere
VIII of the Constitution does not thus extend to
resolutions issued by the DOJ Secretary. (Bondoc v.
Tan nong, G.R. No. 186652, 2::>10).
16. The second paragrar1h of Section 14 of RA 6770 Is
provisional injunctive writ over the implementation of
prevention suspension order by the Ombudsman.
Furthermore, the independence granted to the
Ombudsman by the Constitution means freedom from
control or supervision of the Executive Department,
not the Judiciary. (Carpio-Morales v. CA, G.R. No.
217126-27, 2015)
17. Under such terms and conditions as it may determine,
taking into account the pertinent provisions of the
Rules of Court, the Ombudsman may grant immunity
from criminal prosecution to any person whose
testimony or whose possession and production of
documents or other evidence may be necessary to
determine the truth in any hearing, inquiry or
proceeding being conducted by the Ombudsman or
under its authority, in the performance or In the
furtherance of its constitutional functions and statutory
objectives. The immunity granted under this and the
immediately preceding paragraph shall not exempt the
witness from cnrnlnal prosecution for perjury or false
testimony nor shall he be exempt from demotion or
removal from office. (RA 6770, Sec. 17(2))
Judicial Review in Administrative Proceedings and in
P ena IP roce eel'mgs
ADMIN. PEN.~L
Appeals from resolutions Supreme Court is not
of the Office of the precluded from reviewing
Ombudsman in the Ombudsman's action
administrative disciplinary
when there is an abuse of
cases should t:>e taken to discretion, in which case
the Court of Appeals via Rule 65 of the Rules of
Pel:tion for Review under Court. ( GE:rcla-Rueda v.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Rule 43 of the Rules of Pesceslo, G.R. 11(J-i41, Removal; Filling of Vacancy . .

Court. (Fabian v. Desierto, 1997) 1. In accordance with the provisions of Article XI of the
G.R. 129742, 1998) Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust.
Non-Administrative v. Administrative: 2 .. The Special Prosecutor, may be removed from office
by the President for any of the grounds provided for
FROM. APPEAL TO.
the removal of the Ombudsman, and after due
process.
Ombudsman (non- Supreme Court via
administrative cases) Rule 65
Prohibitions and Disqualifications .
• The Special Prosecutor shall not, during their tenure,
Ombudsman Court of Appeals via Rule
hold any other office or employment.
(administrative cases 43
ONLY) • Shall not, during said tenure, directly · or indirectly
practice any other profession, participate in any
business, or be financially interested in any contract
OFFICE OF THE SPECIAL PROSECUTOR with, or in any franchise, or special privilege granted
by the government or any subdivision, agency or
Under PD 1487, as amended by PD 1607, Tanodbayan instrumentality thereof, including government-owned
was both prosecutor and Ombudsman. Harmonlsation of or controlled corporations or their subsidiaries.
the laws left the Special Prosecutor to continue to exercise • Shall strictly avoid conflict of interest in the conduct of
powers of th'3 former Tanodbayan except those specifically their office.
passed on to the Ombudsman. • Shall not be qualified to run for any office in the election
· immediately following their cessation from office.
Since the power to investigate has been vested to the • Shall not be allowed to appear or practice before the
Ombudsman, the Special Prosecutor can only investigate Ombudsman for two (2) years foliowing their cessation \

and prosecute if authorised by the Ombudsman. from office. ·

Appointment
1. The President selects from a list of at least twenty one
(21) nominees prepared by the Judicial and Bar
Council
2. From a list of three (3) nominees for each vacancy
thereafter, which shall be filled within three (3) months
after it occurs, , official concerned. This disqualification likewise
3. Each of list shall be published in a newspaper of
general circulation.
• No spouse or relative by consanguinity or affinity within
the fourth civil degree and no law, business or
professional partner or associate the Special
Prosecutor within one (1) year preceding the
appointment may appear as counsel or agent on any
matter pending before the Office of the Ombudsman
or transact business directly or indirectly therewith.
• This disqualification shall apply during the tenure of the
extends to the law, business or professional firm for
the same period.

In the organization of the Office of the Ombudsman for
filling up of positions therein, regional, cultural or ethnic
considerations shall be taken Into account to the end that
the Office shall be as much as possible representative of
the regional, ethnic and cultural make-up of the Filipino
nation.
Qualifications
1. Natural born citizens of the Philippines,
2. At least forty (40) years old,
3. Of recognized probity and independence,
4. Member of the Philippine Bar,
5. Must not have been candidates for any elective
national or local office in the immediately preceding
election whether regular or special.
Authority and Responsibllltles
• Shall be composed of the Special Prosecutor and
his prosecution staff. The Office cf the Special
Prosecutor shall be an organic component of the
Office of the Ombudsman and shall be under the
supervision and control of the Ombudsman.
• It shall, under the supervision and control and
upon the authority of the Ombudsman, have the
following powers:
1. To conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of
the Sandiganbayan;
2. To enter into plea bargaining agreements; and ',........
3. To perform such other duties assigned to it by the
Ombudsman.

Term
The Special Prosecutor, shall serve for a term of seven (7) ... _;
years without reappointment.
Page 182 of 320

·-----------·-····- - . - .. -····-
 ATENEO CENTRAL
BAR OPERATIONS 2019
THE SAND!GANBAYAN
Jurisdiction in general ,
1. Violations of Anti-graft and Corrupt Practices Act;
2. Republic Act No. 1379
3. Chapter II, Section 2, Title VII, Book II of the Revised.
Penal Code
4. One or more of the accused are officials occupying the
following positions in the government whether in a
permanent, acting or interim capacity, at the time of the
commission of the offense:
a. Officials of the executive branch occupying the
positions of regional director and higher, otherwise
classified as Grade '27' and higher, of the
Compensation and Position Classification Act of
1989 (Republic Act No. 6758), specifically
including:
b. Provincial governors, vice-governors, members of
the Sangguniang Panlalawlgan and provincial
treasurers, assessors, engineers and other
provincial department heads;
c. City mayors, vice-mayors, members of the
Sangguniang Panlungsod, city treasurers,
assessors, engineers and other city department
heads;
d. Officials of the diplomatic service occupying the
· position of consul and higher;
e. Philippine army and air force colonels, naval
captains. and all officers of higher rank;
f. Officers of the Philippine National Police while·
occupying the position of provincial director and
those holding the rank of senior superintendent or
higher;
g. City and provincial prosecutors and their
assistants, and officials and prosecutors in the
Office of the Ombudsman and special prosecutor;
•.. ; h. Presidents, directors or trustees, or managers of
government-owned or controlled corporations,
state universities or educational institutions or
· foundations;
i. Members of Congress and officials thereof
classified as Grade 27 and up under the
Compensatlon and Position Classification Act of
1989;
j. Members of the judiciary without prejudice to the
provisions of the Constitution;
k. Chairmen ·and members of Constitutional
~ .. Commissions, without prejudice to the previsions
of the Constitution; ·
I. All other national and local officials classified as
Grade 27 and higher under the Compensation and
Position Classification Act of 1989.
5. Other offenses or felonies whether simple or
complexed with other crimes committed by the public
officials and employees mentioned above in relation to
their office.
Page 183 of 320
POLITICAL LAW
6. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and 14-
A, Issued in 1986. (RA 8249, sec. 4(a))
Offenses committed in relation to public office
1. Accused is any one of the Public Officers and
Employees in Subsection (a) of Section 4 of RA 8249
or with Salary Grade 27 and above;
. 2. Accused commits any other offense/felony, than those
spechled in Subsection (a), whether simple or
complexed with other crimes;
3. The offender commits such other offense/felony in
relation to his office.
"In relation to his office" • WIC
1. · It cannot exist Without the office, or
2. If the office is a Constituent element of the crime as
defined in the statute, or
3. Must be Intimately connected with the office of the
offender
Appel!ate jurisdiction
Cases decided by the RTC filed against lower level public
officials or those classified as Grade 26 and lower,
involving:
1. Violations of RA 3019;
2. RA 1379;
3. Direct/indirect bribery and Corruption of Public officials
It is tho Sandiganbayan which has jurisdiction over appeals
from criminal cases where the accused is a government
employee. Pursuant to RA 8249, the Sandiganbayan shall
exercise exclusive appellate jurisdiction over final
judgments, resolutions or orders of regional trial courts
whether in the exercise o~ their own original Jurisdiction or
of their appellate Jurisdiction as herein provided. (Fiiomena
v. People, G.R. 188630, 2011)
While it is the Ombudsman who has the full discretion to
determine whether or not a criminal case should be filed in
the Sandiganbayan, once the case has been filed with said
court, it is the Sandiganbayan, and no longer the
Ombudsman, which has full control of the case so much so
that the Information may not be dismissed without the
approval of said court. In this case, the Sandiganbayan
ordered the Special Prosecutor to conduct a
reinvestigation and subsequently granted his motion to
withdraw the informations, after finding no probable cause
against the latter on reinvestigation. The Sandiganbayan
thus gave its approval to the withdrawal of the informations
and ordered the dismissal of the cases. Since no appeal
was taken by the Special Prosecutor from the order of
dismissal within the reglementary period, the same had
become final and executory. (C•ty Government of
Tuguegarao v. Ting, G.R. 192435·36, 2011)
In all cases elevated to the Sandiganbayan and from the
Sandiganbayan to the Supreme Court, the Office of the
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Ombudsman, through its Special Prosecutor, shall

represent the People, except in cases filed pursuant to
Executive Order Nos. 1, 2, 14 and 14-A. A private
complainant in a criminal case before the Sandiqanbayan
is allowed to appeal only the civil aspect of the criminal
case after its dismissal by said court. (City Government of
Tuguegarao v. Ting, G.R. ·J 92435-36, Sepl.14, 2011)

The special civil action of certlorari is not the proper

remedy to challenge a judgment conviction rendered by
the Sandiganbayan. Petitioner should have filed a petition
for review on certiorari under Rule 45. Pursuant to Section
' 7 of Presidential Decree No. 1606, as amended by
Republic Act No. 8249, decisions and final orders of the
Sandiganbayan shall be appeaiable to the Supreme Court
by petition for review on certiorari raising pure questions of
law in accordance with Rule 45 of the Rules of Court.
{lcdang v. Sandiganbayan, G.R. 185960, 2012)

The Sandiganbayan has the ::iuthority to order the

preventive suspension of an incumbent Senator charged
with violation cf the provisions of RA 3019 or the Anti-Graft
and Corrupt Practices Act. (Santiago vs. Sandiganbayan,
G.R. 128055,2001)

--- end of topic -----

.. '
..~ ...

• >

'

Page 184 of 320 . ,

 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

IX. ADMINISTRATIVE LAW GENERAL PRINCIPLES

TOPIC OUTLINE UNDER THE SYLLABUS
A. General principles
B. Powers of administrative agencies
· 1. Quasi-legislative (rule-making) power
a. Kinds of administrative rules
regulations
b. Requisites for validity
2. Quasi-judicial (adjudicatory) power
a. Administrative due process ·
b. Administrative appeal and review
c. Administrative res judicata
3. Fact-finding, investigative, licensing, and rate-
fixing powers
C. Doctrines of primary jurisdiction and exhaustion
of administrative remedies
Administrative Law
part of public law that fixes the organization and
determines the competence of administrative authorities
and indicates to the individual remedies for the violation of
his rights (Nachura, Outline Reviewer in Political Law 493
2015). • '
and
Scope of Administrative Law - (FEG-CP-GRB)
1. Fixes the administrative organization and structure of
the government.
2. Executes or enforces that which is entrusted to
administrative authorities (all those public officers and
organs of the government charged with amplification,
application, and execution of the law).
3. Governs public officers
4. Creates administrative agencies
5. Provides the remedies to those aggrieved by these
agencies.
6. Governs judicial review
7. Includes Rules, regulations, orders and decisions
made by adminisfrative authorities.
8. Includes the Body of judicial decisions/doctrines on
any of the above.

Plr ncloal Subdivisions

LAW OF INTERNAL LAW OF EXTERNAL
ADMINISTRATION ADMINISTRATION

Treats of the legal Concerned with the legal

relations between the relations between
government and its administrative authorities
administrative officers, and private interests.
and of the legal relations
that that one
.
.J
;
:·
administrative officer or
organ bears to another.

Classification
As to source·
LAW THAT CONTROLS LAW MADE BY ADMIN.
ADMIN. BODIES AUTHORITIES
.:. E
Constitution, statutes, General regulations and
,: judicial decisions, E.O.s, particular determinations;
j
~·... } A.O.s, etc. constitutes delegations of
power embodied in
statutory administrative
law, and imposing and
constantly expanding body
of law.

Page 185 of 320

 ATENEO CENTRAL
BAR OPERATIONS 2019
Asto u ose:
ADJECTIVE or
PROCEDURAL ADMIN.
LAW
Establishes the procedure
which an agency must or
may follow in the pursuit of
its legal purpose.
GENERAL ADMIN. LAW
Part that is of a general
nature and common to all,
or most, admin agencies;
chiefly, but not exclusively
procedural law.
Administration of G,>vernment v. Administration of
Justice·
ADMINISTRATION OF
GOVERNMENT
Administrative officers
must determine what is the
law in order to determine
whether they are
competent to act and if it is
wise to act.
ADMINISTRATION
Refers to the aggregate of
persons in whose hands
the reins of · the
government are entrusted
by the people for the time
being.
'-----------------~···
SUBSTANTIVE ADMIN.
LAW
Derived from same
sources but contents are
different in that the law
establishes primary rights
and duties.
SPECIAL or
PARTICULAR ADMIN.
LAW
Part that pertains to
particular agencies:
proceeds from the
particular statute creating
the Individual agency.
ADMINISTRA110N OF
JUSTICE
Work done consists in the
decision of controversies
between individuals and
government officers, as to
the applicability in the
cases in question: all that
judicial officers have to do
is determine what law is
applicable to the facts
brought before them.
GOVERNMENT.
Institution or aggregate of
institutions by which an
independent society
makes and carries out
those rules of action which
are necessary to enable
men to live in a civilized
state, or which are
imposed upon the people
forming that society by
those who possess the
power or authority of
prescribing them.
Page 186 of 320
-·-·--
POLITICAL LAW
Adm:nlstrative Agencies
Definition . .
Administrative agency - An agency exerc1s1ng. s~n_,e
significant combination of executive, legislative and judicial
powers.
Manner of Creation
1. Established by the Cohstltution
• If created by the Constitutbn its~lf, _it ~n only be .
altered or abolished by the constitution itself.
2. Created by statute or law ..
• Legislature may amend or repeal the law creating
it, thereby affecting the agency created by it.
3. By authority of law
This is a recognized exception to the principle of non-
delegabillty of legl~lative power.
As a result of the growing complexity of the modern
society, it has become necessary to create more. and mo.re
administrative bodies to help in the regu:at1on of lts
ramified activities. Specialized in the particular fields
assigned to them, they can dea: with the problems thereof
with more expertise and dispatch than can be expected
from the leglslature or the courts of Justice. This is the
reason for the increasing vesture of quasi-legislative and ·
quasi-judicial powers in what is now not unreasonably
called the fourth department of the government. (Solid
Homes v. Payawal, G.R. 84811, 1989)
Kinds of Administrative agencies (BIG GAP) :
1. Perform some BusinP.ss for the public (e.g. MWSS,
PNR,NFA) ·
2. Regulate businesses affected with public Interest (e.g.
LTFRB, ERB)
3. Offer some Gratuity, grant or special privilege (e.g.
GSIS, SSS, Philippine Veterans Adminiatration)
4. It is true that under Section 41 (n) of RA 8291 (the GSIS
Law), GSIS is expressly granted the p~wer to adop~ a
retirement plan and/or financial assistance for its
employees, but a closer look at the pr~vision .readily
shows that this power is not absolute. It rs qualified by
the words "early," "incentive," and "for the purpose of
retirement." The retirement plan must be an early
retirement incentive plan and such early retirement
incentive plan or financial assistance must be f?r th.a
purpose of retirement. But, the retirement plan_ in this
case is not such retirement plan, thus falls outside the
powers granted to the GSIS. (GSIS v. COA, G.R. f'•. i.
.s
162372, 2011)
5. Seek to carry on certain functions of the Government
• ..... ~J'
(e.g. BIR, Bureau of Customs, Bureau of Immigration)
6. Seek to Adjust individual controversies because o}f
some strong social policy Involved (e.g. NLRC, DAR
7. Seek under Police power to regulate private
businesses and ind:viduals (e.g. SEC. MTRCB,
Dangerous Drugs Board)

ATENEO CENTRAL
BAR OPERATIONS 2019
The MMDA is a development authority created for the
purpose of lay;ng down policies and coordinating with
various agencies, organizations and the private sector,
which may enforce, but not enact ordinances. RA 7924
does not grant the MMDA with the police power. let alone
the legislative power, and that all its functions are
administrative in nature. (MMDA v. Garin, G.R. 130230,
2005).
Administrative agencies have powers and functions which
may be administrative, investigatory, requlatory, quasi-
legislative, or quasi-judicial, or a mix of the five, as may be
conferred by the Constitution or by statute. They have in
fine only such powers or authority as are granted or
delegated, expressly or impliedly, by law. And in
determining whether an agency has certain powers, the
inquiry should be from tho raw itself. But once ascertained
as existing, the authority given should be liberally
construed. (Soriano v, MTRCB, G.R. 165785, 2009)
Limitations:
1. Validity of granting statue: completeness and sufficient
standard tests
2. Constitutional protections: due process, equal
protection and notice
3. Reasonableness
4. Notice
5. Statutory requirements for regulations
Powers of Administrative Agencies
1. Discretionary - The power· or right conferred upon
them by law to act officially under certain
circumstances, according to the dictates of their own
judgment and conscience, and not controlled by the
judgment or conscience of others.
2. Ministerial - Nothing is left to discretion; a simple,
definite duty arising under conditions admitted or
c -.~ proved to exist, and imposed by law; a duty performed
ln response to what has been imposed by law under
conditions specifled by law not being dependent upon
.
.. !..
' the officer's judgment or discretion.
POWERS OF ADMINISTRATIVE AGE:NCIES
,. .,.
QUASI-LEGISLATIVE CRULEMAKING) POWER
Authority delegated by Congress to the administrative
body to adopt rules and regulations intended to carry out
the provisions of a law, and implement legislative policy.
This is a form of delegated legis:ation. Valid regulations
have the force and effect of law.
Kinds of Agency Rules
' .. 1. Non-Legislative Rule
( .r
a. No force of law
b. No need for notice, comment and publication
Page 187 of 320
..
·, ·.: ••I
POLITICAL LAW
c. Exception: When rule affects third persons
(Tanada v, Tuvera)
d. Examples: (SIPl)
i. Supplementary - Those which supply details,
also known as detailed legislation.
ii. Interpretative - Those that do no more than to
interpret a statute. These are given weight and
respect but are not conclusive to the courts.
Recall that administrative agencies are
possessed of specialized knowledge
iii. Procedural - Those which describe the
method by which the ciQency will carry out its
appointed functions
iv. Internal - Those issued by a superior
admlntsfratlve or executive officer to his
subordinates for the proper and efficient
administration of law.
2. Legislative/Substantive Rule
a. With force of law
b. Needs notice. comment. a.nd publication (Chap 2.
Book VII, Administrative Code and Art. 2, Civil
Code)
c. Examples: (PCS)
i. Penal - Those that carry out penal or criminal
sanctions for violation of the same.
, ii. Contingent - Those which determine when a
statute will go into effect. Power to ascertain
the happening of such facts may be delegated
to administrative agencies
iii. Supplementary - Those which only supply
· details, also known as detailed legislation.
Subordinate Legislation
A legislative rule is in the nature of subordinate
legislation, designed to implement a primary legislation by
providing the details thereof. In the same way that laws
must have the benefit of public hearing, it is ge11erally
required that before a legislative rule is adopted !here must
be hearing. On the other hand, interpretative rules are
designed to provide guidelines to the law which the
administrative agency is In charge of enforcing. (CIR v. CA,
G.R. No.119761, 1996citing Misamis Oriental Association
of Coco Traders Inc. v, Dept. of Finance)
Administrative issuances
Administrative issuances partake of the nature of a statute
and have in their favor a presumption of legality. As such,
court cannot Ignore administrative issuances especially
when, as in this case, its validity was not put in issue.
Unless an aornlnistratlve order is declared invalid, court
has no option but to apply the same. (Alfonso v. Land Bank
of the Philippines, G.R. Nos. 181912 & 183347, 2016)
 ------ ------------

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Special Requisit~ Penal Rules: • (PFPO)

1. The law which authorizes the promulgation of rules Interpretative regulations and those merely internal in
and regulations must itself Provide for thEi imposition nature, that is, regulating only the personnel of the
of a penalty for their violation; adrnlnlstrative agency and not the public, need not be
2. The law must Fix or define such penalty; published. Neither is publication required of the so-called
3. The violation for which the rules and regulations letters of instructions issued by administrative superiors
impose a Penalty must be punishable under the law concerning the rules on guidelines to be followed by their
itself; and subordinates in the performance of their duties. (VFP v.
4. The rules and regulations must be published in the Reyes,G.R.No. 1~5027,2006)
Official Gazette or Newspaper of General Circulation
and archived at the UP Law Center.
LEGISLATIVE QUASl·LEGISLA TIVE
Rule Publication
Involves tho discretion to Only involves the
PUBLICAT NOTICE determine what the law discretion to determine
KIND
ION AND shall be how the law shall he
(Code: SIC GRANT
REQUIRE COMMENT enforced
PIP)
MENT
Cannot be delegated Can be delegated
Suppleme Express or Yes Yes/No
ntary implied Tests of Delegation:
1. Completeness test - The statute must be complete in
lnterpretati Express or No No all i\s terms and conditions when it leaves the
ve implied
legislature such that when it reaches the delegate, the
011ly thinu he will have to do is to enforce it.
Contingent Express Yes Y~s
· 2. Sufficient standard test - The statute fixes a

Procedural
Express or Yes No . standard, mapping out the boundaries of the agency's
authority to which it must conform. The law must offer
Implied
a sufficient standard to specify the limits of the
Express or No No deleqate's authority, announce the legislative policy
Internal ' and specify the conditions under which it is to be
implied
implemented.
Penal Express Yes Yes
The two tests must concur. If one or both are absent,
any delegation that occurs is undue delegation of
legi&lative powers.
According to the Administrative Code, 3 copies of every
rule should be filed in the Office of the National Exceptions (To The Rule Requiring Standards; When
Administrative Register (ONAR) of the UP Law Center. Not Required): (SPIRPE) _
Failure to comply with this makes the administrative 1. Handling of State property or funds '-·
issuance ineffective & may not be enforced. (GMA v. · 2. When the law does not Involve Personal or property
MTRCB, G.R. 148579, 2007) This registration requirement rights
is part of publication. 3. Matters of Internal administration
4. Power of the board to make Recommendation
Not all rules and regulations adopted by every government 5. Matters involving Privileges (liko use of property,
agency are to be filed with the UP Law Center. Only those engag:ng in profession) ',.
of general or of permanent character are to be filed. 6. Regulation or Exercise of police power to protect
Internal rules which are meant to regulate the personnel of general welfare, morals and public policy
the GSIS arc not subject to with the UP Law Center. (Board
of Trustees v, Velasco, G.R. 17046, 2011). Note: Still subject to reasonableness standard
s,

All that is required for the validity of rules promulgated by Nature of power of the Executive to adopt rules and i
administrative agencies is the filing of three (3) certified regulations to execute or Implement the law (.
'<, ••

copies with the University of the Philippine Law Center. The inherent power of the Executive to adopt rules and
Within 15 days of filing, administrative rules become ,,
regulations to execute or lmplemer.t the law is different '-.:
effective. Non-publication does not Invalidate the from the delegated legisl<Jtive power to prescribe rules.
Department Order. (Quezon City PTCA Federation v, The inherent power of the executive to adopt rules to
DepEd, G.R.No. 188720, 2016) execute the law does not require any legislative standards
Page 188 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
for its exercise while the delegated legislative power
requires sufficient legislative standards for its exercise.
(Cervantes v. Auditor General, G.R. L-4043, ·1952).
Appropriation
The Administrative Code of 1987 expressly declares void
a contract that fails to comply with the two requirements,
namely: (1) an appropriation !aw funding the contract and
(2) a certification of appropriation and fund availability. The
clear purpose· of these requirements is to insure that
government contracts are never signed unless supported
by the corresponding appropriation law and fund
availability. (PNR v. Kanlaon Construction Enterprises Co.·
Inc., G.R. 182967, 2011).
Requisites tor validity
Rules in Rule-M<lking (Requisites for Validity):
(CURLAP)
1. It must be Consistent with the law and the constitution.
2. It must be Uniform in operation, reasonable and not
unfair or discriminatory. . Court, as the PET, resolves a presidential or vice-
3. It must have a Reasonable relationship to the purpose
of the law.
4. It must be within the Limits of the powers granted to
administrative agencies.
5. May not Amend, alter, modify, supplant, enlarge, limit
or nullify the terms of the law.
6. Must be promulgated in accordance with the
Prescribed procedure.
Administrative rules mersly interpretative in nature
When an administrative rule is merely interpretative in
nature, its applicability needs nothing further than its bare
issuance for it gives no real consequence more than what
the law itself has already prescribed. When, upon the other
hand, the administrative rule goes beyond merely
providing for the means that can facilitate or render least
cumbersome the implementation of the law but
, •,
~ u substantially adds to or increases the burden of those
. ~~·
governed, it behooves the agency to accord at least to
those directly affected a chance to be heard, and thereafter
to be duly informed, before that new issuance is given the
force and effect of law. (CIR v. Court of Appeals, G.R.No.
'I 19761, 1996)
The DOH's power under the Milk Code to control
information regarding breast milk vis-a-vis breast milk
substitutes is not absolute, as the power to control does
not encompass the power to absolutely prohibit the
,f' : advertising, marketing, and promotion of breast milk
substitutes. Neither the Milk Code nor the Revised
Administrative Code grants the DOH the authority to fix or
impose administrative fines. Without any express grant of
power to fix or impose such fines, the DOH cannot provide
-.,...._.:., for those fines in the RIRR. The DOH exceeded its
authority by providing for such fines or sanctions in the
i,..;·' RIRR. (Pharmaceuticals and Health Care Association of
the Philippines v. Duque, G.R. 173034, 2007)
Page 189 of 320
POLITICAL LAW
The Laguna Lake Development Authority has power to
impose fines in the exercise of its function as a regulatory
and quasi-judicial body with respect to pollution cases in
the Laguna Lake region. (Public Hearing Committee of the
Laguna Lake Development Authority v. SM Prime Holding,
G.R. 170599, 2010).
QUASI-JUDICIAL (.t,pJUDICATORY) POWER
Administrative due process
Also known as adjudicatory powers, it is the power of
administrative authorities to make determinations of facts
in the performance of their official duties and to apply the
law as they construe it to the facts so found. It partakes of
the judicial power, but is exercisea by a person other than
a judge.
The Presidential Electoral Tribunal (PET) does not
exercise quasi-judicial functions. When the Supreme
presidential election contest, It performs what is essentially
a judicial power. (Macalintal v. Presidential Electoral
Tribunal, G.R. 191618, 2010).
The classification of positions in career service is a quasi-
legislative, not a quasi-judicial, issuance. This distinction
determines whether prior notice and hearing are
necessary. It was an internal matter which did not need
prior publication. It had been issued as an incident of the
administrative body's power to issue guidelines for
government officials to follow in performing their duties.
(Abel:a v. CSC, G.R. 152574, 2004).
The fact that the Toll Regulatory Board is exercising its
administrative or executive functions such as the granting
of franchises or awarding of contracts and at the same time
exercising its quasi-legislative and/or quasi-judicial
functions (e.g., rate-fixing), does not support a finding of a
violation of due process or the Constitution, (Francisco, Jr.,
et al. vs. Toll Regulatory Board, G.R.
' 166910/169917 /173630/183599, 2010).
It is . well settled that findings of fact of quasi-judicial
agencies, such as the COA, are generally accorded
respect and even finality by this Court, if supported by
substantial evidence, in recognition of their expertise on
the specific matters under their jurisdiction. (Reyna v.
Commission on Audit, G.R. 167219, 2011 ).
The doctrine of separate personality of a corporation finds
no application in a government agency. Also, tre law
states that expenditures of government funds or uses of
government property in violation of law or regulations shall
be a personal liability of the official or employee found to
be directly responsible therefore. (Verzosa, Jr. v. Carague,
G.R. 157838, 2011).
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Quasi.Jeaislative v, auasi-iudicial: remedied through an Order giving petitioners the right

to participate in the hearing of the MR. The opportunity
QUASI· QUASI- granted by, technically, allowing petitioners to finally
LEGISLATIVE JUDICIAL be able to file t!1eir comment in the case, resolves the
procedural irregularity previously inflicted upon
Express or Express petitioners. (NASECORE v. ERC, G.R. 190795, ~011)
Grant Implied
4. The Board of Medicine can properly admit formal offer
(SIC PIP)
of evidence to prove that a person's kidneys were in
their "proper anatomical locations" at the time she was
Parties All/ Sectors Particular
operated and that the BOM shall determine the
involved
probative value thereof, if the original documentary
Adversarial No Yes evidence cannot be produced. The rules of evidence
are mereiy the means for ascertaining the truth
Controversy None Exists '.
respecting a matter of fact. Rules of evidence are not
strictly applied In proceedings before administrative
Notice and No Yes. bodies such as the BOM. (Atienza v. Board of
Hearing Medicine, G.R. 177407, 2011)

Primary J./ Not applicable Applicable Enforcement of decisions

Exhaustion
A.R.
Time Future PasV Present
Depends on type Yes
Publication
of rule (SIC PIP}
Doctrines:
1. The essence of due process in administrative
proceedings is the opportunity to explain one's side or
seek ~ reconsideration of the action or ruling
complam~d of. As long as the parties are given the
opportunity to be heard before Judgment is rendered,
the demands of due process are sufficiently met. What
is offensive to due process Is the denial of the
opportunity to be heard. Nothing is irregular in
considering the investigation terminated and
submitting the case for resolution based on available
evidence upon failure of the respondent to file his
counter-affidavit or answer despite giving him ample
opportunity to do so. Moreover, Section 14, Article VIII
of the 1987 Constitution need not apply to decisions
rendered in administrative proceedings. Said section
applies . only to decisions rendered in judicial
proceedings. It would be error to hold or even imply
that decisions of executive departments or
administrative agencies are obliged to meet the
requirements under Section 14, Article VIII. {Flores v.
Montemayor, G.R. 170146, ,'2011}
2. A respondent in an administrative case is not entitled
to be informed of the preliminary findings and
recommendations; he is entitled only to a reasonable
It must be in accordance with the manner prescribed by the
statute, If there is no provision, resort to the courts is
necessary for enforcement.
Characteristics of Quasi-Judicial Proceedings -
(PJAC}
1. Adversarial in nature; every proceeding is adversary in
substance if it may result ir. an order in favor of one
person against another.
2. Such proceedings partake of the nature of Judicial
proceedings if it involves taking and evaluation of
evidence, determination of facts based upon evidence
presented and rendering an order er decision
supported by the facts proved.
3. Particular proceedmqs before an administrative
aqency have been held Civil rather than criminal in
nature.
4. The proceeding for forfeiture while administrative in ,.. ~
character thus possesses a criminal or penal aspect.
(Cabal v. Kapunan, G.R. L-19052, 1962).
Requisites of Quasi-Judicial Proceedings: (JD)
1. Jurisdiction (defined by Jaw/charter) - power and
authority given by law to hear and decide a case·
consists of lWO elements-jurisdiction over subject:
matter arid over the person. Without jurisdiction, acts
are void and open to collateral attack.
a. Administrative agencies are tribunals of
specialized or limited jurisdiction, which is
dependent entirely upon the validity and the terms
of the statutes reposing power in them.
b. An administrative agenc-J cannot enlarge its own
jurisdiction nor can jurisdiction be conferred upon t -.

opportunity to be heard, and to the administrative an agency by parties before it.

decision based on eubstantlal evidence. {Velasquez v. c. When a particular statute authorizes an ; .
administrative agency to act in a particular v, .. ;·
CA, G.R. No. 150732, 2004)
3. There is no denial of due process if any irregularity in situation, it necessarily confers upon such agency
the premature issuance of a decision has been authority to determine whether the situation is ·... ~-
such as to authorize the agency to act; an
Page 190 of 320
 ATENEO CENTRAL
BAR OPERATIOi\lS 2019
administrative agency's determination as to its
jurisdiction is not conclusive to the courts. ·
d. Expiration of a statute may be held not to deprive
an administrative agency of jurisdiction to enforce
the statute as to liabilities incurred while the statute
was in force, where a general saving statute
continues such liabilities.
e. Administrative agencies are creatures of the law
and they have no general powers but only such as
conferred by law; where the law confines in an
administrative officer the power to determine
particular questions or matters upon facts
presented, the jurisdiction of such office shall
prevail over courts.
f. In order for the Court to acquire jurisdiction over
an administrative case, the complaint must be filed
during the incumbency of the respondent. Once
jurisdiction is acquired, it is not lost by reason of
respondent's cessation from office. (Office of the
Court Administrator v. Andaya, AM. RT J-09-2181,
2013).
2. Due Process - Doctrine of primary jurisdiction.
a. If the determination requires the expertise,
specialized skills and knowledge of the proper
administrative bodies because technical matters
...
I
v, -·
>
or intricate questions of facts are Involved, then
relief must first be obtained in an administrative
proceeding before remedy will be supplied by the
courts.
b. Failure to ccmply with this doctrine renders the
action open to a motion to suspend pending
referral of the issues to the administrative agency.
Administrative Due Process: (HIP DESK)
J 1. The right to a Hearing, which includes the right to
present one's case and submit evidence in support
" T thereof. However, a "trial-type" proceeding is not
required. The essence is the opportunity to be heard.
2. The tribunal or body or any of its judges must act on its
or his own Independent consideration of the law and
facts of the controversy, and not simply accept the
t, ...
views of a subordinate in arriving at a decision.
3. The decision must be based on the evidence
Presented at the hearing or at least contained in the
record and disclosed to the parties affected.
-; :..'
:.' .. ,.-
4. The Decision must have something to support itself.
5. The tribunal must consider the Evidence presented.
6. Evidence supporting the conclusion must be
Substantial. ·
7. The board or body should, in all controversial
questions, render its decision in such a manner that
the parties to the proceeding can Know the various
issues involved and the reasons for the decision
rendered. (Ang Tibay v. CIR, G.R. L-46496, 1940)
',,,.,, Page 191 of 320
POLITICAL LAW
Doctrines:
1. For as long as the parties were given fair and
reasonable opportunity to be heard and to submit
evidence in support of their arguments before
judgment was rendered, the demands of due process
are sufficiently met. (Casimiro v, Tandog G.R. 146137,
2005)
2. Procedural due process is the consti'.utional standard
demanding that notice and an opportunity to be heard
be give;, before judgment is rendered. As long as a
party is given the opportunity to defend his interests in
due course, he would have no reason to complain; the
essence of due process is In the opportunity to be
heard. A formal or trial-type hearing is not always
necessary. (Imperial v. GSIS, G.R. 191224, 2011)
3. A decision is void for lack of due process if, as a result,
a party is deprived of the opportunity to be heard. A
void decision may be assailed or impugned at any time
either directly or collaterally by means ot a separate
action, or hy resisting such decision in any action or
proceeding where it is mvoked. (Uy vs. Court of
Appeals, G.R. 109557,. 2000)
4. The rule requiring an administrative officer to exercise
his own judgment and discretion does not preclude him
from utilizing the aid of his subordinates in the hearing
and reception of evidence.
5. When an administrative agency acts as a collegiate
body, its power and duties cannot be exercised by the
members individually.
6. Procedural due process is the necessity for notlce and
an opportunity to be heard before judgment is
rendered. As long as a party ts given the opportunity to
defend his interests in due course, he would have no
reason to complain, for it is this opportunity to be heard
that makes up the essence of due process. (Catmon
Sales v. Yngson, G.R. 179761, 2010)
7. The essence of due process in administrative
proceedings Is the opportunity to explain one's side or
seek a reconsideration of the action or ruling
complained of. (Antonio v. Villa, G.R. 114694, 2005)
8. There is no denial of due process just because no
cross-examination took place. What is Important Is that
she was given the opportunity to do so. (Vertudes v.
Buenaflor, G.R. 153166, 2005)
9. In administrative proceedings, the filing of charges and
g:ving reasonable opportunity for the person charged
to answer the accusation against him constitute the
minimum requirements of due process. (Cayago v.
Lina, G.R. 149539, 2005)
10. Some proceedings are instituted by simple ex parte
applications. Others are instituted by filing of a charge
or complaint by an aggrieved person. Under other
statutes, particular admlnistratlve agencies may
institute proceedings on their own initiative, motion, or
complaint.
11. Due Process requirements are usually in the statute,
t:ut if none is provided, the Constitutional guarantee of
due process of law must be upheld. (Notice, to enable
ATENEO CENTRAL
BAR OPERATIONS 2019
a party to be heard and to present evidence, is ;1ot a
mere technicality or a trivial matter in any judicial or
quasi-judicial proceedings. The service of summons is -,
a very vital and indisponsable ingredient of Du/3 ·
Process). When an agency fails to afford previous
notice, it may be cured by subsequently giving the
party an opportunity to be heard. Motion for
reconsideration is a means to cure the defect of notice.
12. Non-ming of any administrative charge against the
accused preparatory to his dismissal, and therefore
the dismissal effected without any administrative
complaint, violated the right of the accused to
substantive and procedural due process. He is entitled
to reinstatement and to payment of the salaries, ·
allowances, and other benefits withheld from him by
reason of his discharge from the service. (Calinlsan v.
Roaquin, G.R. 159588, 2010)
13. The subsequent desistance by complainant does not
free tho respondent from liability, as tho purpose of an
administrative proceeding is to protect the public
service based on the time-honored principle that a
public officer is a public trust. (Encinas v. Agustin Jr.,
G.R. 187317,2013)
14. The Revised Rules on Administrative Cases in the Civil
Service themselves provide that administrative
investigations shall be conducted without strict
recourse to the technical rules of procedure and
evidence applicable to judicial proceedings. (Adalin v.
Taninas, G.R. L-198682, 2013)
15. The dismissal of the criminal complaint does not affect
the administrative case arising from the same incident
which gave rise to said criminal case. (Gabriel v.
Ramos, A.M. P-06-2256, 2013)
Exceptions to Requirement of Notice And Hearing:
(UTOS CLAPP)
1. Urgency of immediate action
2. Tentativeness of the administrative action
3. 'Right was previously Offered but not claimed
4. Summary abatement of a nuisance per se
5. Cancellation of a passport of a person sought for
criminal prosecution
6. Summary proceedings of Levy upon properties of a
delinquent taxpayer
7. Replacement of a temporary or Acting appointee
8. Preventive suspension of a public servant facing
administrative charges
9. Padlocking of filthy restaurants/ theaters showing
obscene movies
lnvastiaation v. Hearin----.,--~~~------~---~'""'I
INVESTIGATION HEARING
By government officials, There are parties and
which may be held in issues of law ana of fact to
private are informal be tried and at the
proceedings to obtain conclusion of the hearing,
Page 192 of 320
POLITICAL LAW
information to govern action is taken which may
future actions, have no affect the parties' rights
parties, and are not and parties are entitled to
proceedings in which be present in person and
action is taken against by counsel, participate in
the hearing, and entitled to
anyone.
be furnished a record of
the proceedings.
· . The filing of formal charges 'against the respondents
without complying with the mandated preliminary
investigation (provided by Jaw) or at least giving the
respondents the opportunity to tomment violated their right
to due process. Accordingly, the formal charges are void
ab initio and may be assailed directly or indirectly at
anytime. (Garcia v. Molina, G.R. 157383/174137, 2010)
A formal charge is a 'written speciiication of the charge(s)
against an employee. While its form may vary, it generally
embodies a brief statement of the material and relevant
facts constituting the basis of the charge(s); a directive for
the err.ployee to answer the charge(s) in writing and under
oath, accompanied by his/her evidence; and advice for the
employee to indicate in his/her answer whether he/she
elects a formal investigation; and a notice that he/she may
secure the assistance of a counsel of his/her own choice.
(PAGCOR v. CA, G.R. 185668, 2011)
In administrative proceedings, the complainant bears the
onus of establishing, by substantial evidence, the
avennents of his complaint. A complainant cannot rely on
mere conjenctures and suppositions. (Sasing v.
Gelboiingo, A.M. No. P-12-3032, 2013; Re: Letter
Complaint of Merlita 8. Fabiana Against Presiding Justice
Andres 8. Reyes, A.M. No. CA-13-51-J, 2013)
'',
The AMLC's investigation of money. laundering offenses
and its determination of possible money laundering .
offenses, specifically Its inquiry into certain bank accounts
allowed by court order, does not transform it into an
investigative body exercising quasi-judicial powers.
Hence, Section 11 of the AMLA, authorizing a bank inquiry
court order, cannot be said to violate SPCMB's
constitutional right to procedural process. (Subido Pagente
Certeza Mendoza and Binay Law Offices v. CA, G.R. No.
216914,2017)
Rules on adjudication (EO 292, Book VII)
1. Compromise and Arbitratlon - every agency shall, in
the public interest, encourage amicable settlement,
compromise and arbitration.
2. All parties shall be entitled to notice and hearing; the
notice shall be served at least 5 days before the date
of hearing and shall state the date, time, and placo of
the hearing. . ,:
3. Parties shall be given opportunity to present evidence \.,.,
and arqurnent on all issues.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

4. Rules on Evidence - May admit evidence commonly 2. A petition for review shall be perfected within 15 days
accepted by reasonably prudent men. from receipt of the final administrative decision; 1
5. Right to cross-examine witnesses. month's extension may be allowed.
6. Agency may make judicial notice to any technical or
scientific facts within in its specialized knowledge. Controversies among Government Offices and
7. The agency shall have the power to require the Corporations
attendance of witnesses or the production of books, All disputes of gover:'lment agencies and corporations are
papers, documents and other pertinent data; may settled administratively in the manner provided by the
Invoke the aid of the RTC within whose jurisdiction the Administrative Code. {EO 292, Book IV, Chap. 14)
contested case falls.
8. Decision - every decision rendered by the agency in a Submission for Decision for Questions of Law v.
contested case shall be in writing and shall state Questions of Fact and Law
clearly and distinctly the facts and the law on which it
QUESTIONS QUESTIONS
is based; shall decide within 30 days following the
OF LAW OF FACT AND LAW
submission.
9. Finality of Order - decision shall be final and
Submitted to Secretary of 1. Solicitor-General - if
executory 15 days after the receipt or a copy thereof.
Justice as Attomey- the dispute, claim or
10. Publication and Compilation of decisions - Every
General. His ruling shall be controversy involves
agency shall publish and make available for public
binding on all the parties only depanments,
inspection all decisions and final orders. It shall be the
concerned. bureaus, offices, and
duty of the records officer of the agency to prepare a
other agencies of the
register or compilation of those decisions or final
National Government
orders.
as well as the GOCCs.
2. Secretary of Justice, in
Administrative Appeal and Review
! .' ull other cases not
Appeal
mentioned above.
an appeal from a final decision of the agency may be taken
to the department head.
The determination of factual issues may be made by
Perfection of Administrative Appeals arbitration panel composed of representatives from each
Appeals shall be perfected within 15 days after the receipt parties, presided over by Secretary of Justice.
of a copy of the decision complained of by the party
' .· adversely affected. General rule: the decision of Solicitor-General and
Secretary of Justice is binding and final.
Effect I
The appeal shall stay tne decision appealed from if the Exception: When the claim involves 1 million pesos, in
appellate agency does not olrect otherwise .. which case, the dispute is appealed to the Office of the
'~ '
President.
Action on Appeal
The appellate agency may review record and receive Administrative res judicata
additional evidences. Decisions and orders of administrative agencies have
upon their finality, the force and effect of a final judgment
Finality of Decision of Appellate Agency within the purview of the doctrine of res judicata.
...-. ..,·, becomes final 15 days after receipt of the decision by the
parties. The extent of whether an administrative decision operates
(,. !, as res judicata also depends on the interpretation of the
' ;
enabling statute.
Judicial Review
Agency decisions shall be subject to judicial review. The The application of the doctrine of res judicata is dependent
action may be brought against the agency, its officers, and upon the type of determination and proceedings. It is
all indispensible and necessary parties. applicable in administrative actions that have been
characterized as "adjudica\ory," "judicial," or "quasi-
~-
>
)
Perfection of Appeal judicial." On the other hand, it is inapplicable in
1 .. Theappeal shall be perfected by filing with the agency administrative determinations which are of
within 15 days from receipt of copy; copies shall be "administrative," "executive," "legislative," or "ministerial"
served upon the agency and all parties of records. nature.

· Page 1 03 of 320
 -- - -- ·-·-··- -·-----------------------

ATENEO CENTRAL
BAR OPERATIONS 2019
POLITICAL LAW

Example: The pnnciple of res judicata is applicable in
labor relations proceedings which are "non-litigious and
summary in nature without regard to legal technicalities
obtaining in courts of law." (Rules and Regulations
Implementing the tabcq Code, Sec. 5, Rule XIII, Book V).
i
Not Applicable
1. When the question of citizenship is resolved by a
court or an administrative body as a material issue
in the controversy after a full-blown hearing. (Zita
Ngo Burca v. Republic, G.R. 122226, 1998; United
Pepsi Cola v. Laguesma, G.R. L-24252, 1973)
2. When wee Rereree awards the employee less
than what the law provides (BF Goodrich v. wee,
G.R. L-42319, ·1978)
purpose without a judicial warrant authorizing such
action; usually without notice and hearing. (e.g.
abatement of nuisance, summary restraint, levy of
property of delinquent taxpayers)
FACT-FINDING, INVESTIGATIVE, LICENSING AND
RA TE-FIXING POWERS
Investigatory Powers
The power to inspect, secure, or require the disclosure of
in.formati':m by means of accounts, records, reports,
statements and testimony of witnesses. This power is
implled and not inherent in adrnlnistrative agencies. (Sec.
of Justice v. Lantion, G.R. No. 139465, 2000)

Principle of res judicata in the mode of Inherent v. lmPIII ed v. Exoresse d:

"conclusiveness of judgment"
INHERENT IMPLIED EXPRESSED
The principle of res judicata in the mode of "conclusiveness
of judgment" applies when the NLRC ruling was affirmed
Require 1. Fact-finding I. Issue a
by the Court of Appeals. It was a judicial affirmation
disclosure of 2. Visitcrial subpoena
through a decision duly promulgated and rendered final
and executory when no appeal vvas undertaken within the
books, etc. powers 2. Cite a
3. Ocular person in
reglementary period The jurisdiction of the NLRC, which
inspection contempt
is a quasi-judicial body, was undisputed. Neither can the
3. Search and
jurisdiction of the Court of Appeals over the NLRC decision
Seizure
be the subject of a dispute. The NLRC case was clearly
decided on its merits; likewise on the merits was the
4. Adjudicate
5. Impose
affirmation of the NLRC by the Court of Appeals. With
coercive
respect to the fourth element of identity of parties, we hold
measures
that there is substantial compliance. The parties in SSC
and NLRC cases are not strictly identical. Jurisprudence
however does not dictate absolute identity but only The rule is that findings of fact of administrative bodies, if
substantial identity. There is substantial identity of parties based on substantial evidence, are controlling on the
when there is a community of interest between a party in reviewing authority. (Reyna v. COA, G.R. 1672~9. 2011)
the first case and a party in the second case, even if the
latter was not impleaded in the first case. (SSC v. Rizal The SEC Hearing Officer had the optimum opportunity to
Poultry and livestock Association, G.R. 167050, 2011) review the pieces of evidence presented before him and to
observe the demeanor of the witnesses. Administrative
Determinative Powers: (DEEDS) decisions on matters within his jurisdiction are entitled to ·-
1. Directing powers • The power of assessment, make respect and can only be set aside on proof of grave abuse
awards and corrective powers. of discretion, fraud, or error of law. (Queensland-Toi<yo
2. Enabling powers • Those that permit the doing of an Commodities, Inc. v. George, G.R. 172727, 2010)
act which the law undertakes to regulate and would be \.
unlawful without govE?rnment approval. (e.g. Issuance The right to counsel under Section 12 of the Bill of Rights
of licenses to engage in a particular business) is meant to protect a suspect during custodial investigation. '
3. Equitable powers - Those that pertain to the power to While investigations conducted by an administrative body
determine the law upon a particular state of facts. It may at times be akin to a criminal proceeding, the rule ~·
-, ..
refers to the right to make proper application of the under existing laws is that a party in an administrative
rules of equity. (e.g. power to appoint a receiver, power inquiry may or may not be assisted by counsel, irrespective
to issue injunctions) of the nature of the charges and of petitioner's capacity to
4. Dispensing powers • Exemplified by the authority to represent hersen, and no duty rests on such body to
exempt from or relax a general prohibition, or authority furnish the person being investigated with counsel. As z.
'

to relieve from an affirmative duty. It differs · from such, the admissions made by petitioner during the '
licensing power since dispensing power sanctions a investigation may be used as evidence to justify her '"-
deviation from a standard. , dismissal. (Carbone! v. CSC, G.R. 187689, 2010)
,
5. Summary powers - Those that apply compulsion or
force against person or property to effectuate a legal
u
Page 194 of 320 <
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Licenstno v. Rate Flxl no: initial action should be taken by a court or by an

administrative agency
LICENSING RATE FIXING
3. Exhaustion of Adminlstrntlve Remedies - Designed
primarily to control the timing of judicial relief from
Licensing is a quasi- • Quasi-legislative· - If
adjudicative action of an agency. It is customarily
judicial function. the rules and rates are
meant to apply to all applied to adjudication and not to rule-making.
enterprises of a given 4. Ripeness for Review - The same as that of
exhaustion of administrative remedies, except that it
kind throughout the
country, prior notice applies to the rule making and to administrative action
which is embodied neither in rules or regulations nor in
and hearing is not
adjudication or final order.
required. (General
Application)
• Quasi-judicial - If the
DOCTRINE Of PRIMARY
rules and rates
ADMINISTRATIVE JURISDICTION
imposed apply
exclusively to a
particular party, based Cour:s cannot, and will not, resolve a controversy involving
upon a finding of fact, a question which is within tt·.e ju1 isdictlon of an
prior notice and administrative agency, especially where the question
demands the exercise of sound administrative discretion
hearing is required.
(Particular Application) · requiring the special knowledge, experience and services
of the administrative agency to determine technical and
intricate matters of fact.
A license may not be withdrawn, except for a violation of
pertinent laws, rules and regulation, or when public health Relief must first be obtained in an administrative
and safety requires. An existing license shall not expire if proceeding before a remedy will be supplied by the court,
the licensee makes a timely application for the renewa!. even if the matter is within the jurisdiction of a court.
(Republic v. Martinez, G.R. No. 158253, 2007)
Judicial Recourse and Review

General Rule: The courts accord groat weight and respect Exceptions to Doctrine of Primary Jurisdiction:
to factual findings of administrative bodies. · 1. Congress does not intend that the issues be left solely
.\ I
to the administrative agency for Initial detennination;
Exceptions: (FIG-SEC) · 2. When issues involve questions of law; and
1. The finding!; are vitiated by Fraud, mistake, illegality, 3. When courts and administrative agencies have
collusion or imposition; concurrent jurisdiction. (Republic v, Martinez, G.R. No.
2. Where the procedure which led to the factual findings 158253,2007)
is Irregular;
3. When Grave abuse of discretion, arbitrariness or The -Doctrine of Primary Jurisdiction does not apply in a
capriciousness is manifest and case seeking to enjoin the Senate Committee from
4. The findings are not supported by Substantial conducting further hearings against Senator Villar on the
;
:, ,J evidence; alleged double insertion of P200 million for the C-5 Road
5. Where palpable Errors are committed; Extension Project in the 2008 General Appropriations Act.
•.:,._ .:~ 6. When there is a Conflict in the factual findings. The issues presented here do not require the expertise,
specialized skills and knowledge of respondent for their
·' ·--~~ The determination of where, as between two possible · resolution. On the contrary, the issues here are purely legal
routes, to construct a road extension is obviously not VJithin questions which are within the competence and jurisdiction
the province of the Court. Such determination belongs to of the Court, and not a11, administrative agency or the
the executive branch. There can be no judicial review of a Senate to resolve. (Pimentel v. Senate, G.R. No. 187714,
question of executive policy. (Tortecampo v, MWSS, G. R. 2011)
188296, 2011)
The Supreme Court may defer to the competence and
Doctrines: expertise of the SEC if there are supervening events which
1. Finality of Administrative Action - The decision of could have substantially changed the factual backdrop of
the tribunal must be final fir$! before it may be reviewed the case while it was pending before the Court. (Nestle v.
by the courts. Uniwide, G.R. 174674, 2010). However, complaints for
2. Primary Jurisdiction - Not concerned with judicial criminal violations of the Securities Regulation Code must
\' ~ .~
review but determines in some circumstances whether be filed with the SEC, not DOJ or the courts, because it is
Page 195 of 320
ATENEO CENTRAL
BAR OPERATIONS 20~9
~nsidered a specialized dispute. (Baviera v. Paglinawan,
G.R. 168380, 2007).
The court may raise the issue of primary jurisdiction motu
proprio and its invocation cannot be waived by the failure
of the parties to argue it, as the doctrine exists for the
proper distribution of power between judicial and
administrative bodies and not for the convenience of the
parties. In such a case, the CO/Jrt may (1) suspend the
judicial process pending referral of such issues to the
administrative body for its view, or (2) if the parties would
not be unfairly disadvantaged, dismiss the case w/o
prejudice. (Euro-Med Laboratories Phil. v. Province of
Batangas, G.R. 148106. 2006)
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE
REMEDIES
General Rule: An administrative decision must first be
appealed to the administrative superiors up to the highest
level before it may be elevated to a court of justice for
review. It is a condition precedent that must be complied
with. (Sps. Sadang v. CA, G.R. No. 140138, 2006)
The premature invocation of a court's intervention is fatal
to one's cause ot action. Exhaustion of administrative
remedies is a prerequisite for judicial review. It ls a
condition precedent which must be complied with.
Where what is assailed is the validity or constitutionality of
a rule or regulation issued by the administrative agency in
the perforrnance of its quasi-judicial function, the assailing
party must exhaust acminlsfratlve remedies before going·
to court. However. if the rule or regulation was issued
pursuant to the administrative agency's quasi-legislative
function, a party need not exhaust administrative
remedies. The determination of whether a speclfic rule or
set of rules issued by an administrative agency
contravenes the law or the constitution is withir. the
jurisdiction of the regular courts. {Smart Communications
v, NTC, G.R. No. 151908, 2003)
Reasons:
1. To enable tt,e administrative superiors to correct the
errors committed by their subordinates;
2. Courts should refrain from disturbing the findings of
administrative bodies in deference to the doctrine of
separation of powers;
3. Courts should not be raddled with the review of
administrative cases;
4. Judicial review of admini trative cases is usually done
through special civil actions which are available only if
there is no other platn, speedy and adequate remedy.
5. Availment of administrative remedy entails lesser
expenses and provides for a speedier disposition of
controversies
Page 196 of 320
· POLITICAL LAW
EXCEPTIONS: (OARNN JP LICO DRIED LPS Quo)
1. If it should appear that an irreparable Damage will be
suffered by a party unless resort to the court is
immediately made.
2. When the respondent is the Alter ego of the President
3. When no administrative Review is provided as a
condition precedent for court action .
4. Where insistence on its observance would result in the
Nullificatlon of the claim asserted
5. When there was No decision rendered
6. When there are special circumstances demanding
immediate Judicial intervention
7. When the administrative remedy is Permissive or
concurrent
8. When the question raised is essentially and purely
Legal
9. When strong public Interest is involved
10. Where the issue raised is the Constitutionality of the
statute, rule or regulation
11. Where it is a civil action for Damages
12. Where the officer acted in utter 'disreqard of Due
process
13. When there is no other plain, speedy, adequate
Remedy
14. When act complained of is patently Illegal
15. When the administrative body or the person invoking
the doctrine is in Estoppel
16. When there is lonq-contlnued and unreasonable Delay
17. When the subject of controversy is private Land
18. When the corsroversv involves Possessory action
involving public lands
19. When the claim involved is Small so that to require
exhaustion would be oppressive and unreasonable
20. In Quo warranto proceedings
A case where the issue raised is a purely legal question,
.>
well within the competence and the jurisdiction of the court 0
and not the administrative agency, would clearly constitute
(" ":
an exception. Resolving questions of law, which involve \· ..;
the interpretation and application of laws, constitutes
essentially an exercise of judicic'I power that is exclusively . l
'i., l
allocated to the Supreme Court and such lower courts the
Legislature may establish. (Onqsuco v. Malones, G.R.
182065,2009)
it bears stressing that the remedies of mandamus and
prohibition rnay bs availed of only when there is no appeal
or any other plain, speedy and adequate remedy in the
ordinary course of law. Moreover, being extraordinary
remedies, resort may be had only in cases of extreme
necessity where the ordinary forms of procedure are
powerless to affo,d relief. Thus, ir,stead of immediately ~-· .,
r "
\_,,
filing a petition with the CA, pP.titioners should have first
brought the matter to the CSC which has primary
jurisdiction over the case. (Cabungcal v. Lorenzo, G.R.
160367, 2009)
t ;.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

The special civil actions against administrative officers ------- end of topic ------
should not be entertained if there are superior
administrative officers who could grant relief. (Dimson v.
Local Water Utilities Administration, G.R. 168656, 2010)

The validity and the enforceability of the "Contract of

Agreement" entered into by tho parties are questions
purely of law and clearly beyond the expertise of the
' Commission on Audit or the DPWH. (Vigilar v. Aquino,
G.R. 180388, 2011)

DOCTRINE OF FINALITY
OF ADMINISTRATIVE ACTION

Courts are reluctant to interfere with actions of an

administrative agency prior to its completion or finality.
Absent a final order or decision, power has not been fully
and finally exercised, and there can usually be no
irreparable harm. (Mendiola v. CSC, G.R. No. 100671,
1993)

Exceptions: (SPA DIVE)

1. To grant relief to preserve Status quo pending further
action by the administrative agency;
2. Essential to the Protection of rifJhts asserted;
3. When Allowed by law;
4. When the order is not reviewable and the complainant "
will suffer great and obvious Damage if the order is
carried out;
5. An Interlocutory order affecting the merits of a
controversy;
6 .. An administrative officers acts in Violation of
constitution and other laws and
7. To an order made in Excess of power, contrary to
specific prohibitions in the statute.

Appeal to the CA is allowed because a quasi-judicial

agency is equivalent in rank with the RTC. (Rules of Court,
Rule 43) CA has the discretion on whether to allow the
appeal or not.

Factual findings made by quasl-judleial bodies and

administrative agencies when supported by substantial
evidence are accorded great respect and even finality by
the appellate courts. This is because administrative
agencies possess specialized knowledge and expertise in
their respective fields. As such, their findings of fact are
binding upon this Court unless there is a showing of grave
abuse of discretion, or where it is clearly shown that they
were arrived at arbitrarily or in disregard of the evidence on
record. The SSS and CSC found the eviclence for the
complainants credible and proved that petitioner
committed the acts complained of .. Moreover, the CA
\;,.,.:' sustained these factual findings. The Court finds no reason
to disturb these findings, and therefore adopts the same.
:·
•, ~ ·'r (Japson v. Civil Service Commission, G.R.189479, 2011).

Page 197 of 320

ATENEO CENTRAL
BAR OPERATIONS 2019 · POLITICAL LAW

X. ELECTION LAW A. SUFFRAGE

Suffrage - The right to vote in the elections.
TOPIC OUTLINE. UNDER THE SYLLABUS
1. />.s a Right - The expression of the sovereign will of
the people.
A. Suffrage
2. As a Privilege- Not granted to everybody but to such
1. Qualification and Disqualification of voters
persons as are most likely to exercise it for the purpose
2. Registration of Voters
of the public good. It is subject to substantive and
3. Inclusion and Exclusion Proceedings
procedural requirements. .
4. Local and Overseas Absentee Voting
5. Detainee Voting
3. . As a Duty -- which every citizen owes his country
B. Candidacy .
1. Qualifications and Disqualifications of The right to vote is different from the right to register. A
Candidat(IS person may register even before he is 18 years old, but
2. Filing of Certificates of Candidacy must be at least 18 years old on the day of the election.
a. Effect of Filing
b. Substitution and Withdrawal of Election
Candidates Election is the means by which the people choose their
c. Nuisance Candidates officials for a definite and fixed period and to whom they
d. Duties of the COMELEC entrust for the time being the exercise of tile powers of
C. Remedies and Jurisdiction In Election Law
the government. (Garchitorena v. Crescini, 39 Phil. 258)
1. Petition to Deny Due Course or C3nc61 a
Certificate of Candidacy
2. Petition for Disqualification In elections, the first consideration of f;Very democratic
3. Failure of Election, Call of Special Election polity is to give effect to the expressed will of the majority.
4. Pre-proclamation Controversy
5. Election Protest Nature of Suffrage
6. Quo Warranto
1.It is a right created by law, not a natural right and an
expression of the sovereign will of the people.
' 2. It is a prr,ilege because its exorcise is not granted to
everybody but to t'1e persons or class of persons as are
most likely to exercise it for the purpose of publlc good.

Twc-Fold Object of Suffrage

1. To enable the people to choose their representatives;
.f
2. To determine their will on questions submitted to them
through plebiscite, referendum, initiative and recall
(
v .

Regulation of Suffrage
Congress has unlimited power to er.act laws relative to
the right of suffrage and in the exercise of police power,
to suppress whatever evils may be incident to the election
.(

<,;

of public officers.

Theory of Popular Sovereignty

L
The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government
authority emanates from them. (CONST. Art. II, Sec. 1)

Scope of Suffrage
1. Referendum - power of the electorate to approve or
reject legislation through an election called for the
purpose \ ... ~ ..

Page 198 of 320 ,\

'~ ......
 ·.'

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

-----------------------------------------------------------------------·~------~
2. Recall - it is the termination of official relationship of right to vote is reacquired upon expiration of five (5)
a local elective official for loss of confidence prior to
the expiration of hi,:; term through the will of the
electorate
3.. Initiative - it is the power of the people to propose
. amendments to the Constitution or to propose and
enact legislations through an election called fer the
purpose. It is the people power feature of the
Constitution.
. 4. Plebiscite - it is the electoral process by which an
initiative on the Constitution is approved or rejected by
the people. It is also the means by which the voters in
affected areas consent or object to the change in the
form of local government. .
5. Election - it is the choice or selection of candidates to
public office by popular vote through the use of the
ballot. Specifically, it may refer to the conduct of the
polls, including the listing of voters, the holding of the
electoral campaign and the casting and counting of
ballots and canvassing of returns. .
years after service of sentence.
2. Any person who has been adjudged by final judgment
by a competent court or tribunal of having committed
any crime involving disloyalty to the duly constituted
government such as REBELLION, SEDITION,
VIOLATION OF THE ANTI-SUBVERSION AND
FIREARMS LAWS, OR ANY CRIME AGAINST
NATIONAL SECURllJY
a. For (1) and (2):
b. Disqualification may be removed by plenary
pardon or amnesty.
c. Reacquisition of the right to vote upon
expiration of 5 years after service of sentence.
3. Insane or incompetent persons as declared by
competent authcrity.
NOTE:
These qualifications are continuing requirements.
Congress may not add qualifications but can provide for
procedural requirements and disqualiflc.ations. However,
the disqualifications must not amount to qualifications

Kinds of Election All these disqualifications presuppose that the person was
once qualified, but due to an intervening event, the person
1. Regular or General: provided by law for the election of became disqualified. The Congress cannot add
officers either nation-wide or in certain subdivisions disqualifications which can be characterized as a prior
thereof, after the expiration of the full term of the former restraint.
officers;
2. Special: one held to fill a vacancy before the expiration Dual Citizenship Law - Former natural-born Filipino
of the term which the incumbent was elected · citizens who acquired foreign citizenship through
naturalization are deemed not to have lost their Philippine
citizenship under conditions provided in this act.
Election Period
Unless otherwise fixed by the Commission in special Derivative Citizenship - The unmarried child, whether
cases, the election period shall commence 90 days legitimate, illegitimate, or adopted, under 18 years of age,
,: -
., l
.....J before the day cf election and shall end 30 days of those who re-acquire Philippine citizenship under the
thereafter. (CONST. Art.lX-C, Sec.9; B.P. Big. 881) Dual Citizenship Law shall be deemed citizens of the
Philippines.
1. QUALIFICATION AND DISQUALIFICATION OF
, Requirement for Naturalized Citizens:
VOTERS To vote - swear an oath of allegiance.
To be elected to public office - renounce foreign
·•,
'- _, ,I.
Qualifications (CD R2 18): citzenship.
1. ~itizen of the Philippines To be appointed to public office - swear an oath of
2. Not .Qisqualified by law
"· ~· 3. Besident of the Philippines for at least 'i YEAR
allegiance to the Philippines and renounce foreign
citizenship.
4. ,Resident of the place wherein he proposes to vote for
at least 6 months immediately preceding the election Residence - One's domicile or legal residence. It is
:.' . 5. At least 18 years old where a party actually or constructively has his permanent
' s
home, or where he, no matter where he may be found,
Note: No literacy, property, or other substantive eventually intends to return and remain.
requirement can be imposed on the exercise of suffrage
Residency Requirements:
--:.. ... Grounds for Disqualification to Vote: Domicile - This is in reference to the 1-year residency
1. Any person who has been sentenced by final judgment requirement in the Philippines.
to suffer imprisonment for not less than one (1) year,
'
·,. ~
unless pardoned or granted amnesty. However, the
Page 199 of 320

-----·· ·--·-· -·---·----------·----------------------~-


ATENEO CENTRAL
BAR OPF.RATIONS 2019
Elements: (VARP)
1. fhysical presence in the country
2. Intention to Remain
3. Intention to Abandon the old domicile
4. It must be Yoluntary, must concur.
Note: All elements must concur.
Temporary Residence - This is in reference to the 6-
month residency requirement in the place where one wants
to vote. In this case, residence can either mean domicile
or temporary residence.
To successfully effect a transfer of domicile, one .nust
demonstrate:
• An actual removal or change of domicile; , However, the power of COMELEC to restrict a citizen's
• A bona fide intention of abandoning the former place
of residence and e~tablishlng a new one; and
• Acts which correspond with that purpose .
There must be animus manendi coupled with animus non
revertendi.(Asistio v. Canlas, G.R. 191124, 2010).
2, REGISTRATION AND DEACTIVATION
Registration - It does not confer the right to vote; it is just
a condition precedent to the exercise of the right. · Validation
It is the act of accomplishing and filing of a sworn
application for the registration by a qualified voter before
the election officer of the city or municipality wherein he
resides and induding the same in the book of registered
voters upon approval by the Election Registration Board
(ERB). (R.A. No. 8189, Sec. 3)
New System m Registration - Continuing registration
of voters whereby application for registration of voters shall
be conducted daily in the office of the Election Officer
during regular office hours and all applications for
registration shall be heard and processed on a quarterly
basis by the Election Registration Board.
List of Voters
It refers to an enumeration of names of registered votersin
a precinct duly certified by the Election Registration Board
for use in the election. (RA No 8189)
No Bio-No Boto
Biometrics - refers to a quantitative analysis that provides
a positive identifica'.io,, of an individual such as voice
photograph, fingerprint, signature, iris, and/or such othe~
identifiable features. (Mandatory Biometrics Voter
Registration, sec. 2(b))
The biometrics registration requirement is not a
"qualification" to the exercise of the right of suffrage, but a
mere aspect of the reqistratlon procedure, of which the
State has the right to reasonably regulate. umess it is
Page 200 of 320
--·. ·--····-------
POLITICAL LAW
shown that a registration requirement rises to the level of
a literacy, property or other substantive requirement as
contemplated by the Framers of the Constitution-that is,
. one which propagates a socio-economic standard which is
bereft of any rational basis to a person's ability to
intelligently cast his vote and to further the public good-
the same cannot be struck down as unconstitutional.
(Kabataan Partylistvs. COMELEC, G.R. 221318, 2015)
The public has been sufficiently apprised of the
implementation of RA 10367, and its penalty of
deactivation in case of failure to comply. Thus, there was
no violation of procedural due process. (Kabataan Partylist
vs. COMELEC, G.R. 221318, 2015)
right of suffra;:ie should not be arbitrarily exercised. (Timbol
vs. COMELEC, G.R. 206004, 2015)
Who shall submit for biometrics registration?
1. New Voters - COMELEC shall implement a
mandatory biometrics registration system
2. Registered voters whose biometrics have not been
captured
It is the process of taking the biometrics of registered
voters whose biometrics have not yet been captured. It
shall be conducted by the City or Municipal Election
Officer.
Registration of llliterates/Persor1s With Disabilities
Illiterate or PWD voters may register with the assistance of
the. Elaction Office, or any member of an accredited
citizen's arms; application for registration may be prepared
by any relative within the fourth (4th) civil degree of r:
consanguinity or affinity or by the Election Officer or any '(
member of an accredited citizen's arms using the data
supplied by the applicant. (R.A. No. 8189, Sec. 14)
Disqualifications to Register as Voter
The same grounds for disqualifications for suffrage.
( '
1. Sentence by final judgment to imprisonment of at least
1 year
2. Conviction by final judgment of any of the following
crimes:
a. crime involving disloyalty to the government (i.e
rebellion, sedition)
b. firearms law
c. crimes against national security
3. Insanity or incompetence declared by competent court
l ..
 ATENEO CENTRAL
BAR OPERATIONS2019 POLITICAL LAW

When registration not allowed:
1. 120 days before regular election
2. 90 days before special election
Each precinct shall have no more than 200 voters and shall
comprise contiguous and compact territories except when
precincts are clustered.
No Election Officer shall hold office In a particular
city/municipality for more than 4 years. COMELEC has the
authority to effect transfer.
Can COMELEC change registration period by
resolution? · • .§imilar irregularity
. No. The period within which voters may register to vote is
set by law and cannot be changed by mere resolution of
the COMELEC.
Book of voters - Classified as permanent whereby each
precinct shall have a permanent list of all registered voters
residing within the territorial jurisdiction of that precinct.
for the annulment of a book of voters witr. the COMELEC.
Last day for filing is within 90 days before an election.
Grounds for Annulment of Book of Voters (S2N-
F312B):
1. ,Not prepared in accordance with law
2. Prepared through:
• fraud
• forgery
• force
• Intimidation
• Impersonation
• §.ribery
• Contains data that are .§.totistically improbable
Change of Residence (To Another Municipality or City)
Any registered voter may apply with the Election Officer of
his new residence for the transfer of his registration
· records. The application shall be subject to notice and
hearing and approval of the ERB. (R.A. No. 8189, Sec. 12)
. I

Alteration of Book Of Voters: (DECANT) Reactlvation of Registration

1. Qeactivation/Reactivatlon Guidelines (STERN)
2. Exclusion/lncluslon 1. Voter whose registration has been deactivated may file
3. ~ancellation of registration in case of death
with the Election Officer a .§.worn application for
4. Annulment of book of voters
5. ,Mew voters reactivation of his registration in the form of an affidavit
6. Iransfer of residence stating that the grounds for the deactivation no longer
exist;
Deactivation - Removal of the registration records of 2. Any _!ime but not later than 120 days before a regular
certain persons from the corresponding precinct book of election and 90 days before a special election;
voters and placing the same in tile Inactive file, properly 3. Electior. officer shall submit said application to the ERB
marked "deactivated" and dated in indelible ink, after for appropriate action;
entering the cause of deactivation. (R.A. No. 8189, Sec.
4. In case the application is approved, the Election officer
27)
shall retrieve the registration record from the inactive
file and include the same In the corresponding precinct
Grounds for Deactivation: (IDl-2LE)
Those which would disqualify you as a voter: book of voters
Convicted by final judgment to suffer Imprisonment of not 5. Loe2I heads or representatives of political parties shall
'· ... less than 1 year be properly nnotifled on approved applications
Disloyalty
Insanity 3. INCLUSION AND EXCLUSION PROCEEDINGS
Others:
1. Loss of citizenship
1. The municipal and metropolitan trial courts shall have
2. Failed to vote for 2 successive preceding regular ·
· original and exclusive jurisdiction over all matters of
:i<, :.:.~. elections
inclusion and exclusion of voters from the list in their
3. Registration was ordered Excluded by the court
respective municipalities or cities.
2. Decisions may be appealed to the RTC within 5 days
Post-Approval Remedies: (AEI)
from receipt of notice of decision.
Petition for Inclusion
3. RTC will decide the appeal within 1 O days. Decision is
Annulment of Book of Voters
final and executory.
Petition for gxclusion
f ·. ·. 4. Any voter, candidate or political party that may be
\._J
affected by the proceedings may intervene.
Annulment of book of voters -A voter, election officer,
'
·;
·-:. 1 or duly registered political party may file a verified petition

Page 201 of 320

 ······-- .. --------------

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

i. Disqualification may be removed by plenary

INCLUSION CASES EXCLUSION CASES pardon or amnesty
Ii. Reacquire the right to vote upon expiration of
May be filed any time, May be filed any time,
except 100 days before
5 years after service of sentence
except 105 days before
regular elections or 75 regular elections or 65 days 3. Insane or incompetent persons as declared by
days before special before special elections · competent authority.
elections
4. Those who have lost their Fiiipino ~itizenship.
5. · Those who have expressly Benounced their Philippine
Grounds: Grounds: citizenship and who have piedged allegiance to a
1. Application for Not qualified or possessing foreign country.
registration has been disqualification 6. An Immigrant or permanent resident, unless he
disapproved by the board Flying voters executes an affidavit stating and expressly declaring:
2. Name has been Ghost voters a. Intention to resume actual, physical,
stricken out permanent residence within 3 years from
approval of registration.
Requires a sworn petition b. Has not applied for citizenship in another
country.
LOCAL AND OVERSEAS ABSENTEE VOTING Act v. Effect
ACT EFFECT
Overseas Absentee Voting Act (RA 9189)
Ensures equal opportunity to all qualified citizens of the Fallure to undertake Removal of name from the
Philippines abroad to exercise their right to vote in the affidavit list and permanent
national elections. disqualification

Domestic Absentee Voting - Public officials Failure to undertake lmprlsonment of not less
'•.
stationed in places other than the place where he is a affidavit yet voted than 1 year
registered voter are allowed to vote in tho place of their
Failure to resume Removal of name from list
work. (e.g. police officers, military personnel, school
teachers). residency
Overseas Absentee Voting - Qualified Filipinos Failure to resume Imprisonment of not less
abroad may be allowed to vote under a system residency yet voted than 1 year
congress will provide.

Qualifications of Overseas Absentee Voter under RA

A former natural-born Filipino citizen who has reacquired
9189:11 (CARA-18)
Filipino citizenship under the Dual Citizenship law may
1. Filipino C,itizen i .
vote .even without the required (six months) residence,
2. At least!§. years of age
provided the person files the affidavit as required In the
3. free from disqualifications
Absentee Voting Law. (Lewis v COMELEC, G.R. 162759,
4. Must file an ti_ffidavit expressly declaring: 2006).
a. Intention to resume actual, physical, ! .
permanent residence within 3 years from
DETAINEE VOTING
approval of registration
b. Has not applied for citizenship in another '~ .• ~/
country Detainee voting (either through the special polling place
5. Begistered overseas absentee voters inside jails or escorted voting) may be availed of by any t ". :,
'.,,.,,.'
6. Has an Af)proved application to vote in absentia registered detainee whose registration record is not
transferred I deactivated I cancelled I deleted.
\. .....
Grounds for Disqualification under RA 9189: (12DRC)
1. Sentenced by final judgment to suffer !rnprisonment Detainee
~--·;
not less than 1 year. Any person:
2. Adjudged by final judgment by a competent court of 1. confined in jail, , .
.:. .;.:..•
having committed any crime involving Qisloyalty to the a. formally charged for any crime/s and
duly constituted government (e.g., Rebellion or crimes
b. awaiting/undergoing trial; or { :
against natio.tal security). 'x.l/
a. For ( 1) and (2):

11
The requirement of actual residency is dispensed with. { ·'
Page 202 of 320 '~
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

2. serving a sentence of imprisonment for lese than one (1) Manila In a sealed envelope. The votes appearing
-, . in said ballots for national positions, If any, shall be
year; or
3. whose conviction of a crime involving disloyalty to the counted.
duly constituted government such as rebellion, sedition, A Special Board of Election Inspectors for counting
shall be established for the purpose.
violation of the firearms laws or any crime against national
security or for any other crime is on appeal (COMELEC
POLITICAL PARTIES
Resolution No. 9371 );
1. JURISDICTION OF THE COMELEC OVER
Escorted Voting POLITICAL PARTIES
This is a voting mechanism for
1. detainee voters who are residents/ registered voters of Necessity of Registration
municipalities/cities other than the town/city of
To acquire juridical personality, to qualify for
incarceration; and/or for
accreditation, and to be entitled to the rights of political
2. detainee voters in jail facilities where no special polling parties, a political party must be registered with
places are established (COMELEC Resolution No. COMELEC. (Omnibus Election Code, sec, 20)
9371).
Registration and Accreditation
NOTE: The pertinent provisions of Comelec Resolution a. Registration is the act that bestc:wsjuridical personality
No. 9149, promulgated on February 22, 2011 and other for purposes of our election laws; accred'tatton , on the
Resolutions as far as the registration period: qualifications other hand, relates to the privileged participation that
and disqualifications of applicants for registration; the our election laws grant to qualified registered parties.
procedures for filing, processing and hearing of
b. Accreditation can only be granted to a registered
applications; and notices and publication requirements are
political party, organization or coalition; stated
adopted (COMELEC Resolution No. 9371).
otherwise, a registration must first take place before a
request for accreditation can be made . Once
Reckoning Period of Age and Residence Detainees
registration has been carried out, accreditation is the
Those who snail be eighteen years of age on the day of
next natural step to follow ( Magdaia Para sa
election and/or are committed inside the detention centers
Pagbabago v. COMELEC, G.R. No. 190793, 12 June
for at least six (6) months immediately prscedlnq the
2012 ).
election day may be reqistered as a voter (COMELEC
Resolution No. 9371 ). COMELEC has the power to:
• Register political partles, organizations, or coalitions,
Detainees who are already registered voters may apply for and the authority to cancel the same on legal grounds
transfer of registration records as warranted by the • En Banc has the authority to direct a hearing be
circumstances. conducted on the petition for cancellation of
r ';.
\._.:; registration of the party list. However, HRET has the
DETAINEE VOTERS MAY VOTE FOR NATIONAL jurisdiction for contest relating to the qualifications of
POSITIONS ONLY nominee or representative. (Alliance for Barangay
In the case of Aguinaldo v. New Bi/ibid Prison, G.R. No. Concerns Party List v, COMELEC, G.R. 193256,
221201, April 19, 2016,. the Supreme Court issued a 2011)
Temporary Restraining Order enjoining the COMELEC
from enforcing COMELEC Resolution No. 9371 on the Issue of validity or invalidity of the expulslon
local level. This means that detainee voters may only vote
for the national positions. The validity or invalidity of the expulsion of a political
ii
t-
'· J
I party's officers is purely a membership issue that has to
In pursuant to this, the COMELEC issued COMELEC be settled within the party. It is an internal party matter
..
. '. -
,":"
·~- Resolution No. 10112, amending Resolution No. 10057.
This provides that:
over which COMELEC has no jurisdiction. It may
intervene in disputes internal to a party only when
t :
The Board of Election Inspector (BEi) shall instruct necessary to the discharge of its constitutional functions,
c: the DV, in clear terms, that pursuant to the TRO, such as resolving an intra-party leadership dispute as an
incident of its power to register polltical parties (Atienza v,
'J . he or she can only vote for national candidates

.
..... COMELEC, G.R. 188920, 2010; Alcantara v. COMELEC,
namely, candidates for Pres., VP, Senators and
Party list, G.R. 203646, 2013).
-, ;
' All ballots that ccntain votes for local positions
shall be separated and transmitted to COMELEC
Page ~O~ of 320
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

REGISTRATION
The following political parties cannot be registered National Party ..:..._ Its constituency is spread over the
(UfC-R} geographical territory of at l~ast a majority of the regions.
Religious sects
Thpse which seek to achieve their goals through Y.nlawful Regional Party - Its constituency is spread over the
means geographical territory of at least a majority of the cities
Those which refuse to adhere to the Constitution and provinces cornprisinq a region.
Those which are supported by any foreign government.
( 1 ~87 Constitution, art. IX-C, sec. 2(5)). Sectoral Party - An organized group of citizens whose
principal advocacy pertains to the special interests and
Effect when party fails to obtain at least 10% votes concerns of the following sectors: ·
case in constituency· . 1. Labor
2. Fisher folk
Registration will be forfeited when at least 10% of the
votes cast in the constituency In which It nominated
3. Peasant
candidates is not obtaineo (Omnibus Election Code, sec.
4. Urban poor.
60j 5. Indigenous
6. Cultural communities
Party-list System 7. Youth
A social justice tool designed not only to give mere in law
8. Women
to the great masses of our people who have less in life,
9. Handicapped
but, also to enable them to become veritable lawmakers 10. Elderly
empowered to participate directl'.I in the enactment of 11. Overseas workers
laws designed to benefit them. 12. Veterans
13. Professional workers
Alms and Purposes:
1. Broaden the base of candidates Unique Characteristics of the Philippine Party-List
2. :Encourage multi-party system System:
3. :Ensure party loyalty Only In-House
4. 'Promote proportional representation • The proportional representation er party-list
I · system is only available in the House of
Congress cannot provide for a two-party system Representatives.
because: • Plurality formula is used for other elective officials.
1. :This violates the freedom of association as provided in. The 20% Allocation - The combined number of all party-
the Bill of Rights. . list representatives shall not exceed 20% of the total
2. 1The Constitution mandates that the Phllippine party membership of the House of Representatives, including
system shall be multi-party, open and free. those elected under the party list. However. this only
I prescribes a ceiling and is not considered mandatory.
Poll,tlcal Party - An organized group of persons {
pursuing the same ideology, political ideas or p!atforms of t -,
No. of seats. available to Party-List Reps = (No. of seats
govf rnment including its branches and divisions. available to District Reps/0.80) X 0.20
Criteria to Determine.Type of Political Party (021RA):
• !:stablished .Becord of said parties showing in past Two Votes .
~lections 1.· 1st vote - For the district representative
• Number of Incumbent elective officials 2. 2nd vote - For the party-list representative (but it is '
\..,.'
• Identifiable political Qrganizations and strengths the name of the party that is indicated in the ballot)
• ,Ability to fill and complete slate of candidates
• ~her analogous circumstances (RA 7166, sec. 26}. The 2% Threshold and 3-Seat Limit
. 1. The parties shall be ranked from the highest to lowest
Types of Parties: based on t.he number of votes they garnered.
1. Non-Registered Parties 2. To be entitled to one qualifying seat, a party must
2. RegisterE.:d Parties . obtain 2% of the total ballots cast for qualified party-list
a. Dominant Majority - Entitled to a copy of ER candldatos.
b. Dominant Minority - Entitled to a copy of ER 3. Votes cast for a party which is not entitled to be voted
c. Top 3 - Entitled to appoint a principal watcher > for should not be counted. The votes they obtained
and a copy of the COC shall be deducted from the canvass of the total votes . '
d. Bottom 3 - Entitled to appoint a principal watcher for the party-list. .
'~ ........
Page 204 of 320
 ATENEO CENTRAL
BAR OPERATIONS2019
4. Rounding-off is not allowed.
5. Parties other than the 1st party (the party that obtained
the highest number of votes based on plurality) may be
entitled to additional seats based on the following
formula:
No. of votes of party
(No. of votes of 1st party x no. of seats of 1st party
Each party is shall be entitled to not more than three se~s.
The two percent threshold in computing for the
additional seats is unconstitutional, The continued
application of the two percent threshold in the application
of additional seats in proportion to their total number of
votes until all the additional seats will frustrate the
attainment of the permissive ceiling that twenty percent of
the members of the house of representatives shall consist
of party-list representatives (BANAT v. Comelec, G.R.
179271, 2009).
Section 6(8) of RA 'i941 provides for two separate grounds
tor delisting; these grounds cannot be mixed or combined
to support delisting: and the disqualification for failure to
garner 2% party-list votes in two preceding elections
...... .., shoeld now be understood, in light of the Banal ruling, to
mean failure to qualify for a party-list seat in two preceding
elections for the constituency in whiC:1 it has registered.
(Philippine Guardians v. COMELEC, G.R. 190529, 2010).
Party-list groups garnering less than 2% of the party-list
votes may qualify for a seat in the allocation of additional
seats depending on their ranking in the second round. The
continued operation of the two-percent threshold was
deemed "an unwarranted obstacle to the full
'( .,
implementation of Section 5(2), Article VI of the
.· ":. Constitution and prevents the attainment of the "broadest
possible representation of party, sectoral or group interests
in the House of Representatives," and has been declared
·unconstitutional. The 20% share in rspresentatlon may
never be filled up if the 2% threshold is maintained. In the
same vein, the maximum representation will riot be
achieved if those party-list grouµs obtaining less than one
percentage are disqualified from even one additional seat
.... ~·.• in the second round. (Aksyon Mag:;asaka-ParlidoTinig ng
[ .: Masa (AKMA-PTM) vs. COMELEC, G.R. 207134, 2015)
·~-·
Qualified Organizations (Along Paglaum v. COMELEC,
G.R. 203766, 2013)
1. Sectors enumerated in the Constitution must be
.! .
~j marginalized and underrepresented
• Only parties and organizations that actually and
truly represent the underrepr€sented and
marginalized constituencies which are
enumerated in the Constitution can participate.
• At least a majority of its members should belong to
' . the marginalized.
a
Page 205 of 320
POLITICAL LAW
• The party must not be an adiunct of, or a project
organized or entity funded or assisted by the
government.
• The nominee must be able to contribute to the
formulation of appropriate legislation that will
benefit the whole nation.
o Must be organic member not synthetic
member
• General averments that an organization
represents the marginalized sectors must be
substantiated and shown through its constitution,
history, platform, and track record. It must
demonstrate that in case of conflict of interests, it
is likely to choose the interest of the sectors.
·, 2. Non-traditional
• National parties;
•. Regional parties
Must be incapable of successful participation
in district elections.
Notes:
The inspiration of the system is social justice understood
in both the economic and political sense.
Participation in the system is not limited to the sectors
enumerated by the Constitution or lew.
The enumerated sectors must be economically
marginalized because that is what disables them from
successfully engaging in the political struggle.
The national and regional organizations need not be
economically marginalized but they must be politically or
ideologically disadvantaged or marginalized.
Traditional political parties, if they wish to participate, must
renounce participation in district elections.
Branches of political parties, if they wish to participate,
must be separately incorporated and be independent of
their originc,11 parties.
COMELEC must be guided by what the SC said: "The
common denominator between sectoral and non-sectoral
parties is that they cannot expect to win in legislative
district elections but they can garner in nationwide
elections, at least the same number of votes that winning
candidates can garner in legislative district elections. The
party-Ist system will be the entry point to membership in
the House of Representatives for both these non-
traditional parties that could not compete 1n legislative
district elections." (Atong Paglaum v. COMELEC, G.R. No.
203766, 2013).
j
Qualifications of a Party-List Nominee: (ABC-RV-25)
A natural-born ~itizen of the Philippines
A registered yoter
A Resident of the Philippines for a period of not less than
1 year immediately preceding the election day
Able to read and write
A §.ona fide member of the party he seeks to represent for
at least 90 days preceding election day (need not be
marginalized persons)
At least 25 years of age on election day.
ATENEO CENTRAL
BAR OPERATIONS 20·19
In case of the youth sector, he must be at least 25 but not
more than 30 years of age on the day of the election.
Any youth sectoral representative who reaches the age of
thirty 30 during his term shall be allowed to continue in
office until the expiration of his term.
A list with 5 names should be submitted to COMELEC as
to who will represent the party in the Congress. Ranking in
the list submitted determines who shall represent party or
organization.
Disqualification of Party-Lists: (F2V2R-COPS)
1. foreign party or organization
2. Receives foreign support
3. Advocates ViolP.nce
4. Yiolates electicn laws
5. B.eligious sect, denomination, organization
6. £eased to exist for at least 1 year
7. Failed to Qbtain at least 2% of the votes cast under
the party-list system in the 2 preceding elections
8. Failed to farticipate In the last 2 preceding
elections
9. Untruthful .§.tatements in its petition
Cancellation of reqistratlon of a party list may be done by
the COMELEC motu p,·oprio or upon verified complaint of
any interested party after due notice and hearing.
COMELEC may not, through a resolution setting the
deadline for registration of political parties, differentiate
between political parties, on the one hand, and political
organizations and coalitions, on the other. There is no
substantial distinction among these entities germane to the
act of registration that would justify creating distinctions
among them in terms of deadlines. A petition for
registration as a political coalition filed beyond that
deadline Is time-barred, and the COMELEC resolution
granting that petition constitutes grave abuse of discretion. ·
(Liberal Party v, COMELEC, G.R. 191771, 2010).
Section 15 of RA 7941 provides that a nominee . of a
sectoral party who changes his sectoral affiliation within
the same party is not eligible for nomination under the new
sectoral affiliation, unless such change occurred at least -,
six months before the elections. Section 15 clearly covers
changes in both political party and sectoral affiliation within
the same party. (Amores v. HRET, G.R. 189600, 2010).
Moral disapproval is nor a sufficient governmental interest
to justify exclusion of homosexuals from participation in the
party-list system. (Ang Laci/ad LGBT Party v. COMELEC,
G.R. 190582, 2010).
For the COMELEC to validly exercise its statutory power
to cancel the registration of a party-list group, the law
imposes only two (2) conditions:
1. due notice and hearing is afforded to the party-list
group concerned; and
Page 206 of 320
. POLITICAL LAW
2. any of the enumerated grounds for disqualification
in Section 6, R.A. No. 7941 exists (Dayao v.
COMELEC, G.R. 193643, 2013).
Each accredltatlon handed by the COMELEC to party-list
organizations can be likened to the franchise granted by
Congress, thru the SEC, to corporations or associations
created under the Corporation Code. A party-list
organization, like a corporation, owes its legal existence to
the concession of Its franchise from the State, thru the
COMELEC. Being a mere concession, it may be revoked
by the granting authority upon the existence of certain
conditions. The fact that a franchise/accreditation may be
revoked means that it can never be final and conclusive
(Dayao v. Comission on Elections, G.R. 193543, 2013)
The laws, rules and regulations violated to warrant
cancellation under Section 6 must be one that is primarily
imputable to the party itself and not one that is chiefly
confined to an Individual member or its nominee.
( COCOFED-.0hilippine Coconut Producers Federation,
Inc. v. Commission on Elections, G.R. 207026, 2013).
The disqualification of some of the nominees shall not
result in the disqualification of the party-list group "provided
that they have at least one nominee who remains
qualified." ( C:OCOFED-Phi/ippine Coconut Producers
Federation, Inc. v, Commission on Elections, G.R. 207026,
2013).
Dellsting
The law provides for 2 separate reasons for the delisting of
any natlonal, regional or sectoral party organization or
coalition. Section 6(8) of the Party - List system Act
.,
provides that the COMELEC may rnotu proprio or upon
verified complaint of any interested party, remove or r
i:-
cancel, after due notice and hearing, the registration of any
national, r~Jional or sectoral party organization or
coalition. The grounds are :
(a) if it fails to participate in tile last two (2) preceding
· elections; or
(b) fails to obtain at least two per centum (2%) of the votes
cast under the patty list system in the two (2) preceding
r-" ..
elections for the constituency in which it was registered
( Philippine Guardians Brotherhood, Inc. (PGBI) v.
COMELEC, G.R. No. 190529, 29 April 2010) .,.
!
'·
,.. .
( .•
l
'~- ;
 ATENEO CENTRAL
BAR OPERATIONS 2019
8. CANDIDACY
1. QUALIFICATIONS OF CANDIDATES
Candidate • A person aspiring for or seeking an elective
public office who has filed by himself or through an
accredited political party a certificate of candidacy at the
start of the campaign period
There is no constitutional right to run for or hold public
office. What is recognized is merely a privilege subject to
limitations imposed by law.
The right to run for public office is not inextricably
intertwined with the rights of expression and association.
One's interest in seeking office, by itself, is not entitled to
constitutional protection. One cannot bring one's action
under the rubric of freedom of association, absent any.
allegation that, by running for an elective position, one is
advancing the political Ideas of a particular set of voters.
(Quinto v. COMELEC, G.R. 189698, 2010).
Note: Congress may not add to the qualifications for
elective officials provided in the Constitution. However,
they may do so for elective officials net provided in the
Constitution.
Qualifications
The Constitution prescribes tt1e qualification s {i.e., age,
citizenship, residency, voter registration and literacy) for
the following positions: President, Vice • President,
Senators and Representatives (District and Party • List)
...,
while statutes set the qualifications of local officials.
1. Residence - to be understood as domicile that is, the
· place where a party actually or constructively has his
permanent home, where he/ she, no matter where may
he/ she be round at any given time, eventually intends
to return and remain (Japson v. COMELEC , G.R. No.
·180088, 19 January 2009)
'
··~ ,t
. 2. Registered Voter
3. Citizenship
• For national elective positions, the candidate must be
a natural - born citizen. For local elective positions,
the candidate may be naturalized citizen.
• Natural - born citizens of the Philippines who have
lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country can
seek elective office provided they re • acquire
Philippine citizenship by taking the oath of allegiance
to the Republic prescribed under the Citizenship
i Retention and Re· acquisition Act of 2003, and make
·-;... J
a personal and sworn renunciation of any and all
foreign citizenship before any public officer
authorized to administer an oath.
· .. Page 207 of 320
POLITICAL LAW
• Use of Foreign Passport: The use of a foreign
. passport amounts to repudiation or recantation of the
oath of renunciation. Matters dealing with
qualifications for public elective office must be strictly
complied with. A candidate cannot simply be allowed
to correct the deficiency ln his qualification by
submtttinq another oath of renunciation {Amado v .
COMELEC, G.R. No. 210164, August 18, 2015)
• Dual Citizens: Dual citizens are disqualified from
running for any elective local position. They cannot
successfully run and assume office because their
ineligibility is inherent In them, existing prior to the
filing or their certificates or candidacy. Their
certificates of candidacy are void ab initio, and votes
cast for them will be dlsregard9d. Consequently,
whoever gamers the next highest number of votes
among the eligible candidates is the parson legally
entitled to the position { Arlene Llena Empaynado v .
COMELEC, G.R No. 216607, April 5, 2016 ).
• Foundlings: As a matter of law, foundlings are as a
class, natural - born citizens ( Poe - Llamanzares v .
COMELEC, G.R. No. 221697, March 8, 2016 ).
When the names of the parents of a foundling cannot
be discovered despite a diligent search, but sufficient
' evidence is presented to sustain a reasonable
inference that satisfies the quantum of proof required
· to conclude that at least one or both of his o r her
parents is Filipino, then this should be sufficient to
establish that he or she is a natural • born citizen
(Rizalito Y. David v . Senate Electoral Tribunal, G.R.
No. 221538, September 20, 2016)
Disqualifications
Constitution
1. Three • term limit for local elective officials ( Art. X,
Sec. 8 of the Constitution)
• term limit rule is not a ground for a petition for
disqualification, however, it is an ineligibility which is a
proper ground for a petition to ,jer,y due course to or
to cancel a Certificate of Candidacy under Section 78
of the OEC ( Albania v, COMELEC, G.R. No. 226792,
7 June 2017 ).
• Two conditions must concur for the application of the
disqualification of a candidate based on violation of
the three - term limit rule, which are: (1) that the official
concern ed has been elected for three consecutive
terms in the same local government post, and (2) that
 . -- ... ···--------------------------------------
ATENEO CENTRAL
BAR OPERATIONS 2019
he has fully served \hree consecutive terms ( Albania
v. COMELEC, G.R. No. 226792, 7 June 2017 ).
• When it was only upon the favorable decision on his
petition for correction of manifest error that a
candidate was prodaimed as the duly - elected official,
he is deemed not to have served office for the full term
of three years to which he was supposedly entitled,
since he only assumed the post and served the
unexpired term of his opponent ( Albania v.
COMELEC, G.R. N0. 226792, 7 June 2017).
• . An involuntary interrupted term, as in the case of
assumption of office only after winning an election
protest, cannot, in the context of the disqualification
rule, be considered as one term for purposes of
counting the three - term threshold, since prior to
winning, the candidate was not the rightful holder of
the position ( Abundo v. COMELEC, G.R. No. 201716,
8 January 20 13 ).
• A provincial board member's election to the same
position for the third and fourth time, but now in
representation of the renamed district, is a violation of
the three - term limit rule ( Naval v. COMELEC; GR
No. 207851, 8 July 2014 ).
Omnibus Election Code
1. Any person declared by competent authority insane
or incompetent
2. Any person sentenced by final judgment for any of
the following offenses:
1. Insurrection, or rebellion
2. Offense for which he was sentenced to penalty
of more than 18 months
3. Crime involving moral turpitude ( Sec. 12,
Omnibus Election Code )
3. A permanent resident to or immigrant to foreign
country unless he waives such status ( Sec. 68,
Omnibus Election Code )
Revised Administrative Code-Municlpc1I Office
1. Ecclesiastics (Parnil v. Teleron, 86 SCRA413)
2. Persons receiving compensation from provincial or
municipal funds
3. Contractors for public works of the municipality (Sec.
2175, Revised Administrative code ) .
Local Government Code
12
Note: The 3-term ban applies only for elective local
officials.
Page 208 of 320
POLITICAL LAW
1. . Those sentenced by final judgment for an offense
ir.volving moral turpitude or an offense punishable by
impriscnrnent for at least one year, within 2 years
after service of sentence.
2. Those removed from office as a result of an
administrative case.
3. Those convicted by final judgment for violating his
oath of allegiance to the Republic.
4. Those with dual citizenship.
5. Fugitives from justice in criminal or non - political
cases.
6. Permanent residents in foreign country or those who
have the right to reside abroad and continue to avail
of it (Caasi v. Court of Appeals, 191 SCRA 229).
7. The insane or feeble - minded (Sec. 40, Local
Government Code ) .
Conditions For The Three-Term Ban:12
The official has been elected for 3 consecutive terms in the
same local government post
Fully served 3 consecutive terms
Elected in a regular election
Service of Full Term:
When a municipality has been converted to a city, and the
· area and inhabitants of the locality are the same, and the
3-term municipal mayor continued to hold office until such
time as city elections are held.
When an incumbent mayor loses in election protest but the
decision of the RTC was promulgated AFTER the service
of the term.
Not Service of Full Term:
• Fills up a higher office (by succession or operation of
law).
(
• Suspended from office (failed to serve full term). 1· .., ..
• Unseated, in order to vacate by reason of declaration .•
of failure of election or an election protest. ., '
• Served unexpired term after winning in the recall
elections
• Assuming a local government post (even if served for
3 consecutive terms) after winning a recall election
(since not considered an immediate re-election).
Holdover Principle - The term of all local officials is 3
years, but Sec. 5 of R.A. 9164 authorizes the holdover of
incumbent barangay officials until their successors are
elected.
 A TENEO CENTRAL
BAR OPERATIONS 2019
2. FILING CERTIFICATES OF CANDIDACY
Certificate of Ca:,didacy
A statement of a person seeking to run for a public office
certifying that he announces his candidacy for the office,
the name of the political party to which he belongs if he
belonqs to any, and his oost office address for all election
purposes being stated. (Sinaca v. Mula, G8 No. 135691,
September 27, 1999) · person only becomes a cundidate when he/ she has filed
No person shall be elected into public office unless he files
his COC within the prescribed period. (Omnibus Election
Code, Sec. 68)
The COC shall be filed by the candidate personally or by
his duly authorized representative. No COC shall be
accepted if filed by mail telegram or facsimile.
Upon filing, an individual becomes a candidate. Thus, he
is already covered by rules, restrictions and processes
involving candidates.
The receiving officers shall have the ministerial duty to
receive and acknowledge receipt of the COC.
A COC will not be cancelled even if It failed to specify the
position sought if the information omitted is supplied in the
certificate of nomination and amended COC.
Prohibition against multiple candidacies
No person shall be eligible for more than one office. If he
files more than 1 position, he shall not be eligible for all
unless he cancels all and retains one. (Sec. 73, Omnibus
Election Coce ).
(a) General Effect of Filing of CoC
Upon filing, such person becomes a candidate. He/she is
already covered by rules and regulations, and process
involving candidates.
[4.
'1',.•"
"' Effect on Incumbents of Filing of CoC
a. Any person holding a public appointivo office or
position, including active members of the armed forces,
.I,,;
and officers and employees in government-owned or -
controlled corporations are considered ipso facto
resigned from his/her office and must vacate the same
at the start of the day of the filing of his/her certificate
of candidacy. Said appointed officials would have
unfair advantage over their rivals because they might
use their office resources for their campaign. ( Quinto v.
' COMELEC, G.R. 189698, 2.010).
"'-····
b. Elective officials continue, to hold office, whether they
I • run for the same or different position.
\__;;
' Who Is a candidate?
'\ ,;
A "candidate" refers to any person aspiring for or seeking
a n elective public office, who has flied a certificate of
.I
',
candidacy by himself (herself) or through an accredited
Page 209 of 320
POLITICAL LAW
political party, aggroupment, or coalition of parties. (Sec.
79(a), Omnibus Election Code)
A candidate is "any person who files his certificate of
candidacy within this period shall only be considered as a
candidate at the start of the campaign period for which he
filed his certificate of candidacy." Thus, under the law. a
a certificate of candidacy and when the campaign period
has commenced. Ona is not a candidate, despite having
filed a certificate of candidacy, before the start of the
campaign period. The law added, •unlawful acts or
omissions applicable to a candidate shall take eff~t only
upon the start of the aforesaid campaign period.• (Sec. 15,
RA 9369)
If the certificate of candidacy is void ab initio, the candidate
is not considered a candidate from ti re very beginning even
if his certificate of candidacy was cancelled after the
elections. (H. Sohria Pasagi Diambrang v . COMELEC,
G.R. No. 201809, October 11, 2016
Independent Candidates:
1. Not a member of a registered political party
2. Member of an unregistered political party
3. Member of a registered political party but not officially
nominated as candidate by said party
4. Nominated by a person who is not the duly authorized
representative of a register€d political party
5. Nominated by a registered political party hut such was
not submitted to the COMELEC or where such
nomination was submitted after the last day of filing of
the certificate of candidacy
6. Nominated by a party that nominated in excess of the
numoer of persons to be voted for an election position
7. Accepted nominations from more than one registered
political party
-, Substitution of candidates
Grounds for Substitution: (DWD)
1. 1,eath
2. Withdrawal
3. Qisqua:ification (Omnibus Election Code, sec. 77)
Substitution is not allowed when the original candidate
was disqualified based on:
• Ground of material misrepresentation (Fermin v.
COMELEC G.R. 179695, 2008)
• When the certificate was cancelled because he was
running for the fourth consecutive term (Miranda v,
Abaya, G.R. 136351, 1999)
• Failure to meet one-year residency requirement
(Tagolino v. HRET, GR. 202202, 2013)
ATENEO CENTRAL
BAR OPERATIONS 2019
N
--ot_e_:l_n_th_e_c_s_s_e_o_f-Ta_g_o-lin_o_v-.""."H~R~E~T:--,
~G-:.R:o-.~N-:-o-.
2013, the COMELEC first ruled that substitutior. is allowed
because it held that a candidate's failure to meet the
qualifications is a ground for disqualification. This was
adopted by the HRET. However, the Supreme Court ruled
that it is actually a cancellation of the certificate of
candidacy. Thus. no substitution is allowed.
General Rule: No substitution is allowed for an
independent candidate. Only candidates who are
members of and are nominated by a party can be
substituted.
Exception: A candidate for a barangay elective office
notwithstanding the policy that barangay elections are non-
partisan can be substituted by his/her spouse. (Ru/loda v. -,
COMELEC, G.R. 1541P8, 2003).
Rules on Substitution:
1. Any candidate may withdraw his candidacy anytime
before election day. . '
2. A person without a valid certificate of candidacy cannot
be considered a candidate and therefore cannot ·be
substituted.
3. Substitute candidate may file his certificate of
candidacy no later than mid-day of election day.
4. No person who has withdrawn his candidacy for a
position shall be eligible as a substitute candidate for
any other position.
5. The substitute candidate must be qualified to hold
office and must be a member of and nominated by the
same political party.
6. A public office is personal to the public officer and not
a property transmissible to the heirs upon death. The
Court has allowed substitution and intervention but
only by a real party in interest. The Protestant's widow
is not a real party in interest to the election protest.
7. The filing of the withdrawal shall not affect the civil,
criminal or administrative llablilties the substituted
candidate may have already incurred.
8 A candidate who is disqualified under Section 68 of the
Omnibus Election Code can be validly substituted
pursuant to Section 77 because he remains · a
candidate until disqualified; but a person whose
certificate of candidacy has been denied due course to
and/or cancelled under Section 78 cannot be
substituted because he is not considered a candidate
(Tagolino vs. HRET, G.R. 26)2202, 2013).
Ministerial duty of COMELEC to receive certificate
It is the ministerial duty of COMELEC and its officers to
receive a certificate of candidacy (Omnibus Election Code.
sec. 76) While the COMELEC may look into patent defects
in the CoCs, it may not go into matters not appearing on
their face. The question of eligibility or ineligibility of a
candidate is thus beyond the usual and proper cognizance
POLITICAL LAW
~20;:-;2~2~02~.-~o~f~t7::'.he:-"rc:ro~M"ELEC
(Cerafica v. COMELEC, GR. 205136,
2014)
· Nuisance candidates · . .
One who has no bona fide intention to run for the office: and
would thus prevent a faithful determination of the true will
of the people. ·
Factors to Consider: (CROP5-PIPES-IQ)
1. ~apability to wage nationwide campaign
2. Running under a slate · ·
3. Qrganization and machinery
4. Performance in previous elections
5. Platform of government
6. foiitical party affiliation and support
7. fopularity
8. froperties
9. f.olitlcal exposure
10. Intention to run for office
11. Profession
12. Educational attaintnent
13. §.imilarity in name causes confusion
14. Income
15. Qualifications and disqualifications
COMELEC cannot motu proprio deny due course to or
. · cancel an alleged nuisance candidate's certificate of
candidacy without providing the candidate his opportunity
to be heard. ( Timbol vs. COMEL EC, G.R. 206004, 2015)
Petition to deny or cancel certificates of candidacy
Who can file: Any Party
How: Petition to deny due course or Cancel certificate of
candidacy under oath . ·
When: Any time not later than 25 days from filing of
certificate of candidacy . · ·
Where: COMELEC must decide the case not later than 15
· days before election (period is not mandatory however)
!
Exclusive Ground: material misrepresentation (FMD) ;
1. Must be False. ·
2. Must be Material (goes into the qualifications).
3. Must be Qeliberate and there is an intention to defraud
the electorate.
. ' '
The COMELEC must determine whether or · not the
candidate deliberately attempted to mislead, misinform or
hide a fact about his or her residency that would otherwise
render him or her ineligible for the position sought. The
COMELEC gravely abused its discretion in this case when,
in considering the residency issue, it based its decision
solely on very personal and subjective assessment
standards, such as the nature or design and furnishings of
the dwelling place in relation to the stature of the candidate
(Mitra v. COMELEC, G.R. No. 191938, 2010).
Page 21 o of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
Misrepresentation of nickname is not a material
misrepresentation because the use of nickname is not a
qualification of public office. The proper recourse is to file
an election protest and pray that votes be declared as stray
votes (Villafuerte v, COMELEC, G.R. 206698, 2014).
Material representation contemplated by Section 78 refers
to qualifications for elective office, such as the requisite
residency, age, citizenship or any other legal qualification
necessary to run for a local elective office as provided for
in the Local Government Code. Furthermon~. aside from
the requirement o~ materiality, the rnlsrepresentation must
consist of a deliberate attempt to mislead, misinform, or
hide a fact, which would otherwise render a candidate
ineligible (Caballero v. COMELEC, G.R. No. 209835,
2015).
If a candidate cannot be disqualified without a prior finding
that she or he is suffering from a disqualification "provided
by 'aw or the Constitution," neither can the certificate of
candidacy be cancelled or denied due course on grounds
of false misrepresentation regarding his or her
qualification, without a prior authoritativefinding that he or
she is not qualified. (Poe-Llamanzares v. COMELEC,G.R.
221697, 2016) .
· The COMELEC cannot, in the same cancellation case
based on the ground of false material representation,
decide the qualification or lack thereof cf the candidate.
(Poe-L/amanzaresv, COMELEC,G.R. 221697, 2016)
A CoC may be cancelled on the ground that the
"candidate" misrepresented his eligibillty in his CoC
because he knew that he had been convicted by final
Judgment for libel, a crime involv!ng moral turpitude
regardless of the fact that he was merely the publisher of
j ' the libelous articles, and that his penalty was merely a fine.
(Ty-Delgadov. HRET, G.R. 219603, 2016)
If the certificate of candidacy is void ab lnitlo, the candidate
is not considered a candidate frcm the very beginning even
if his certificate of candidacy was cancelled after the
elections. (H. Sohria Pasagi Diambrang vs. COMELEC,
G.R. No. 201809, 2016). .
:': .ti
•.::,p- The summary nature of proceedings under Section 78 only
allows it to rule on patent material misrepresentations of
facts, not to make conclusions of law that are even contrary ·
to jurisprudence. (Juliet B. Dano vs. COMELEC, G.R. No.
210200, 2016).
No False Material Representation:
• When a candidate uses the name of her lor.g-time live-
in partner or states a false profession.
• When the candidate is ac.tually qualified even if the
entries In the CoC as filled up by the candidate will
' \
;_ I show that he is not.
Page 211 of 32.0
POLITICAL LAW
• When the candidate, supported by a preponderance of
evidence, believed that he was qualified since there
was no intention to deceive the electorate as to one's
qualifications for public office.
Effects of Disqualification
Any candidate who has been declared by final judgment to
be disqualified shall not be voted for.
One who is disqualified under Section 68 is still technically
considered to have been a candidate, albeit proscribed to
continue as such only because of supervening infractions
which do not, however, deny his or her statutory eligibility
(Tagolino v. HRET, G.R. 202202, 2013).
When a person who is not qualified is voted for and
eventually garners the hi~hest number of votes, even the
will of the electorate expressed through the ballot cannot
cure the defect in the qualifications of the candidate. To
rule otherwise is to trample upon and rent asunder the very
law that sets forth the quatflcatlons and disqualltlcations of
candidates. When there are participants who turn out to be
ineligible, their victory Is voided and the laurel Is awarded
to the next in rank who does not possess any of the
disqualifications nor lacks any of the qualifications set in
the rules to be eligible as candidates. Knowledge by the
electorate of a candidate's disqualification is not necessary
before a qualified candidate who placed second to a
disqualified one can be proclaimed as the winner
(Maquiling v. Ccmmisslonon Elections, G.R. No. 195649,
2013).
A person whose COC was cancelled due to ineligibility for
failure to prove Filipino citizenship and the one-year
residence requirement could not have been a valid
candidate, and could not have been validly proclaimed.
Thus, she could not have validly assumed her position.
( Velasco v. Belmonte, G.R. 211140, 2016)
The purpose of a disqualification proceeding is to prevent
the candidate from running or, if elected. from serving, or
to prosecute him for violation of the election laws. A petition
to disqualify a candidate may be filed pursuant to Section
68 of the Omnibus Election Code. Offenses that are
punished in laws other than in the Omnibus Election Code
cannot be a ground for a Section 68 petition. (Ejeroito v.
COMELEC, G.R. 212398, 2014).
Effect of Re-Election on Administrative Liability
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
lncor.slstent with the idea that an elective local official's
administrative liability for a misconduct committed during a

A TENEO CENTRAL
BAR OPERATIONS 2019
prior term can be wiped off by the fact that he was elected
to a second term of office, or even another elective post.
ElecOon 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 v, Bfnay, G.R. 217126-27,
2015)
The COMELEC may suspend the proclamation of a
candidate who gets the majority votes, if he has been
disqualified before the election but the decision has not yet
become final. He will not be proclaimed except where the
Judgment of disqualification is finally reversed.
Exception to non-proclamaticn of candidate with 2nd
highest number of votes:
1. The one who obtained the highest number of votes is
disqualified; and
2. The electorate is fully aware in fact and in law of a
candidate's disqualification so as to bring such
awareness within the realm of notoriety but would
nonetheless cast their votes in favor of the ineligible
candidate (Grego v. COMELEC, G.R. 125955, 1997).
Withdrawal of Candidates
Nothing in Section 73 of B.P. No. 881 mandates that the
affidavit of withdrawal must be filed with the same office
where the certificate of candidacy to be withdrawn was
flied. Thus, it can be filed directly with the main office of the
COMELEC, the office of the regional election director
concerned, the office of the provincial election supervisor
I
of the province to which the municipality involved belongs,
or the office of the municipal election officer of the said
municipality (Gov. COMELEC, G.R. 147741, 2001).
Distinction between Disqualification and Cancellation·
ofCOC
a. A petition for cancellation of a certificate of candidacy
is not based on lack of qualification but on false
representation, which may relate to lack of
qualification, such as residence. A petition for
disqualification refers to commission of prohibited acts
and possession of permanent resident status in a
foreign country.
b. A candidate who se certificate of candidacy was
cancelled is not treated as a candidate. A candidate
who is disquallfled cannot continue as a candidate.
c. A candidate whose certificate of candidacy was
cancelled could be substituted. A candidate who is
disqualified cannot be substituted.
Page 212 of 320
----··---------------------
POLITICAL LAW
d. A petition to deny due course or to cancel a certificate
of candidacy must be filed within 25 days from the time
of filing of the COC, as provided under Section 78 of
the OEC ( Albania v. COMELEC, G.R. No. 226792, 7
June 2017 ).
e. A petition for disqualification of a nuisance candidate
· should be filed within 5 days from the last day for filing
certificate of candidacy ( Fermln v . COMELEC , G.R.
No. 179695, 18 December 2008 ).
CAMPAIGN·
Election Campaign - An act designed to promote the
election or defeat of a particular candidate to a public
office. (Omnibus Election Code, Sec. 79)
Campaign Period
1. President, vice president and senators - 90 days
before election day
2. Congressmen, provincial, city and municipal officials-
. 45 days before election day (Sec. 5, R.A. No. 7166)
As a general rule, the period of etection starts at ninety (90)
days before and ends thirty (30) days after the election
date pursuant to Section 9, Article IX-C of the Constitution
and Section 3 of BP 881. This rule, however, is not without
exception. Under these same provisions, the COMELEC
is not precluded from setting a period different from that
provided thereunder, (Aquino vs. COMELEC, G.R.
211789-90, 2015)
Not every act of beneficence from a candidate may be
considered campaigning. The term "campaigning" should
not be made to apply to any and every act which may
influence a person to vote for a candidate, for that would
,·
stretching too far the meaning of the term. Examining the l..
definition and enumeration of election campaign and
partisan political activity found in Comelec Resolution No.
..
l
3636, the Comelec is convinced that only those acts which
are primarily designed to solicit votes will be covered by
the definition and enumeration. The distribution of sports
items in line with the sports and education program of the
province does not constituta election campaigning since
what is prohibited is the release of public funds within the :\ ..
45-day period before election. (Pangkat Laguna v.
Comelec, G.R. 148075, 2002)
2. PREMATURE CAMPAIGNING
A candidate is liable for an election offense only for acts
done during the campaign period, not before. The law is
clear as daylight - any election offense that may be
committed by a candidate under any election law cannot
be committed before the start of the campaign period. The
act of engaging in an election campaign or partisan political
 ATENEO CENTRAL
BAR OPERATIONS 2019
activity to "promote the election or defeat of a particular
candidate or candidates", before the start of the campaign
period, is what was commonly known as "premature
campaigning". Because premature campaigning requires
the existence of a "candidate" and because there is no
"candidate" to speak of until the start of the campaign
period, there is no more premature campaigning (Penera
vs. COMELEC, G.R. No. 181613, 2009).
Valid Forms of Campaigning: (OHS-SPA)
1. Forming Q.rganizations, associations, clubs,
committees, or other groups of persons for the purpose
of soliciting votes and/ or undertaking any campaign
for or against a candidate.
2. !!olding political caucuses, conferences, meetings,
rallies, parades or other similar assemblies for the
purpose of soliciting votes and/ or undertaking any
campaign or propaganda for or against a candidate.
3. Making ~peaches, announcements or commentaries
or holding interviews for or against the election of any '
candidate for public office.
4. fublishing or distributing campaign literature or
materials designed to support/ oppose the election of
any candidate.
5. Directly or indirectly .ioliciting votes, pledges, or
support for or against a candidate.
6. ~dv:3rtisements.
A candidate is liable for premature campaigning if after"
filing his/ her certificate of candidacy, he/she joined a
motorcade which broadcasted her filing. (Penera v.
COMELEC, GR No. 181613, 2009).
PROHIBITED CONTRIBUTIONS: (UF2 PLAC2E)
1. Public !J.tilitles or those exploiting natural resources of
' :
the nation
2. Public or private financial institutions, except loans to
a candidate or political party
3. foreigners and foreign corporations
4. Grantees of franchises, incentives, exemptions,
allocations or similar frivileges or concessions by the
,; ·~. government
t ...,) 5. Persons who, within 1 year prior to the date of the
election, have been granted !,,oans or other
·.... _.· accommodations. in excess of P100,000 by the
government
6. Members of the Armed forces of the Philippines
7. Officials or employees in the £ivil service
!.' :. 8. Persons with £ontracts to supply the government with
goods or services or to perform construction or other
wo~s ·
· 9. ,&ducational lnstitutlons which have received grants of
public funds not less than p100,000 by the government
Prohibited Means of Raising Funds: (C2L-B3ED)
1. £inematographic, theatrical or other performances
2. £ockfights
Page 213 of 320
POLITICAL LAW
3. ,batteries
'4. §oxing bouts
5. ~ingo
6. ~eauty contests
7. .§.ntertainment and games
8. .Q.ances
LAWFUL ELECTION PROPAGANDA
1. letters
2. Writte,n and printed materials (8.5 in. x 14 in.)
3. Posters (2 ft. x 3 ft.) in common-private poster areas
4. Rally streamers (3 ft. x 8 ft.)
5. Use of gadgets and billboards
6. Paid advertisements in print or broadcast media
(COMElEC Resolution No. 9615).
Public Rallies:
1. The candidate or party must notify election registrar
that they Intend to organize and hold within the
city/municipality ·
2. Submit to eiection registrar a statement of expenses in
connection therewith
Free Space and Airtime
1. SPACE
a. 3 National newspapers - National candidates
b. 1 National newspaper - local candidates
2. AIRTIME
a. 3 National TV and Radio Networks - National
candidates
b. 1 Major Broadcasting station • local candidates
. There shall be equal allocation for all candidates for 3 ·
calendar days.
I
COMELEC does not have the authority to regulate the
enjoyment of the preferred right to freedom of expression
exercised by a non-candidate. 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 which are, taken as a whole, principally
advocacies of a social issue that the public must consider
during elections is unconstltutlonal. Such regulation is
inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate
including those that can catalyze candid, uninhibited, and
robust debate in the criteria for the choice of a candidate
(Diocese of Bacolod v. COMELEC, G.R. W5728, 2015).
However, regulation of election paraphernalia will still be
constitutionally valid if it reaches lnto speech of persons
who are not candidates or who do not speak as members
of a political party if they are not candidates, only if what is
regulated is declarative speech that, taken as a whole, has
for its principal object the endorsement c·f a candidate only.
The regulation (a) should be provided by law, (b)
A TENEO CENTRAL
BAR OPERATIONS 2019
reasonable, (c) narrowly tailored to meet the objective of
enhancing the opportunity of all candidates to be heard
and considering the primacy of the guarantee of free
expression, and (d) demonstrably the least restrictive
means to achieve that object. The regulation must only be
with respect to the time, place, and manner of the rendition
of the message. In no situation may the speech be
prohibited or censored on the basis of its content. For this
purpose, it will not matter whether the speech is mane with
or on private property. (Diocese of Baco/od v. COMELEC,
G.R. 205728, 2015; Note: obiter dictum).
Election Surveys
The names of those who commission or pay for election
surveys, Including subscribers of survey firms, must be
disclosed pursuant to Section 5.2(a) of the Fair Election
Act. This requirement is a valid regulation in the exercise
of police power and effects the constitutional policy of
"guaranteeing equal access to opportunities for public
service.", and neithercurtalls petitioners' free speech rights
I
nor violates the constitutional proscription against the
impairment of contracts. (Social Weather Stations, Inc. et
al v. COMELEC, G.R. No. 208062, 2015)
When published, the tendency of election surveys to shape
voter preferences comes into play. In this respect,
published election surveys partake of the nature of election
propaganda. it is then declarative speech in the context of
an electoral campaign properly subject to regulation.
( Social Weather Stations, Inc. et al vs. COMELEC, G.R.
208062, 2015)
While Resolution No. 9674 does regulate expression (i.e.,
petitioners' publication of election surveys), it does not go
so far as to suppress deslred expression. There is neither
prohibition nor censorship specifically aimed at election
surveys. The freedom to publish election surveys remains.
All Resolution No. 9674 does is articulate a regulation as·
regards the manner of publication, that is, that the
disclosure of those who commissioned and/or paid for,
including those subscribed to, published election surveys
must be made. (Social Weather Stations, Inc. et al v.
COMELEC, G.R. 208062, 2015)
Exit Polls
a: Surveys shall not be conducted within 50 meters from
the polling places.
b. Pollsters shall inform the voters that they may· refuse to
answer.
c. The result may be announced after the closing of the
polls on election day and must Identify the number of ,
respondents and the places where they were taken.
The announcement must state that it Is unofficial and
Page 214 of 320
POLITICAL LAW
does not represent a trend ( Sec. 5.5, Republic Act No.
9 006 ). .
Paid Advertisements
1. PRINT
• X page in broadsheet, 3x a week
• ~ page in tabloid, 3x a week
2. RADIO (per network)
• . Aggregated total of 180 mins. for National
candidates
• Aggregated total of 90 mins. for Local candidates
3. TV (per network)
• Aggregated total of 120 mins. for National
candidates .
• Aggregated total of 60 mins. for Local candidates
TV and radio paid advertisements airtime cannot exceed · .
their AGGREGATED TOTAL TIME. (COMELEC
Resolution No. 9615).
The Fair Election Act does not justify a conclusion that the
maximum allowable airtime should be based on the
totality of possible broadcast in · all television or 35 radio
stations, and the COMELEC has no authority to provide
for rules beyond what was contemplated by the law it
is supposed to implement ( GMA Network, Inc. v.
COMELEC, G.R. 205357, 2014).
General Rule: It shall be unlawful for any person or
organization to solicit and/ or accept any gift, contribution,
food, transportation or donation in cash or in kind from the
commencement of the election period up to and including
election day.
Exception: Normal and customary religious stipends,
tithes or collections.
Rules on Election Propaganda: \..,.
• All registered parties and bona fide candidates shall
have the right to reply to charqes published against
them.
• No movie: cinematograph, documentary portraying the t.:,
life or biography of a candidate shall be publicly
exhibited in a theatre, 1V station, or any public forum 1:
during the campaign period. "~ -·
• No movie, cinematograph, documentary portrayed by
an actor or media personality who is himself a
candidate shall be publicly exhibi!ed in a theatre, TV
station or any public form during the campaign period.
• All mass media entities shall furnish the COMELEC
I
with copies of all contracts for advertising, promoting, \.... .:
or opposing any political party or the candidacy of any
person for public office with:n 5 days after its signing. "\;,.,.,:
e Any media personality who is a candidate or is a
campaign volunteer for or employed or retained in any
capacity by any candidate or political party shall be
deemed resigned, if so required by their employer, or
 A TENEO CENTRAL
BAR OPERATIONS 2019
shall take a LOA from his work as such during the
campaign period.
Prohibited Donations
It is prohlbited for any candidate, his spouse, relative
within second degree of consanguinity or affinity, a
representative to make any contribution for any structure
for public use or for use of any religious or civic
organization, except tl)f::j normal religious dues and
payments for scholarships established and school
contributions habitually made before the campaign period
( Sec. 104, Omnibus Election Code).
Invalid Forms of Campaignir.g:
Display of campaign materials outside authorized common
poster areas in public places or private places without the
consent of the owner
Note: 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. ( 1-United Transport Koalisyon (1-
Utak) v. COMELEC, G.R. 206020, 2015)
Non-removal of premature campaign materials within 3
days from notice · the candidate's behalf. By virtue of the legal requirement
Note: Failure to remove raises presumption that said
candidate was engaged in premature campaigning
Print, publish or broadcast election propaganda donated to
a candidate without the written acceptances of the
candidate
Foreign Intervention
'i : Campaigning outside campaign periods
Removal or destruction of lawful propaganda
Removal, confiscation or destruction of prohibited
propaganda other than· by COMELEC or its deputized
officers
Written or broadcast materials that do not bear the
inscription: "polltical advertisement paid for" and name/
address of benefiting candidate or party
Advertisements beyond the allotted time and space
Transportation, food and drinks during and 5 hours before
and after public rneetlnqs
Movie or video on candidate
Cinematography or documentary portraying life or
biography of candidate
LIMITATIONS ON EXPENSE
Authorized Expenses - Multiplied with the total number
of registered voters: ·
1. P10 - President and Vice President
2. P3 - Other candidates
3. PS - Independent candidates
4. PS - Political parties
Page 215 of 320
POLITICAL LAW
Lawful Expenditures
1. Traveling expenses
2. Compensation of campaigners, clerks, stenographers,
messengers and other persons actually employed in
the campaign
3. Telegraph and telephone tolls, postage, freight and
express delivery charges
4. Stationary, printing and distribution of printed matters
relative to candidacy
5. Employment of watchers at the polls
6. Rent, maintenance and furnishing of campaign HQ,
office, or place of meetings
7. Political meetings and rallies
·, 8. Advertisements
9. Employment of counsel
10. Printing sample ballots
11. Copying and classifying list of voters, i,wcstigating and
challt?nging the right to vote oi persons registered in
the lists
Note: The cost of (9), (10), (11) shall not be taken into
account in determining the amount of expenses which a ·
candidate or political party may have incurred.
The phrase "those incurred or caused to be incurred
by the candidate" is sufficiently adequate to cover
those expenses which are contributed or donated in
that a contribution or donation should bear the written
conformity of the . candidate, a
contributor/supporter/donor certainly qualifies as any
person authorized by such candidate or treasurer (l.:jercito
v. COMELEC, G.R. 212398, 2014).
Vote in Absentia
Every qualified Filipino citizen abroad previously
registered as a voter may file with an embassy, consulate
or other foreign service establishment an application to
vote in absentia ( Sec. 11.1, Republic Act No. 9189 ) .
The application may be med personally or by mail (Sec.
11.2).
The application shall be transmitted to COMELEC ( Sec.
11.1, Republic Act No. 9189 ) ·
A. COMELEC shall act 6n the application not later than
150 days before election day.
B. In case of disapproval of the application, the voter or
his authorized representative may file a motion for
reconsideration personally or by registered mail within
10 days from receipt of notice. .
C. The decision of COMELEC is final ( Sec. 12, Republic
Act No. 1989).
ATENEO CENTRAL
BAR OPERATIONS 2019
STATEMENT OF CONTRIBUTIONS ANO EXPENSES
Every candidate and treasurer of the polltical party shall,
within 30 days after the day of the election, file in duplicate
with the offices of the Commission the full, true and
itemized statement of all contributions and expenditures in
connection with the election.
No person elected to any public office shall enter upon the
duties of his office until he hds filed the statement of
contributions and expendltures herein required.
The same prohibition shall apply if the political party which
nominated the winning candidate fails to file the statement
required herein within the period prescribed by this Act.
BOARD OF ELECTION INSPECTORS AND BOARD OF
CANVASSERS
1. COMPOSITION
Provincial
1. Provincial election supervisor of lawyer in the mgional
office of the COMELEC (Chairman);
2. Provincial fiscal (vice)
3. Provincial superintendent of schools (member)
4. Substitute members (in order):
a. Provincial auditor
b. Register of Deeds . 2. Using the name of another
c. Clerk of Court nominated by executive judge
d. Other available appointive provincial officer
City
1. City election supervisor or lawyer of COMELEC (chair)
2. City fiscal (vice) . .
3. City superintendent of schools (member)
4. Substitute members - same as provincial
Municipal
1. Election registrar or COMELEC representative (chair)
2. Municipal treasurer (vice)
3. Most senior district school supervisor (member)
4. Or principal of the school, if absent
5. Substitute members:
a. Municipal administrator
b. Municipal assessor
c. Clerk of Court nominated by executivejudge
d. Other available appointive municipal officers
Board of Canvassers for President and Vice·
President:
Congress to determine the authenticity and due execution
of certificates of canvass. Must prove:
13
Note: The chalienqed person sh.311 take a prescribed
oath before the SE! that he has not committed any of
the acts alleged in the chall1:mge, after which he will be
allowed to vote.
Page 216 of 320
POLITICAL LAW
1. Each certificate of canvass was executed, signed,
thumb-marked by the Chair · and transmitted to
Congress;
2. Each certificate contains the names of all candidates·
and votes in words and figures
3. No discrepancy in authentic copi~s
Board of Canvassers for Senators: COMELEC en bane,
and not the provincial board.
Disqualifications: e . •
O. He/his spouse is related within the fourth (4th) civil
degree of consanguinity or affinity, to any member of
the BEi or to any candidate to be voted for or to the
latter's spouse, In the polling place. (COMELEC
Resolution No. 9640, Art. 1, Sec. 3)
1. Engaged in any partisan political activity. (Omnibus
Election Code, Art. XIV, Sec. 173)
POWERS
Duty of Board t'f Canvassers: Purely ministerial; to
compile and add results as appearing in the results
transmitted to it.
Grounds to Challenge an Illegal Voter:
1. Not registered
3. Suffering from existing disqualification
General Rule: No voter shall be required to present his
voter's affidavit on election day.
Exception: His identity is challenged.
Failure to producevoter's affidavit shall not preclude him
from voting if:
1. His identity be shown from the photograph, fingerprints
or specimen signatures in his approved application in .i...
the book of voters. ·
2. He is identified under oath by a member of the BEi and i ·
such identification shall be reflected in the minutes of t ,:,
the board.
' :
i.,,_.;
Grounds to Challen::1e Based on Illegal Acts:13
1. Vote buying
2. Vote selling
3. Vote betting
Buildings Not Valid as a Polling Place:14 .- ......
1. Public or private building owned, leased or occupied l.t
by any candidate of any person who is related to any
candidate within the 4th civil degree of consanquinlty
14
Note: Where no suitable public building is available,
private school buildin9s may be used as polling places ~ ..
\ '
 A TENEO CENTRAL
BAR OPERATIONS2019
or affinity, or any officer of the government or leader of
any political party
2. Building or surrounding premises under the actual
control of a private entity
3. Those located within the perimeter of or inside a
military or police camp or reservation or within a prison
compound ·
Requisites for valid transfer of venue of counting:15
(BV-NW)
Imminent threat of Yiol~nce
To Nearest school [see comment]
Unanimous vote of ~oard of Inspectors
Majority of Watchers
If there is actual danqsr, 110 need for the unanimous vote
of the BOI and assent of majority of poll watchers
General Rule: Voting by proxy is not allowed.
Exceptions:
1. Illiterate
2. Handicapped
General Rule: No ballots other than official ballots shall
be used or counted
,. \
Exceptions:16
Failure to receive the official ballots on time
There are no sufficient ballots for all registered voters
The official ballots are destroyed at such time as shall
render it impossible to prcvide other official ballots
Features of Canvassing:
1. The Board of Canvassers (BOC) is a collegial body.
2. The BOC exercises ministerial duty.
3. The BOC exercises quasi-judicial functions.
4. Proceedings before BOC are summary in nature.
( ' 5. The BOC convenes at 6pm.
6. Canvassing shall be in public.
7. Proceedings are continuous from day to day, without
interruption except to adjourn.
8. No police, army or security officer allowed withir1 50
meters from canvassing room unless called in writing
by the BOC to stay outside the room.
9. After proclamation, eoc becomes functus officio.
The proviso designating Smartmatic as the joint venture
partner in charge of the technical aspect of the counting
and canvassing wares does not translate to ceding control
·- ..I''
of the electoral process to Smartmatic. (Roque v.
COMELEC, G.R. 18845~, 2009).
COMELEC is authorized by law to proclaim wmnmg
·-.. . candidates if the remaining uncanvassed election returns
15 Note: Failure to comply with requisites results in failure
of elections. · . remedy is to use emerqency ballots to be provided hy
Page 217 of 320
POLITICAL LAW
will not affect the result of the elections. (Aksyon
Magsasaka-Partido Tinig ng Mesa (AKMA-PTM) v.
COMELEC, G.R. 207134, 2015)
The manual COCP is the official COMELEC document in
cases wherein the canvassing threshold is lowered. In fact,
clear from the language of the Resolution is that the
winners, in such instances, are proclaimed "by manually
preparing a Certificate of Canvass and Prodamation of
Winning Candidates," the format for which is appended to
COMELEC Resolution No. 9700. (Garcia v. COMELEC,
G.R. 216691, 2015)
Casting of Votes
• The chairman of the board of election Inspectors should
sign each ballot at the back. (Sec. 24, Republic Act No.
7166). The omission of such signature does not af feet
the validity of the ballot ( libanan v. House of
Representatives Electoral Tribunal, 283 SCRA 520;
Punzalan v. COMELEC , 289 SCRA 702; Pacris v.
Pagalllauan, 337 SCRA 638; Malabaguio v. COMELEC
, 346 SCRA 699; De Guzman v. Sison, 355 SCRA 69)
• A voter who was challenged on the ground t hat he has
been paid for his vote or made a bet on the result of the
election will be allowed to vote if he takes an oath that
hf'. did not comm it the alleged in the challenge ( Sec.
200, Omnibus Election Code).
• An illiterate or physically disabled voter may be assisted
by a relative by affinity or consanguinity within the fourth
degree or any person of his confidence who belongs to
the same household or ar.y member of the board of elect
ion inspectors ( Sec. 196, Omnibus Election Code, De
Guzman v. COMELEC, 426 SCRA 698).
• It is unlawful to use carbon paper, paraffin paper or other
means for making a copy of the contents of the ballot or
to use any means to identify the bal lot ( Sec. 195,
Omnibus Election Code ). A ballot prepared under such
circumstances should n ot be counted. ( Gutierrez v.
Aquino, G.R. No. L ~ 14252, February 28, 1959).
• Absentee Voting:
• .Members of the board of election inspectors and their
substitutes may vote in the precinct where they are
assigned ( Sec. 169, Omnibus Election Code).
16
Note: In the given abovementioned exceptions, the
the city or municipal treasurer.
ATENEO CENTRAL
BAR OPERATIONS 2019
• Absentee voting for President, Vice President and
Senators is allowed for members of the Armed Forces
of the Philippines, Philippine National Police and
other government employees assigned in connection
with the performance of election duties to place s
where they are not registered (Sec. 12, Republic Act
No. 7166)
Postponement of Election
When for any senous c.ause such as violence, loss of
election paraphernalia, force majeure, and other
analogous causes elections cannot be held, COMELEC
shall motu proprio or upon petition by any interested party
postpone the election not later than 30 days after the
cessation o f the cause of the postponement ( Sec. 5,
Omnibus Election Code ).
C, REMEDIES AND JURISDICTION
1. PETITION TO DENY DUE COURSE TO OR CANCEL
A CERTIFICATE OF CANDIDACY
Denial or cancellation of Certificate of Candidacy
proceedings involves the issue of whether there is a.false
representation of a material fact. The false representation
must necessarily pertain not to a mere innocuous mistake
but to a material fact or those that refers to a candidate's '•
qualification for elective office (Panlaqui v. COMELEC,
GR. 188671, 2010)
2. PETITION FOR DISQUALIFICATION
COMELEC may motu proprio or upon verified petition of
any interested party refuse to give due course or cancel a
COG when: · 210164, 2015)
1 . The COC has been filed to put the election process in .
mockery or disrepute
2. Causes confusion among the voters by the similarity of
the names of the registered candidates ·
3. Other circumstances which clearly demonstrate that
the candidate has no bona fide intention to run for the
office
Aspects of Disqualification Cases:
ELECTORAL ASPECT
Whether or not the offender should be disqualified from
being a candidate or from holding office
Proceedings are summery in character and require only a
clear preponderance of evidence
An erring candidate may be'disqualfled even without prior
determination of probable cause in a preliminary
investigation
CRIMINAL ASPECT
Page 218 of 320
POLITICAL LAW
Whether or not there is probable cause to charge a
candidate for an election offense .
The prosecutor is the COMELEC, through its Law
Department which determines whether or not probable
cause exists
If there is probable cause, the eoMELEC's Law
Department files the criminal information before the proper
court
Proceedings before the proper court demand a full blown
hearing and require proof beyond reasonable doubt to
convict
A criminal conviction shall result in the disqualification of
the offender, which may even include disqualification from .
holding a future public office
Grounds for Disqualification: (LF2-SEND2)
1. .backing qualifications.
2. filing a Coe for more than 1 office
3. False and material representation in the Coe.
4. Qisqualifications under the LGe.
5. Nuisance candidate.
6. Election offenses enumerated under Sec. 68 of the
Omnibus Election Code
7. Q~clared insane or incompetent by competent
authority.
8. §entencE.'Cf by final judgment for subversion,
insurrection, rebellion or an offense which he has been
sentenced to a penalty of more than 18 months; or a
crime involving moral turpitude, unless given plenary
pardon/ amnesty.
The use of ,1 foreign passport amounts to repudiation or
recantation of the oath of renunciation. Matters dealing
with qualifications for public elective office must be strictly
complied with. A candidate cannot simply be allowed to
correct the deficiency in his qualification by submitting
another oath of renunciation (Amado v. COMELEC, G.R.
t.
\,
The petitioner's continued exercise of his rights as a citizen
!
of the USA through using his USA passport after the t
renunciation of his USA citizenship reverted him to his
earlier status as a dual citizen. Such reversion disqualified
him from being elected to public office. (Agustin v.
COMELEC, G.R. 207105, 2015) -;
l
'
Disqualifications under the LGC: (MAO-PDF)
1. Sentenced by fi,1al judgment for an offense involving
Moral turpitude or for an offense punishable by 1 year
or more of imprisonment within 2 years after serving
sentence.
,.
t_
2. Removed from office as a result of an Administrative
case.
3. Convicted by final judgment for violating the Qat/1 of
allegiance to the Republic..
4. f ugitlves from justice in criminal or non-political cases v •
here or abroad.
 ATENEO CEtnRAL
BAR OPERATIONS 2019 POLITICAL LAW

5. .Qual allegiance. Petition to Deny Due Course/ Cancel CoC (Before

6. fermanent residents in a foreign country or those who Elections) v. Quo Warranto (After Election Results)
have acquired the right to reside abroad and continue
PETITION FOR QUO
to avail of the same right. PETITION TO DENY DUE
WARRANTO
COURSE/ CANCEL Coe
A candidate is ineligible if he is disqualified to be elected to (AFTER ELECTION
(BEFORE ELECTIONS)
office, and he is disqualified if he lacks any of the RESULTS)
qualifications for elective office. Even if the COMELEC
made no finding that the petitioner had deliberately 1. The qualifications !or 1. May be brought on the
attempted to mislead or to misinform as to warrant the elective office are basis of two grounds
cancellation of his C?C, the COMELEC could still declare misrepresented in the a. ineligibility or
him disqualified for not meeting the requisite eligibility certificate of candidacy b. disloyalty to the
under the Local Government Code. (Agustin v. COMELEC, 2. The proceedings must Republic of the
G.R. 207105, 2015) be initiated before the Philippines
elections. 2. must be initiated within
Petition for Disqualification v. Petition to D~ny Due ten days after the
Course/Cancel CoC: proclamation of the
election results.
PETmON TO DENY
PETITION FOR 3. A candidate is ineligible
DUE COURSE/
DISQUALIFICATION if he is disqualified to be
CANCEL cec
elected to office, and he
Premised on Section 12 or 68 Grounded on a is disqualified if he leeks
of the Omnibus Election statement of a material any of the qualifications
Code, or Section 40 of the representation in the for elective office.
Local Govemment Code said certificate that is
false.
A COMELEC resolution declaring a candidate disqualified
A person who is disqualified The person whose for the said position is not yet final if a motion for
under Section 68 is merely certificate is cancelled . reconsideration has been timely filed. At that point, he still
prohibited to continue as a or denied due course
remains qualified and his proclamation thereafter is valid.
candidate. under Section 78 :s not
treated as a candidate As a result, COMELEC's jurisdiction to contest his
at all, as if he/she citizenship ends, and the HRET's own jurisdiction begins
never filed a CoC. (Gonzales v. COMELEC, G.R. 192856, 2011).

Thus, a candidate who is
disqualified under Section 68
can validly be substituted
under Section 77 of the OEC
because he/she remains a
candidate until disqualified.
Note: However, if the
candidate is disqualified after
"A;._ ~-' assumption of office, he shall
vacate the position and
succession under LGC shall
apply as ruled.
A person whose Coe
has been denied due
course or cancelled
under Section 78
cannot be substituted
-, the interlocutory order during the appeal of the decision of
because he/she Is
never considered a
candidate. (Tagolino v.
HRET, G.R. 202202,
'2013)
Note: lf the CoC of the
candidate was denied
or cancelled in due
course after he has
assumed office, he
shall vacate the
position and the
second placer will be
declared as winner.
Page 219 of 320
A party aggrieved by an Interlocutory order issued by a
Division of the COMELEC In an election protest may not
directly assail the order in this Court through a special civil
action for certiorari. The remedy is to seek the review of
the Division in due course. The court may have the power
to re~ligw any decision, order or ruling of the COMELEC,
limits such power to a final declslon or resolution of the
COMELEC en bane, and does not extend to an
interlocutory order issued by a Division of the COMELEC.
Otherwise stated, the Court has no power to review on
certiorari an interlocutory order or even 3 final resolution
issued by a Division of the COMELEC. Where the
Commission in division committed grave abuse of
discretion or acted without or in excess of jurisdiction in
issuing interlocutory orders relative to an action pending
before it and the controversy did not fall under any of the
instances mentioned in Section 2, Rule 3 of the COMELEC
Rules of Procedure, the remedy of the aggrieved party is
not to refer the controversy to the Commission en bane as
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

this is rot permissible under its present rules but to elevate GMA did not intend to restore his right to suffrage (Risos-
it to this Court via a petition for certiorari under Rule 65 of Vida/ v. COMELEC and Estrada, G.R. No. 206666, 20:5).
the Rules of Court (Cagas v. COMELEC, G.R. 194139,
2012). The disqualification from running for public office due to
libel shall be removed after service of the five-year
Removal of Disqualification sentence, which is counted from the date the fineis paid.
(Ty-Delgado v. .'-IRET, G.R. No. 219603, 2016)
Plenary Pardon
The phrase in the presidential pardon which declares that 3. PETITION TO DECLARE FAILURE OF ELECTIONS
the person "is hereby restored to his civil and political There is a failure to elect when nobody can he declared as
rights" substantially complies with the requirement of a winner because the will of the majority has been defiled
express restoration of l1is right to hold public office, or the and cannot be ascertained.
right of suffrage. Articles 36 and 41 of the Revised i''enal
Code should be construed in a way that will give full effect When Failure of Elections May Be Declared: (SNR)
to the executive clemency granted by the President, -, ·j . Election was §uspendcd before the hour fixed by iaw
instead of indulging in an overly strict interpretation that for the ch)sing of the voting
may serve to impair or diminish the import of the pardon 2. Election in any polling place was N,ot held on the date
which emanated from the Office of the President and duly fixed
signed by the Chief Executive himself/herself. The said
3. Elections f!esults In a failure to elect (after the voting
and during tne preparatlon and transmission of the
coda! provisions must be construed to harmonize the
election returns or in the custody or canvass thereof).
power of Congress to define crimes and prescribe the
penalties for such crimes and the power of the President
Grounds: (V-F2AT)
to grant executive clemency. All that the said provislons force majeure
impart is that the pardon of the principal penalty does not .Eraud
carry with it the remission of the accessory penalties Y,iolence
unless the President expressly includes Said accessory Ierrorism
penalties in the pardon. It still recognizes the Presidential Analogous circumstances
prerogative to grant executive clemency and, specifically,
to decide to pardon the principal penalty while excluding its Conditions to Annul an Election: (WIG)
accessory penalties or to pardon both. Thus, Articles 36 Winner cannot be determined
!!legality must affect more than 50% of the votes cast
and 41 only clarify the effect of the pardon so decided upon
2ood votes cannot be distinguished from the bad votes
by the President on the penalties imposed in accordance
with law (Risos-Vidal v. COMELEC, G.R. 206666, 2015).
FAILURE
POSTPONEMENT
A whereas clause In a pardon which states that the person OF
OF ELECTIONS
"publicly committed to no longer seek any elective position ELECTIONS
or office" does not make the pardon conditional. Whereas Any SERIOUS cause 1.Force majeure
clauses do not forrn part of a statute because, strictly of: · Violence
speaking, they are not part of the operative language of the Force majeure Fraud ,•.

statute. The whereas clause is not an integral part of t'le Violence Terrorism 1._j

' decree of the pardon, and therefore, does not by itself Grounds Terrorism Analogous
alone operate to make the pardon conditional or to make Loss or destruction of
its effectlvity contingent upon the fulfillment of the election
aforementioned commitment nor to limit the scope of the paraphernalia
Analogous
pardon (Risos-Vidal v. COMELl•G, G.R. 206666, 2015).
Serious and Failure to elect
Former President Estrada was granted an absolute pardon Extent of impossibility to have and affects·
f,
that fully restored all his civil and political rights, which Cause free and orderly results of >.:....,
naturally includes the right to seek public elective office. elections elections
The wording of the pardon extended to him is complete,
Grounds must exist Grounds may
unambiguous, and unqualified. The fact that the pardon did Conditions
before voting occur anytime :"
not specify the specific rights restored does not mean that
----- 't \)

Page 220 of 320

'---'--------------·- _ .. _, __
 . •} j :•.-·

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

before 4. PRE-PROCLAMATION CONTROVERSY

proclamation
Pre-proclamation Controversy • Any question pertaining
Authority Majority vote of COMELEC en bane to or affecting the proceedings of the Board of Canvassers
which may be raised by any candidate or registered
Verified petition by Verified petition
political party, or coalition.
any interested person by any
or motu propio by interested
Procedural Grounds in Pre-Proclamation centroverstes:"
COMELEC en bane person (may not
Require- 1. Illegal composition or proceedings of the board of
Due notice be done motu
ments canvassers
Hearing propio)
a. Filed with the BOC or with COMELEC
Due notice
b. Within 3 days from a ruling (if based on illegal
Hearing
proceedings), or as soon as the Board begins to
Election is postponed Declaration of act.
Conduct elections failure of 2. Irregularities in relation to the preparation,
reasonsbly close to elections transmission, receipt, custody, and appreciation of
elections not held, but Holding or election returns and certificates of canvass:
not later than 30 days continuation of a. ERs are delayed, lost or destroyed
from cessation of elections b. Material defects in the ERs
Effect if c. ERs appear to be tampered with or falsified
9ause reasonably
Petition d. Discrepancies in the ERs ·
close to
Granted 3. Cenvassed returns are incomplete, contain material
elections not
held, but not defects
later than 30 a. ERs are delayed, lost, destroyed
days from i. In this case, the Board can use any of the
( ·~-
cessation of authentic copies
' ii. Or terminate canvass if the missing returns will
cause
not affect the results anyway
b. Missing requisites
i. Board calls for members of the BEi to
To resolve the tie, there shall be drawing of lots. Whenever complete or correct the return. DON'T .
. it shall appear from the canvass that two or more EX{::LUDE, if correctable
candidates have received an equal and highest number of c. ERs are tampered, falsified, altered after these left
votes, or in cases where two or more candidates are to be . the hands of BEi, not authentic, prepared under
elected for the same position and two or rnore candidates duress, force, Intimidation, etc.
received the same number of votes for the last place In the i. Resort to other ERs
i.:
~ .· number to be elected, the board of canvassers, after ii. If all are tampered, can have ballot boxes
recording this fact in its minutes, shall by resolution, upon reopened and counted
five days notice to all the tied candidates, hold a special d. Discrepancies In other authentic copies of the
returns or discrepancies in the votes of any
public meeting at which the board of canvassers shall
candidate in words/figures - and these would
·. .) proceed to the drawing of lots of the candidates who have
affect results of the election
tied and shall proclaim as elected the candidates who may i. Order opening of ballot boxes for recount
favored by luck, and the candidates so proclaimed shall 4. ERs prepared under duress. threats, coercion,
have the right to assume office in the same manner as if intimidation, obviously manufactured
he had been elected by plurality of votes. The board of • "Obviously manufactured" - According to the
canvassers shall forthwith make a certificate stating the Court, when it follows the doctrine of statistical
name of the candidate who had been favored by luck and improbabilities or "Statistically improbable
his proclamation on the basis thereof. data".
5. Subctitute or fraudulent returns in controverted polling
Nothing in this section shall be construed as depriving a places are canvassed, and the results materlatly affect
.,,. :
candidate of his right to contest the election. (BP 881, the standing of candidates
(__!
§240; Tugade v, COMELEC, G.R. No. 171063, 2007)
... .
·. '
17
Note: Grounds fo.r pre-proclamation controversies are
exclusive.
Page 221 of 320
i .
ATENEO CENTRAL
BAR OPERATIONS 2019
---·----------------.,--b-1--------~T~w-o-::O~b~J·e~c~ti~o~n~R~u~l~e--~S~u~b:m:i;t~o~rajl;c;~~e;ci;,io~n~a;n~dr;;:w;.ritttte;;n
For national officials, the only grounds avai a e ere:
_ Illegal composition or proceedings of the board of
canvassers
_ "Manifest Errors" - Matters regarding the preparation,
transmission, receipt, custody, and appreciation election
returns shall be brought, in the first instance, before the
boards of canvassers, not the COMELEC (Fernandez vs.
COMELEC, G.R. No. 171821, 2006).
Generai Rule: COMELEC cannot go behind the face of an
election return. It is beyono the jurisdiction of COMELEC
to go beyond the face of the returns or investigate electlon
irregularttles. ·
Exception: When there is prima fade showing that the ER
is not genuine.
e.g., as when several entries have been omitted (Lee vs.
COMELEC, G.R. No 157004, 2003).
Grounds For Material Defects:
1. Omission of name of candidates
2. Omission of votes for candidates
Material Defect v. Falsified/Tampered
MATERIAL DEFECT ERs HAVE BEEN
IN THE ERs FALSIFIED/ TAMPERED
BOC needs authority BOC needs no prior
from COMELEC to get permission from the
copies of the other ERs COMELEC to get copies of
the other ERs
Jurisdiction:
Contested composition or proceedings of the board • May
be initiated in the Board of canvassers or COMELEC
Contested ERs • Should be brought in the tst instance
before the board of canvassers only
General Rule: When the Electoral Tribunal obtains
jurisdiction, it precludes the COMELEC from exercising
powers over pre-proclamation controversies.
Exceptions: (PAPI-Q)
1 . BOC was [mproperly constituted
'2. Proclamation was null and void
3. Quo warranto is Ml the proper remedy
4. What was filed was a fetition to annul a proclamation,
and not quo warranto or election protest.
5. Election contest expressly made without prejudice to
PPC or it was made Ad cautelam (cautionary).
In exercising Its powers and jurisdiction, as defined by its
mandate to protect the integrity of elections, the
COMELEC "must not be straight-jacketed by procedural
rules in resolving election disputes." (V/o/ago v. ·
COMELEC. G.R. 194143, 2011).
POLITICAL LAW
objection simultaneously to BOC chairper~n befor~ ERs
-, have been canvassed. There is substantial compliance
even if the oral objection is filed first, then the written
objection with evidence is submitted within 24 h~urs.
However, ir. Marabur vs. COMELEC, the Court held that
there is substantial compliance if despite the absence of a
written objection, an offer of evidence is made within the
24-hour period (Maraburvs. COMELEC, G.R. No. 169513,
2007).
Summary Nature:
• Pre-proclamation controversies shall be heard
summarily by the COMELEC.
• Its decision shall be executory after 5 days from receipt
by the losing party of the decision, unless restrained
by the SC.
General Rule: Pre-proclamation cases are deemed
terminated:
1. At ihe beginning of the term of the office involved and
the rulings of the BOC concerned deemed affirmed.
2. This is without prejudice to the filing of a regular
election protest by the aggrieved party.
Exceptions: Proceedings may continue if:
1. COMELEC determines that the petition is meritorious
and issues an order fo, the proceedings to continue.
2. The SC issues an order for the proceedings to
continue in a petition for certiorari.
Where a proclamation is null and void, the proclamation is
no proclamation at all and the proclaimed candidate's
assumption of office cannot deprive the COMELEC of the
power to declare such nullity and annul the proclamation.
(Federico v. COMELEC, G.R. 19~612, 2013).
But the remedy of filing a pre-proclamation case is still
available after prcclamation if the proclamation should
have been suspended because of ccntested election
returns (Jainc1f vs. Comelec, G.R. No. 174551, 2007).
Grounds for Recount:
1. Material defects in the ERs
2. ERs are tampered or falsified
3. Discrepancies in the ERs
When Recount is Possible:
1. COMELEC order BEi to conduct recount
2. Integrity and identity of ballot box is not violated
3. BEi ascertains that integrity of ballots in box preserved
4. BEi recounts and complete/correct returns
Page 222 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
In regular election contests, the general averment of fraud
or irregularities in the counfnq of votes justifies the
examination of the ballots and recounting of votes. This
process of examination is the revision of the ballots
pursuant to Section 6, Rule 20 of the 1993 COMELEC
Rules of Procedure. The protests involved herein assailed
Iha authenticity of the election returns and the veracity of
the counting of lhe ballots. In that regard, the ballots
themselves are the best evidence. The only means to
overcome the presumption of legitimacy of the election
returns is to examine and determine first whether the ballot
boxes have been substantially preserved in the manner
mandated by law. Hence, the necessity to issue the order
of revision" (Tolentino vs. COMELEC, G.R. No. 187958,
20101)
Statistically Improbable Data
1. Uniformity of tally in favor of candidates belonging to 1
party.
2. Systematic blanking out of candidates belonging to
another party.
General Rule: Pre-proclamation cases are NOT allowed
in elections for the President, Vice President, Senator and
members of the House of Representatives.
Exceptions:
1. Manifest Errors in the ERs, or COCs may be corrected
motu propio or upon written complaint of any interested
person.
2. Questions affecting the composition or proceedings of
the board of canvassers may be initiated in the board
or directly with the Commission in accordance with
Section 19 (RA 7166). · Section 7 of Article IX-A of the 1987 Constitution,
Manifest Errors:
1. Mistake in adding
2. Mistake in copying of figures from ER or Statement of
Votes
3. ERs from non-existent precinct canvassed
4. Copy of ER tabulated more than twice
5. 2 or more copies. of ER and COC in 1 precinct counted
separately
The grounds for manifest errors are inclusive.
The allowable margin of error is 60%.
,.___-
{°':
It suspends the running of the period within which to file an
election protest or quo warranto proceeding.
18 Note: The COMELEC did not commit grave abuse of
discretion when it ordered the revision of 44 ballots
with the Senate Electoral Tribunal without first
~.. ,.; Page 223 of 320
POLITICAL LAW
Notwithstanding the pende.ncy of any pre-proclamation
•. controversy, the Commission may summarily order the
proclamation of other winning candidates whose election
will r::>t be affected by the outcome of the controversy.
An aggrieved party may file a petition for certiorari with the
COMELEC whenever a judge hearing an election case has
acted without or in excess of his Jurisdiction or with grave
abuse of discretion and there is no appeal, nor any plain,
speedy, and adequate remedy In the ordinary course of
law. (Bu/ilis v. Nuez, G.R. No. 195953, 2011).
ELECTION CONTESTS
An election contest is any adversary proceeding by which
matters invotving title or claim of title to an elective office,
made before or after the proclamation of the winner, is
settled whether or not contestant is claiming office in
dispute. (Javier v. COMELEC, G.R. Nos. L-68379-81,
September 22, 1986)
Kinds Of Election Contests:
1. Election Protest
2. Quo Warranto
Objective: To dislodge the winning candidate from office
and determine the true winner.
Withdrawal of nomination and substitution by another
nominee is neither an election protest nor an action for
quo warranto. Petitioner correctly brought before the
Supreme Court this special civil action for certiorari under
notwithstanding the proclamation of, and assumption of
office by, the substitute nominee. (Lokin, Jr. v. COMELEC
G.R. 179431-32/180443, 2010).
COMELEC Jurlstllctlon Over Election Contests:
1. Original Jurisdiction over contests relating to elections,
returns, and qualifications of all elective:
a. Regional
b. Provincial
c. City officials
2. Appellate Jurisdiction over contests involving:
a. Elective Municipal officials decided by trial courts
of general jurisdiction
b. Elective Barangay officials decided by trial courts
of limited jurisdiction
c. COMELEC may issue extraordinary writs of
certiorari, prohibition and mandamus
A petition for mandamus will lie aqainst the Speaker of the
House and the House Secretary General for not
resolving whether 16 of those 44 ballots should be
included in the revision.
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

performing their ministerial duties to administer the oath of Grounds For Election Protest: (IN MVP)
the second placer and enter his name in the Roll of 1. .M,isappreciation ·
Members of the House of Representatives, when the 2. Violence
winner's COC had been cancelled due to ineligibility. 3. intimidation
( Velasco v. Belmonte, G.R. 211140, 2016) 4. Ho padlock
5. fadding of votes
Pre-proclamation Controversy v. Election Contest
House of Representatives Electoral Tribunal
Jurisdiction Over Election Contests
PRE-PROCI.AMATION ELECTION
CONTROVERSY . CONTEST The House of Representatives has the jurisdiction to
question the qualification of the nominees of party-list
Before proclamation of After proclamation of organizations. Although party list organizations are voted
candidate candidate for in the elections, still it is not the organizations which sit
~~~~-+-~~~~~~~-;
and become members cf the House cf Representatives but
Jurisdiction of COMELEC is Jurisdiction of
administrative or quasi-judicial COMELEC is quasi- their nominees. Subsequently, Section 17, Article VI of the
judicial Constitution provides that the HRET shall be the sole judge
of all contests relating, among others, to the qualifications ·
of the members of the House. Thus, since party list
• Only real parties In interest can file and pursue election
protests.19 nominees are considered as "elected members" of the
Even if It was the 2nd placer who filed the election House, the HRET has jurisdiction to hear and pass upon
protest, the 3rd placer may :!.till possibly win.20 their qualifications (Abayon v. HRET, G.R. 189466, 2012).

Requisites for an Election Protest
1. Filed by candidate who has filed a COC and has been
voted upon for the same offic:e.21
2. Filed within 10 days from proclamation of results
a. Period to file EP is suspended during pendency of
PPC
b. A counter-protest must also comply with the
reglementc.1ry period
3. On grounds of:
a. election fraud/terrorism, and
b. irregularities or illegal acts before, dur;ng, or after
casting and counting of votes
Additional Requirements:
1. Payrnent of docket fee22
2. Certificate of ~Jon-Forum Shopping
General Rule: Ballots are the best and most conclusive
evidence in an election contest where the correctness of
the number of votes of each candidate is involved (Delos
Reyes v. COMELEC, G.R. No. 170070, 2007).
Exception: Election returns are the best evidence when
the ballots are lost, destroyed, tampered or fake.
Exec•Jtion Pending Appeal:23
1. Public interest is involved or will of the electorate
2. Length of time that the election contest has been
pending
3. Shortness of the remaining portion of the term of the
contested office. (Pecson v, COMELEC, G.R. 182865,
2008).
('
General Rub: The COMELEC cannot proclaim as winner
the candidate who obtains the 2nd highest number of
votes in case the winning candidate is ineligible or
disqualified. When a winner is declared ineligible, the
candidate who finished 2nd cannot assume the position
(Quizon v. COMELEC, G.R. 177927, 2008) ( :
Exception: . ,;,;

1. The one who obtained the highest number of votes is

disqualified, and ,__ ..

19 21
Note: A real party in interest is the party who would be Note: Special rule for PET: Only the 2nd or 3rd placer
benefited or injured by the judgment and the party who may file the protest
is entitled to the avails of the suit. e.g. candidate of the 22
Note: Failure to pay is ground to dismiss the case.
same position
20
Note: The case of presidential protest cases, only two
Except when there is estoppel by the other party, by
not raising the ground promptly.
,. .
persons, the 2nd and 3rd placers, may contest the , 73
~. .3
Note: A combination of 2 or more will suffice to allow
election (Poe vs. Macapogal-Arroyo, PET Case No. · execution pending appeal, but shortness of the
003, 2005). remaining period alone is not a ground for execution
pending appeal
Page 224 of 320
 ATENEO CENTRAL
BAR OPERATIONS2019 POLITICAL LAW

2. The electorate is fully aware in fact and in law of a to unseat an ineligible

candidate's disqualification so as to bring such person from office
awareness within the realm of notoriety but would
nonetheless cast their votes in favor of the ineligible Any voter Only by a candidate who
candidate. (Pundao-c!aya v. COMELEC, G.R. 179313, has duly filed a COC to the
2009). same office and has been
voted for
A candidate who was elected but was later disqualified for
failing to meet the residency requirement was never a valid GROUNDS: GROUNDS:
Disloyalty Election fraud
candidate from the very beginning, and was merely a de
Ineligibility Irregularities in the casting
facto officer. The eligible candidate who garnered the
and counting of votes or in
highest number of votes must assume the office. The rule
the preparation of the ER
on succession in the Local Government Code does not ~~~~~~~~~-1--~--~~~~~~--j
apply. (Jalosjos v. COMELEC, G.R. 193314, 2013; Ty- , The respondent may be The protestee may be
Delgado v. HRET, G.R. 219603, 2016). unseated, but the unseated and the
petitioner may or may not protestant may be installed
Abandonment - A protestant who runs for another be i-istalled into the office into the office vacated.
office is deemed to have abandoned his protest. This is vacated.
especia11y true in a case where the protestant pending the
election protest, ran, won, assumed the post and
discharged the duties as such (Jdulza v. COMELEG, G.R. PROSECUTION OF ELECTION OFFENSES
160130, 2004).
Election offenses are committed only as soon as campaign
QUO WARRANTO period starts. Any supposed premature campaigning
~ I
cannot bs prosecuted before start of campaign period: ·
Requisites of Quo Warranto (VID 10):
1. Filed by any registered Y,oter in th!'! constituency;
Some Prohibited Acts:
Grounds:
1. Vote-buying or vote-selling
a. !neligibility
2. Wagering upon result of the election
b. Qisloyalty to the Republic of the Phllippines (i.e.
3. Threats, intimidation, terrorism, use of fraudulent
having a green card)
devise, forms of coercion
2. Within 10 days from proclamation of results
4. Appointment of new employee
• Except: when there is urg,~nt need; Notice
General Rule: When proclaimed officer was disqualified
given to COMELEC within 3 days from
by quo warranto, 2nd placer cannot be proclaimed winner. appointment, creation of new positions,
Exception: When the one who got the highest votes has promotion or granting salary increase).
been disqualified and the electorate is fully aware of this 5. Carrying deadly weapon within radius of 100 meters
(. ··~.;.
fact - but they still voted for him. from precinct
6. Transfer or detail of government official or employee
Execution pending appeal is allowed: must be for urgent without COMELEC approval.24
reasons.
Allowable reasons: Any personnel action, when caused or made during the
1. Public interest involved election period, can be used for electioneering or to harass
2. Shortness of remaining term subordinates with different political persuasions. This
3. Length of time that the contest is pending possibility - of being used for electioneering purposes or
to harass subordinates - created by any movement of
Quo Warranto v. Election Protest personnel during the elecdon period is precisely what the
QUO WARRANTO ELECTION PROTEST transfer ban seeks to prevent. (Aquino v. COMELEC, G.R.
211789-90, 2015)
Strictly speaking, it is not a It is a contest between the
contest. It is a proceeding winning candidate and the
defeated candidate

·~.. ,:
24 Note: Not penalized if done to promote efficiency in
government service. ·
-.:.. ... : Page 225 of 320
 ·-·---- -·-···--·-·
ATENEO CENTRAL
BAR OPERATIONS 20"19
The prohibition on transfer or detail covers any movement
of personnel from one station to another, whether or not in
the same office or aqency when made or caused during
the election period, and includes reassignment. (Aquino v.
COMELEC, G.R. 211789-90, 2015)
If the reassignment orders are issued prior to the start of
the election period, they are automatically rendered
beyond the coverage of the pr~hibition and the issuing
official cannot be held liable for violation of Section 261 (h)
of BP 881. (Aquino v. COMELEC, G.R. 211789-90, 2015)
Retention of duties and temporary discharge of additional'
duties do not contemplate or involve any movement of
personnel, whether under any of the various forms of
personnel action enumerated under the laws governing the
civil service or otherwise. Hence, they are not covered by
the legal prohibition on transfers or detail. (Aquino v.
COMELEC, G.R. 211789-90, 2015)
Elements of Violation of Sec 261 (h) of the Omnibus
Election Code (Transfer of Officers and Employees in
the Civil Service):
1. Fact of transfer or cJetail within election period; ·
2. Transfer or detail made without prior approval of
COMELEC.
Full List of Election Offenses Under Sec. 68 of the
OEC (D2T4R-VS3· P4MC; same grounds for
disqualification): · the Chairman of the board of canvassers)
1. Yote-buying
2. Acts of Terrorism
3. .§.pending in excess of allowable limit
4. §.oliciting. receiving, or making prohibited contributions
5. Campaigning outside feriod
6. Iamper with election propaganda
7. frohibited election propaganda .
8. Coercing §.ubordinates to aid, campaign, or vote.for a
candidate
9. Using J:hreat, intimidation, terrorism, fraudulent,
devises
10. Soliciting votes or electioneering during registration
day and election day within felling place or within 30m
radius
11 . Public official or employee who releases, disburses, or
expends Eublic funds 45 days before election or 30
days: before special election
12. Political party holds political ~onventions or meetings
to nominate official candidates earlier than allowed
period
13. Qestroying or cancelling a COC which has not been
cancelled
14. Misleading BEi by submitting false or spurious COC to
the detriment of a candidate
Page 226 of 320
·-----------····-··· ·- .
-------· ·------------------
POLITICAL LAW
15. Receiving COC out of allowed !ime and making it
appear it was filed on time; or coercing the officer to
perform this act
16. Interfering with B.adio or TV broadcast of lawful political
program
17. Soliciting votes on election Q.ay
Under the present law, the COMELEC and other
prosecuting arms of the government, such as the DOJ,
now exercise concurrent jurisdiction in the investigation
and prosecution of election offenses (Arroyo v. Departrr.ent
of Justice G.R199082, 2013).
Other Election Offenses Under R.A. No. 6646:
1. Causing the printing of official ballots and election
returns by printing establishments not on contract with
COMELEC and printing establishments which
undertakes unauthorized printing
2. Tampering, Increasing or decreasing the votes
received by a candidate or refusing after proper
verification and hearing to credit the correct votes or
deduct the tampered votes (committ€d by a member
of the board of election inspectors)
3. Refusing to issue the certificate of voters to the duly
accredited watchers (committed by a member of the
BEi)
4. Violating provisions against prohibited forms of
election propaganda
5. Failure to give notice of meetings to other members of
the board, candidate or political party (committed by
6. A person who has been declared a nuisance candidate
or is otherwise disqualified who continues to
misrepresent himself as a candidate and any publlc
offlcer or private individual who knowingly induces or
abets such misrepresentation by commission or
omission.
7. If the chairman of the BEi fails to affix his signature at f:
the back of the official ballot, in the presence of the
,....,
voter, before delivering the ballot to the voter.
{ :
Prescription of Election Offenses:
1. Election offenses prescribe after 5 years from the date
of their commission.
2. If the discovery of the offense is made in ail election
contest proceeding, the period of prescription shall
commence on the date which the judgment in such
proceedings becomes final and executory.
.·· ....
! I
ELECTION AUTOMATION LAW (R.A. NO. 8436 AS •.......,,i
AMENDED BY R.A. NO 9369)
THE AUTOMATED ELECTION SYSTEM (AES)
A system using appropriate technology which has been
demonstrated in the voting, counting, consolidating,
canvassing, and transmission of election results, and other
electoral processes (-Sec. 2, RA. 9369)
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Human readable instruction that defines what the

The Automated Election System involves voting, counting,
consolidating, canvassing, and transmission but not
proclamation (Agm, Philippine Election Laws)
ELECTRONIC TRANSMISSION v. ELECTRONIC
RETURNS
ELECTRONIC ELECTRONIC RETURNS
TRAN MISSION
Conveying data in A document in electronic
electronic form from one and printed form directly
location to another produced by counting or
v0ting machine, showing
the:
• Date of election
• The province,
municipality and the
precinct in which it is
held
• Votes in figures for each
car.didate in a precinct
where AES is utilized
computer equipment will do
RANDOM MANUAL AUDIT
Where the AES is used, there shall be a random manual
audit in one precinct per congressional district randomly
chosen by the Commission in each province and city.
Any difference between the automated and manual count
will result in the determination of root cause and initiate a
manual count for those precincts affected by the computer
or procedural error. (Sec. 29, RA 9369)
The COMELEC may conduct automated election even if
there is no pilot testing (Information Technology
Foundation of the Philippines v. COMELEC, G.R. No.
159139, January 13, 2004)
The Voter Verification Paper Audit Trail_ 0/VPAT}
functionality is in the form of a printed receipt and a touch
screen reflecting the votes in the vote-counting machine.
The WPAT ensures that the candidates selected by the
voter in his or her ballot are the candidates voted upon and
recorded by the vote-counting machine.

PAPER-BASEDELECTION SYSTEM v. DIRECT ·.. The voter himself or herself verifies the accuracy or the
RECORD ELECTIONSYSTEM vote. In instances of Random Manual Audit and election
protests, the WPAT becomes the best source of raw data
PAPER-BASED DIRECT RECORD
for 'votes (Bagumbayan-VNP Moveme11t, Inc. v.
ELECTION SYSTEM ELECTRONIC ELECTION
SYSTEM COMELEC, G.R. No. 222731, March 8, 2016)

A type of automated A type of automated ---end of topic ---

election system that uses election system that uses
paper ballots, records and electronic ballots records
counts votes, tabulates, votes by means of a ballot
consolidates/canvasses display provided with
and transmits mechanical or electro-
electronically the results optical components that
of the vote count can be activated by the
voter, processes data by
means of a computer
program, records voting
data and ballot images,
·" and transmits voting results
electronically

The Commission on Elections may use either a paper-

based or a direct recording electronic election system as it
may deem appropriate and practical for the process of
voting, counting of votes and canvassing/consolidation
and transmittal of results of electoral exercises ·

SOURCE CODE

Page 227 of 320

----------···---··-- - ·--------------------~

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

XI. LOCAL GOVt:RNMENT GENERAL PRINCIPLES

TOPIC OUTLINE UNDER THE SYLLABUS Corporation

A. Principles of local autonomy An artificial being created by operation of law having the
B. Autonomous regions and thslr relation to the right of succession, and the powers, attributes and
National Government properties expressly authorized by law or incident to its
C. Local Government Units existence.
1. Powers
a. Police Power (General Welfare Clause) Classes of Corporations according to Purpose
b. Eminent Domain
Public Corporations- one created by the state either by
-.. Taxing Power
general or special act for purposes of administration of .
d. Legislative Power local governr:1ent or rendering service in the public interest.
i. Requisites for Valid Ordinance
It may either be a:
ii. Local Initiative and Referendum
Quasi Public Corporation
e. Ultra vlres Acts
2. Liability Private Corporation- one established for private purpose,
3. Settlement of Boundary Disputes bonefit, aim or end
4. Vacancies and Succession
PUBLIC CORPORATIONS
5. Recall
6. Term Limits
1. CONCEPT

Public Corporation
r
Juridical entities or agencies formed or organized for the l

government of a portion of the State.

Not all corporations, which are not governmer.t owned or

' controlled, are ipso facto to be considered private
corporatior,s as the•e 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 central and economic viability but to a different criteria
relating to their public purposes/interests or constitutional
-~--
policies and objectives and their administrative relationship
to the government or any of its departments or offices. As
presently constituted, the Boy Scouts of the Philippines is
a public corporation created by law for a public purpose,
attached to the DECS pursuant to its Charter and the
Administrative Code of 1987. It is not a private corporation
which is required to be owned or controlled by the ' .
',
government and be economically viable to justify its
existence under a special law. The economic viability test
·.~
would only apply if the corporation is engaged in some
economic activity or business function for the government,
which is not the case for BSP. Therefore, being a public
corporation, the funds of the BSP fall under the jurisdiction
of tho Commission on Audit. (Boy Scouts of the Philippines
v. COA, G.R177131, 2011). '....
f' ;.
.!.
,
f •
,;. _':.

Page 228 of 320

·------------ -····· - ..
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Public v. Private v. Quasi-Public As a rule, the government and its attached agencies are
exempted from appeal bonds because it is presumed that
PUBLIC PRIVATE QUASI-PUBLIC
the State is always solvent. This exemption however does
Created by the Private Created by will of not apply to GOCCs. Thus, while a GOCC's majority
State through corporations that incorporators with stockholder, the State, will always be presumed solvent,
the Congress, are required by the recognition of the presumption does not necessarily extend to the GOCC
the President law to render the State. itself. However, when a GOCC performs a governmental
or the public service or function there is the assurance 'that the government will
Judiciary supply wants necessarily fund its primary functions. Thus, a GOCC that
is sued in relation to its governmental functions may be,
under appropriate circumstances, exempted from the
(a) Distinguished from government-owned and
controlled organizations payment of appeal fees. In this case, BBC Is a GOCC
Government-Owned or Controlled Corporations performing not a governmental function but a proprietary
(GOCC) • refer to any agency c,rganized as a stock or non- function which is to engage In commercial television
stock corporation, vested with functions relating to public broadcasting. As such, It is not exempted from appeal
needs whether gov~rnmental or proprietary in nature and bonds (Banahaw Broadcasting Corporation v. Pacana,
owned directly by the government or through its G.R. 171673, 2011).
instrumentalities.
Radio Philippines Network, Inc. (RPN) Is not a GOCC.
GOCCs are owned by the Government directly or through Under the Administrative Code of 1987, a GOCC is that
its instrumentalities either wholly or, where applicable as in which refers to any agency organized as a stock or non-
the case of stock corporations, to the extent of at least fifty. stock corporation vested with functions relating to public
one (51) per cent of its capital stock. (Administrative Code, · needs whether governmental or proprietary in nature, and
Sec. 2, Par. 13). owned by the government directly or indirectly through its
instrumentalities either wholly, or wt:ere applicable as in
A GOCC created through a special charter must meet the case of stock corporations, to the extent of at least 51 %
two conditions namely: of its capital stock. Although there is a controversy as to
1. it must be established for common good: and the amount of shares transferred to the government,
2. it must meet the test of economic viability. ($ecfion administrative agencies, such as the PCGG and Office of
· 16, Article XII, 1987 Constitution). the President agree, that RPN is not a GOCC. Considering
that the construction of a statute given by administrative
May be further categorized by the DBM, CSC, and the
agencies deserves respect, the uniform administrative
COA for purposes of the exercise and discharge of their
constructions of the relevant aforementioned laws defining
respective powers and functions.
what are GOCCs as applied to RPN is highly persuasive.
(Carandang v. Deslerto, G.R. 148076, 2011).
They shall be attached to the appropriate department with
which they have allied functions or as may be provided by The structure of the Philippine National Red Cross is sui
executive order.
' generis being neither strictly private nor public in nature.
(Uban, et al. v. Gordon, G.R. 175352, 2011)
At least 1/3 of the members of the Boards of such
corporations should either be a Secretary, Undersecretary 2. CLASSIFICATIONS
....: ~
....
or Assistant Secretary.
Quasi-Corporations
A local water district is a government-owned and controlled
corporation with special charter since it is created pursuant Quasi-corporations - Public corporations created by law
to a special law. PD 198 constitutes the special charter by as agencies of the State for a narrow and limited purpose.
virtue cf which local water districts exist. Unlike private
corporations that derive their legal existence and power Such quasi-corporations are described as bodies of
citizens who have no personal nor private interests to be
from the Corporation Code, water districts derive their legal
subserved, but are simply required by the State to do some
existence and power from PD 198. (Felici.ino v. Gison,
public work. The State merely clothes one of its agencies
G.R. 165641, 2010).
or instrumentalities with such corporate powers. It is
neither a private corporation but a class of artificial entity.

Page 229 of 320

 ATENEO CENTRAL
BAR OPERATIONS 2019
(J. Padilla Dissent, Fontanilla v. Maliaman, G.R. L-
55963/61045, 1991).
Quasi-corporations are NOT the same as quasi-public
corporation
Quasi-corporations are NOT the same as quasi-public
corporations. Quasi-corporations are classified as public
corporations created by the State for a limited purpose,
while quasi-public corporations are private corporations
that render public service. Quasi-public corporations, on
the other hand, is a private corporation which obtained a
franchise to supply public needs. An example of a ouasi-
public corporation ls PLDT.
-,
Specie of Private Corporations
A quasi-public corporation is a species of private
corporations, but the qualifying factor Is the type of service
the former renders to the public. If it performs a public
service, ther. it becomes a quasi-public corporation.
(Philippine Society for the Prevention of Cruelty to Animals
v. COA, G.R. No. 169752, September 25, 2007).
Municipal Corporation
Municipal Corporation - public corporation established by
1aw partly as an agent of the State to assist in civil
government but chiefly to regulate and administer the local
affairs of the city, town or district which is incorporated. ·
MUNICIPAL CORPORATIONS
Elements (LITC):
1. A ,begal creation or incorporation; . 4. For a period .bong enough to afford it title by
2. A &,orporate name by which the artificial personality or
legal entity is known in which all corporate acts are
done
3. !nhabitants constituting the population
4. Ierritory
Nature and Functions (SID)
1. .§ubordinate branch of the government of the state.
2. tnstrumentality of the state administration.
3. Exercises Qelegated powers cf government
Dual Nature of Municipal Corr,oratlons
Public/Governmental: it acts as an agent of the State for
the government of the territory and the inhabitants within
the municipal limits. It exercises by delegation a part of the
sovereignty of the State. It includes the us of legislative,
executive and judicial powers.
Private/Proprietary: it acts in a similar category as a
business corporation performing functions not strictly
governmental or political, those exercised for the special
Page 230 of 320
1---------------- ·-·· . ---
POLITICAL LAW
benefit and advantage of the community. it is in this
character that they are acting as a separate entity for their
own purposes and not as a subdivision of the State ·
Types of Municipal Corporations
Municipal corporation by Prescription - those that
exercised their powers from time immemorial without
objection from the government, that although no charter
exists, it is presumed to have been duly incorporated and
had been lost or destroyed
When existence presumed
the community has claimed and exercised corporate
functions;
with legislature's knowledgl:3 and acquiescence; and
without objection or interruption for a period long enough
to afford title by prescription .
1. De Jure Municipal Corporation - those created or
· recognized by operation of law
2. De Facto Municipal Corporation - those where the
people have organized themselves under color of law,
into ordinary municipal bodies exercising their powers,
with their rights dependent quite as much as on
acquiescence as on the rept;larity of their origin
Requisites for creation, conversion, division, merger
or dissolution
Requisites of a municipal corporation by prescription
(CLAW)
1. fommunity claimed and exercised corporate functions
2. With knowledge and ~cquiescence of the Legislature
3. Without interruption or ob;ection
prescription
~·
~, . .
Requisites of a de facto municipal corporation (GLAC)
1. Valid 1,.aw authorizing incorporation !
2. Attempt in !i_ood faith to organize under it
3. £olorable compliance with law
4. ~ssumption of corporate powers '•..:,.:.-
·Municipal corporation by estoppel t· .....;
A municipal corporation by estoppal is a corporation which
is so defectively formed as not to be a de facto corporation
1,.......;
. but is considered a corporation in relation to someone who
4 t
dealt with it and acquiesced in its exercise of its corporate · ~...5
functions or entered into a contract with it. t _,~
\
In a de jure municipal corporation, it is its valid
incorporation that makes it impregnable to any attack,
q
'
.
direct or otherwise.
How validity attacked
 ATENEO CENTRAL
BAR OPERATIONS2019
The validity of the incorporation and corporate existence of
a municipal corporation may not be attacked collaterally. It
may only be challenged by the State in direct proceedings
such as quo warranto, which has a prescriptive period of 5
years from the time the act complained of was committed.
Authority to create LGUs (Local Government Code,
sec. 6)
1. By law enacted by Congress
a. Province
b. City
c. Munic;ipality
d. Any other political subdivision
e. A barangay may also be created by law (Local
Government Code, sec. 386)
2. By an ordinance passed by the Sangguniang
Panlalawigan or Panlungsod - Applicable for barangay
located within its territorial jurisdiction
Power of creation is leyislative in nature
The authority to a eate municipal corporations is
essentially legislative in nature. [Pelaez v, Auditor General,
G.R. No. L-23825 (1965)]
,,..........
•\
The enactment of a LGC is not a sine qua non for the
creation of a municipality, and before the enactment of
such, the power remains plenary except that creation
should be approved in a plebiscite. [Torralba v. Sibagat,
G.R. No. L-59180 (1987))
', ) Plebiscite Requirement
In accordance with criteria set by the LGC, no province,
city, municipality or barangay may be created, divided,
rnerged, abolished or its boundary substantially altered,
\ .....
except in accordance with the criteria established in the
LGC and subject to approval by a majority of the votes cast
in a plebiscite in the political units affected. (CONST.
ART.X, Sec.10}
(·,, ..~
The plebiscite must be conducted by COMELEC within
120 days from the date of effectivity of the law or ordinance
effecting such action, unless said law or ordinance fixes
another date. (LGC, Sec.10)
(, }"
' ... .;,
Plebiscite must be "in the political units directly
affected"
When the law states that the plebiscite shall be conducted
(i j: "in the political units directly affected," it moans that the
·~.. ,
residents of the political entity who would be economically
dislocated by the separation of a portion thereof have the
right to vote in said plebiscite. [Padilla v. COMELEC, G.R.
No. 103328 (1992)]
Page 231 of 320
-------··-···
POLITICAL LAW
Who partlclpates in the plebiscite?
A plebiscite for creating a new province should indude the
participation of the residents of the mother province in
order to conform to the constitutional requirement. (Tan v.
COMELEC, GR No. 73155, July 11, 1986)
When Plebiscite Required
When an LGU is created, divided, merged, abolished, or
its boundaries substantially altered [LGC, sec. 1 OJ. This
includes:
Conversion (e.g. from a city to a highly urbanized city)
[Sec. 453, LGC; see also Tobias v. Abalos, G.R. No.
114783 (1994 ))
_Downgrading (e.g. from an independent component city
to a component city) [Miranda v, Aguirre, G.R. No. 133064
(1999), on the downgrading of Santiago, lsabela]
When Plebiscite not Rer,uired
I
There is no need for any plebiscite in the creation,
dissolution or any other similar action on the following:
Legislative Districts: Legislative districts are not political
subdivisions through which functions of the government
are carried out. [Bagabuyo v. COMELEC, G.R. No. 176970
(2008))
Administrative Regior,s: Administrative regions are not
territorial and political subdivisions. The power to create
and merge administrative regions rs traditionally vested in
the President. Hence, the merger ot' provinces that did not
vote for inclusion in the ARMM into existing administrative
regions does not require a plebiscite. [See Abbas v.
COMELEC, G.R. No. 89651 (1989)1
"Material change" as standard
If the creation, division, merger, abolition or substantial
alteration of boundaries of an LGU will cause a material
change in the political and economic rights of a political
unit, the residents of such political unit should have the
right to participate in the required plebiscite. [Miranda v.
Aguirre (1999)1
Hence, in the conversion of a component city to a highly
urbanized city, the residents of the province must
participate. The conversion of the city will, among others,
result in reduction in trucing jurisdiction and reduced
economic viability of the province. {Umali v. COMELEC,
G.R No. 203974 (2014)1
'
But the inhabitants of a neighboring city (e.g. San Juan)
are ~roperly excluded from a plebiscite concerning the
 ATENEO CENTRAL
BAR OPERATIONS 2019
POLITICAL LAW

conversion of a city (e.g. Mandaluyong) to a t;,ghly Commences upon the election and qualification of its chief
urbanized city. [See Tobias v. Abalos (1994)1 executive and a majority of members of the Sanggunian,
unless some other time is fixed by the law or ordinance
'
Indicators for the creation or conversion of LGU (LIP) creating it.
1. ,band Area
2. [ncorne Dissolution of Municipal Corporations
3. f opulation Dissolved by a repeal of the charter
As a result of:
ccnslderauone in the creation of local government 1. Annexation,
units 2. Merger,
3. Consolidation,
The central policy considerations in the creation of local 4. Division.
government units are economic viability, · efficient
administration and capability to deliver basic services to Specific Requirements
constituents. The criteria prescribed by the LGC (income,
population, and land area) are all designed to accomplish Income Population Land Area
these results. The primordial consideration in the creation
of local government units, particularly a province is Average Total Generally,
annual number of must be
economic viability. (Navarro v. Ermita, G.R. 180050, 2011).
income for inhabitants contiguous
the last 2 within
The creation, division, merger, abolition, or substantial consecutive LGU's
alteration of boundaries of LGU should be approved by a years territory
majority of the votes cast in a plebiscite cailed for the
purpose in the political unit or units directly affected. Compliance Department NSO land
attested by of Finance Management
'Boundaries' Bureau
"Boundaries" in Sec 10, Art Xis NOT limited to the physical Province P20M 250,000 2,000 sq.km
metes and bounds of the LGU, but also to its political (1991
boundaries. In one case, a city was converted into an HUC Prices)
which resulted in material changes in the economic and
Highly P50M 200,000 100 sq.km.
political rights of the people and LGUs, thus, the plebiscite Urbanized (1991
requirement under Sec 10, Art X should apply. The entire City Prices)
province stands to be directly a~ected by the conversion
hence should be included in the plebiscite. (Naval v. Component P100M 150,000 100 sq.km.
COMELEC, 2014) City (2000
prices)
Division and Merger cif LGUs Municipality P2.5M 25,000 SO sq.km.
Division shall not reduco the income, population, lanr:I area (1991
of the LGU to less than the minimum requirement prices)
prescribed. Income classification should not fall below the
Baran gay No 2,000 or No
current income classification prior to division (Local
requirement 5,000 if requirement
Government Code, sec. 8)
Metro except for
Manila or contiguity
Abolition of LGU HUCSs
When income, population, or land areas are irreversibly
reduced to less than the minimum standards prescribed for
creation as certified by the national agencies concerned.
The law or ordinance abclishing LGU shall specify the
province, city, municipality or barangay with whi<:h the LGU
sought to be abolished will be incorporated or merged.
(Local Government Code, sec. 9)

Corporate existence of a municipal corporation

Page 232 of 320 .•....

'---------------······..·· -·--
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Which requirement must be satisfied? No. The principle of local autonomy under the Constitution
'simply means 'decentralization'. It does not make the local
Province or City 1. Income and
government sovereign within a State or an imperium in
2. Either population or land area
lmpeio. (Basco v. PAGCOR, GR No 91649, May 14, 1991)
Municipality 1. Income
2. Population and Devolution - it refers to the act by which the national
3. Land area government confers power upon the various LGUs to
perform specific functions. It is mandatory under the LGC.
Barangay 1. Population and
2. Territorial Contiguity
---- Decentralization - it is the devolution of national
administration, not power, to the local levels, in which local
A. PRINCIPLES OF LOCAL AUTONOMY officials rernaln accountable to the central government in
the manner the law may provide.
Section 2, Art. X of the Constitution provides that LGUS
"shall enjoy local autonomy." This is decentralization of
administration and not decentrallzatlon of power. (Limbona DECENTRA-
DEVOLUTION
LIZATION
v. Conte Mange/in, G.R. 80391, 1989)
Political Administrative
Both are
Declaration of Policy decentrali- decentralize-
decentralize-lion
The territorial and political subdivisions of the State shall zation tion
enjoy genuine and meaningful local autonomy to enable Transfer of
them to attain their fullest development as self-reliant personnel, Both involve
communities and make them more effective partners in the funds/asset, transter from Transfer of
attainment of national goals. delivery of basic national powers/
The State shall provide for a more responsive and services, government to functions only
accountable local government structure instituted through regulatory LGU
a system of decentralization whereby local government powers
units shall be given more powers, authority, Recipients of
responsibilities, and resources. Both have its
powers: field
Recipients of source of power
The State shall ensure the accountability of local offices/regional
powers: LGU from the national
government units through the institution of effective offices of the
government
mechanisms of recall, initiative and referendum. I same agencies
All national agencies are required to conduct periodic Powers are No enumeration
consultations with the appropriate tGUs, NGOs, people's specific; LGC Thf!re must be a of powers
orqanizations and other concerned sectors before any enumeration Is law for both needed in the
project or program is implemented in their respective exclusive LGC
jurisdictions. [Sec. 2, LGC]
LGU cannot
assume a
Local government unit- a political subdivision constituted
national President or
by law and possessed of substantial control over its own
government department
affairs. Both have a
power not given itself
deadline for
to it. It may only determines
Local autonomy - can be considered a measure of effectivity - 6
do sc when what powers
decentralization of the functions of government. This months
power is will be
means that local governments have certain powers given delegated delegated
by the Constitution which may not be curtailed by the (devolved
national government, beyond these, local gcvernments power)
may not enact ordinances contrary to the statute.
(BERNAS)

c .,. Does local autonomy make the local government

'-,:: sovereign within a State?

Page 233 of 320

. . .. ·
.
. '
ATENEO CENTRAL
BAR OPERATIONS 2019
POLITICAL LAW

Limitation on LGU's local autonomy action or step as judgment of the latter for
The President shall exercise general supervision over local prescribed by law to make that of the former.
governments them perform their duties
Even as the Constitution guarantees autonomy to local Supervising officials
government units, the exercise of local autonomy is still merely see to it that the
subject to the power of control by Congress. (Dadcle v Officers in control lay down rules are followed, but they
GOA, GR No 125350, December 3, 2002) the rules in the themselves do not lay
performance or down such rules, nor do
Levels of Decentralization or Kinds of Autonomy accomplishment of an act. they have the discretion to
1. Administrative Autonomy or Decentralization of If these rules are not modify or replace them. If
Administration- the central government delegates followed, they may, in their the rules are not observed,
administrative powers to the political subdivisions. discretion, order the act they may order the work
Purposes for delegatl,:m: (BD-MNR) undone or redone by their done or redone, but only to
1. To ~roaden the local power base subordinates . or even conform to such rules.
2. To make the units more Responsive and accountable decide to do it themselves. They may not prescribe
3. To ensure the full .Qevelopment of LGUs into self- their own manner of
reliant communities execution of the act.
4. To break the .Monopoly of the national government
over managing local affairs Supervisory power of National Gov't over LGU
5. To relieve: the National g0vernment from the burden
of managing local affairs National government agencies exercise only supervisory
powers over LGUs. The power of review is part of·
2. Political autonomy or Decentrnlization of Power - supervision; if there is no enabling law. no such power of
involves the abdication of political power in favor of LGUs review will be granted to national government agencies.
declared to be autonomous.
It would amount to self-immolation because the Scope of Power of Supervislon
autonomous government would become accountable The power of supervision carries with it the power to
to its constituency, not to the central government.
investigate and discipline to see to it that laws are
effectively carried out.
3. Deconcentration - it is the transfer of power, authority
or responsibility , or the discretion to plan, ctecide, and
manage from central point or local levels, but within the President's power over LGUs
central or national government itself. The nature of the The President has only the power of supervision over
transfer is administrative and the approach is sectoral. LGUs. He cannot interfere with the local governments as
long as they act within the scope of their authority.
4. Debureaucrati:tation - it is the transfer of some public
functions and responsibilities , which the government may The President exercisos direct supervision over provinces,
perform, to private entities or NGOs, it is people's highly urbanized cities and independent component cities.
empowerment or participation in local governance. · He exercises Indirect supervision over component cities
and municipalities through the provinces. He also
' \

Supervision v. Control exercises indirect supervision over barangays through the

city or municipality concerned.
SUPERVISION CONTROL

Power of an officer to alter, .

modify, nullify or set aside Autonomous regions - created by an organic act and
The overseeing or the through voting in a plebiscite. Currently the 1987 Philippine
what a subordinate officer
power of an officer to see
has done in the Constitution allows for 2 autonomous regions. The
that the subordinate
performance of his duties President has general supervision over autonomous
officers perform their
and to substitute the regions.
duties.
judgment of the forms. for
I ·.
that of the latter. •
·~.,...·

If subordinate fails, If subordinate fails, ' ;,;,

.
,.
superior may take such superior may substitute the ,;

Page 234 of 320

 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Powers retained by the National Government: coordination and delivery of

1. National defense and security ·
basic, regular and direct
2. Foreign relations
services and effective
3. Monetary affairs
governance of inhabitants within
Power to create provinces and cities its territorial jurisdiction
Ordinary statute cannot amend an organic:act. It must be Baran gay the basic political unit which
by plebiscite. (Pandi v. CA, G.R. 116850, 2002). Only serves as primary planning and
Congress can create provinces and cities, because implementing unit of
creation of such will lead to creation of IP.gislative districts government policies, plans,
too. The ARMM Regional Assembly cannot create programs, projects and activities
provinces and cities (Sema v. COMELEC, G.R. in a community.
177597/178628, 2008).
Autonomous it consists of provinces, cities,
Salient Features of the LGC of 1991 Reg ton municipalities and geographical
There is devolution of certain national governmental areas sharing common and
powers to LGU, such as: distinctive histoi ical and
Public Works cultural heritage, economic
and social structures, and
Social welfare
other relevant characteristics
Construction of school buildings and facilities
within the framework of the
Health
Constltutlon and the national
Agriculture and sovereignty as well as the
Tourism Functions territorial integrity of the
Increase in national tax share for LGUs from 11 % to 40% Philippines.
starting 1994
Increase in tax power Special Metropolitan Congress may, by law, create
Political Subdivision special metropolitan political
Territorial and Political Subdivisions Enjoying Local subdivisions subject to a
Autonomy plebiscite. The component cities
and municipalities shall retain
Province it is a cluster of municipalities or their basic autonomy and shall
municipalities and component be entitled to their own local
cities, and as a political and executives and legislative
corporate unit of government, assemblies. The jurisdiction of
,f :-,. serves as dynamic mechanism the metropolitan authority will
:1 ;
'•-...I for development processes and hereby be created shall be
effective governance of LGU's limited to basic services
within its territorial jurisdiction requiring coordination.

City it is composed of more

urbanized and . developed B. AUTONOMOUS REGIONS AND THEIR RELATION
barangays, serves as a general TO THE NATIONAL GOVERNMENT
purpose government for
coordination, and delivery of 1987 Constitution: ;
basic, . regular and direct (Section 15) The autonomous regions provided by the
{j services . and effective Constitution are:
governance of inhabitants within a. Autonomous regions in Muslim Mindanao
b. Autonomous regions in the Cordilleras
its territorial jurisdiction

Municipality consists of a group of barangays Autonomous regions consist of provinces, cities,

and serves primarily as a municipalities, and gf'3ographical areas sharing:
general purpose government for a. common and distinctive historical and cultural
heritage,
Page 235 of 320
,-"·----- - -·-··-- .. ·- - .. - .. --·· -----·-··---·--- --------------------------------
ATENEO CENTRAL
BAR OPERATIONS 2019
b. economic and social structures, and
c. other relevant characteristics.
(Section 16) The President shall exercise general
supervision over autonomous regions to ensure that laws
are faithfully executed.
(Section 18) An organic act shall be enacted for each
autonomous region with the asslstance and participation of
the regional consultative coinrnlssion composed of
representatives appointed by the President from a list of
nominees from multi-sectoral bodies.
This would define the basic structure of government for the
region, and special courts with personal, family, and
property law jurisdiction consistent with the provisions of
this Constitution and national laws.
To create an auionnmous region, a majority of the
votes cast by the consfltuent units in a plebiscite
called for the purpose is required. Only those
provinces, cities. and geographic areas voting
favorably in such plebiscite shall be lncluded in the
autonomous re ion.
(Section 20) The organic act of autonomous reqionsshall
provide for legislative powers over:
(1) Administrative organization; · and resolve issues on intergovernmental relations
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural
heritage; and
(9) Such other matters as may be authorized by law for ·
the promotion of the general welfare of the people of
the region.
Section 21. The preservation of peace and order within the
regions shall be the responsibllity of the local police
agencies which shall be organized, maintained, '
supervised, and utilized in accordance with applicable
laws.
RA 11054: Organic Law for the Bangsamoro
Autonomous Region in Muslim Mindanao
a. Bangsamoro People, defined: Those who, at the
advent of the Spanish colonization, were
considered natives or original inhabitants of
Mindanao and the Sulli archipelago and its
adjacent islands, whether of mixed or of full blood
shall have the right to identify themselves, thei;
spouses and descendants, as Bangsamoro.
b. The present geographical area known as the
Autonomous Region in Muslim Mindanao
Page 236 of 320
POLITICAL LAW
c. Section 3, Article 1/: General Welfare Clause:
Section 3. The Bangsamoro Government shall
exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient
and effective governance and these which are
essential to the promotion of general welfare.
Within its territorial jurisdiction, the Bangsamorb
Government shall ensure and support, among
other things, the preservation and enrichment of.
culture, promote health and safety, enhance the
right of the people to a balanced ecology,
encourage and support the development of
appropriate and self-reliant scientific and
technological capabillties, improve public morals,
enhance economic prosperity and social justice,
promote full employment among Its residents,
maintain peace and order, and preserve the
comfort and convenience of its inhabitants.
d. The President may suspend the Chief Miriister for
a period not exceeding six (6) months for willful
violation of the Constitution, national laws, or this
Organic Law.
e. This created the National Government-
Bangsamoro Government Intergovernmental
Relations Body. hereinafter referred to as
"Intergovernmental Relations Body," to coordinate
through regular consultation and continuing
negotiation in a non-adversarial manner.
f. Unresolved issues shall be elevated to the
President, through the Chief Minister.
g. The National Government and the Banasamoro
Government shall each appoint representatives to
the Intergovernmental Relations Body. The
Intergovernmental Relations Bocly shall be
supported by a Joint secretariat.
h. Bangsamoro Participation In National
Government.- As far as practicable, the
Bangsamoro Government shall be represented in
the departments, offices, commissions, agencies
and bureaus of the National Government that \ ..:
implement and enforce policies, programs, and
projects of the National Government in the
Bangsamoro Autonomous Region.
i. The defense and security of the Bangsamoro (.'·-
"-·::-
Auton9mous Region shall be the responsibility of
the National Government.
j. This act also provides for an Annual Block Grant.
The National Government shall provide an annual
block grant which shall be the share of the
Bangsamorc Government in the national internal
revenue tax collections of the Bureau of Internal
Revenue and collections of the Bureau of
Customs. The amount shall be sufficient for the
exercise of the powers and functions of the
Bangsamoro Government under this Org<1nic Law
and in no case shall be less than the last budget
i
.....
:o:,J..
 ATENEO CENTRAL
BAR OPERATIONS 2019
received by the Autonomous Region in Muslim
Mindanao immediately before the establishment of
the Bangsamoro Autonomous Region.
1. POWERS OF LOCAL GOVERNMENT UNITS
Sources of the powers of LGUs:
1. Constitution
2. Statute
3. Those applicable to all municipal corporations or to the
class to which it belongs ·
4. Special acts of the legislature
5. Charter · police power of the state to LGUs. (Local Government
Four Categories of Powers Exercised by LGUs:
1. Powers expressly granted
2. Powers necessarily implied therefrom
3. Powers necessary, appropriate, or Incidental for efficient
and effective governance
4. Powers essential to the promotion of the general
welfare [Sec. 16, LGC)
Within their respective territorial jurisdictions, LGUs
shall ensure and support:
(a) Preservation and enrichment of culture
(b) Promotion of health and safety
(c) Enhancement of the right of the people to a balanced
ecology
(d) Development of self-reliant scientific and technological
capabilities
(e) Improvement of public morals
(f) Enhancement of economic prosperity and social
·,· ~ justice
(g) Promotion of full employment among residents
(\
- (h) Maintenance of peace and order
. . . .. "\
(i) Preservation of the comfort and convenience of its
(
... : inhabitants [Sec. 16, LGC)
Two Branches of General Welfare Clause
General legislative power - Authorizes municipal
t: '1
I
;.__:•
'
councils to enact ordinances and make regulations not
repugnant to law and may be necessary to carry into effect
and discharge the powers and duties conferred upon it by
law
Police power proper - Authorizes the municipality to
enact ordinances as may be proper and necessary for the
health and safety, prosperity, morals, peace, good order,
comfort and convenience of the municipality and its
inhabitant, and for the protection of their property
[Fernando v. St. Scholaslica's College, G.R. No. 161107
(2013))
Page 237 of 320
POLITICAL LAW
a. Police Power (General Welfare Clause)
Police power is not Inherent In rr.unicipal corporations.
Under the LGC, LGUs exercise police power under the
general welfare clause; it refers to the power of regulation.
Requisites for valid exercise of police power
1. Lawful subject: public interest requires interference.
2. Lawful means: means is necessary to accomplish
the purpose and not unduly oppressive upon
individuals.
General Welfare Clause - it is the statutory dP,legation of
Code, sec. 16).
Test to Determine Validity of Exercise Police Power
1. The subject matter of the law must be lawful, which
means that public interest, as distinguished from those
of a particular interest, requires the interference of the
State;
2. The means employed to attain the purpose of the law
must be reasonably necessary;
3. It must not be unduly oppressive upon individuals.
(NTC v, Philippine Veterans Bank. G.R. Nos. 84132-
33, December 10, 1990).
Branches of the General Welfare Clause:
General legislative power - authority to enact
ordinances and regulations as may be necessary to
carry into effect and discharge the powers and duties
conferred upon the municipal council by law.
Police power proper - authority lo enact ordinances
as are necessary and proper to provide for the health
and safety, promote prosperity, improve morals,
peace, good order etc.
Limitation: (DETEC)
1. gxpress grant by law
2. Ierritoriality, meaning power is exercisable only
within territorial limits of the local government unit,
except for protection of water supply. {Rodriguez, The
Local Government Code of 1991 Annotated, 9, 2003).
3. Does not contravene the gqual protection clause
4. Does not contravene Que process
5. Must not be &_ontrary to law .
Tests used to detennine validity of the exercise of
Police power
To invoke the exercise of police power as the rationale for
the enactment of an ordinance and to free it from the
imputation of constitutional infirtnity, two tests have been
used:
(1) the rational relationship test- there must be a
concurrence of a lawful subject and lawful method.
(2) the strict scrutiny test. Under the strict scrutiny test, the
focus is on the presence of c.ompelling, rather than
, ...ww-• .....,..,.,. ww• u.w••
ATENEO CENTRAL
BAR OPERATIONS 2019
substantial governmental Interest and on the absence
of less restrictive means for achieving that interest.
(Fernando v, St. Scho/astica's College, G.R. 161107,
2013).
An ordinance extending burial assistance of P500 to a
bereaved family whose gross income does not exceed
P2,000 a month, has been upheld by the as a valid
exercise of police power. (Binay v. Domingo, G.R. 92389,
1991). · constitutionality and legality of the ordinances because he
Ordinances regulating waste removal carry a strong
presumption of validity. Necessarily, LG Us are statutorily
sanctioned to impose and collect such reasonable fees
and charges for services rendered. (Ferrer v. Bautista,
G.R. 210551, 2015).
LGUs can also substantiate its defense of the power to
regulate businesses within its ierritorial Jurisdiction. (City of
1/oilo v. Judge Honrado, G.R. 160399, 2015).
For local government infrastructure projects, Regional Trial
Courts may issue provisional injunctive reliefs against
government infrastructure projects only when: . measures for the welfare of the barangay and decide on
1. there are compelling and substantial constitutional
violations;
2. there clearly exists a right in esse; ' Also, the Lig.i ng mga Barangay cannot exercise legislative
3. there is a need to prevent grave and irreparable
injuries;
4. there is a demonstrable urgency to the issuance of
the injunctive relief; and
5. when there are public interest at stake in restraining
or enjoining the project while the action is pending that
far outweighs
a. the inconvenience or costs to the party to
whom the project is awarded and
b. the public benefits that will result from the
completton of the project. The time periods for ·
the validity of temporary restraining orders
issued by trial courts should be stricttf
followed. No preliminary injunction should
issue unless the evidence to support the
injunctive relief is clear and convincing.
(Dynamic Builders and Construction Co., Inc.
v. Presbitero, G.R. 174201, 2015)
A municipality is a real party-in-interest and an
indispensable party that stands to be directly affected by
any judicial resolution on the case assailing the validity of
the loan, considering that: (a) the contracting parties to the
loans are the bank and the municipality; and (b) the
municipality owns the public plaza as well as the
improvements constructed thereon, and must therefore be
impleaded In the case. (Land Bank v. Cacayuran, G.R.
191667, 2015).
Page 238
POLITICAL LAW
Liabilities arising from construction contracts of LGUs do
not partake of loans or forbearance of money but ere in the
nature of contracts of service. Hence, the rate of legal
interest imposable on the liability to pay for the service is
6% per annum. (WT Construction, Inc. v. The Province of
Cebu, GR 208984, 2015)
A person is the real party .. in-interest to assail the
is a registered co-owner of a residential property in the city
and that he paid property tax which already included the ·
SHT and the garbage fee: He has substantial right to seek
a refund of the payments he made and to stop future
imposition. While he is a lone petitioner, his cause of action
to declare the validity of the subject ordinances is
substantial and of paramount interest to similarly situated
property owners in the city. (Ferrer v. · Bautista, G.R.
210551, 2015)
The Barangay. Assembly cannot exercise any police
power. Under Section 398 of the LGC, it can only
recommend to the Sangguniang Barangay the adoption of
the adoption of an initiative.
powers. It is not a local government unit and its primary
purpose is to determine representation of the liga in the
sanggunians, to ventilate, articulate and crystallize issues
affecting barangay government administration, and to
secure solutions for them through proper and legal means.
(Onon v, Fernandez, G.R. No. 139813, 2001)
b. Eminent Domain
Requisites: (POJOC) r
J .
1. Expropriatilm should be for a fublic use or purpose \ :i
or for the welfare of the poor or landless.
2. Qrdinance authorizing the local chief executive to
subject a certain property to expropriation
3. Paymant of Just compensation (·
4. Valid and definite Qffer to pay which was not
accepted,
5. Exercised by the LGU through its thief executive.
Jurisdiction
An expropriation suit falls under the Jurisdiction of the r .';\
r.
RTCs. The subject of an expropriation suit is the '~-'
government's exercise of eminent domain, a matter that is
incapable of pecuniary estlmation. [Barangay San Roque
v. Heirs of Pastor, G.R. No. 138896 (2000)]
Just Compensation
of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
• The determination of "just compensation" In eminent
domain cases is a judicial function. Hence, a statutory
provision on a fixed formula in the computation of just
compensation in cases of acquisition of easements of
right of way is not binding upon the Court. [National
Power Corp. v. lleto, G.R. No. 169957 (2012)]
• Just compensation is determined as of the time of actual
taking [Sec. 19, LGCJ
Requisites for the Immediate Entry by the LGU
Filing of the cornplalnt for expropriation sufficient in form
and substance; and
Deposit of an amount equivalent to 15% of the fair market
value of the property to be expropriated based on the
current tax declaration [Sec. 19, LGC]
When LGU may take possession of property
The LGU may immediately take possession of the property
upon the filing of the expropriation proceedlnqs and upon
making a deposit with the proper court of at least 15% of
the fair market value of the property based on the current
tax declaration of the property to be expropriated. Upon
compliance with these requirements, the issuance of a writ
of possession becomes ministerifil. (lloilo City v, Legaspi,
G.R. 154614, 2004).
Amount to be Paid for Expropriation
The amount to be paid for the expropriated property shail
be determined by the proper court, based on the fair
market value at the time of the taking of the property.
The determination of just compensation is a judicial
function and any valuation for just compensation laid down
in the statutes may serve only as a guiding principle. It may
\/, .. ,/ not substitute the court's own judqmont as to what amount
should be awarded and how to arrive at such amount.
(Hon. Vergara, in his capacity as City Mayor of
. ·, Cabanatuan City v. Grecla, G.R. 185638, 2016).
(._;
Which lands to expropriate
Private lands rank last in the order of priority for purposes
of socialized housing. In the same vein, expropriation
proceedings are to be resorted to only after the other
modes of acquisition have been exhausted. Compliance
with these conditions is mandatory because these are the
.. ' only safeguards of oftentimes helpless owners of private
u property against violation of due process when their
property is forcibly taken from them for public use.
Rule on Socialized housing
Page 239 of 320
POLITICAL LAW
Under the Urban Development and Housing Act,
expropriation by an LGU for purposes of urban land reform
and housing shall occur only as a last resort. It must be
shown by the LGU that other rnethods of acquisition
(community mortgage, land swapping, land assembly or
consolidation, land banking, donation to the Government,
joint venture agreements, and negotiated purchase) have
been exhausted [Sec. 1 OJ I
If all the other metho::ls have been exhausted and
expropriation to continue, the LGU shall acquire lands for
socialized housing in the following order:
Government lands
Alienable lands of the public domain
Unregistered or abandoned and idle lands
Lands within Areas for Priority Development
Unacquired BLISS sites
Private !ands [Sec. 9]
Furthermore, lands of small-property owners are exempt
from expropriation for purposes of socialized housing.
"Small- property owners" are defined by two elements:
They are owners of real property which consists of
residential lands with an area of not more than 300 sq.
meters in highly urbanized cities, and 800 sq. meters in
other urban cities; and
They do not own real property other than the same. [Sec.
3(q)]
Returning the Property
When private land Is expropriated for a particular public
use and that purpose is abandoned, there is no "implied
contract" that the properties will be used only for the public
purpose for which they were acquired. Property is to be
returned only when it is expropriated with the condition that
when said purpose is ended or abandoned, the former
' owner reacquires the property so expropriated, and not
when the expropriation decree gives to the entity a fee
sirnp'e which makes thE! land the expropriator the absolute
owner of the property. [Air Transportation Office v.
Gopuco, G. R. No. 158563 (2005)]
Role of supervising LGU - It can only declare the
ordinance invalid on the sole ground that it is beyond the
power of the lower LGU to issue. Hence, it cannot declare
the ordinance invalid on the ground that it is unnecessary.
Role of national government - The approval of the
national government is not required of local governments
to exercise the power of eminent domain.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Role of judiciary - It can Inquire into the legality of the Taxes, fees, and charges which accrue exclusively for their
exercise of the right and determine whether there was a use and disposition
genuine necessity. Just share In national taxes which shall be automatically
and directly released to them
Procedure for expropriation Equitable share in the proceeds from utilization and
NATIONAL development of national wealth and resources within their
LGUs territorial jurisdiction [Sec. 18, LGC]
GOVERNMENT

1. The filing of a 1. The filing of a LGUs may create their own sources of revenue
complaint for expropriation complaint for
sufficient in form and expropriation sufficient in All LGUs are empowered to create their own sources of
substance; and form and substance; and revenue and to levy taxes, fees, and charges subject to the
provisions on local taxation consistent with tile basic policy
2. The deposit of the 2. The making of a of local autonomy. The Sanggunian concerned through an
amount equivalent to 15% of deposit equivalent to the ordinance has the power to impose a tax, fee, or charge.
the fair market value of the assessed value of 'the ' The procedural requirements of public hearing and
property to be expropriated property subject to publication must be observed for purposes of compliance
based on its current tax expropriation. with the requirements of due process. (Local Government
declaration (lloHo v. Legaspi,
Code, Sec. 18)
G.R. 154614, 2004). See: Rules of Court, Rule
67 and Robern
See: Local Government Development Corporation Powers to generate and apply resources
Code.sec. 19 v. Quitain, G.R. 135042, 1. To establish an organization that shall be responsible
1999 for the efficient and effective implementation of their
development plans, program objectives, and
priorities.
c. Taxing Power 2. To create their own sources of revenues and to levy
taxes, fees, and charges which shall accrue
Each local government unit shall have the power to create exclusively for their use and disposition and which
its own sources of revenues and to levy taxes, tees, and shall be retained by tnem. .
charges subject to such guidelines and limitatlons as the 3. To have a just share in national taxes which shall be
Congress may provide, consistent with the basic policy of automatically and directly released to them without
local autonomy. Such taxes, fees, and charges shall need for any further action.
accrue exclusively to the local governments. (1987 4. To have an equitable share in the proceeds from the
Constitution, Art. X, Sec. 5) utilization and development of the national wealth and
resources within their respective territorial
jurisdictions including sharing the same with the
Principles of Taxation inhabitants by way of direct benefits.
Taxation shall be uniform: 5. To acquire, develop, lease, encumber, alienate, or
Taxes, fees, and charges:
(a) Shall be eauitable and based as far as
otherwise dispose of real or personal property held by
them in their proprietary capacity and to apply their
.
.._ .:
resources and assets for productive, developmental,
practicable on the taxpayer's ability to pay;
or welfare purposes, in the exercise or furtherance of
(b) Shall be levied and collected only for a public their governmental or proprietary powers and
purpose; · functions and thereby ensure their development into
(c) Shall not be unjust, excessive, oppressive, or self-reliant communities and active participants in the
confiscatory; and attainment of national goals.
(d) Shall not be contra;y to law, public policy,
national economic policy, or in restraint of trade; r
.' ._
"'-
....... ..:
Collection shall in no case be left to any private person;
Revenue shall inure solely to the benefit of the levying
~.. ;·
LGU, unless otherwise specified; and
Each LGU shall, as far as practicable, evolve a progressive
system of taxation [Sec. 130, LGC]
,.
\ ,•
Sources of LGU Funds
Page 240 of 320

·---------------..··- .. ---
 ATENEO CENTRAL
BAR OPERATIONS2019
Requisites of a Tax Ordinance
1. Notice
2. Actual conduct of public hearing
When to file appeal to question validity and legality of
tax ordinance
The law requires that a dissatisfied taxpayer who questions
the validity or legality of a tax ordinance must file its appeal
to the Secretary of Justice within 30 days from effectivity
thereof. In case the Secretary decides the appeal, a period
of 30 days is allowed for an aggrieved party to go to Court.
But if the Secretary does not act after the lapse of 30 days,
a party could already proceed to seek relief in Court.
(Reyes et al v. CA, G.R. 118233; Sec. 187, 1991 LGC)
Fiscal Autonomy
means that local government units have the power to
create their own sources of revenue in addition to their
equitable share in the tax collection released by the
government and the power to allocate resources in
accordance with their own priorities. (Pimentel v. Aguirre,
G.R. 132988, 2000).
Lr ' •.1
.,
Nature of Fiscal Autonomy
Under existing laws, LGUs enjoy not only administrative
autonomy, but also local fiscal autonomy,
a. This means that tGUs have the power to create their
own sources of revenue in addition to their equltabte
share in the national taxes released by the national
government, as well as the power to allocate their
resources in accordance with their own priorities. .
b. It extends to the preparation of their budgets, and local
officials in turn have to work within the constraints
thereof. They are not formulated at the national level
and imposed on local governments, whether they are
relevant to local needs and resources or not. [Pimentel
v. Aguirre (2000))
The GOA is endowed with enough latitude to determine,
prevent, and disallow irregular, unnecessary, excessive,
extravagant,· or unconscionable expenditures of
government funds. The Court had therefore previously
upheld the authority of COA to disapprove payments which
tJ it finds excessive and disadvantageous to the government;
' ';
to determine the meaning of "public bidding;" and when
!i
\:. .. J there is failure in the bidding, to disallow expenditures
which it finds unnecessary according to its rules even if
disallowance will mean discontinuance of foreign aid; to
disallow a contract even after it has been executed and
goods have been delivered. Tnus, LGUs, though granted
{ : local fiscal autonomy, are still within the audit jurisdiction
of the GOA. It is only when the COA has acted without or
Page 241 of 320
. ....;
~ ....
------------------. -
POLITICAL LAW
in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, that this Court
entertains a petition questioning its rulings (Veloso v, GOA,
G.R. 193677, 2011).
The absence of the public in the public bidding Impels the
City Treasurer to purchase the property in behalf of the
city. Reason would therefore dictate that this purchase by
the City is the very forfeiture mandated by the law. The
contemplated "forfeiture" in the provision points to the
situation where the local government ipso facto "forfeits"
the property for want of a bidder (The City of Davao v.
Intestate Estate of Amado S. Dalisay, G.R. 207791, 2015).
Internal Revenue Allotment (IRA) share of LGUs
The current sharing is 40% local, 6~)% national. The share
of LGUs cannot be reduced, except if there is an
unmanageable public sector deficit. The Congress can
neither Impose a !imitation on the manner in which IRA is
released for the Constitution provides for automatic
I
release. (Local Government Code, secs. 284 & 285).
General Rule: LGUs shall have a 40% share in the
national internal revenue taxes based on the collection of
the third fiscal year preceding the current fiscal year. [Sec.
284(c), LGC]
Exception:
When the national government incurs an unmanageable
public sector deficit, the President authorized to reduce the
allotment to 30%. [Sec. 284, par. 2, LGC].
Requisites for Exception:
1. Unmanageable public sector deficit;
2. Recommendation of the Secretaries of (a) Finance, (b)
Internal and Local Gov't, and (c) Budget and
Management; and
3. Consultation with (a) heads of both houses of
Congress, and (b) presidents of the liga. [Sec. 284, par.
2, LGC]
Automatic Release
The share of each LGU shall be released, without need of
any further action, directly to the respective treasurer on a
quarterly basis within five (5) days after the end of each
quarter. and which shall not be subject to any lien or
holdback that may be imposed by the national government
for whatever purpose. [Sec. 286(a), LGC]
Can BIR determine applicabllity of local ordinances?
The BIR has no authority to determine the applicability of
local' ordinances. Besides, even the Bureau itself states
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

that the exemption shall not apply if the sand and g'ravel Government Code should be read as granting fiscal
were to be disposed of commercially. An exemption from flexibility to local government units. (Demaa/a v. COA, G.R.
the requirements of the provincial government should have -, 199752, 2015).
a clear basis, whether In law, ordinance, or even from the
contract itself. (Lepanto Consolidated Mining Company v. By operation of Sec. 151 of the LGC extending to cities the
Ambanloc, G.R. 180639, 2010). authority of provinces and municipalities to levy certain
taxes, fees, and charges, cities may therefore validly levy
Nature of L.GUs power to tax amusement taxes on cinemas subject to the parameters
set forth under the law. (Film Development Council of the
LGUs have no inherent power to tax except to the extent
Philippines v. City of Cebu et al, G.R. 204418, 2015). ·
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, LGUs shall accrue exclusively to the LGU and to
the tax power must be deemed to exist althouqh Congress eannark
may provide statutory l!mitations and guideline'>. The basic Taxes levied by LGUs shall accrue exclusively to the LGU
rationale for the current rule is to safeguard the viaoility and and to earmark, If not altoqether confiscate, the income to
self-sufficiency · of local government units by directly be received by the LGU from the taxpayers in favor of and
granting them general and broad tax powers. for transmlttal to the Fiim Development Council of the
Nevertheless, the fundamental law did not intend the Philippines, is repugnant to the power of LGUs to apportion
delegation to be absolute and unconditional; the their resources in line with their priorities (Film
constitutional objective obviously is to ensure that, while Development Council of the Philippines v, City of Cebu et
the local government units are being strengthened and al, G.R. 204418, 2015).
made more autonomous, the legislature must still see to it
that (a) the taxpayer will not be over-burdened or saddled An injunction case before the RTC is a local tax case. A
· with multiple and unreasonable impositions; (b) each local certicrari petition questioning an interlocutory order issued
government unit will have its fair share of available in a local tax case falls under the jurisdiction of the CTA.
resources; (c) the resources of the national government ( CE Casecnan Water and Energy Company, Inc. v. The
will not be unduly disturbed; and (d) local taxation will be Province of Nueva Ecija, G.R. 196278, 2015).
fair, uniform. and just. (Ferrer v. Bautista, G.R. 210551,
2015). Mayor has the ministerial duty to ensure that all taxes
and other revenues of the city are collected
To pass judicial scrutiny, a regulatory fee must not produce
The mayor has the ministerial duty to ensure that all taxes
revenue in excess of the cost 1,f the regulation because
and other revenues of the city are collected, and that city
such fee will be construed as an illegal tax when the
funds are applied to the pay,nent of expenses and
revenue generated by the regulation exceeds the cost of
settlement of obligations of the city, in accordance with law
· the regulation. (Ferrer v. Bautista, G.R. 210551, 2015).
or ordinance. On the other hand, under the LGC, all local
taxes, fees, and charges shall be collected by the
While local govemmer.t units are authorized to burden all
'provincial, city, municipal, or ba'rangay treasurer, or their
such other class of goods with "taxes, fees and charges,"
duly-authorized deputies, while the assessor shall take
excepting excise taxes. a specific prohibition is imposed
charge, among others, of ensuring that all laws and
barring the levying of any other type of taxes with respect
policies governing the appraisal and assessment of real
to petroleum products. (Petron Corporation v. Tiangco,
properties for taxation purposes are properly executed. ·.. ;;.
G.R. 158881, 2008; Batangas Cny v. Piliplnas Shell
Thus, a writ of prohibition may be issued against them to
Petroleum Corp., G.R. 187631, 2015)
desist from further proceeding in the aciion or matter
specified in the petition. (Ferrer v. Bautista, G.R. 210551,
Setting the rate of the additional levy for the special
2015).
education fund at less than 1% is within the taxing power
of local government units. It is consistent with the guiding
The socialized housing tax charged by the city is a tax
constitutional principle of local autonomy. The option given
which is within its power to impose. Aside from the specific
lo a local goverrnnent unit extends not only to the matter of
authority vested by Section 43 of the UDHA, cities are
whether to collect but also to the rate at which collection Is
allowed to exercise such other powers and discharge such
to be made. The limits on the level of additional levy for the
other functions and responsibilities as are necessary,
special education fund under Section 235 of the Local
approprlate, or incidental to efficient and effective provislon
Page 242 of 320 ·..:,

·----------·· ... -
 .'•.
ATENEO CENTRAL
BAR OPERATIONS 2019
of the basic services and facilities which include, among
others, programs and projects for low-cost housing and
other mass dwellings. The collections made accrue to Its
socialized housing programs and projects. The tax is not a
pure exercise of t3xing power or merely to raise revenue:
it is levied with a regulatory purpose. The levy is primarily
in the exercise of the police power for the general welfare
of the entire city. It is greatly imbued with public interest.
(Ferrerv. Bautista. G.R. N210551, 2015).
Withdrawal of Local Tax Exemption Privileges
Unless otherwise provided in the LGC, tax exemptions or
incentives granted to, or enjoyed by all persons, wheiher
natural or juridical, including government-owned or -
controlled corporations were withdrawn upon the effectivity
of the LGC. [Sec. 193, LGC]
Privileges Retained: Tax exemption privileges of the
following were not withdrawn by the LGC:
1. Local water districts;
2. Cooperatives duly registered under R.A. No. 6938; and
3. Non-stock and non-profit hospitals and educational
institutions [Sec. 193, LGC; Sec. 234, LGC]
Regulation of Activity and Tax
The garbage fee is a charge fixed for the regulation of an
activity. It is not a tax and cannot violate the rule on double
taxation. (Ferrer v. Bautista, G.R. 210551, 2015).
Mactan Cebu International Airport Authority is an
instrumentality of the government, not a GOCC; thus, its
properties actually, solely and exclusively used for public
purposes, consisting of the airport terminal building,
airfield, runway, taxiway and the lots on which they are
<:>
situated, are not subject to real property tax and the city is
, .• not justified in collecting taxes from petitioner over said
properties. (Mactan Cebu fnternationaf Airport v. City of
'
Lapu-Lapu, G.R. No. 181756, 2015).
Real Property Taxation
( '\
.. ,:; Annual ad valorem tax on real property may be levied by
a:
(1) Province; or
(2) City; or
(3) Municipality within Metropolitan Manila Area [Sec. 232,
LGC]
Exemptions from Real Property Tax
The following are exempted from payment of the real
property tax:
, '
?.
Page 243 of 320
,·· ..
POLITICAL LAW
a. Real property owned by the Republic of the
Philippines or any of its political subdivisions
EXCEPT when the beneficial use thereof has
been granted, for consideration or otherwise, to
a taxable person;
a. Cha.ltable institutions, churches, parsonages or
convents appurtenant thereto, mosques, nonprofit
or religious cemeteries and all lands, buildings, and
improvements actually, directly, and exclusively
used for religious, charitable or educational
purposes;
b. All machineries and equipment that are actually,
directly and exclusively used by local water districts
and government- owned or -controlled corporations
engaged in the supply and distribution of water and/or
generation and transmission of electric power;
c. All real property owned by duly registered cooperatives
as provided for under R.A. No . .3988; and
d. Machinery and equipment used for pollution control
and environmental prctectlon [Sec. 234, LGCJ
Other limitations on taxing powers of LGUs
Taxes already Imposed by National Government:
Generally, LGUs cannot impose taxes that are already
imposed by the National Government (e.g. income tax,
documentary stamps, estate taxes, customs duties, excise
taxes under the NIRC, VAT) (See generally, Sec. 133,
LGC]
Person!'i exempted: LGUs cannot impose taxes, fees,
and charges on (a) countryside and barangay business
enterprises: (b) cooperatives duly registered under the
Cooperative Code; and National Government, its agencies
and instrumentalities, and local government units. [Sec.
133(n)-(o), LGC]
• An inrstrumentality of the State or National
Government is exempt from local taxation.
[Sec. 133(0), LGCJ Hence, the Manila
International Airport Authority, being such an
instrumentality and not being an GOCC, is
exempt from local taxation. [MIM v. CA, G.R.
No. 155650 (2006)]
• However, GOCCs are [generally] not exempt
from local taxation. [MIAA v. CA (2006)]
RECLASSIFICATION OF LANDS
Requisites for Reclassification
yia ordinance;
After public hearings for the purpose
Limited to the following percentages:
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

15% for highly urbanized and independent component CLOSURE AND OPENING OF ROADS
cities
10% for component cities and 1st to 3rd class A LGU may, pursuant to an ordinance, permanently or
municipalities · temporarily close or open any local road, alley, park, or
5% for 4th to '3th class municipalities square fam.,g within its Jurisdiction.

• Exception: The President may, when public

Permanent Closure v. Temporary Closure ·
interest requires and upon recommendation by the
NEDA, authorize reclassification in excess of the PERMANENT CLOSURE TEMPORARY CLOSURE
limits set herein
1. Ordinance must be 1. Should be a National
Grounds: approved by at least or local road, alley,
The land ceases to be economically feasible and two-thirds (2/3) of all park, or square
sound for aqricultural purposes as determined by the the members of the 2. Temporarily closure
Department of Agriculture. Sanggunian during an actual
The land shall have substantially great~r economic 2. When necessary, an emergency, or fiesta
value for residential, commercial or industrial purposes adequate substitute for celebrations, public
as determined by the Sanggunian concerned. the public facility that is rallies, agricultural or
subject to closure is industrial fairs, or an
Only cities and municipalities can reclassify agricultural provided. undertaKing of public
lands through the proper ordlnar!ce after conducting public
3. Provisions for the · works and highways,
maintenance of public telecommunications;
hearings for the purpose. It cannot be done by mere
safety shall be made. · and waterworks
resolution. (R.A. No. 7160, Sec. 2)
projects.
3. 3. The duration of
General Rule: Such reclassifica\ion shall be limited to the which shall be
following percentage of the total agricultural land area at specified by the local
the time of the passage uf the ordinance ( 15% - 10% - 5%) chief executive
concerned in a written
Exceptions: order.
1. Agricultural lands distributed to agrarian reform
beneficiaries shall not be affected by the said Permanent closure .
reclassification.
General Rule: A property permanently ~ithdrawn from
2. The President may, when public interest so
public use may be used or conveyed for any purpose for
requires and upon recommendation of the
Nation~I Eco.nomic and Development Authcrity, which other real property belonging to the local ';_ .
~uthonze a city or municipality to reclassify lands government unit concerned may be lawfully used or
in excess of the limits set in the next preceding conveyed.
paragraph.
Exception: No freedom park shall be closed permanently { '.".
v .f,
Approval by national agency without provision for its transfer or relocation to a new site.
Where approval by a national agency is required for
Temporary closure
reclassification, such approval shal' not be unreasonably
It should NOT be temporarily closed for athletic, cultural, or ,···. , .
withheld. Failure to act on a proper and complete ,l
civic activities not officially sponsored, recognized, or
application for reclassification within 3 months from receipt
approved by the local government unit concerned. Any
shall be deemed an approval thereof. [Sec;. 20(d). LGC)
city, municipality, or barangay may, by a duly enacted
ordinance, temporarily close and regulate the use of any r ':.

local street, road, thoroughfare, or any other public place \ . . :J

where shopping malls, Sunday, flea or night markets, or
shopping areas may be established and where goods,
merchandise, foodstuffs, corr-mooltles, or articles of
-,
commerce may be sold and dispensed to the general
public.

{ .
Page 244 of 320 ' .
',.;..,•

. ,..,_ -·- ..
 A TENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

The passage of an ordinance by a local government unit to
effect the opening of a local road, can have no applicability
to the if the subdivision road lots sought to be opened to
decongest traffic in the area have already been donated to, ·
and the titles thereto alreaoy issued in the name of tne City
Government. Having been already donated or turned over
to the City Government, the road lots in question have
since then taken the nature of public roads which are
withdrawn from the commerce of man. (New Sun Valley v.
Sangguniang Barangay, G.R. 156636, 2011).
If a freedom park is permanently closed, there must be a
provision for its transfer or relocation to a new site. [Sec.
21(a),{b)]
Such property permanently withdrawn from public use may
be used or conveyed for any purpose for which other real
property belonging to the LGU may be lawfully used or
conveyed. [Sec. 21{b}]
D. LEGISLATIVE POWER

Road, alley, park or square is (d) Requisites of a valid ordinance (CUP PUG)
1. Must not ~ontravene the Constitution or any
National Local statute
' 2. Must not be .Ynfair or oppressive
Temporary closuro 1. Temporary 3. Must not be fartlal or discriminatory
only. 2. Permanent closure i.·. Must not frohibit, but may regulate trade
5. Must not be ,!.lnreasonable
Scope of LGIJ's power to close 6. Must be ~eneral and consistent with public policy

An ordinance authorizing the expropriation of parcels of

Requisites for Temporary Closure
Via ordinance; .
Maybe done due to:
;
'. ~ cl. Actual emergency;
b. Fiesta celebrations;
c. Public rallies;
d. Agricultural or industrial fairs; or
e. Undertaking of public works and highways,
telecommunications, and waterworks projects;
' )'
Duration of dosure must be specified by the by the local
chief executive in a writter. order; and
If for the purpose of athletic, cultural, or civil activities,
these must be officially sponsored, recognized, or
approved by the local government. [Sec. 21, LGC]
Note: A City, Municipality, or Barangay may also
temporarily close and regulate the use of any local street,
road, thoroughfare or any other public place where
-; ;,/ shopping malls, Sunday, flea or night markets, or
shopping areas may be established for the general public.
[Sac. 21 (d)]
Requisites for Permanent Closure
land for the creatlon 0f a freedom park cannot be struck
down for the reason that the municipality has an existing
freedom park still suitable for the purpose because under
Section 55 (c) of the LGC, the Sangguniang Panlalawigan
can dedare the ordinance valid only if it is beyond the
power of the Sangguniang E3ayan.
An ordinance penalizing any person or entity engaged in
the business of selling tickets to movies or other public
exhibitions, games or performances which would charge
children between 7 and 12 years or the full price of tickets
instead of only one-half the amount is void because it is
unreasonable. It deprives sellers of the tickets of their
property without due process. A ticket is a property right
and may be sold for such price as the owner of it can
obtain. There Is nothing malicious In charging children the
same price as adults. (Balacuit v. CFI of Agusan del Norte,
G.R. No. L-38429, 1988).
Power to enact or repeal an ordinance, or to issue a
resolution
Genera! rule: The local chief executive has to approve the
ordinance enacted by the council.
Exception: When the local chief executive is the Punong
}

Via ordinance approved by at least 213 of all members of Barangay because he is already a member of the
the Sanggunian; Sangguniang Barangay.
When necessary, an adequate substitute for the public
,.•..::,,.;,·, The Liga ng mga Barangay cannot exercise legislative
. facility that is subject to closure should be provided;
Such ordinance must have provisions for the maintenance powers because it is not a local government unit and its
of public safety therein; and primary purpose is to determine representation of the liga
in the sanggunians to ventilate, articulate and crystallize
·.. ;.;
•: I
issues affecting barangay government administration, and

f._,_;
Page 245 of 320
ATENEO CENTRAL
BAR OPERATIONS 20·19 POLITICAL LAW

to secure solutions for them through proper and legal
means. (Onon v. Fernandez, G.R. No.139813, 2001).
Grounds for the veto power of the Local Chief
Executive
1. Ultra vires
2. Prejudicial to public welfare
The higher council can declare the ordinance or resolution
invalid if it is beyond tho scope of the power conferred upon
the lower Sanggunian. For barangay ordinances, the
higher council can also rule that it is inconsistent with law ·
or city/municipal ordinances.
Presiding officer

When item veto may be done , LEGISLATIVE BODY PRESIDING OFFICER

1. Appropriations ordinance
2. Ordinance/resolution adopting local development Sangguniang
plan and public investment program Vice-Governor
Panlalawigan
3. Ordinance directmq the payment of money or
creating liability. Sangguniang
Vice-Mayer
Pang!ungsod
The veto must be communicated to the Sanggunian within
15 days for province and 10 days for city or municipality.
-
Sanggunian!~ Bayan Vice-Mayor

A municipal resolution correcting an alleged typographical Sangguniang Barangay Punong Barangay

error in a zoning ordinance does not have to comply with
the requirements of notice and hearing, which are required The presiding offlcer shall vote only to break a tie.
for the validity and effectiveness of zoning ordinances.
( The Learning Child, Inc. v. Ayala Alabang Village
A temporary presiding officer shall be elected from and by
Association, G.R. 1:14269/134440/144518, 2010).
the members present and constituting a quorum, in the
event of the inability of the regular presiding officer to
An act which is outside of the municipality's jurisdiction is
preside at a session, The temporary presiding officer shall
considered as a void ultra vires act, while an act attended
certify within 10 days from the passage of ordinances
only by an irregularity but remains within the municipality's
enacted and resolutions adopted by the sanggunian in the
power is considered as an ultra vires act subject to
session over which he temporarily presided. (Sec. 49,
ratification and/or validation. Case law states that public
LGC]
officials can be held personally accountable for acts
claimed to have been performed in connection with official
Presumptions regarding local legislation (CRV)
duties where they have acted ultra vires. (La,1dBank of the 1. £onstitutionality
Philippines v. Cacayuran, G.R. 17165, 2013). 2. .Begularity 1·
3. ~.ilidlty ·.._

Ordinance v. Resolution (o) Local Initiative and referendum

,·
,.
'•·
Local Initiative - The legal process whereby the registered
ORDINANCE RESOLUTION (
voters of a LGU may directly propose, enact, or amend any \ ",
Has the force and effect of ordinance. It may be exercised by all registered voters of
law
Mere opinion ' the provinces, cities, municipalities, and barangays.
Has general application; A resolution can also be the proper subject of a local ::
/

more or less permanent in Temporary in nature I;.

initiative (SBMA v. COMELEC, G.R. 25416, 1996}.
character.

Third reading is required Third reading not required
Usually used in the Usually used in the LGU's
exercise of the LGU's exercise of proprietary
governmental functions functions
Only some may be subject
Subject to veto
to veto and review
Procedure for local initiative:
1. Number of voters who should file petition with c·:......
Sanggunian concerned:
·a. Provinces and cities - at least 1000 registered
voters
b. Municipality - at least 100 registered voters
c. Barangay - at least 50 registered voters
2. Sanggunian concerned has 30 days to act on the
petition. If the Sanggunian does not take any favorable 'x.;

Page 246 of 320

·-
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

action, the proponents may invoke the power of

initiative, giving notice to Sanggunian. Requisites of valid municipal contracts: (FOLS·ID
3. Proponents will have the following number of days to "false ID")
collect required number of signatures 1. It must comply with formal requirements
a. Provinces and cities - 90 days 2. LGU can exercise such QthP.r powers granted to
b. Municipalities - 60 days corporations. subject to limitations in the LGC and other
c. Barangays -'.30 days laws .
4. Signing of petition . . 3. In case entered into by .bocal chief executive on behalf
5. Date for initiative set by COMELEC 1f required number
of LGU, prior authorization by Sanggunian concerned
of signatures has been obtained.
is needed.
Effectivity of proposition 4. It must comply with ~ubstantive requirements.
1. If proposition is approved by a majority of the votes 5. LGU has express, !mplied, or Inherent power to enter
cast, it will take effect 15 days after certification by the into a particular contract.
COMELEC as if the Sangyunian and the local chief 6. It must be entered into by the proper .Qepartment,
executive had taken affirmative action. board, committee, or agent.
2. If it fails to obtain required number of votes, it is
considered defeated The doctrine of separate personality of a corporation finds
no application in the Cooperative Development Authority
Limits on propositions: which was created by virtue of RA 6939, since it is not a
1. It should NOT be exercised more than once a year. private entity but a government agency. (Verzosa v.
2. It can only extend to subjects or matters which are
Carague, G.R. 157838, 2011).
within the legal powers of the Sanggunian to enact.
3. If the Sanggunian adopts in toto the proposition To Sue and Be Sued
presented and the local chief executive approves the LGUs have the power to sue and be sued. (Local
same, the initiative shall be cancelled. Government Cocde, sec. 22(a):2)). Because of the
statutory waiver, LGUs are not immune from suit.
Limits upon Sanggunlans '
· 1. The Sanggunian CANNOT repeal, modify or amend The OSG may not be compelled to represent local
any proposition or ordinance approved through system
gove:nment units. The LGC vests exclusive authority upon
of initiative/referendum within 6 months from the date
the LGU's legal officers to be counsels of local government
of approval thereof ..
units. Even the employment of a special legal officer is
2. The Sanggunian can amend, modify or repeal the
expressly allowed by the law only upon a strict condition
' proposition/ordinance within 3 years thereafter by a
' that the action or proceeding which involves the
vote of :Y. of all its members. ·
component city or municipality is adverse to the provincial
3. For barangays. the applicable period in 18 months.
government or to another component city or municipalit.
( OSG v. CA and Municipal Government of Suguiran, G. R.
Referendum - The legal process whereby the registerP.d
199027, 2014).
voters of the local government units may approve, amend
...' . or reject any ordinance enacted by the Sanggunian.
'· A municipality can be sued for damages arising from
injuries sustained by a pedestrian who was hit by a glass
The proper courts can still declare void any proposition
pane that fell from a dilapidated window frame of the
adopted pursuant to an initiative or referendum on the
' -, municipal hall. Under Section 24 of the LGC and Article
following grounds:
2189 of the Civil Code, the municipality is liable for
..
t; ~
1. Violation of the Constitution
2. Want of capacity of the Sanggunian concerned to
damages arising from injuries to persons by reason of
v. ::,
enact the measure negligance of local government units on the defective
condition of the municipal hall, which is under their control
\; _;. and supervision.
CORPORATE POWERS: (PSC3)
; ·.
\ .... ~/ 1. Have _Qontinuous succession in its corporate name To Acquire and Sell Property
Properties of the public dominion devoted to public use and
:, 2. Sue and be sued
..... . ~
/,'
.. . made available to the public In general are outside the
3. Have and USP, a .Qorporate seal .
commerce of persons and cannot be disposed of or leased
~ . 4. Acquire and convey real or personal froperty
5. Enter into .Qontracts
Page 24~ of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
by the LGU to private persons, (Macasiano v. Diokno, G.R.
97764, 1992).
Pursuant to tha regalian doctrine, any land that has never
been acquired through purchase, grant or any other mode
of acquisition remains part of the public domain and is
owned by the State. LGUs cannot appropriate to
themselves public lands without prior grant from the
government. (Rural Bank of Anda v. Roman Catholic
Archbishop of Lingayen·Dagupan, G.R. 155051, 2007).
To Enter Into Contracts . Liability on contracts
Unless otherwise provided in the LGC, no contract may be
entered Into by the local chief executive in behalf of the
LGU without prior authorization by the Sanggunian
concerned. A legible copy of such contract shall be posted
at a conspicuous place in the provir.cial capitol or the city,
municipal or barangay hall (Local Government Code, sec.
22(c)). Without the council authorization/ ratification, the
contract is unenforceable.
The prior authorization may be in the form of, an
appropriation ordinance passed for the year which
specifically covers tha project, cost or contract to be
entered into by the LGU (Quisumbing v. Garcia,· G.R.
175527, 2008).
'
Those beyond the powers of the LGU may be subject to
veto of the local executive or review of the local legislative
for being ultra vires.
Review of Ordinances
1. Review of Component City and Municipal
Ordinances or Resolutions by the Sangguniang
Panlalawigan
If the Sangguniang Panlalawigan finds that such an
ordinance is beyond the power conferred upon the
Sangguniang Panlungsod or Sangguniang Bayan
concerned, tt shall declare such ordinance or resolution
invalid, whole or in part. The Sangguniang Panlalawigan
shall enter its action in the minutes and 5;hall advise the
corresponding city or municipal authorities of the action it
has taken.
2. Review of Barangay Ordinances by the
Sangguniang Panlungsod or Sangguniang Bayan
If the Sangguniang Panlungsod or Sangguniang Bayan, as
the case may be, finds the barangay ordinances
inconsistent with law or city or municipal ordinances, the
Sanggunian concerned shall within 30 days from the
receipt thereof, return the same with its comments and
recommendations to the Sangguniang Barangay
Page 248 of 320
~-------------- ..... ---
POLITICAL LAW
concerned for adjustment, amendment or modification; in
which case the effectivity of the barangay ordinance is
suspended until such time as the revision called for is
effected.
2.LIABILITY OF LOCAL GOVERNMENT UNITS
Municipal Liability
LGUs and their officials are not exempt from liability for
death or injury to persons or damage to property.
Municipal COi porations are liable on contracts entered into
in their behalf by their duly authorized agents acting within
the scope of their authority, provided that the municipal
corporations are authorized to enter into said contracts by
their charter.
Doctrine of Implied Municipal Liability .
A municipality may become obligated upon an implied
contract to pay the reasonable value of the benefits
accepted or appropriated by it as to which it has . the
general power to contract. The doctrine applies to all cases
where money or other property of a party is received under
such circumstances that the general law, independent cf
an express contract, implies an obligation to do justice with
respect to the same.
The doctrine of estoppel cannot be applied as against a
municipal corporation to validate a contract which it has no
power to make, or which it is authorized to make only under
prescribed conditions, within prescribed limitations, or in a
prescribed mode or manner, although the corporation has
accepted the benefits thereof and the other party has fully
performed his part of the agreement, or has expanded
large sums In preparation for performance. A reason
frequently assigned for this rule is that to apply the doctrine
of estoppal against a municipality in such case would be to
enable it to do indirectly what it cannot do directly. Also,
where ·a contract Is violative of public policy, the
municipality executing it cannot be estopped to assert the
invalidity on this ground; nor can it be estopped to assert
the invalidity of a contract which has ceded away,
controlled, or embarrassed its legislative or government
powers. ( San Diego z Municipalityof Naujan, G.R. L-9920,
1960).
The government is justified to decline payment of the
purchase price of illegally cut lumber delivered by a
contractor who won a public bidding for the construction of
the Navotas Bridge. All contracts, including government
contracts, are subject to the police power of the '•·.:..·
State. Being an inherent attribute of sovereignty, such
 ATENEO CENTRAL
BAR OPERATIONS2019 POLITICAL LAW

power is deemed incorporated into the laws of the land,
which are part of all contracts, thereby qualifying the
obligations arising therefrom. Thus, it is an implied
condition in the subject contract for the procurement of
materials needed in the repair and construction of the
Navotas Bridge that petitioner as private contractor would
comply with pertinent forestry laws and regulations on the
cutting and gathering of the lumber she undertook to
supply the provincial government (Guadines v.
Sandiganbayan, G.R. 164891, 2011).
Liability v. Defense
LIABILITY DEFENSE
corporate name, they may sue, be sued, contract and be
contracted with. (Torio v. Fontanilla , G.R. L-29993, 1978).
A mayor cannot be held personally liable if his actions were
dcne pursuant to an ordinance which, at the time of the
collection, was yet to be invalidated. (Demaala v. COA,
G.R. 199752, 2015).
The writ was directed at' the mayor not in his personal
capacity, but in his capacity as municipal mayor, so that it
is not irregular whether it was served upon him during his
earlier term or In his subsequent one. (Vargas v. Cajucom,
G.R. 171095,2015)

LGUs and IQCal officials &re LGUs generally can 3.SETTLEMENT ..Qf BOUNDARY DISPUTES
liable in case of: be sued based on
Death their "charters/laws- Situation v. Where to Settle
Injury, or power to sue and be
SITUATION WHERE TO SETTLE
Damage to property (Local sued"
Government Code, sec. 24)
Boundary disputes Involving 2 The sangguniang
Generally lirnltcd to
or more barangays in the same panlungsod or
The State is responsible in like proprietary functions.
city or municipality. Sangguniang bayan
manner when it acts through a
concerned.
special agent; but not when the
damage has been caused by the Boundary disputes Involving 2 The Sangguniang
official to whom the task done or more municipalities within panlalawigan
properly pertains. (Civil Coda, the same province concerned
art.2180)_
Boundary disputes involving Jointly referred for
State/LGUs liable fur death or municipalities or component settlement to the
injuries suffered by reason of cities of different provinces Sanggunians of the
defective roads, bridges or other province concerned
public works under their
supervision Provlnces, cities and Boundary disputes Involving a Jointly referred for
r • municipalities shall be liable for component city or municipality settlement to the
=.. •; damages for the death of, or on the one hand and a highly respective
injuries suffered by any person urbanized city on the other, or Sanggunians of the
(~ two (2) or more hlghly parties
~••. ,iJ by reason of the defective
condition of roads, streets, urbanized cities.
bridges, public buildings, and
.. '!
other public works under their '
,.
control or supervision. (Civil According to Section 118 of the Local Government Code,
1::..:-~
Code, art. 2189)
bour.aary disputes between and among municipalities
should be referred for settlement to the sangguniang
Special aget;tt - One who receives a definite and fixed panlalawiqan and not with the Regional Trial Court.
order or commission, foreign to the exercise of the duties (Municipality of Sta. Fe v. Municpality of Artao, G.R. No.
of his office, so that in representation of the state and being 140474, 2007)
bound to act as agent thereof, he executes the trust
confided to him. However, there is no law providing for the jurisdiction of
. any court or quasi-judicial body over the settlement of a
In tile case where a stage collapsed during a zarzuela, boundary dispute between a municipality and an
municipal corporations will be liable for the injury sustained independent component city, thus, the Re,gional Trial Court
by the victims. Under Philippine law, municipalities are has jurisdiction to adjudicate it. Under Section 19 (6) of the
political bodies corporate. They are endowed with the Judiciary Reorganization Act, the RTC has exclusive
faculties of municipal corporations. In their proper original jurisdiction in all cases not within the exclusive
Page 249 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

jurisdiction of any court or quasi-judicial agency. Member of Sangguniang

(Municipality of Kananga v. Madrona. G.R. No. 141375, Panlungsod, Member of At least 18 years
2003) Sangguniang Bayan, Punong
old
Barangay, Member of
In the event the Sanggunian fails to effect an amicable Sangguniang Barangay
settlement within 60 days from the date the dispute was
referred thereto, it shall issue a certification to that effect. Dlsqualificatio,1s for Local Elective Officials: (SCRIP-
Thereafter, the dispute shall be formally tried by the DF) .
Sanggunian concerned which shall decide the issue within 1. Those §.entenced by final judgrr.ent for an offense
60 days from the date of the certification. Within the time involving moral turpitude, or for an offense punishable
and manner prescribed by the Rules of Court, any party by 1 year or more of imprisonment within 2 years after
may elevate the decision of the sanggunian concerned to serving sentence.
the proper Regional Trial Court having jurisdiction over the 2. Those Removed from office as a 'result of an
area in dispute. The Regional Trial Court shall decide the administrative case.
appeal within one year from the filing thereof. Pending final , 3. Those tonvicted by final judgment for violating the oath
resolution of the disputed area prior to the dispute shall be of allegiance to the Republic.
maintained and continued for all legal purposes (Local 4. Those with .Qual citizenship.
Government Code, sec. 118). 5. fugitives from justice in criminal or non-political cases
here or abroad.
The technical description, containing the metes and 6. fermanent residents in a foreign country or those who
bounds of the municipality's territory as stated in an have acquired the right to reside abroad and continue
executive order creating the said municipality, is binding. to avail of the same right after the effectivity of this
(Municipality of Jimenez v. Baz, Jr., G.R. No. 105746, code.
December 2, 1996). 7. The Insane or feeble minded. \ '·

SUCCESSION OF ELECTIVE OFFICIALS 4.VACANCIES AND SUCCESSION

Permanent Vacancy
Qualifications: (FR-LAV)
1. f ilipino citizen
Grounds for Permanent Vacancy: (F2VR2-DP)
2. Registered ~oter in the:
a. barangay, municipality, city or province where he 1. Elective local official fills a higher vacant office
intends to be elected ·
2. Refuses to assume office
b. district where he intends to be elected in case of a
3. fails to qualify
4 . .Qi~s
member of the Sangguniang P,mlalawigan, •, I,'
5. Bemoved from office
Sangguniang Panlungsod or Sangguniang bayan
6. ~oluntarily resigns
3. Besident therein for at least 1 year immediately
7. fermanently Incapacitated to discharge the functions
preceding the day of the election
of his office
4. Able to read and write Filipino or any other local
,banguage or dialect
Filling of Vacancy:
5. Age requirement
• Automatic succession
• Appointment
Age Requirement
General Rule: the successor (by appointment) should
AGE come from the same political party as the Sanggunian
POSITION
REQUIREMENT member whose position has beccme vacant.
Exception: case of vacancy in the Sangguniang barangay
Governor, Vice Governor, Mayor,
(Local Government Code, sec. 45).
Vice Mayor, member of At least 23 years
SangguniangPanlungsod in old on election day
highl~, urbanized cities Ranking - Determined on the basis or proportion of votes
obtained by each winning candidate to the total number of
Mayor, Vice Mayor of registered voters in each district in the immediately
At least 21 years
independent component cities or preceding local election.
old
municipalities

Page 250 of 320

 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Temporary Vacancy
(i) Elective officials
Non-exclusive grounds for temporary vacancy
1. Leave of absence i. Grounds (MA3C 020):
2. Travel abroad 1. Commission of any offense involving Moral
3. Suspension from office turpitude or an offense punishable by al least
prison mayor
General Rule: If the position of governor, mayor, or 2. ~pplication or acquisition of foreign citizenship
punong barangay becomes temporarily vacant, the vice- or residence or the status of an immigrant of
governor, vice-mayor or highest-ranking Sanggunian another country
member will automatically exercise the powers and 3. Abuse of authority
perform· the duties and functions of the local chief 4. Unauthorized Absence for 15 consecutive
executive concerned. working days, ~cept in the case of members
Exception: HE: cannot exercise the power to appoint, of the Sanggunian Panlalawigan,
suspend or dismiss employees. Sangguniang Panlungsod, Sanggunlang
Exception to the Exception: If the period of temporary Bayan, Sangguniang Barangay.
incapacity exceeds 30 working days. (Local Government 5. Culpable Vloletlon of the ~onstitution
Code, sec. 46). 6. Qisloyalty to the Republic of the Philippines
7. Qishonesty, oppression, misconduct in office,
Termination of Temporary Incapacity gross negligence, dereliction of duty
1. Upon submission to the appropriate Sanggunian of a 8. Qther ground.1. as may be provided by the
written declaration by the local chief that he has
Code or other laws.
reported back to office.
2. ltthe temporary incapacity was due to legal reason, the If the incident complained of occurred in another barangay
local chief executive should also submit necessary over which a barangay official has no authority and
documents showing that the legal causes no longer jurisdiction, the Supreme Court ruled that he is liable for
exist (Local Government Code, sec. 46). abuse of authority on the basis that he participated in the
unlawful act as a higher authority that gave a semblance
Appointment of OIC
of legality over that act and influenced the actions of his co-
The local chief executive can designate in writing an OIC if
defendants. Here, petitioner was president of the
he is traveling within the country but outside his territorial
organization of baraaqay officials i11 his municipality and
. jurisdiction for a period not exceeding 3 consecutive days.
sat as ex-officio member of the Sangguniang Bayan, which
The OIC cannot exercise the power to appoint, suspend or
has power to review barangay ordinances and authority to
dismiss employees (Local Government Code, sec. 46).
discipline barangay officials. (Bien v. Bo, G.R. 179333,
2010)
('\ VACANCY SUCCESSOR
·-,
II Jurisdiction
Governor, Mayor Vice-Governor, Vice-Mayor
\ .- ELECTIVE APPOINTED
Governor, Vice-governor, Highest ranking
.. ~ Mayor or Vice-mayor Sanggunlan member President -
.. 4" .. .,

Elective official
.' •. Highest ranking of a province,
': !i Sanggunian member
Second highest ranking highly
(who was supposed to fill urbanized or
Sanggunian member The local chief
the vacant position of Independent
governor, etc.) executive to sny
Who may component
subordinate official
preventively city.
Highest ranking or employee under
suspend
Sangguniang Barangay his authority pending
In the office of the Governor-·
member OR the 2nd investigation.
Punong Barangay Elective official
highest ranking
ofa
Sanggunlan member
component city
';. J
. DISCIPLINE OF LOCAL OFFICIALS
or municipality.

.• ) Page. 251 of 320

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Ma yor-
El ective official Sa ngguniang
of a barangay. Pa nlalawigan -
'
el ective
A ny :.ingle m unicipal
preventive 0 fficials.
suspension
shall not Penalty of
extend beyond suspension -
60 days; if shall not
multiple, exceed his
Duration of Except as otherwise
cannot be A period not · unexpired
preventive provided by law, t.he
suspended for exceeding 60 days. term, or a
suspension local chief executive
more than 90 period of 6
may impose the
days within a months for
penalty of:
single year for every
tne same admlnlstrafive
ground or
1. Removal from
offense. Nor
service
grounds shall said
existing. penalty be a
- Disciplinary
2. Demotion in
bar to the
Any of the rank
jurisdiction candidacy of
grounds (disciplinary the respondent
provided under cases)
3. Suspension -
as long as he
RA 7160, after for not more
Charges for is qualified.
the issues are than 1 year
preventive without pay
joined, when Removal - can
suspension must
the evidence of only be done
involve dishonesty, 4. Fine- in an
guilt is strong by a court of
oppression or grave amount not
and there is law; the
misconduct or exceeding 6
great penalty of ·
When to neglect in the months salary
probability that removal from
preventively performance of duty,
the office shall be
suspend or if there is reason . 5. Reprimand
continuance in a bar to the
to believe that the
office could candidacy from
respondent is guilty
influence the ' any elective
of the charges which
witnesses or office.
would warrant his
pose a threat
removal from
to the safety Decisions may,
service.
and Integrity of within 30 days
If the penalty
the records from receipt be
Imposed is •... :r
and other appealable to:
suspension without
evidence.
pay for not mor~
Sangguniang
Administrative than 30 days, his
Panlalawigan -
Govomed by Discipline Governed decision shall be
Governing law decisions of
RA 7160. by the Civil Service final· if the penalty
Appeals component
Law. imp~sed is heavier,
(disciplinary cities'
the decision shall be
cases) S.Panglunsod
A verified appealable to the
and the
complaint to: Civil servtce
s.Bayan
F resident-for Commission which
Where to file provincial, shall decide the
( disciplinary The local chief OP-decisions
highly appeal within 30
cases) executive. of the
urbanized city, days from receipt
Sangguniang
independent thereof.
Panlalawigan
componentc ity
and
elective officl al.

a ~ 252 of320
pg:
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

• Penalty is not a bar to the candidacy of the respondent

Sangguniang
suspended as long as he meets the quallflcatlone for
Panglungsoc:i
the office. However, removal as a result o
of Highly
administrative investigation serves as a bar to the
urbanized
cendtdacy of the respondent for any elective position.
cities and
independent • Preventive suspension imposed upon a public officer
facing administrative charges cannot be credited
component
against the penalty of suspension Imposed upon him.
cities.
Decisions of • Preventive suspension is not a penalty. Not being a
OP are final penalty, the period within which one is under
and executor. preventive suspension is not considered part of the
actual penalty of suspension. (Quimbo v. Gervscio,
G.R. 155620, 2008).
iii. Preventive suspension
Civil liability of public officials for public acts
Preventive Suspension - merely a protective or General Rule: A public officer is not liable for damages
preliminary measure; not a penalty and not considered part which a person may suffer arising from the just
of the actual penalty if found guilty. · performance of his official duties and within the scope of
his assigned tasks.
Purpose: to prevent the accused from using his position Exception: When the governmental acts are done in bad
and powers/prerogatives to influence potential witnesses faith, being outside the scope of authority, such public
or tamper with records that may be vital in the prosecution officer is liable for damages in his/her personal capacity.
of the case aqainst him. (Vinzons-Cnatto v. Fortune Tobacco Corporation, G.R.
141309, 2007).
Applies when:
After the issues are joined. iv. Removal
When the evidence of guilt is strong.
An elective local official may be removed by order of the
There is great probability that the continuance in office
proper court. (Local Government Code, sec. 60).
could influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence.
The penalty of remove! from office as a result of
administrative investigation shall be considered a bar to
IMPOSED BY RESPONDENT LOCAL OFFICIAL
. the candidacy of the respondent for any elective position.
Elective official of a province, highly (Local Government Code, sec. 66 (.::))
President urbanized
or independent component city Local elective officials cannot be removed by local
legislative_ bodies or the Office of the President.
.
·"' ',
'·
·o..:.; Governor
Elective official of a component city or
municipality
Art. 124 (b ), Rule XIX of the Rules and Regulations
Mayor Elective official of a barangay Implementing the LGC, which states that "an elective local
official may be removed from office by order of the proper
Duration: court or the Disciplining Authority whichever first acquires
• SINGLE preventive suspension should not exceed 60 jurisdiction to the exclusion of the other" is void for being
DAYS. repugnant to Sec. 60, LGC. ·
• If SEVERAL administrative cases are filed against an
..... .
.
;/
elective official, he cannot be preventively suspended If appointive official, Office of the President may remove
for more than 90 DAYS within a single year on the him or her from the his or her position. (Pabiico v.
same ground/s existing and known at the time of the Villapando, G.R. 147870, 2002).
first suspension.

Suspension should not exceed the unexpired term of the

' t respondant or a period of 6 months for every administrative
offense.

Page 253 of 320

 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Administrative aooe;.;;.:il;._ __ local chief executives from making appointments during

RENDERED BY
Sangguniang Panglungsod of
component cities and Sangguniang
Bayan
Sangguniang Panlalawigan and
Sangguniang Panglungsod of
highly urbanized cities/
independent component cities
Office of the Presidenl
Period
30 days from receipt of decision
the last days of their tenure. Appointments of local chief
APPEAL TO
executives must conform to these civil service rules and in
order to be valid. (Provincial Government of Aurora v.
Sangguniang
Marco, G.R. 202331, 2015)
Panlalawigan
That the Province suddenly had no funds to pay for an
appointee's salaries despite its earlier certification that
Office of the
funds were available under its 2004 Annual Budget does
President
not affect his appointment, if a Certification that funds were
available was issued at the time of the appointment. The
Final and appointment remains effective, and the local government
executory unit remains liable for the salaries of the appointee.
(Provincial Government of Aurora v. Marco, G.R. 202331,
2015)
5. RECALL

Effect Recall - The power of the electorate ·(registered voters) to

Shall not prevent a decision from being final and executory. remove a local elected official fer loss of confidence
Respondent is considered to .'1ave been placed under through the holding of a special/recall election, before the
preventive suspension during the pendency of the appeal end of term of office.
in the event he wins, and shall be paid his salary arid other
emoluments during the pendency of the appeal. Modes of initiating a recall
Adoption of a resolution by the Preparatory Recall
The phrase "decision is final and executory" means that the Assembly (composed of local officials of the lower/
Sanggunian decision is immediately executory, but still supervised local government unit).
may still be appealed to the Office of the President or the
Sangguniang Panlatawigan as the case may be. (Don v.
LEVEL COMPOSITION OF PRA
Lacsa, G.R. 170810, 2007).
Mayors, vice-mayors, Sanggunian
vi. Doctrine of Condonatlon (or Aguinaldo Provincial members of the rnunlcipallties and
Doctrine) component cities

The doctrine of condonatlon has been dispensed with Punong barangay and
by the Court. Election is not a mode of condoning an City Sangguniang barangay members
administrative offense, and there is simply no constitutional in the city
or statutory basis in our jurisdiction to support the notion Electi·.ie municipal/ barangay ·~. -r
that an official elected for a different term rs fully absolved Legislative district
officials
of any administrative liability arising from an offense done
during a prior term. However, the doctrine of condonation Punong barangay and
should be, as a general rule, recognized as good law prior Municipal Sangguniang barangay members i -,
'I.,:: .. '
to its abandonment. ( Carpio-Morales v. CA and Binay, in the municipality
G.R. 217126-27, 2015).

0) Appointive officials Procedure:

The prohibition on midnight appointments only applies to
presidential appointments. It does not apply to
appointments made by local chief executives.
Nevertheless, the Civil Service Commission has the power
to promulgate rules and regulations to professionalize the '
civil service. It may issue rules and regulations prohibiting
Page 254 of 320
• A sesslonin a public place to initiate recall proceeding.
• A resolution adopted by a majority of all the members
of the PRA during the session called for the purpose of
initiating recall proceedings.
• Petition of at least 25% of the total number of
registered voters in tt·.e LGU concerned during the
election in which the local official souoht to be recalled
( ,
\, ...
was elected. -

·----------------···- -----
 A TENEO CENTRAL
BAR OPERATIONS2019
• The written petition for recall should be duly signed
before the election registrar or his represe:ntative and
in the presence of the representative of the petitioner
and the official sought to be recalled.
• It should be signed in e public place.
• Petition should be filed with COMELEC through its
office in the LGU concerned
• Publication of petition for 10-20 days in order to verify
the authenticity and genuineness of the petition and
the required percer.tage of voters (Local Government
Code, sec. 70).
Conduct of Recall Election:
1. The official sought to be recalled are
AUTOMATICALLY considered as duly registered
candidates.
2. The date set for the recall election should not be less
than 30 days after filing of resolution/ petition in the
case of barangay, city or municipal officials and 45
days in the case of provincial officials {Local
Government Code, sec. 71).
Effectivity of Recall
1. Recall will only be effective upon the election and
( 2.
_,:, proclamation of a successor.
2. If the official sought to be recalled receives the highest
number of votes, confidence in him is affirmed and he
shall continue in office (Local Government Code, sec.
72).
Limits on Recall
• Elective local official can be the subject of a recall
election only once during his term of office.
• No recall shall take place within 1 year from the date
of the official's assumption to office or 1 year
immediately preceding a regular local election (Local
GovernmentCode, sec. 74).
r ~·'
The authentication of signatures in a recall pennon is done
during the determination of the names, si1Jnatures and
thumbmarks of petitioners, not during the determination of
the sufficiency of the form and substance of the petition.
(Sy-Alvaradov. Come/ec, G.R. 216457, 2015).
TERM LIMITS
Term of office: 3 years.
General Rule: No local elective official shall serve for more
than 3 consecutive terms in the same position.
Exception: The term of barangay officials and members
of the Sanggunian kabataan shall be for 3 years. (R.A. No.
9146)
'~•... ,' Page 255 of 320
POLITICAL LAW
For the 3-term rule to apply, the local offlcial must
have:
1. fully served the term
2. been elected through a regular election
The following are not considered as interruptions in
term:
1. Voluntary renunciation of a term.
A councilor assuming the office of vice-mayor through
succession is not considered a voluntary renunciation of
his position as councilor. It is clear therefore that voluntary
renunciation of a term does not cancel the renounced term
in the computation of the three term limit; conversely,
involuntary severance from office for any length of time
-, short of the full term provided by law amounts to an
interruption of continuity of service (Montebon v.
COIV,ELEC, G.R. 180444, 2008).
The relinquishment of the office of Punong Barangay
. during the third term, as a consequence of one's
assumption to office as Sangguniang Bayan, is a voluntary
renunciation (Bolos v. COMELEC, G.R. 184082, 2009).
Sandiganbayan preventively suspended the
officer for 90 days in relation with a criminal case
(Aldovino Jr. v. COMELEC, G.R. 184836, 2009).
3. Munic\pality merged with another municipality to
form a new political unit iLeced«, Sr. v. Limena, G.R.
182867, 2008).
When a permanent vacancy occurs in an elective position
and an official assumed office under the rules on
succession under the LGC, his assumption to said office
shall not be considered as one full term (Borja Jr. v.
COMELEC)
An official who was elected for three consecutive terms but
who had to assume the position of vice-mayor on his/her
second term in view of the incumbent's retirement Is not
deemed to have fully served the three consecutive
(Montebon v. COMELEC)
An elective official who has served for three consecutive
terms and who did not seek the elective position for what
could be his fourth term, ';lut later won in a recall election,
had an interruption in the continuity of the official's service.
For, he had become an interim, i.e., from the end of the 3rd
term up to the recall election, a private citizen (Adormeo v.
COMELECand Socrates v. COMELEC)
When an official is defeated in an election protest and said
decision becomes final after said official had served the full
term for said office, then his loss in the election contest
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

does not constitute an interruption since he has managed

to serve the term from start to finish (Ong v, Alegre, Rivera
v. COMELEC)

When a three-term official of a local government unit

(which is later converted into a city on the third term of the
official) said official cannot seek the same office in the first
election as a city considering the area and inhabitants of
the locality are the same and tf:11t the official continued to
hold office until such time as the city elections are held.
The framers of the Constitution intended to avoid the evil
of a single person accumulating excessive power over a
particular territorial jurisdiction as a result of a prolonged
stay in office. (Latasa v. COMELEC)

--- end of topic ---

l
'I: ••

..
I
':.,,._.,

'
,
.,'- .;'

".,.
~-.)
t ..
...
\ ;

Page 256 of 320 ',.;,7'

 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

XII. NATIONAL ECONOMY AND PATRIMONY Three-Fold Goal of the National Economy
1. More equitable distribution of opportunities, income
TOPIC OUTLINE UNDER THE SYLLABUS and wealth;
2. Increase of wealth for the benefit of the people, and
A. Regalian Doctrine 3. Increased productivity (CONST, Art.XII, Sec.1)
B. Nationalist and Citizenship Requirement
REGALIAN DOCTRINE
provisions
C. Exploration, Development, and Utilization of IMPERIUM DOMINIUM
Natural Resources
D. Franchises, Authority, and Certificates for Public Government authority The capacity of the State
possessed by the State to own and acquire
Utilities
which is appropriately property.
E. Acquisition, Ownership and Transfer of Public and
embraced in sovereignty. It refers to lands held by
Private Lands
the govtlrnment in a
F. Practice of Professions proprietary character.
G. Organization and Regulation of Corporations,
Private and Public
What is the Regalian doctrine? (Jura Regalia)
H. Monopc.lies, Restraint of Trade, and Unfair
Universal feudal theory that all lands were held from the
Competition
Crown. All lands not otherwise clearly appearing to be
privately owned are presumed to belong to the State.
(Carino v. Insular Government. GR No. 72, February 23,
1909)

State Owned: (PWEFFOM)

Lands of the fublic domain
-, Waters
Minerals, coals, petroleum, and other mineral oils
All sources of potential gnergy
fisheries
f crests or timber
~Udlite
flora and fauna
Qther natural resources (1987 Constitution, arti. XII, sec.
2)

;
... ,,,
General Rule: All natural resources cannot be
(.

v,....·"'
alienated.

Exception: Agricultural lands

Native Title
refers to pre-conquest rights to lands and domains which,
as far back as memory reaches, have been held under a
claim of private ownership by indigenous cultural
communities and indigenous people, have never been
public lands and are thus indisputably presumed to have
been held that way since before the Spanish conquest.
(IPRA, sec. 3(/)).

1· .' P.P. 310, distributing 670 hectares of CMU's property, to

the indigenous peoples is unconstitutional. The lands by
their character have become inali€0able from the moment
President Garcia dedicated them for CMU's use in
Page 257 of 320
A TENEO CENTRAL
BAR OPERATIONS 2019
scientific and technological research in the field of
agriculture. They have ceased to be alienable public lands.
Besides, when Congress enacted the IPRA or RA 8371 in
1997, it provided in Section 56 that "property rights within
the ancestral domains already existing and/or vested"
upon its effectivity "shail be recognized and respected." In
this case, ownership over the subject lands had been
vested in CMU as early as 1958. Consequently,
transferring the lands in 2003 to the indigenous peoples
around the area is not In accord with the IPRA. (CMU v.
Executive Secretary, G'.R. 184869, 2010).
Limitations on the cf is position of the State of alienable
lands of the public domain
1. Only agricultural lands of the public domain may be
alienated;
2. Only Filipino citizens may acquire lands not more than
12 hectares by purchase, homestead or grant or lease
no more than 500 hectares. Private corporations may
lease not more than 1,000 hectares for 25 years
renewable for another 25 years. (CONST. Art.XII,
Sec.3)
3. The exploration, development and utilization (EDU) of
all natural resources shall be under the full control and
supervision of the State either by directly unde!'l::tking
such EDU or through co-production. joint venture, or
production sharing agreements with qualified persons ...
4. The use and enjoyment of the marine wealth of the
archipelagic waters, territorial sea, and the EEZ shall
be reserved for Filipino citizens
5. Utilization of natural resources in rivers, lakes, bays
and lagoons may be allowed only on a 'small scale' to
Filipino citizens or cooperatives- with priority for
subsistence fishermen and fish workers. (CONST.
Art.XII, Sec. 2)
Exception with respect to rule on EDU
For large-scale EDU of minerals, petroleum and other
mineral oils, the President may enter into agreements with
foreign-owned corporations involving technical or financial
assistance.
25-year Limitation
All agreements with the qualified private sector (i.e Filipino
citizens or corporations or associations at least 60% whose
capital is owned by Filipino citizens) may be for only a
period not exceeding 25 years, renewable for another 25.
Note that the 25-year limit is not applicable to water rights
for irrigation, water supply, flsheries, or industrial uses
other than the development of power.
Page 258 of 320
POLITICAL LAW
NATIONALIST ANO CITIZENSHIP REQUIREMENT
PROVISIONS
Rule on Private Lands
General Rulo: Private lands CAN only be conveyed to:
1. Filipino citizens .
2. Corporations or associatlons incorporated in the
Philippines, at least 60% of whose capital is owned by
Filipino citizens (1987 Constitution, art. XII, sec. 7).
Exceptions:
In intestate succession, where an alien heir of a Filipino is
the transferee of private land. (1987 Constitution, art. XII,
sec. 7).
A natural-born citizen of the Philippines who has lost his
Phiiippine citizenship may be a transferee of private land,
subject to limitation provided by law." Hence, land cen be
used only for residential purposes. In this case, _he only
acquires derivative title. (1987 Constitution, art. XII, sec.
8). However, a former natural born Filipino citizen who
became a citizen of other countries may acquire land for
business and other purposes. (R.A. No. 8179, Sec. 5)
Foreign states may acquire land but only for embassy and
staff residence purposes.
When Filipino citizenship Required
Filipino citizenship is only required at the time the land is
acquired. Thus, loss of citizenship after acquiring the
land does not deprive: ownership.
Scope of Restrir.tlon
Restriction against aliens only applies to acquisition of
ownership. Therefore:
1. Aliens may be lessees or· usufructuaries of private
lands
2. Aliens may be mortgagees of land, as long as they do
not obtain possession thereof and do not bid in the
foreclosure sale.
3. Land tenure is not indispensable to the free exercise of
religious profession and worship. A .religious
corporation controlled by non-Filipinos cannot acquire
and own land, even for religious purposes.
Instance when couple Alien-Filipino buys land
When a couple buys land, where one is an alien and one
is Filipino, the property does not become part of the
conjugal property. It will only be owned by the Filipino
spouse (Cheeseman v. /AC, G.R. 74833, 1991). ·.,.• ,..)
An alien cannot challenge any act of administration,
enjoyment, or alienation of his/her Filipino spouse over a
piece of land his/her spouse acquired. (Matthews v. Taylor , . ..,
Spouses, G.R. 154584, 2009).
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Court. It reasoned that the provision which mandates

Remedies to Recover Private Lands from Disqualified preference to Filipinos is only enforceable with respect to
Aliens: ERR . "grant of rights, privileges and concessions covering
1. gscheat proceedings national economy and patrimony," and not all aspects of
2. Action for Reversion under the Public Land Act trade and commerce. (Tanada v. Angara, G.R. 118295,
3. An action by the former Filipino owner to B.ecover the 1997).
land ·
The Retail Trade Liberalization Act of 2000 (RA 8762) is
1foreign
Although the sale of a lot to an alien violated the constitutional. It allowed nationals to engage in
constitutional prohibition on ailens acquiring land, the retail trade business in the Philippines. It also allowed
acquisition by succession by Filipino citizens qualified to natural-born Filipino citizens, who had lost their citizenship
acquire lands, can no longer be impugned on the basis of and now reside in the Philippines, to engage in the retail
· the invalidity of the initial transfer. The flaw in the original trade business with the same rights as Filipino citizens.
transaction is considered cured and the title of the The mandate for the State to develop a "selt-reltant and
transferee is deemed valid considering that the objective independent national economy effectively controlled by
of the constitutional proscription against alien ownership of , Filipinos" is not self-executory. The control and regulation
lands, that is to keep our lands in Filipino hands, has been of trade in the interest of the public welfare is of course an
achieved. (Republic v. Register of Deeds, G.R. 158230, exercise of the police power of the State. A parson's right
2008). · to property, whether he Is a Filipino citizen or foreign
national, cannot be taken from him without due process of
Considering that the rights and liabilities of the parties law. The Court is not convinced that the implementation of
under the Contract to Siell is covered by the Condominium RA 8762 would eventually lead to alien control of the retail
Act wherein petitioner as unit owner was simply a member trade business. Petitioners have not mustered any
of the Condominium Corporation and the land remained concrete and strong argument to support its thesis. The
owned by respondent, then the constitutional proscription law itself has provided strict safeguards on foreign
against aliens owning real property does not apply to the participation in that business. (Espina v. Zamora, G:R.
present case. There being no circumvention of the 143855, 2010).
constitutional prohibition, the Court's pronouncements on
the invalidity of the Contract of Sale should be set aside
CITIZENSHIP AND/OR EQUITY
(Hulst v. PR Builders, G.R. 156364, 2008). ACTIVITY
REQUIREMENTS
National Economy and Patrimony Investments Exploitation of 1. Filipino citizens
Powers of Cong, ess: natural 2. Domestic Corporations (60%
1. Reserve to Filipino citizens or to corporations or resources Filipino owned)
associations at least 60% of whose capital is owned by
r :.
~.. . such citizens, or such higher percentage as Congress
Operation of
1. Filipino cltizens
may prescribe, certain areas of Investment. This may 2. Domestic Corporations (60%
Public Utilities
be done when the national interest dictates. Filipino owned)
2. Enact measures to .encourage the formation and '
1. Filipino citizens
"...:. ..' operation of enterprises whose capital is wholly owned
2. Domestic Corporations (60%
by Filipinos (1987 Constitution, art. XII, sec. 10).
Acquisition of Filipino owned)
alienable lands 3. Former natural-born citizens of RP
In. the grant of rights, privileges and concessions ccvering
of the public (as transferees with certain legal
the national economy and patrimony, the State shall give
domain restrictions)
preference to qualified Filipinos. This provisicn is self
executory. The Supreme Court banked on this to uphold 4. Alien heirs (as transferees in case
the decision of GSIS to grant the Manila Hotel project to a of intestate succession)
Filipino corporation, even though a Malaysian firm turned 1. Filipino citizens only (natural
out to be the highest bidder. (Manila Prince Hotel v. GSIS, Practice of ALL persons)
.
'.._.. ' G.R. 122156, 1997). professions 2. Congress may, by law, otherwise
prescribe
However, the GA TI Treaty (which placed aliens on the
same footing as. Filipinos) was upheld by the Supreme
Page 259 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
1. Filipino citizens
Mass media 2. Domestic Corporations (100%
Filipino owned)
1. Filipino citizens
Advertising 2. Domestic Corporations (70%
Filipino owned)
1 . Filipino citizens
2. Domestic Corporations (60%
Filipino owned)
Educational Exception: Schools established t:-.v
Institution religious groups and mission boards.
Congress may, by law, increase
Filipino requirements for All
educational institutions.
Congress may, by law, reserve to
Other economic Filipino citizens or to Domestic
activities Corporations (60% Filipino owned or
higher) certain investment areas.
~-~~~~--.L..---~~~~~~~--~·~
Tests used to determine Nationality of a corporation:
1. Voting Control Test - the ownership threshold must
be complied by the voting shares. ·
2. Beneficial Ownership Test- the ownership threshold
must also apply to the outstanding capital. And "capltal"
should be interpreted to include only voting shares.
Hence, in the computation for "capital," only common
stock will be considered and not preferred shares.
(Gamboa, et.e: v. Finance Secretary, G.R. 176579,
2011 ).
'Capital'
, The term "capital" in Section II, Article XII of the 1987
Constitution refers only to shares of stock entitled to vote
in the election of directors, and thus in the present case
only to common shares, and not to the total outstanding
capital stock (common and non-voting shares). Pursuant
to the Gamboa directive, Section 2 of SEC-MC No. 8
provides:
"Section 2. All categories shall, at all times, observe the
constitutional or statutory ownership requirement. For .
purposes of determining compliance therewith, the
required percentage of Filipino ownership shall be applied
to BOTH (a) the total number of outstanding shares of
stock entitled to vote in the election of directors; and, {b)
the total number of outstanding shares of stock, whother
or not entitled to vote." (Roy Ill v. Herbosa, G.R. No.
204276, 2016)
Page 260 of 320
POLITICAi. LAW
EXPLORATION. DEVELOPMENT AND UTILIZATION
OF NATURAL RESOURCES
. 1. Shall be under the full control and supervision of
the State
MEANS:
The state may directly undertake such activities.
The state may enter into co-production, joint
venture or production-sharing arrangements with
Filipino citizens or corporations or associatlons at
least 60% of whose capital is owned by such
citizens.
LIMITATIONS:
Period: It should not exceed 25 years, renewable for no
more than 25 years
' Under terms and conditions as may be provided by law
2. In case of water rights, water supply, fisheries
industrial uses other than the development of wate
power.·
3. The beneficial usemay be the measure and limit of the
grant.
Under the 1 !387 Constitution, the state must always be
involved in the control and supervision of the exploration,
development and utilization of inalienable natural
resources, even if the person engaged is Filipino.
EO 211 of President Aquino authorized the Secretary of
Natural Resources to authorize such EDU agreements
entered into under. the 1987 Constitution.
Small-scale utilization of natural resources
1. Conqress may, by law, authorize small-scale utilization
; ;
of natural resources by Filipino citizens.
2. Congressmay also authorize cooperative fish farming
with priority given to subsistence fishermen and fish ...
.:r;
' .
workers in the rivers, lakes, bays and lagoons. ' .
l .:
Large-scale exploration, development, and utilization
of minerals, petroleum, and other mineral oils
.1. The President may enter into agreements withforelqn
owned corporations involving technical or financial
assistance for large-scale exploration, etc. of minerals,
petroleum, and other mineral oils. These agreements
should be in accordance with the general terms and.
conditions provided by law. .
2. They should be based on the real contributions to
economic growth and general welfare of the country. ..,._.,,
3. In the agreements, the State should promote the
development and use of local scientific and technical -:.,,,y
resources.
4. The President should notify Congress of every contract ·:... ..
under this provision within 30 days from its execution.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

5. Management and service contracts are not allowed
under this rule.
Under the 1987 Constitution, the Philippine Government
may still enter into service contracts, but only for financial
and technical agreements with respect to large scale
development of minerals, petroleum, and other mineral
resources.
in this case through the DENR, to ensure that the terms
and conditions of existing laws, rules and regulations,
and the IFMA itself are strictly and faithfully complied
with. (Ropub/ic v. Pagadlan City·Timber, G.R. 159308,
2008).
FRANCHISES, AUTHORITY AND CERTIFICATES OF
PUBLIC UTILITIES

Management pcwers may be given to a completely foreign Power to Grant:

corporation with whom the State enters a service contract. 1. Congress may directly grant a legislative franchise.
But, such power will only be to the extent necessary to 2. The power to grant franchises may be delegated to
carry out the technical and financial agreement. appropriate regulatory agencies and/ or LGUs.

A foreign corporation may enter into financial and technical Public Utility - The undertaking must involve dealing
assistance ar:;reement with the government involving the directly with the public.
management and operation of a mining enterprise. Section
2, Article XII of the Constitution allows other forms of
Primary Franchise Secondary Franchise
assistance or activities having to do with technical or
financial assistance and it will not prohibit the involvement Invests a body of men I The privilege to operate as
of foreign corporations in the management of mining with corporate existence a public utility after the
ventures. The policy recogn!zes that foreign corporations corporation has already
who will invest in mining will require that they be given a come into being
say in the management to ensure its success. The
Constitutional Commission understood technical or
The Constitution does not prohibit the mere formation of a
financial agreements as interchangeable with service
public utility corporation without the required formation of
contracts. (La Bugat-B'faan Tribal Association, Inc. v.
Filipino capital. What it does prohibit is the granting of a
Ramos, G.R. 127882, 2004, affirmed in a MR in 2005).
franchise or other form of authorization for the operation of
Also, the grant of such service contracts must be subject
a public utility to a corporation already in existence but
without the requisite proportion of Filipino capital (People
to the following safeguards: ·
of the Philippines v. Quasha, G.R. L-6055, 1953}.
1. it must be in accordance with a general law
., 2. the President must be the signatory for the government
·!_- 3. the President must report the executed agreement to Operation Ownership
Congress within 30 days. (La Bugal B'laan v. Ramos, of a Public Utility of Public Utility
G.R. No. 127882, 2004, affirmed in a MR in 2005).
May exist independently Relation in law by virtue of
Protection of Marine Wealth and separately from the which a thing pertaining to
1. The State shall protect its marine wealth in its ownership of the one person is completely
·........ .;' archipelagic waters, territorial sea and EEZ. facilities. subjected to his will in
2. The State shall reserve its use and enjoyment everything not prohibited by
exclusively to Filipino citizens. · One can own said law or the concurrence with
3. License Agreement - "a privilege granted by the State facilities without the rights of another.
to a person to utilize forest resources within any forest · operating them as a
land with the right of possession and occupation public utility, or The exercise of the rights
thereof to .the exclusion of others, except the conversely, one may encompassed in ownership
government, but with the corresponding obligation to operate a public utility is limited b, law so that a
develop, protect and rehabilitate the same in without owning the property cannot be operated
accordance wilh the terms and conditions set forth in facilities used to serve and used to serve the public
said agreement" (PD 705, sec. 3}. the public. as a public utility unless the
4. Private rights must yield when they come in conflict operator has a franchise.
with this public policy and common interest. They must
give way to the police or regulatory power of the State,
Page 261 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019
A Build-Operate-Transfer grantee is NOT a public 1..itility.
The grantee merely constructs the utility, and it leases the
same to the government. It is the government which ,.
operates the public utility (operation separate from
ownership).
To Whom Granted:
Filipino citizens or
Corporations or associations incorporated in the
Philippines and at least 60% of the capital is owned by
Filipino citizens
A foreigner or foreign company may own assets of a public ·
utility corporation. What is not allowed is the grant of the
franchise to non-citizens of the Philippines.
Rule on Public Utilitle;;
Refers to a utility corporation which renders service to the
general public for compensation
Franchise, cartlficate or any other form of authorization for
the operation of :1 public utility may be issued or granted
only to Filipino citizens or entities with 60% capital owned
by such citizens. Thus, foreign corporations and foreigners
MAY own the facilities. (Tatad v. Garcia, GR No 114222,
April 6, 1995)
Terms and Conditions:
Duration: not more than 50 years.
Franchise is NOT exclusive in character.
Franchise is granted under the condition that it is subject
to amendment, alteration, or repeal by Congress when the
common good so requires.
Participation of Foreign lnvesfors:
1. Shall be limited to their proportionate share in its
capital.
2. Foreigners cannot be appointed as the executive and
managing officers because these positions are
reserved for Filipino citizens (1987 Constitution, art.
XII, sec. 11).
Administrative agencies may be empowered by the
Legislature by means of a law to grant franchises or similar
authorizations. In this case, the Court ruled that the Toll
Regulatory Board (TRB) is empowered to grant a franchise
for toll road projects. PD 1112 provided further that the
TRB has the power to amend or modify a Toll Operation
Certificate that it issued when public Interest so requires.
Accordingly, there is nothing infirm, much less
questionable, about the provision in the MNTC (Manila
North Tollways Corp.) Supplemental Toll Operation
Agreement allowing the substitution of MNTC in case it
defaults in its loans. While the TRB Is vested by law with
the power to extend the admin'stratlve franchise or
Page 262 of 320
POLITICAL LAW
authority that it granted, it cannot do so for an
accumulated period exceeding 50 years. Otherwise, it
would violate ihe proscription under Article Xii, Section 11
of the 1987 Constitution, which provides that no public
utility franchise shall be for a longer period than 50 years.
(Francisco v. Toll Regulatory Board, G.R. 166910, 2010).
While the Republic of the Philippines appointed petitioner
as the exclusive party to conduct petroleum operations in
. the Camago-Malampaya area under the State's full control
and supervision, it does not follow that petitioner has
become the State's "aqent" within the meanir,g of the law.
An agent's ultimate undertaking is to execute juridical acts
that would create, modify or extinguish relations between
his principal and third persons. It is this power to affect the
principal's contractual relations with third persons that
differentiates the agent from a service contractor. (Shell
Philippines Exploration 8. V. v. Efren Jatos, et al., G.R.
179918, 2010).
PJIGCOR is no longer exempt from corporate income tax.
Under Section 11, Article XII of the Constitution,
PAGCOR's franchise is subject to amendment, alteration
or repeal by Congress. A franchise partakes the nature of
a grant, which is beyond the purview of the non-impairment
clause of the Constitution. Also, Article XII, Section 11, of
the 1987 Constitution, is explicit that no franchise for the
operation of a public utility shall be granted except under
the condition that such privilege shall be subject to
amendment, alteration or repeal by Congress as and when
the common good so requires (PAGCOR v. BIR, G.R.
172087, 2011).
Franchises can be granted to companies whose capital is
at least 60% Filipino-owned. However, "capital" here [ ...
l. ,,,,>
should be interpreted to include only voting shares. Hence,
in the computation for "capital," only common stock will be l
i •
considered and not preferred shares. ( Gamboa, et al. v. ': ...:..·
Finance Secretary, G.R. 176579, 2011).
SEC Memorandum Circular No. 8, s. 2013, was issued and { ..:.
provides that: all covered corporations shall, at all times,
observe the constitutional or statutory ownership 1 ,.
•.,;.
requirement in that "the required percentage of Filipino
ownership shall be applied to BOTH (a) the total number
of outstanding shares of stock entitled to vote in the
election of directors; AND (b) the total number of
outstanding shares of stock, whether or not entitled to vote
in the election of directors." (Roy Ill v. Herbosa, G.R. No.
204276, 2016)
Police Power and Expropriation over Public Utilities i......
<
'.
 ·:
ATENEO CENTRAL
BAR OPERATIONS 2019
1. Police Power - When public Interest requires, under
reasonable terms, the state may temporarily take over
the operation of any privately owned public utility or
those with pubtic interest (1987 Constitution, art. XII,
sec. 17).
• The nature and extent of the emergency is the
measure of the duration and the terms of the
takeover.
• Just compensation is not required.
• This power is activated only when Congress declares
a state of national emergency.
• 'Businesses affected with public interest' includes
businesses which are quite similar public utilities,
such as those having mass-based consumers.
2. Expropriation - The State may, upon payment of just
compensation, transfer to public ownership utilities and
private enterprises to be operated by the government,
in the interest of national welfare or defense. (1987
Constitution, art. XII, sec. 18). · Private Land:
( ACQUISITION. OWNERSHIP AND TRANSFER OF
PUBLIC AND PRIVATE L~NO~
Lands of the public domain are classified into: MAN-F
1. ~riculturnl
2. forest or timber
3. .Mineral lands
4. National Parks (1987 Constitution, art. XJI, sec. 3).
Rule on Reclassification or Conversion of Lands
·! ': Reclassification or conversion of lands require the positive
....~
act of government, mare issuance of title is not enough. An
.
·:•.
'
1
affirmative act from the executive or legislative is
necessary to reclassify property of public dominion. (Laurel
v. Garcia, GR No. 92013, July 25, 1990)
Reclassification:
1. Public (mineral and agricultural) lands - exclusive
r. .'! prerogative of the executive department. But this is
only a delegated power.
2. Forest and national parks - Congress has the sole
power to reclassify.
Classification is descriptive of the legal nature of the land
and NOT what it looks !ike. Thus, the fact that forest land
is denuded does not mean it is no longer forest land
(Secretary of DENR v. Yap, G.R. 167707, 2008).
·•
.. I
i Only the President, upon recommendation of the DENR
\;. ,·
secretary, may now classify lands of public domain. This
Page 263 of 320
..
POLITICAL LAW
prerogative has been delegated to it by Congress under
·,CA 141. (Directorof lands v. Court of Appeals,G.R. 58867,
1984).
Clas~ification should be categorical; a lard cannot have a
mixed classification. For example: an owner of an
agricultural land in which minerals are discovered has no
right to utilize such minerals. The State may discontinue
his/her ownership after just cornpensa'Ion in order to
extract such minerals. (Republic v. Court of Appeals, G.R.
L-43938, 1988).
Reclassification from forest reserves into non-forest
reserves - now exclusively a DENR prerogative. There is
no need to wait for Congressional concurrence. (Apex
Mining v. SoutheastMindanao Gold, G.R. 152613/152628,
2009).
Limitations Regarding Allenabie Lands of Public
Dominion
Means by which Land of Public Dominion Becomes
1. Acquired from the Government by purchase or grant.
2. Uninterrupted possession by the occupant and his
predecessors-in-interest since time immemorial.
3. Open, exclusive, and undisputed possession of
ALIENABLE (agricultural) public land for a period of 30
years.
a. Upon completion of the requisite period, the land
becomes private property ipso jure without need of
any judicial or other sanction.
b. Possession since 1time immemorial leads to the
presumption that the land was never part of public
domain.
c. In computing 30 years, start from when the land was
converted to alienable land, not when it was still
forest land
d. Presumption is always that land belongs to the
State.
NHA is an "end-user agency" authorized by law to
administer and dispose of reclaimed lands. The moment
titles over reclaimed lands based on the special patents
are transferred to the NHA by the Register of Deeds, they
are automatically converted to patrimonial properties of the
State which can be sold to Filipino citizens and private
corporations, 60% of which are owned by Filipinos.
( Chavez v. NHA, G.R. 164527, 20Cl7).
Reclaimed foreshore and submerged lands are lands of
public domain, and can only be alienated as private
property if it is classified by competent authority as
alienable. (Republic v. Enciso, G.R. 160145, 2005).
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

2. The State may either regulate or prohibit monopolies,

Perfected mining claims under the Old Mining Law do not
entitle claimant to private ownership (Director of Lands v.
Kafahi Investments fnc., G.R. 48066, 1989). · trade and unfair competition. (1987 Constitution, art.
Protection of Indigenous Cultural Communities:
1. The State protects the rights of indigenous cultural
communities to their ancestral land subject to:
a. Constitutional provisions
b. Subject to national development policies and
programs
2. In detennining ownership and extent of ancestral
domain, Congress may use customary laws on
property rights and relations.
Ancestral Domain - It refers to lands which are
considered as pertaining to a cultural region. This includes
lands not yet occupied, such as deep forests.
when public interest so requires.
3. \Nhat are prohibited are combinations in restraint of
XII, sec. '19) · ,
• Restrictions upon trade may be upheld when not
contrary to public welfare and not greater than is
necessary to afford a fair and reasonable protection to
. the party in whose favor it is imposed
• Even contracts which prohibit an employee from
engading in business in competition with the employer
are not necessarily void for being in restraint of trade.
In sum, contracts requiring exclusivity are not per se
void. Each contract must be viewed vis-a-vis all the
circumstances surrounding such agreement in
deciding whether a restrictive practice should be·
prohibited as imposing an unreasonable restraint on ·
competition (Avon v. Luna, G.R. No. 15.3674, 2006).

Private corporations ---- end or topic ---

1. They can only hold alienable 1:ands of the public domain
BY LEASE.
2. Period: Cannot exceed 25 years, renewable for not
more than 25 years
3. Area: Lease cannot exceed 1,000 hectares.
Note: A corporation sote is treated llke other private
corporations for the purpose of acquiring public lands.

Filipino citizens
Can lease up to 500 hectares
Can ACQUIRE not more than 12 hectares by purchase,
homestead or grant

PRACTICE OF PROFESSION
The practice of all profession in the Philippines shall be ,'
limited to Filipino citizens save in cases prescribed by law.
{ 1987 Constitution, art. XII, sec. 14).

ORGANIZATION AND REGULATION OF

CORPORATIONS. PRIVATE AND PUBLIC

1. Private Corporations - Congress can only provide for f-, ...;

the formation ot private corporations through a
GENERAL corporation law. {
2. GOCCs - May be created through SPECIAL
CHARTERS or a GENERAL corporation law. (1987
Constitution. art. XII, sec. 16) .

.MQMQPOLIES, RESTRAINT OF TRADE AND UNl'AIR

COMPETITION ~' .. ';

1. The Constitution does NOT prohibit the existence of

' ( t
, ..~
monopolies.
Page 264 of 320 ·......

·----------···· ... -
 ATENEO CENTRAL·
BAR OPERATIONS20t9 POLITICAL LAW

CONCEPT OF SOCIAL JUSTICE

XIII. SOCIAL JUSTICE AND HUMAN RIGHTS
TOPIC OUTLltJE UNDER THE SYLLABUS
A. Concept
B. Economic, Social, and Cultural Rights
C. Commission on Human Rights
Social Justice
Embodiment of the principle that those who have less in
life should have more in law.
Social Justice is neither communism nor despotism, nor
atomism, nor anarchy, but the humanization of laws and
the equalization of social and economic forces by the State
so that justice in its rational and objectively secular
conception may at least be approximated ( Ca,alang v.
Williams, G.R. 47800, 1940).

-, These provisions have to be implemented by

Congress.

Nature of Policy
The policy of social Justice is not intended to countenance
wrongdoing simply because it is committed by the
underprivileged. At best it may mitigate the penalty but it
certainly will not condone the offense. Compassion for the
poor is an imperative of every humane society but only
(
when the recipient Is not a rascal claiming an undeserved
;
privilege. Social justice cannot be permitted to be refuge of
scoundrels any more than can equity be an impediment to
the punishment of the guilty. (International Schoo/ Manila
v. /SAE, G.R. No. 167286, 2014) .

Principal Activities
1. Creation of more economic oppcrtuntties and more
wealth
2. Closer regulation of the acquisition, ownership, use and
disposition of property in order to achieve a more
equitable distribution of wealth and political power.
3. Creation of economic opportunities based on freedom
of initiative and self-reliance.

ECONOMIC, SOCIAL. CULTURAL RIGHTS

Economic, social and cultural rights include the rights to

adequate food, to adequate housing, to education, to
health, lo social security, to take part in cultural life, to
water and sanitation, and to work. (United Nations Human
,,
v Rights, Office of the High ,'.::ommissioner}
; ·~
'· . Labor
Section 3 of Article XIII elaborates on the provision in
Article II by specifying who are protected by the
Constitution, what rights are guaranteed, and what positive
"·.... '
;) measures the state should take in order to enhance the
welfare of labor.
' .
-\..,

· .... ., Page 265 of 320

----------------~------·----- _
..... .. __ -- ..... ------ .. ----- -

ATENEO CENTRAL
BAR OPERATIONS 2019
Notes:
• The right to organize is giver. to all kinds of workers
both in the private and public sectors.
• The workers have a right to hold peacef ii concerted
activities, except the right to strike, which !S subject to
limitation by law. e.g., policemen, firemen, and public
school teachers are prohibited from striking.
• The workers have the right to participate on matters
affecting their rights and berlefits, as may beprovided
bylaw.
• Participation can be through:
1. Collective bargaining agreements
2. Grievance rnachherles
3. Voluntary modes of settling disputes
4. Conciliation proceedings mediated by the .
government.
NAMA-MCCH-NFL had not registered as a labor
organization. Not being a legitimate labor organization,
NAMA-MCCH-NFL is not entitled to those rights granted to
a legitimate labor organization under the Labor Code,
specifically: 1) To act as the representative of its members
for the purpose of collecnve bargaining; 2) To be certified
as the exclusive iP-presentative of all the employees in an
appropriate collective bargaining unit for purposes of
collective bargaining ( Visayas Community Medical Center
v. Erma Yballe, et al., G.R. 196156, 2014).
Agrarian Reform
Must aim at:
1. Efficient production. .
2. Equitable distribution of land which recognizes the right
of farmers and regular farm workers who are landless
to own the land they till.
3. A just share of other or seasonal farm workers in the
fruits of the land.
Note: The CARL is an exercise of police power and power ,
of eminent domain. To the extent that the CARL prescribes
retention limits for landowners, there is an exercise of
police power. Whore it becomes necessary to deprive
owners of their land in excess of the maximum allowed,
there is compensable taking and therefore the exercise of
eminent domain. Just compensation involves not just value
of loss to the owner, but prompt payment. Ownership is
transferred upon full payment, and such payment need not
be in cash.
Scope of Agrarian Reform
Extends not only to private agricultural lands, but also to
"other natural resources," even including the usa and
Page 266 of 320
·········· . -------------
· POLITICAL LAW
enjoyment of "communal marine and fishing resources"
and "offshore fishing grounds."
Agricultural land held by the church in trust may be subject
to land reform. The land reform law does not make a ·
distinction between the various forms of ownership,
whether in trust or absolute title.
Urban or rural poor dwellers cannot be evicted, except
according to law.
Who can be evicted: DIC
1. Persons occupying Qangerous areas
2. When government Infrastructure projects with
allocated funding are going to be implemented
3. When there is .~ourt order for eviction and demolition
The NHA has authority to order relocation of persons and
demolition of their property as part of its mandate to
improve blighted areas.
Lands acquired by the NHA for resettlement purposes or
housing development are exempt from the coverage of
agrarian reform laws. Such acquisition converts the land
by operation of law from agricultural to residential. The
NHA is not bound to pay disturbance compensation to any
tenant in possession of the purchased land (National
Housing Authority v. Department of Agrarian Reform
Adjudication Board, et al., G.R. 175200, 2010).
Urban Land Reform and Housing
The State shall, by law, and for the common good,
undertake, in cooperation with the public sector, a
continuing program of urban land reform and housing
which will make available at affordable cost decent
r·..
\.._
housing and basic services to underpiivileged and
homeless citizens in urban centers and resettlements
areas. It shall also promote adequate employment
opportunities to such citizens. In the implementation of
such program the State shall respect the rights of small
property owners (Art. XIII, Sec. 9, Phil Const.)
Urban or rural poor dwellers shall not be evicted nor their
dwellings demolished, except in accordance with law and
in a just and humane manner.
No resettlement of urban or rural dwellers shall be
undertaken without adequate consultation with them and
the communities where they are to be relocated. (Art. XIII,
Sec. 10, Phil Const.)
'•,
i
.,..,
 ATENEO CENTRAL
BAR OPERATIONS 2019
Eviction and demolition "in accordance with law and in a
justand humane manner" does not mean that the validity
or legality of the demolition or eviction is hinged on the
existence of a resettlement area designated or earmarked
by the government." Rather, it means that "the person to
be evicted be accorded due process or an opportunity to
controvert the allegation that his or her occupation or
possession of the property involved ls unlawful or against
the will of the landowner; that should the illegal or
unlawful occupation be proven, the occupant be
sufficiently notified before actual eviction or demolition is
done; and there be no loss of lives, physical injuries or
unnecessary loss of or damage to properties (People v.
Leachon, G.R. Nos. 108725-726, 1998).
Health
The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to
make essential goods, health and other social services
available to all the people at affordable cost. There shall
be priority for the needs of the underprivileged sick,
elderly, disabled, women, and children. The State shall
(. endeavor to provide free medical care to paupers. (Art.
;
XIII, Sec. 11, _Phil Const.)
In the article, there are two principles premised on the
understanding that the high level of health of the people
and of the country can be attained only through a
combination of social, economic, political, and cultural
conditions. Integration connotes a unified health delivery
system, a combination of private and public sectors, and
a blend of western medicine and traditional health care
modalities. Comprehensiveness includes health
promotion, disease prevention, education, and planning.
And all of these are a recognition of the people's right to.
•<:> health. (Bernas, Comprehensive Reviewer, 2011) ·
Women
25
Note: The term of office, other qualifications, and
disabilities shall be provided by law.
26
Notes:
1. Violations may be committed by public officers or
by clvilians or rebels.
2. CHR cannot investigate violations of social rights.
3. CHR has NO adjudicatory powers over cases
. involving human rights violations.
4. They cannot investigate cases where no rights
are violated. e.g., There is no right to occupy
government land (squat). Therefore, eviction
therefrom ts NOT a human rights violation.
Page 267 of 320
POLITICAL LAW
The State shall protect working women by providing safe
and healthful working conditions, taking into account their
maternal functions, and such facilities and opportunities
that will enhance their welfare and enable them to realize
their full potential in the service of the nation (Art. XIII,
Sec. 14, Phil Const.)
COMMISSION ON HUMAN RIGHTS
Composition: (5)
1. Chairman and
2. 4 members
Qualifications:25
Natural-born citizens of the Philippines
Majority of the Commission must be members of the
Philippine bar
The appointment of the CHR members is not subject to CA
confirmation; and the CHR is not of the same level as the
COMELEC, CSC, or COA.
Powers: (IAC-PE2RM-IRAO)
1. !nvestigate all forms of human rights violations
involving civil or political rights, and recommend.26
' 2. Adopt operational guidelines and rules of procedure.
3. Cite for g,ontempt for violations of its rules, in
c,-;cordance with the Rules of Court.
4. frovide appropriate legal measures for the protection
of the human rights of all persons, within the
Philippines, as well as Filipinos residing abroad, and
provide for preventive measures and legal aid services
to the underprivileged whose human rights have been
violated or need protection.27
5. .sxercise visitorial powers over jails, prisons and other
detention facilities.
6. !;.stablish continuing programs for research, education
and information in order to enhance respect for the
primacy of human rights.
27
Notes:
• The CHR can initiate court proceedings on behalf of
victims of human rights violations.
• The CHR can recommend the prosecution of human
rights violators, but it cannot itself prosecute these
cases.
. • The CHR cannot issue restraining orders or
injunctions against alleged human rights violators.
These must be obtained from the regular courts.
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

7. .Becommend to congress effective measures to

promote human rig:its and to provide compensation to
victims of human rights violations or their families.
8. .Monitor compliance by the government with
international treaty obligations on human rights.
9. Grant Immunity from prosecution to any person whose
testimony or whose possession of documents or other
evidence is necessary or convenient to determine the
truth in any CHR investigation.
10. Request assistance from any department, bureau,
office, or agency in the performance of its functions.
11. ~pi:,oint its officers and employers in accordance with
law.

----·.end of topic----

'

J ,
'_)

I
l
"·· ,.·-

r~
i:..;;:
' ·-·

r:· ;\
;'~_;..i

r:
•! __ .1

Page 268 of 320

 ATENEO CENTRAL
BAR OPERATIONS 2019
XIV. EDUCATION, SCIENCE, TECHNOLOGY,
ARTS, CULTURE AND SPORTS
TOPIC OUTLINE UNDER THE SYLLABUS
A. Academic Freedom
Right to Education
The State shall protect and promote the right of all citizens
to quality education at all levels, and shall take appropriate
steps to make such education accessible to all. (CONST.
Art.XIV, Sec.1)
Duties of the State relative to right to Edur.ation
The State shall:
1. Establish, maintain, and support a complete,
adequate, and integrated system of education relevant
to the needs of the people and society;
2. Establish and maintain, a system of free public
education in the elementary and high school levels.
Without limiting the natural right-, of parents to rear
their children, elementary education is compulsory for
all children of school age;
3. Establish and maintain a system of scholarship grants,
student loan programs, subsidies, and other incentives
which shall be available to deserving students in both
public and private schools, especially to the under-
privileged; · 4. Right to adduce evidence in his behalf; and
4. Enccurage non-formal, informal, and indigenous
learning systems, · as well as self-learning,
independent, and out-of- school study programs
particularly those that respond to community needs;
and
5. Provide adult citizens, the disabled, and out-of-school
youth with training in civics, vocational efficiency, and
other skills. (CONST. Art.XIV, Sec.2)
Academic Freedom
Constitutional Provision: Academic freedom shall be
enjoyed in all institutions of higher learning.
' l
,· Freedoms of a University
r;. .~ From the standpoint of the institution: to provide that·
atmosphere which is most conducive to speculation,
experimentation, and creation. The four essential
freedoms of a university are:
a. Who may teach
; - b. What may be taught
.........,; c. How it shall teach
d. Who may be admitted to study [Garcia v, Faculty
Admission Committee, 68 SCRA 277 (1975) citing J.
Frankfurter, concurring in Sweezy v. New Hampshire,
354 us 232 (1937)]
Page 269 of 320
POLITICAL LAW
Right of School to Decide for Itself
Institutional academic freedom inc'udss the right of the
school or college to decide fo,· itself, Its aims and
objectives, and how best to attain them free from outside
coercior. or interference save possibly when the overriding
public interest calls for some restraint
i
Right to Discipline Students
The right to discipline the student likewise finds basis in the
freedom "what to teach." Indeed, while it is categorically
stated under the Education Act of 1982 that students have
a right "to freely choose their field of study, subject to
existing curricula and to continue their course therein up to
graduation." such right is subject to the established
academic and disciplinary standards laid down by the
academic institution. [DLSU Inc., v, CA, G.R. No. 127980,
December 19, 2007)
Requisites of Due Process for Students before
Imposition of Disciplinary Sanctions
1. Must be informed in writing of the nature and cause of
the accusation against him;
2. Right to answer charges 2gainst him, with the
assistance of counsel, if desired;
3. Informed of the evidence against him;
5. Evidence must be duly considered by the investigating
committee or official designated by the school to hear
and decide the case (Ateneo de Manila University v.
Capulong, GR No. 99327, May 27, 1993)
Faculty members have:
1. Full 'freedom In research and In the publication of the
results, subject to the adequate performance of their
other academic duties.
2. Freedom in the classroom in discussing their subjects,
' but they should be careful not to introduce into their
teaching controversial matter which has no relation to
t~eir subjects.
3. Freedom from institutional censorship or discipline,
when faculty members speak or write in their capacity
as citizens.
General Rule: Students have the right to enjoy in school
the guarantees of the Bill of Rights.
Limitations:
1. Dominant police power of the State
2. Social interest of the community
Budgetary Priority -
Education must be assigned the highest budgetary priority.
ATENEO CENTRAL
BAR OPERATIONS :?019 POLITICAL LAW

XV.FAMILY
Integrated System of Education
1. Free movement from one school to another; or public
TOPIC OUTLINE UNDER THE SYLLABUS
to private and back. So this means there Is the same
A. Rights
program.
2. Free public education in elemontary and HS levels. The State recognizes the Filipino family as the foundation
c. Elementary education is compulsory of the nation. Accordingly, it shall strengthen its solidarity
d. But it cannot be subject to penal sanction; It is a and actively promote its total development (CONST. Art.
moral, not legal compulsion. XV, Sec.1)

Free education: Rights of the Family

a. Elementary
b. High School
All educational institutions must include study of -.
Constitution in its curriculum.
General Rule: FILIPINIZATION -
Educational schools must be owned solely by citizens of
Philippines or corporations with at least 60% Filipino
capital, subject to change by Congress.
Exception: Those established by religious groups and
mission boards.
1. Control and administration vested in Philippine
citizens.
2. No school established exclusively for aliens and aliens
cannot be more than 1/3 of enrollment in any school.
3 Exception: For schools for foreign diplomats and their
dependents, and other temporary foreign residents.
The stet« shall defend
The right of spouses to found a family in accordance with
their religious convictions and the demands of
responsible parenthood; .
The right of r.hildren to assistance, including proper care
and nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation, and other
conditions prejudicial to their development;
The right of the family to a family living wage and income;
and
The right of families or family associations to participate in
the planning and implementation of policies And
programs that affect them. (CONST. Art. XV. Sec. 3)
I,
------ end of topic _:_ _

Religion may be taught in public schools subject to the

following requisites:
1. Express written option by parents and guardians;
2. Taught within regular class hours: · (
3. Instructors are designated and approved by the
proper religious authorities; and
4. Without additional cost to the government.

Historic Sites
The Court held that there was no violation of the I
\. .
'

Constitution when DMIC was allowed to construct a

condominium at the back of the Rlzal's monument. No law
prohibits the construction. City Ordinance 8119 on historic
sites is a mere "guide" but does i'1ot prohibit construction of
a building outside a historic side or facility. R.A. 10066
protects the physical integrity of heritage property if there I ,

is a danger of destruction or significant alteration from its \..·

ongir,al state. (Knights of Rizal v. DMCI Homes, G.R. No.
213948, 2017)

--- end of topic--- '- ... .,

Page 2"/0 of 320

 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

XVI. AMENDMENTS OR REVISIONS OF THE Each House may separately formulate amendments by a
CONSTITUTION vote of 3/4 of all its members, and then pass it on to the
other house for similar process. Nothing is said about joint
sessions (Bernas, The 1987 Philippine Constitution: a
TOPIC OUTLINE UNDER THE SYLLABUS
Comprehensive Reviewer, 544, 2011 ).
A. Procedure to amend or revise the Constitution
Even in a joint session, they must still vote separately
Amendment because Congress is bicameral.
An alteration of one or a few specific separable provisions
of the Constitution. The chanqss brought about by Constitutional Convention (ConCon)
amendments will not affect the other provisions of the Congress may call a ConCon by a 2/3 vote of all its
Constitution (Bernas, 1987 Philippinf; Constitution: A members, or
Commentary, 1345, 2009). By a majority vote of all its members, Congress may submit
to the electorate the question of calling a ConCon.
An addition or change within the lines of the original
constitution as will effect an improvement, or better carry Notes:
out the purpose for which it was framed; a change that The choice of either a constituent assembly or
adds, reduces or deletes without altering the basic constitutional convention for the purpose of intiating
principles involved; affects only the specific provision being amendments or revisions is left to the discretion of
amended. [Lambino v. COMELEC, G.R. No.174153. Conqress. In other words,'it is a political question.
October 25, 2006
The manner of calling a ConCon is subject to judicial
Examples: review, because the Constitution has provided for voting
a change reduc:ing the voting age from 18 years to 15 requirements.
years;
a change reducing Filipino ownership 'Jf mass media If Congress, acting as a ConAss, calls for a ConCon but
companies from 100% to 60%; a change requiring a does not provide the details for the calling of such ConCon,
college degree as an additiona: qualification for election to Congress -- exercising its ordinary legislative power -
the Presidency (Lambino v. COMELEC, G.R. No. 174153, may supply such details. But in so doing, Congress (as
2006). legislature) should not transgress the resolution of
Congress acting as a constituent assembly (Bernas, The
Necessary Steps to Give Effect to Amendments or 1987 Philippine Constitution: a Comprehensive Reviewer,
t. Revisions (PSR) 544-545, 2011).
1. f
roposal of amendments or revisions by the proper
( ···~. Congress, as a ConAss and the ConCon, has no power to
\._:, constituent assembly
appropriate money for their expenses. Money may be
2. §ubmission of the proposed amendments or revisions
spent from the treasury only pursuant to an appropriation
-; ,; to the people
made by law. However, the constitutional convention is
3. Batificat;on
free to dispose the funds appropriated by Congress for the
Convention's operation (Bernas, The 1987 Philippine
Ways of Proposing Amendments:
Constitution: a Comprehensive Reviewer, 545, 2011).
Constituent Assembly (ConAss)
Acting as a Constituent Assembly, the Congress by itself People's Initiative
-; )
may propose amendments by 3/4 vote of all its members. For a valid People's Initiative, there must be:
.c ·~ The power of Congress to propose amendments is NOT 5. Petition to propose such amendments must be signed
part of its ordinary legislative power. Congress possesses by at least 12% of all registered voters.
constituer.t power only because it has been specifically
6. Every legislative district must be represented by at
given that power by and under the conditions of Article XVII
least 3% of the registered voters therein.
(Bernas, The 1987 Philippine Constitution: a
·~·-··f 'While the substance of the proposals made by each type
Comprehensive Reviewer, 544, 2011, citing Gonzales v.
of ConAss is not subject to judicial review, the manner the
COMELEC, G.R. No. L-28196, 1967).
proposals were made is subject to judicial review.

Page 271 of 320

 ATENEO CENTRAL
BAR OPERATIONS 2019
Since a ConAss owes their existence to the Constituton,
the courts may determine whether the assembly has acted
in accordance with the Constitution. like:
Whether a proposal was approved by the required nurnber
of votes in Congress (acting as a constituent assembly).
Whether the approved proposals were properly submitted
to the people for ratification.
Notes:
• The electorate can propose through initiative ONLY
amendments, since it would be practically impossible to
have an over-all review of the Constitution through
action by the entire electoral population.
• No amendment through a People's lnltiative shall be
authorized within 5 years following the ratiflcatlon of the
1987 Constitution. (February 2, 1987)'nor
• More often than once ever/ 5 years. The Congress shall
provide for the implementation of the exercise of this
right. (Art. XVII, Sec.2)
• Revision of the Constitution cannot be effected through
initiative and referendum. Formulation of provisions
revising the Constitution requires both cooperation and
debate which can only be done through a collegial body.
(BERNAS)
Revision
A re-examination of the entire Constitution or of
provisions which have over-all implications for the entire
Constitution to determine how and to what extent it should
be altered. A revision implies substantive change, affecting
the Constitution as a whole ~Bernas, 1987 Philippine
Consthution: A Commentary, 1345, 2009).
A change that alters a basic principle in the constitution,
like altering the principle of separation of powers or the
system of checks-and-balances; alters the substantial
entirety of the constitution, as when the change affects
substantial provisions of the constitution.
Examples:
altering the principle of separation of powers or the system
of checks-and-balances;
a switch from the presidential system to a parliamentary
system:
a switch from a brcameral system to a unicameral system
(Lambino v. COMELEG, G.R. No. 174153, 2006).
Two-part test in determining whether a proposal
involves an amendment or revision.
Page 272 of 320
·------------ .... --
POLITICAL LAW
Quantitative test - The court examines only the number
of provisions affected and does not consider the degree of
the change. Whether the proposed change ts so extensive
in its provision as to change directly the "substance
entirety" of the Constitution by the deletion or alteration of
numerous provisions.
Qualitative test - Inquires into the qualitative effects of
the proposed change in the Constitution. The main inquiry
is whether the change will "accomplish such far-reaching
. changes in the nature of our basic governmental plan as to
amount to a revision" (Lambino v. COMELEC, G.R. No.
174153, 2006).
Ways of Proposing Revisions
By Congress, upon a vote of 3/4 of its members
By a Constitutional Convention ·
Doctrine of Proper Submission
A plebiscite may be held on the same day as a regular
election [Gonzales v. COMELEC, 21 SCRA 774}. The
entire Constitution must be submitted for ratification at one
plebiscite only. The people must have a proper "frame of
reference". [Tolentino v. COMELEC, 41 SCRA 702]. No
"piecemeal submission," e.g. submission of age
amendment ahead oi other proposed amendments.
[Lambino v. COMELEC, G.R. No.174153. October 25,
2006}
N.B. The process of revision is the same in all respects
except that it cannot be proposed via a People's Initiative.
[See Lambino, supra)
Judicial Review of Amendments
The validity of the process of amendment is not a political
question because the Court must review if constituUonal
processes were followed. [See Lambino, supra]
Ratification of Proposal if made through ConAss or
ConCon
Amer.dments and revisions are valid when ratified by a
majority of votes cast in a plebiscite.
Plebiscite is held not earlier than 60 days nor later than 90
days from the approval of such amendments or revisions.
~·.-i. .
·-:,·
Ratification of Proposal _If made through Poople's
Initiative
Valid when ratified by a majority of votes cast in a
plebiscite.
' .
' ..i
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Plebiscite is held not earlier than 60 days nor later than 90

days after the certification by GOMELEC of the petition's
sufficiency.
Requisites for Valld Ratification: (PCR)
1. Held in a flebiscite conducted under the election law.
2. Supervised by the 5'0MELEC.
3. Where only franchised (Registered) voters take part.
The Constitution does not require that amendments and
revisions be submitted to the people in a special election.
Thus, they may be submitted for ratification simultaneously
with a general election.
·. Exception: When the proposed amendments or revisions
· so provide (Bernas, The 1987 Philippine Constitution: a
Com:;,rehensive Reviewer, 550, 20·11).
Date of Effoctivity of an Amendment or Revision
Since Section 4 of Article XVII, says that any amendment
or revision 'shall be valid when ratified' , the date of
effectivity of any amendment or revision should be the
same as that of the date of ratification, that is, the day on
which the votes are cast. However, the amendments
themselves might specify otherwise. (BERNAS)
Difference between amendment and revision

AMENDMENT REVISION
The determination of the conditions under which proposed
amendments/revisions are submitted to the people falls Change In the Constitution
within the legislative sphere. That Congress could have
done better does not make the steps taken invalid. Purpose is to Purpose Is to
improve specific parts examine entirety
1--~--~~~~~~--1.
All the proposed amendments or revisions made by the
constituent assemblies must be submitted for ratification in Affects only the specific Affects several provisions
one single plebiscite. There cannot be a piece-meal provision amended
ratification of amendments/revisions. Adds, reduces, deletes Affects
without basic principles
All the amendments to be proposed by the same altering basic principle
Convention must be submitted to the people in a single Affects
"election" or plebiscite (Tolentino v. COMELEC, G.R. No. substantial entirety
L-34150, 1971).
Ex: extending term limit of Ex: shift from presidential
Presidential proclamation is NOT required for effectivity of House Representatives to parliamentary system
amendments/revisions.
.,
Can be done by: How Ratification

Amendments 1.Congress (Constituent By a vote of 3/4 of all its Through a plebiscite, 60-90
Assembly I ConAss) members days after submission of the
amendments
By a 2/3 vote of all the members
of Congress; or

2. Constitutional Convention
By a majority vote of all its
(Cancan)
.r , members. Congress may submit
to the electorate the question of
calling a ConCon

Petition must be signed by at

least 12% of all registered voters;
and
3. People's Initiative
Every legislative district must be
represented by at least 3% of the
registered voters therein.

Page 273 of 320

·,.,.:,

. ·-·-.. --,------·-·-·-·-·---·-----------------'
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Revision By a vcte of 3/4 of all its

1. Congress (ConAss)
members
2. Constitutional Convention By a 213 vote of all the members
Throogh a plebiscite, 60-90
(ConCon) of Congress; or
days after submission of the
By a majority vote of ali its amendments
members. Congress may submit
to the electorate the question of
calling a ConCon

Case Title Facts Held+ Ratio the general There was a proper
elections scheduled submission.
Mabanag Resolution of Petition dismissed. on Nov. 1967.
v.Lopez Congress Proposal of
Vito (1947) proposing the Parity amendments to the
Amendment was constitution is a Tolentino Validity of a Petition granted. All
assailed on the political question. v. CONCON amendments
ground that it did The enrolled copy of COMELEC Resolution proposed by the
not comply with the the resolution in (1971) (submitting, for · same Constitutional
314 rule prescrlbe« which it was certltied ratification, the Convention shall be
by the Constitution. that the proposal proposal to lower submitted to the
had been approved the voting age to people in a single
by the required vote 18) was assailed. etection.
was conclusive upon The question here
the courts. is whether
piecemeal
Modified by amendments to the
Gonzales, and Constitution could
Tolentino be submitted to the
people for
ratification or
Gonzales RBH No. 1 called Petition denied. rejection.
v. for an increase in
COMELEC the membership of Proposal of
(1967) the HOR; RBH No. amendments is not Planas v. Petitioners seek to Petition dismissed.
2 called for a a political but a COMELEC enjoin respondents The issue of validity
Constitutional justiciable question {1973) from implementing of e&lling for a
Convention; and subject to judicial PD 73, which called plebiscite
RBH No. 3 called review. for a plebiscite {to (submission) is
for the amendment be held on January justiciable; BUT,
of Sec. 1 a, Art.VI to Congress may 15, 1373) for the issue became moot.
allow members of propose constitution
Congress to amendments and at approved by the
become delegates the same time call CONCON on 1972,
to the CONCON for a Constituent on the theory that:
without losing their Assembly. (a) the power to
seats. Petitioners submit is lodged
r ?
seek to restrain Ratification may be exclusively in '- .... .r
respondents from done simultaneously Congress, and (b)
enforcing the law there is no proper I

passed by
with a general
election or in a . submission to the
(_,:
Congress special election people.
submitting RBH called specifically for
Nos. 1 and 2 for that purpose. '
ratification during
Page 274 of 320

·------------'-------------· -- . .
 ATENEO CENTRAL
BAR OPERATIONS2019 POLITICAL LAW

Javellana Petitioners seek to Although the sovereignty resides

v. enjoin the question of whether according to the
Executive respondents from a Constitution was Constitution, the
Secretary implementing any validly ratified is a courts cannot refuse
(1973) of the provisions of justiciable question, to yield assent to
the "new the question of such a political
constitution" not whether a decision.
found in the 1935 Constitution has
Constitution, on the come into force and
theory that it was effect is a political Lawyers' Petitioners The question of
not validly ratified in question beyond the League v. questioned legitimacy of a new
accordance with the competence of the Aquino legitimacy of the government arising
provisions of Art.1, Court to decide. (1986) Aquino from a successful
Section XV. government. revolution is a
political question
' beyond the pale of
Sanidad v. Petitioners question The amending review by the courts.
COMELEC the authority of the process, both as to
(1976) President in issuing proposed and
several PDs ratification, raises a Santiago Petitioners seek to COMELEC
proposing justiciable question. v. enjoin respondent permanently
amendments to the COMELEC COMELEC from enjoined from
New Constitution In a crisis (1997) acting on the entertaining or
and calling for a government, the petition by the taking cognizance of
national President shall have PIRMAgroup any petition for
referendum- the power to asking for an order initiative until a
plebiscite for the assume the fixing details on sufficient law shall
said amendments. constituent power to how to collect have been validly
propose signatures for a enacted to provide
amendments lodged people's initiative to forthe
in the Le9islative amend the implementation of
body. Constitution the system.

The system of
initiative found in
Mitra v. Petitioners argue Even without valid Article XVII, Sec. 2
("' COMELEC that the 1973 ratification, a new is not self-executory.
(1981) Constitution never Constitution could It needs an enabling
validly took effect, come Into force and law before the right
Javellana aside, on effect by the of the people could
the theory that the acquiescence of the be exercised.
1973 Constitution people. Popular However, an
wa& still and is still acquiescence to a examination of its
:, __ ~ at the stage of new Constitution provisions reveals
proposal. They ask gives the document that RA 6735 is
..". :J the Court to order a the force and effect incomplete,
plebiscite for the of the Fundamental inadequate, or
ratification of the Law of the Land, wanting in essential
l
1973 Constitution. regardless of the terms and conditions
method of insofar as initiative
ratification. If it is on amendments to
accepted by the the Constitution is
people (as shown by concerned.
their participation in
several elections
and referenda since
:
'·:_ J
' then), in whom

Page 275 of 320

 ATENEO CENTRAL
BAR OPERATIONS 20'19 POLITICAL LAW

Estrada v. Estrada quesnons (Legal distinction

Desierto legitimacy of Arroyo between EDSA I
(2001) government and and EDSA II) The
claims, inter alia, government arising
that he did not from EDSA I was
resign from position extra-constltutional,
and that Arroyo is while EDSA II was a
rnerely an acting constitutional
president. I exercise of the right
to free speech,
'
freedom of
assembly, and to
petition the
government for
redress.

Lambino v, Petitioners seek The constituent

COMELEC review of power reserved to
(2007) COMELE:C decision people under Art.
denying due course XVII Sec. :~ Is limited
to a people's to the power to
initiative to amend propose
the 1987 amendments to, not
Constitution. revision of, the
Constitution.
:
Moreover, "direct
proposal by the
people" means that
the petition signed
by the people should
contain the full text
of the proposed
amendments to the
Constitution.
.

'

'i~_.,,-·,;..
ff' -,;
'-.:.--'

t ,,
( _.;.

Page 276 of 320

---------------·-· -- .. ---
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

XVII. PUBLIC INTERNATIONAL LAW b. Archipelagic Waters

c, Archipelagic sea lanes passage
d. Regime of Islands ·
TOPIC OUTLINE UNDER THE SYLLABUS
3. Internal Waters
4. Territorial Sea
A. Concepts
5. Contiguous 7-one
1. Obligations (:rga Omnes
6. Exclusive economic zone
2. Jus Cogens
7. Continental shelf and ExtencJed Continental
3. Concept of Ex Aequo et Bono
Shelf
B. Relationship Between International and National
Law · 8. International Tribunal for the Law of the Sea
M. Basic Principles of International Environmental
C. Sources of Obligation in International Law
Law
0. Subjects ·
1. Precautionary Principle
1. States
2. International Organizations
3. Individuals
E. Jurisdiction of States
1. Basi!; of Jurisdicitlon
a. Territoriality Principle
b. Nationality Principle and Statelessness
c. Protective Principle
d. Universality Principle
e. Passiver Personality Principle
2. Excemptk,ns from Jurisdiction
a. Act of State Doctrine
b. International Organizations and its Officers
F. General Principles of Treaty Law
G. Doctrine of State Responsibility
H. Refugees
I. Extradition
J. Basic Principles of International Human Rights Law
1. Universal Declaration of Human Rights
2. lnternationnl Covenant on Civil and Political
Right
3. International Covenant on Economic, Social,
and Cultural Right
K. Basic principles of International Humanitarian Law
1. Categories of armed conflicts
a. International armed conflicts
b. Internal or non-international armed conflict
c. War on national liberation
2. R.A. 9851 (Philippine Act on Crimes Against
International Law, Genocide, and Other Crimes
Against Humanity)
3. Core international obligations of states in
lnternatlonat Humanitarian Lc1w
4. Principles of International Humanitarian Law
5. Treabnent of Civilians
6. Prisoners of War
7. Law on Neutrality
L. Law.of the Sea
,.: ·,.
'-'. r 1. Baselines
2. Archipelagic State
a. Straight archipelagic baselines

Page 277 of 320

•w-
 ATENEO CENTRAL
. BAR OPERATIONS 2019 · POLITICAL LAW

PRELIMINARIES Refers to rules of politeness, convenience, and goodwill

observed by States in their mutual lr,tercourse without
being legally bound by them.
Traditional Definition of Publlc International Law
International law is a body of rules and principles of action
which are binding upon civilized states in their relations to A.CONCEPTS
one another. (Bernas, Public International Law, 2009)
OBLIGATIONS ERGA OMNES
Modem Definition of Public International Law The term erga omnes (literal meaning: in relation to
International law as the law which deals with the conduct everyone) in international law has been used as a legal
of states and of international organizations and with lheir term describing obligations owed by States towards the
relations inter se , as well as some of their relations with community of states as a whole (Romulo v. Vinuya, G.R.
persons, whether natural or juridical. (Restatement (Third) 162230, 2010).
of Foreign Relations Law of the Unites States)
By their very nature, these are the obligations of a State
Private International Law or Conflict of Laws towards the international community as a whole .. Such
obligations derive, for . example, in contemporary
Private international law is really domestic law which deals
international law, from the outlawing of acts of aggression,
with cases where foreign law lntrudes in the domestic
and of genocide, as also from the principles and rules
sphere where there are questions of the applicability of
concerning the basic rights of the human person, including
foreign law or the role of foreign courts. (Bernas, Public
protection from slavery and racial discrimination. Some of
International Law, 2009) .
the corresponding rights of protection have entered into the
body of general international law others are conferred by
. PUBLIC. . PRIVATE .· international instruments of a universal or ouasi-universal
character.(Romulo v. Vinuya, G.R. 162230, '2010).
Governs the relation of Deals with private r
sovereign States and other individuals
~-
Types of Obligations Erga Omnes
entities with an international
personality. Some authoritiesclassify erga omnes obligations into
~~~~~~t--~~~~~~---1, either:
They are generally accepted It is really municipal or (1) erga omnes omnium, or
principles of public international national in character (1) erga ornnes crnnes partes [see IOI, Resolution on
law, giving the subject an because each State Obligations erga omnes in international Law
international nature. has its own conflict (2005), art. 1).
rules.
Sanctions may be in the form of Relief prayed for may ERGA OMNES OMNIUM ERGA OMNES PARTES
t:
peaceful remedies (i.e be obtained from · .. )

diplomatic negotiation, municipal tribunals. Basis

mediation, conciliation,
General lnternatlonal Law Multilateral treaty
arbitration, diplomatic efforts,
settlement by the ICJ) To whom owed
~-:-~~~--lL...-~~~~~~--l
Public and Private International Law, Distinguished
The international All the other States
community, in any given parties to the same treaty.
Hard Law case in any given case r ,
c. .•.
This refers to binding international legal norms or those · \ .. ~ ..
Interest
which have coercive character. (SARMIENTO)
The common values of the The common values of
Soft Law international community States parties and their
. =-·
and concern for concern for compliance ~; __ ;;
It is used to describe international instruments that their
makers recognize are not treaties, but have as their compliance
purpose the promotion of 'norms' which are believed to be
goods and therefore should have general or universal JUSCOGENS
application.
In international law, the term "jus cogens" (literal meaning:
compelling law) refers to norms accepted and recognized
International Comity (Comltas gent/um) by the international community of States as a whole, that • ... /

command peremptory authority, superseding conflicting

Page 278 of 320
 A TENEO CENTRAL
BAR OPERATION8 2019 POLITICAL LAW

treaties and custom. Jus cogens norms are considered Equity

peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general
international norms of equivalent authority (Romu/o v.
Vinuya, G.R. 162230, 2010).
Elements of Jus Cogens: ADS (Article 53, Vienna
Convention on Treaties)
1. A norm ~ccepted and recognized by the international
community of states as a whole.
2. No Qerogatior. is permitted.
3. It can only be modified by a .§.ubsequent norm having
the same character.
Status of Later Treaty which I~ Contrary to Jus Cogens
A treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law or jus
cogsns. (Article 53, Vienna Convention on the Law of
Treaties)If a new persmptory norm of general international
law emerges, any existing treaty which is in conflict with
that norm becomes void and terminates. (Jus coqen« >
Treaty)
When accepted, is an instrument whereby conventional or
customary law may be supplemented or modified in order
to achieve justice. It has both a procedural and substantive
aspect. Procedurally, it means a mandate given to a judge
to exercise discretion in order to achieve a determination
that is more equitable and fair.
Different kinds of Equity'
1. Equity intra /egem (within the law) - that is, the law is
adapted to the facts of the case:
2. Equity praeter legem (beyond the law) - that is, it is
used to fill the gaps within the law; and
3. Equity contra Jegem (against the law) - that is, a
refusal to apply the law which ;s seen as unjust.
EQUITY V. EX AEQUO ET BONO
The power to apply principles of equity in no way restricts
the power of the ICJ to decide cases based on Ex Aequo
et Bono should the parties so agree that the controversy is
to be decided on the said principle.

Jus Cogens and Erga Omnes, Differentiated

EQUITY EX AEQUO ET BONO
Jus cogens is different from erga omnes. (One rs not the
subset of the other.) Jus cogens pertains to the non· When accepted, is an Pertains to the power of
derogability of a norm and the validity of rules and acts that instrument whereby the International Court of
conflict with it. Erga omnes pertains to the legal interest of conventional or customary Justice to decide a case
a State in the violation of a norm. · law may be supplemented equitably outside the rules
or modified in order to of law at the instance of .
EX AEQUO ET BONO achieve justice. the parties to the case.
Literally, justice and fairness. The ancient concept is based Procedurally, it means a
upon the idea of 'fundamental fairness' as a guiaeline mandate given to a judge
principle in arbitration and other dispute settlement to exercise discretion in
processes. Under the ICJ Statute, the International Court order to achieve a
of Justice is given the authority to decide a 'case ex aequo determination that is more
et bono (according to what is fair and good) provided that equitable and fair.
the parties expressly agree. (Art.38(~). /CJ Statute)
. ,
-=•. ,;
'

.....
·- il
·a ·~

,r -.
~..]

• .. /

Page 279 of 320

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

B.REL6.TIONSHIP EIETWEEN INTERNATIONAL AND international law and domestic law belong to only one
system of law.
INTERNATIONAL LAW DOMESTIC LAW i. Theory 1: Municipal law subsumes
and is superior to international law
Scope ii. Theory 2: International law is superior
to domestic law
The conduct of States and Apply to a single country or
2. Dualism - International law and national iaw are
international organizations, nation, within a determined
essentially different from each other as tosource (i.e.
their relations with each territory and it.s inhabitants.
in certain municipal law is a product of local custom or legislation;
other and,
circumstances, their whereas sources of international law are treaties and
relations with persons, custom grown among states.); as regards the relations
natural or juridical. they regulate (i.e. municipal law regulated relations
[American Third between individual persons under the state; whereas
Restatement] international law regulates relations between states);
and lastly, as to substance (i.e. municipal law is a law
How Made of the sovereiqn over individuals whereas international
' law is a law between sovereign states) (Bernas, Public
Through consent, adopted Issued by a political InternationalLaw, 2009)
by States as a common rule superior for observance.
of action.
MONISM DUALISM
Relations Regulated
Monists have a unitary Domestic and international law
Regulates relations of Regulates relations · of concept of law and see are INDEPENDENT of each
States and other individuals among all laws (both other.
international persons themselves or with their international and
own States. municipal law) as an Municipal Law International
integral part of the Law
Sources SAME SYSTEM. If
conflict exists between regulate regulates
Derived principally from Consists· mainly of international law and relations of relations
treaties, intematlonal enactments from the municipal law, individuals between
custom and general lawmaking authority of international law must under a state states
principles of law. (ICJ, each State. prevail.
Stat., art. 38(1 )) a product of dorived from
local custom or such sources
Settlement of Disputes legislation as
international
By means of State-to-State By rneans of local customs, (~
'
transactions. administrative and judicial conventions, '·, ..;;.
processes. or genel'al
principles of
Responsibility law
Collective responsibility Breach of domestic law law of the international
because it attaches directly entails individual sovereign over law is a law
to the State and not to its responsibility.
nationals. _J individual between
sovereign
states
NATIONAL LAW
-;__. :~

International and National Law, Distinguished Monism v. Dualism

Under dualism, no conflict can ever arise between
international and municipal law, because the two systems
Theoretical Approaches to the Relationship between are mutually exclusive. If International law is applied . '
International Law ancJ National Law I', ·1

.
within a state, it Is only because ii has been expressly '·'

1. Monism - there is no substantial distinction between incorporatert by municipal law. The Philippines is a ·,·
international law and municipal law. Under this theory, dualist state. ... ...

Page 280 of 320

 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Theories as to Manner of Adopting International Law declare a treaty unconstitutional. (Bernas, Public
as Part of the Law of the State International Law, 2009)
1. Doctrine of Incorporation -A State is, by reason of
its membership in the family of nations, bound by the Conflict between Treaty and Domestic Leglslation
generally accepted principles of international law, the When the two instruments relate to the same subject, try
same being considered as part of its own laws. to give effect to both; if inconsistent, the later in date will
2. Doctrine of Transformation -This is based on a control, provided that the treat} stipulation is self-
strict dualist approach. Since the two systems are executing. But this rule only applies in the domestic
distinct and operate separately, for international law to sphere. A treaty, even if contrary to a later statute, is
become part of domestic law it must be expressly and binding in international law.
specifically transformed into domestic law through the
appropriate constitutional machinery such as an act of Fitzmaurice Compromise
Congress or Parliament. (Bernas, Public lntemational Assumes that since the two systems, international and
Law, 2009) national law, do not operate in common field, they can
never come into conflict. Each one of them is supreme in
Types of Transformation Theories its own domain, thereby any apparent conflict In the
1. Hard Transformation Theory - Only legislation can domestic field is automatically settled by the domestic
transform International Law into domestic law. Courts conflict rules of the forum and any conflict in the
may apply International L.aw only when authorized by international field would be resolved by International Law.
legislatlon
2. Soft Transformation Theory - Either a judicial or C. SOURCES OF OBLIGATIONS IN INTERNATIONAL
legislative act of a state can transform International ~ J
Law into domestic law.
DOCTRINE OF DOCTRINE OF
Conflict Between International and Municipal Law INCORPORATION TRANSFORMATION··~
A. International Rule or Conflict Resolved by The rules of international The generally accepted
International Tribunal- Before an international law form part of the law of rules of international law
tribunal, a state may not plead its own law as an excuse the land, and no further are not per se binding
for failure to comply with international law. A State, legislative action is upor, the State but must
which has contracted valid international obligations, needed to make such first be embodied in
'<, ,
must modify its laws to ensure fulfillment of its rules applicable in the legislation enacted by the
obligations under the treaty, unless the constitutional
domestic sphere. lawmaking body and so
violation is manifest and concerns a rule of internal law
of fundamental importance. National laws must yiela to transformed into municipal
the laws of nations because international law provides Incorporation is law. Only when so
the standards by which legality of State conduct is to recognized by the transformed will they
,:.' ~ be determined. Constitution. (e.g. become binding upon the
•.,. .,· B. Municipal Rule er Conflict Resolved by Local customs and general State as part of its
Court-When the conflict comes before a domestic principles of international municipal law, (e.g. treaty
court, domestic courts are bound to apply the domestic law)(1987 Constitution, obligations)
law. Rules of international law are given a standing
. . equal, not superior, to national leglslativ€ enactments .
art. 2, §2)
1...J
Should a conflict arise between an international
agreement and the Constitution, the treaty would not "SOURCES" OF INTERNATIONAL LAW ACCORDING
be valid and operative as domestic law. It does not, TO ARTICLE 38(1). ICJ STATUTE
however, lose its character as international law. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply:
Conflict between a State's Constitution and
International Law a. international conventions or treaties, whether general
or particutar, establishing rules expressly recoqnizeo
When the constitutional violation is manifest and concerns by contesting states;
a rule of internal law of fundamental l-nportance, State may
b. international custom, as evidence of a general practice
deviate from treaty obligation. Should a conflict arise
accepted as law;
between an international agreP.ment and the Constitution, 'c. the general principles of law recognized by civilized
the treaty would not be valid and operative as domestic
nations;
law. The Constitution, in Article VIII, Section 5, 2(a)
explicitly recognizes the power of the Supreme Court to
Page 281 of 320
 -- ------------------

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

d. subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the ,.
determination of rules of law. ·
Primary Sources: TCG
1. Treaties: Conventional International Law; International
conventio.is, whether general or particular.
establishing rules expressly recognized by the
contracting states
2. fustomary International Law: International custom, as
evidence of a general practice accepted as law;
3. ~neral Principles of Law: General principles of law .
recognized by civilized nations. [ICJ Statute, art. .
38(1 )(aHc)]
Subsidiary Sources (JT)
('I) Judicial decisions and
(2) Teachings of the most highly qualified publicists of the
various nations. fJCJ Statute, art. 38(1 )(d)]
Notes:
• While the primary sources create law, the subsidiary
sources constitute evidence of what the law is.
• There is no stare decisis: Case law is considered only a
"subsidiary means." Even the decisions of the ICJ itself
do not create binding precedent, since it only binds the
parties and in respect of the particular case [ICJ Statute,
art. 59}.
• Teachings of publicists may include the work of
organizations such as the International Law
Commission (a UN body) and private institutions.
Under the principle of pacta sunt servanda, a state party to
a treaty is bound to comply with the obligations it assumed
under such treaty In good faith. [VCLT, art. 26}
2. Custom
Definition
General and consister-t practice of States followed by them
from a sense of legal obligation. (Restatement (Third) of
Foreign Relations Law of the Unites States)
Elements of International Custom
1. State Practl~e (DUG) - A consistent ·and uniform
· external conduct of States. Generally, both what
. States say and what they do . are considered state
practice.
a. .Quratlon of practice
b. Yniformity, consistency of practice
c. Qenerality (majority of specially affected States)
2. OPIN/0 JURIS S/VE NECESSITAT/S (OPINIO
JURIS) - As an element in the formation of customary
norm in international law, it is required that States, in
their conduct amounting to general practice, must act
out a sense of legal duty and not only by the motivation
of courtesy, convenience or tradition.
Not only must acts amount to a settled practice, but they
must also be such or be carried out in such a way, as to be
evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it.
(International Court of Justice in the North Sea Continental
Shelf ceseo, cited in Mijares v. Ranada, G.R. No. 139325,
2005)

1. TREATIES Unlike treaties, customary norms are legally binding upon

Definition of Treaty
A treaty is an international agreement concluded between
states in written form and governed by international law,
whether embodied in a single instrument or in two or more
related instruments · and whatever its particular
designation." [VCL T, art. 2(1 )]
all States regardless of whether they consent, subject to
the persistent objector rule [infra].
No particular length of time is required for the formation of
customary norms so long as the existence of the two
elements of custom are manifest [North Se,a Continental
Shelf Cases {ICJ, 1969))

Requisites of a Treaty The number of parties, the explicit acceptance of rules of

(__ ·
1. Must be concluded between States law, and, in some cases. the declaratory nature of the ·~·-.:.•
(3) In written form provisions produces a strong law-creating 9ffect at least as
(4} Governed by International Law great as the general practice considerer:! sufficient to
support a customary rule [BROWNLIE].
(5) Must be embodied in a single instrument or in 'two or
more related instruments
Element of State Practice
Treaty Obligation based on Consent The practice must be consistent and general. However.
Treaty obligation is based on consent. No state may be consistency requires substantial uniformity and not
necessarily complete uniforrnity in practice [Asylum Case
bound by a treaty obligation unless it has so consented. r- ,.
..........'
[VCL T, art. 34) (ICJ, 1950)]. Generality likewise does not require
universality.
Pacta sunt Servanda
Page 282 of 320

'----------·. .. - ..
 ATENEO CENTRAL
BAR OPERATIONS 2019
Evidence of State practice
The following acts may evidence state practice:
(1) Diplomatic correspondence;
(2) Policy statements;
(3) Press releases;
(4) Opinions of official legal advisers; .
(5) Official manuals on legal decisions (executive
decisions and practices, and government comments
on drafts by the ILC);
(6) International and national judicial decisions;
(7) Recitals in treaties and international instruments;
(8) Practice of international organs [HARRIS].
UN General Assembly resolutions are generally just
recommendations. However, such resolutions may be an
evidence of state . practice that Is relevant in the
development of custom. [See Nicaragua Caso (ICJ, 1986}]
Element of Opinio Juris sive Necessitates (Opinion of
Law or necessity)
This refers to the belief on the part of states that a particular
practice ls required by law, and not because of courtesy or
political expediency [North Sea Continental Shelf Cases
(ICJ, 1969)].
It is the exister.ce of opinio juris that distinguishes binding
custom from mere usage, from comity, and from courtesy
or protocol.
Scope
Custom may be: . [Sanders v. Veridiano (1988));
(1) General, which is binding upon all or most states; or
(2) Particular, which is binding only between two or among
a few states.
' '
·•'---,i
• The ICJ has recoqnzed the possibility of regional custom
[Asylum Case (/CJ, 1950)) and of bilateral custom {Right of
Passage over Indian Territory Case (/CJ, 1960)).
Principle of Persistent Objector
When a State has continuously objected to a new
customary norm at the time when it is yet in the process of
formation, by such persistent objection the norm will not be
applicable as against that state [MAGALLONA].
Principle of Subsequent Objector
The court in the Anqlo-Norwelqen Fisheries case stated, "if
a substantial group of states asserts a new rule, the
momentum of increased defection, complemented by
acquiescence, may result in a new rule... If the process is
slow and theither the new nor the old rule has an
overwhelming majority of adherents, the consequence is a
network of special relations based on opposability,
acquiesc~nce and even perhaps historic title.•
Page 2ij3 of 320
POLITICAL LAW
Regional Custom
· .A practice among states within a particular area for the
world which can be sufficiently well established and
accepted as law that is binding among the states of that
regio,·, but not elsewhere.
lnstant Custom (Dirltto Spontaneo}
Customary law may emerge even within a relatively short
period of time, if within that period, State practice has been
uniform and extensive. It comes about as a spontaneous
activity of a great number of States supporting a specific
line of action.
Special or Local Custom
A long continued practice between 2 States, accepted by
them as regulating their relations that form the basis of
mutual rights and obligations. (Right of Passage case
Portugal v India)
Philippine Context: Customary norms identified by the
Supreme Court
1. Rules and principles of land warfare and of
humanitarian law under the Hague Convention and the
Geneva Convention (Kuroda v. Jalandoni (1949)); .
2. Pacta sunt servanda [La Chemise Lacoste. v.
Fernandez (1984)];
3. Human rights as defined under the Universal
Declaration of Human Rights [Reyes v. Bagatsing
(1883)];
4. The principle of restrictive sovereign immunity
5. The principle in diplomatic law that the receiving state
has the special duty to protect the premises of the
diplomatic mission o'.' the sending state [Reyes v.
Bagatsing (1983)):
6. The right of a citizen to return to his own country
[Marcos v. Manglapus (1989)];
7. The principle that "a foreign army allowed to march
through friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt
from criminal jurisdiction of the place" [Raquiza v.
Bradford (1945));
8. The principle that judicial acts, not of a political
complexion of a de facto government established by
the military occupant in an enemy territory, are valid
under international law [Montebon v. Director of
Prisons (1947)];
9. The principle that private property seized and used by
the enemy in times of war under circumstances not
constituting valid requisition does not become enemy
property and its private ownership is retained, the
enemy having acquired only its temporary use
[Noced.i v. Escobar (1950)];
10. The principle that a State has the right to protect itself
and its revenues, a right not limited to its own territory
ATENEO CENTRAL
BAR OPERATIONS 2019
but extending to the high seas [Asaall v, Commissioner
(1968)].
3. General Principles of Law
Definition
Principles based on natural justice common to most
national systems of law. These refer to those general
principles in municipal Jaw (particularly those of private
law) that may be appropriated to apply to the relations of
states [OPPENHEIM]. (e.g., good faith, estoppal,
exhaustion of local remedies, unjust enrichment).
The ban on enforced disappearance is a generally
accepted principle of inlernational law which is considered
part of the law of the 'and (Razon v. Tagitis, G.R. No.
182498, 2009). Note, however, that RA 10353 (An Act
Defining and Penalizing Enforced or Involuntary
Disappearance) was passed on December 21, 2012.
The Yogyakarta Principles (the Application of International
Human Rights Law In Relation to Sexual Orientation and
Gender Identity) has not yet evirlced an obligatory norm in
the Philippines. There are declarations and obligations
outlined in said Principles which are not reflective of the
current state of international law, and do not find basis in
any of the sources of international law enumerated under
Article 38(1) of the Statute of the International Court of
Justice. (Ang Lad/ad LGBT Party v. COMELEC. G.R. No.
190582, 2010).
The following principles are considered general principles
of international law:
Roman law principles;
1. Principles such as estoppal, res judicata, res inter alias
acta, and prescription; e.g. With respect to estoppel,
when Thailand did not object to, and has in fact
benefited from, the, Treaty of 1904 for 50 years. it is
deemed to have accepted said treaty. It is thereby
precluded from questioning Annex I thereof, which
showed that the Temple of Preah Vihear was within
Cambodian territory [Temple of Preah Vihear Case
(ICJ, 1962)).
2. Other substantive principles, such as the duty to make
reparations [Chorzow Factory Case (PCIJ, 1927)].
principle of reciprocity, pacta sunt servanda, separate
corporate personality [see Barcelona Traction Case
(ICJ, ·1970));
3. Procedural rules, such as rules governing the use of
circumstantial and hearsay evidence are likewise so
considered. e.g. Press reports can be used to
corroborate the existence of a fact. WI ien they
demonstrate matters of public knowledge which -~ave
received extensive press coverage, they can be used
to prove a fact to the satisfaction of the court
[Nicaragua Case (ICJ, 1986)].
Page 284 of 320
POLITICAL LAW
4. Circumstantial evidence is admitted as indirect
evidence in all systems of law and its use is recognized
by international decisions. Such circumstantial
evidence. however, must consist of a series of facts or
events that lead to a single conclusion [Corfu Channel
Case (ICJ, 1949)). ·
5. 'Jurisdictional principles, such as the power of a
tribunal to determine the extent of its own jurisdiction
{competence de la competence).
Secondary Sources:
4. Judicial Decisions.
A subsidiary means for the determination of rules of law
that are acceptable so long as they correctly interpret and
apply international law.
Decisions of riational courts, when applying international
law. are acceptable.
Stare Decises does not Apply
The ICJ Statute directs the Court to apply judicial decisions
as subsidiary mean for the determination of the rules of.
law, but this is made subject to ArL 59 of the same statute,
which states that, 'the decisions of the court have no
binding force except between the parties and in respect of
that particular case".
5. Teachings of the Most Highly Qualified Publicists
(/CJ .Statute, art. 38)
The word 'publicist' means 'learned writer.' Learned
writings, like judicial decisions, can be evidence of
customary law, and can also play a subsidiary role in
developing new rules of law.
Highly-qualified publicists are writers whose main value
· depends on the extent to which their books and articles are
cited as wo.-ks of scholarship {i.e based on thorough { "
research Into what the law is said to be {lex lata) rather ·
than comparing the views of other writers as to what they
think the law out to be (lex ferenda).
Requisites For A "Highly Qualified Publicist"
1. Fair and impartial representation of law.
2. Acknowledged authori!y in the field.
D.SUBJECTS ,I.. J
Subjectof InternationalLaw ~ -
It is an entity that has rights and responsibilities under internationa_ ..,
law and which has the capacity to maintain its rights by bringin11~;
international claims. (NACHURA)
Examples:
1. States
2. Colonies and dependencies
u
. -~"
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

3. Mandates and trust territories minimum land area is requirnd.(Monlevideo

4. Belligerent communities Convention, art. 1)
5. International administrative bodies;
6. The United Nations Modes of Acquiring Territory
7. The Vatican and the Holy See There are four modes of acquiring territory. The first two
are original modes while the last two are derivative modes.
Object of International Law (1) Occupation - Occupation refers not to mere
It is a person or thing indirectly vested with rights and discovery, but to effective exercise of sovereignty over
obligations in the international order. a territory which is terra nullius (i.e., not subject to the
sovereiqnty of any other state). It is the acquisition of
territory that is terra nullius by any State which has the
Subjects and Objects, Distinguished intention to claim sovereignty and occupies that
SUBJECT OBJECT territory by exercising effective and continued control.
(.2) Accession or accretion -Accession or accretion is
Has rights and duties Does not hava rights and the natural process of land formation resulting in the
under international law. duties but are merely the increase of territory.
object of subject's rights (3) cesston - Cession means the transfer of territory
and duties. from one state to another by treaty (derivative). It is the
only bilateral mode of acquiring territorial sovereignty.
Directly governed by the Indirectly governed by the (4) Prescription - Through prescription, title is acquired
rules of international law. rules of international law. by continuous and undisturbed exercise of sovereignty
It can be a proper party in Its rights are received and over a period of time.
transactions involving the
application of international
its obllqatlons imposed
indirectly through
.
the
(5) Conquest - the taking of a territory of another
sovereign by force of arms. Conquest is generally
law among members of the instrumentality of an accepted to have been outlawed as aggression and
international community. international agency. violative of the prohibition on the use of forece and
territorial integrity. (See Definition of Aggression, UN
GA Res. 3314 (XXIX) (1974)
States
State, as a subject of intemational law, has ln.ernational personalilyissification of States
~hich ~eans that it has the right to have . its claims respected Sovereign States - those enjoying full membership
intematlonally. A State has absolute personality. in the international community
2. Neutralized States - those upon which the status of
Under the Constitutive Theory, statehood is objective, not permanent neutrality was formally imposed
subjective. Recognition does not bestow statehood. A State i1u.a Dependent States - those that have practically
state under international law if it meets certain basic criteria. complete control of their domestic affairs while they
have been subject to a great1~r or lesser degree of
Elements of a State: GSPoT dependence upon another State in respect of their
1. s.iQvernment - the physical manifastation of a state. control over their relations with third States
Government must be organized, exercising control . 4. Confederation and Union - States which are
over and capable of maintaining law and order within associated for certain specific purposes:
its territory · · (a) Real Union-2 or more severally sovereign States
2. §overeignty or the capacity to enter into relations with have the same monarch and for international
other States purposes act as one State
-, :,,
3. Permanent fQpulation - The population does not (b) Federal States - control of the external relations
have to be homogeneous racially, ethnically, tribally, of all the member States has been permanently
religiously, linguistically, or otherwise. But, it must be a surrendered to a ,:;entral aovernment so that the
:':.-· '~. settled population, although the presence of certain only State which exists for international purposes
nomadic inhabitants does not matter. is the State formed by the union
4. Defined Ierritory - State territory is that defined (c) Confederation - though a central government
c '".
\.:.· Y portion of the surface of the globe which is subjected to exists and exercises certain powers, it does not
the sovereignty of the State. [OPPENl1EIM] A state control all the external relations of the member
must exercise control over a certain area. It need not States, and therefore for international purposes
be exactly defined by metes and bounds, so long as there exists not one but a number of States
there exists a reasonable certainty of identifying it. No

Page 285 of 320

 ATENEO CENTRAL
BAR OPERATIONS 20·19
Effective government.
General Rule; There must be a central government
operating as a political body within the law of the land and
in effective control of the territory. [AUST]
Exception: The requirement of effective government is not
strictly applied when the State, already long-existing,
happens to undergo a period of civil strife or internal chaos
due to natural disaster or invasion. ·
Failed State
One which has not had a government in control of most of
the territory for several years. (Ausn A failed State does
not cease to be a State. (See, e.g. Somalia, which has not
had an effective government in years, but continues to be
recognized by the UN).·
Further, some States were deemed States even before
their governments were very well-organized (e.g., Poland,
Burundi, and Rwanda).
Governments de facto and de Jure
1. Government de jure: Government from law, that is,
one with a color of legitimacy.
2. Government de facto: One that governs without a
mandate of law. So long as it is in place, it may
command obedience from the inhabitants of the
occupied area. The de facto ruler may suspend laws
and enact new ones. ·
Kinds of De Facto Governments
1. De facto Proper I Government by Revolulion: That
which usurps, either by force or the will of the majority,
the legal government and maintains control against it;
2. Government by paramount force I Government by
Occupation: Results from the occupation of a state or
a part thereof by invading forces in time of war; and
3. Government by Secession: Government established
as an independent government by lnhabitants of a
country whc rise in insurrection against the parent
state. [See Co Kim Cham v. Valdez Tan Keh (1945))
Jus Postlimium
Acts (executive, legis_lative,and judicial) done under the
control of a de facto government, when they are not of a
political complexion remain good even upon the restoration
of the legitimate government. [See Co Kim Cham v. Valdez
Tan Keh (1945))
Recognition
Concept
Rec:ognition is an act by which a state acknowledges the
existence of another state, government or belligerent
community and indicates willingness to deal with the entity
as such under international law.
Page 286 of 320
--------·-·---··.
. POLITICAL LAW
Recognition is not a legal duty
As a public act of state, recognition is an optional and
political act and there is no legal duty in this regard. (Note
that this is under the Decfarato,y Schoof)
Two views:
1. Declaratory School: Recognition is a mere declaration
or acknowledgement of an existing state of law and
fact, legal personality having been previously
conferred by operation of law, This is the prevailing
view.
2. Constitutive School: The political act of recognition is
a preconclition to the existence of legal rights of a state.
In its logical extreme, this is to say that the very
personality of a state depends on the political decision
of other states. This is the minority view.
Doctrines on Recognition of de Facto Governments
1. Wilson/Tobar Doctrine: Also known as "Doctrine of
Legitimacy" or "Policy of Democratic Legitimacy."
Holds that governments which came into power by
extra-constitutional means [e.g. revolution, civil war,
coup d'etat or other forms of internal violence] should
not be recognised, at least until the change had been
accepted by the people. [After US President Wilson,
1913 anc Ecuadorian FM Tobar (1907)]
2. Stimson Doctrine: Doctrine of not recognizing any
situation, treaty or agreement brought about by non-
legal means. Precludes recognition of any government
established as a result of external aggression. [After
US Sec. of State Henry Stimson (1932)]
· 3. Estrada Doctrine: States should refrain from
recognizing governments, as such are superfluous.
Change in government does not affect the change in
status of a state. This in effect results in the automatic
recoqnltion of governments in all circumstances.
Posits that dealing or not dealing with the government
established through a political upheaval is not a
judgment on the legitimacy of the said government.
[After Mexican Minister Genaro Estrada (1930)]
[SHAW]
4. Sovereignty v. Independence
Sovereignty and Independence are different.
Sovereignty refers to the supreme and uncontrollable
power inherent in the state by which the State is
governed. Independence refers to the power of a State
to manage its external affairs wilhout direction or
interference from another state
5. Principle of Auto-Limitation
The concept of sovereignty as auto-limitation is the
prcperty of State-force cue to which it has the
exclusive capacity of legal self determination and self-
restriction. Any State may, by its consent, express or
implied . submit to a restrtction of its sovereign rights.
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

The Concept of Association of States have functional personality which is limited to what is
An association is formed when two States of unequal necessary to carry out their functions as found In the
power voluntarily establish durable links. In the basic instruments of the organization.
model, one State, the associate, delegates certain
responsibilities to tne other, the principal, while maintaining Generally, special personality:
its international status as a State. However, this concept is The status and powers of an international organization is
not recognized uncJer the present Constitution. The determined by agreement and not by general or customary
Constitution does not contemplate any State in this international law. They are considered subjects of
jurisdiction other than the Philippine State, much less does international law "if their legal personality is established by
it provide for a transitory status that aims to prepare any their constituent instrument."
part of Philippine territory for independence (The Province Further, its constituent rights and duties, or capacities and
of North Cotabato v. GRP Panel on Ancestral Domains,
immunities. arE:: limited to those set forth in the treaty
G.R. No. 183591, 2008).
creating the International organization. Thus, legal
personality in this context is a relative concept.
Principle of State Continuity [MAGALLONA]
The State continues as a juristic being notwithstanding the
changes in its circumstances, provided only that such Exception:
changes do not result In the loss of any of its essential United Nations: The United Nations has objective
elements. · ·
international personality. Its personality is binding on the
whole international community, including States who are
Rights of States not UN members. [Reparations for Injuries Advisory
1. Jurisdiction Opinion (ICJ, 1949)]
2. Equality
3. Individual or collective Self-Defense Preconditions for international personality
4. Independence 1. It must constitute a permanent assodalion of states,
5. Legation (the right of the State to send and receive with lawful objects, equipped with organs;
diplomatic missions, which enables States to carry on , 2. There must be a distinction, in terms of legal powers
friendly intercourse) and purposes, between the organization and its
member states; and
Duties of States 3. ll must have legal powers that it may exercise on the
1. To carry out in good faith all its obligat:ons; intemational plane and not solely within the national
'• ...
2. To refrain from recognizing any territorial acquisition systems of one or more states. [BROWNLIE]
by another State which resorts to war or to the use of
threat or force; National Societies
3. To refrain from giving assistance to any State which National societies such as the Philippine National Red
resorts to war or threat or use of force, or against which Cross act as auxiliaries to the public authorities of their
. .. the UN is taking preventive or enforcement actions own countries in the humanitarian field and provide a range
~.,.) 4. [o conduct its relations with other States in of services including disaster relief and health and social
accordance with International Law programmes. National societies were held to be
;, I
5. To ensure that conditions prevailing in its territory do organizations that are directly regulated by international
not menace international peace and order . humanitarian law, in contrast to other ordinary private
6. To refrain from resorting to war and the threat or use entities, including NGOs. The auxiliary status of a Red
of force Cross Society means that it is at the same lime a private
7. To treat all persons under its jurisdiction with respect institution and a public service organization, because the
for human rights and fundamental rights, without very nature of its work implies cooperation with the
discrimination authorities, a link with the State. The PNRC, as a national
·.· .. .., society of the International Red Cross and Red Crescent
8. To refrain from intervening
Movement, can neither "be classified as an instrumentality
i . 9. To settle its disputes with other States by peaceful
'-. > of the State, so as not to lose its character of neutrality" as
means
well as its independence, nor strictly be as a private
'·..:: •'
. corporation, since it is regulated by international
International Organizations humanitarian law and is treated as an auxiliary of the State.
·f.:: .)'
Definition (Uban v. Gordon, G.R. No. 175352, 2011)
International orqanlzations are created by sovereign
States and whose functioning are regulated by
• ... · international law. not the law of any given country. They
Page 287 of 320

.. ,
ATENEO CENTRAL
BAR OPERATIONS 2019
lndivlduats
Under modern international law, an individual has limited
personality.
The question whether the Philippine government should
espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not
to the courts but to the political branches. In the Comfort
Women Case, the Executive Department has decided that
it is to the best interest of the country to waive all claims of
its nationals for reparations against Japan in the Treaty of
Peace of 1951. The wisdom of such decision is not for the
courts to question; thus, said determination by the
Executive Department cannot be questioned through a
petition for certiorari. (Vinuya v, Romulo G.R. No. 162230,
2010).
Special personality
Individuals may assume the status of subjects of
international law only on the basis of agreernent by states
and in specific context, not in accordance with general or
customary international law.
Examples
a. UNCLOS, art. 187(c)-{e) provides for jurisdiction of the
Sea-Bed Disputes Chamber of the ITLOS over
disputes between parties to contracts relating to the .
exploitation of marine resources. Parties to such ·
contracts may be natural or juridical persons.
b. The Claims Settlement Declaration of 1981 between
US and Iran provides for direct access to the Iran-US
Claims Tribunal to individuals for the settlement of their
claims involving more than $250,000 either against
Iran or the US.
c. The Mixed Claims Tribunals established in the Treaties
of Peace concluded at the end of World War I prcvided
for locus standi of individuals In actions against states
relating to contracts, debts, and property adversely
affected by the war.
d. The London Agreement of the International Military
Tribunal at Nurernberq, relating to crimes against
peace, war crimes and crimes against humanity,
imposed duties and liabilities upon individuals as well
as upon states.
e. Convention on the Prevention and Punishment of the
Crime of Genocide, art. VI defined "parties charged
with genocide" as including individuals. [MAGALLONAJ
f. The International Criminal Court has jurisdiction over
individuals who commit genocide, crimes against
humanity and war crimes, subject to conditions under
the ICC Statute. [ICC Stat., art. 25(1} in relation to art.
5}
Page 288 of 320
POLITICAL LAW
Corporations
"Internationalized contracts" between a foreign
corporation and a State gives the corporatio~ limited
personality by invoking in international law the rrghts that.
may be derived from the contract.
Incomplete Subjects
1. Protectorates : Dependent states which have control
over their interna! affairs but whose external affairs are
controlled by another state.
2. Federal State : Union of previously autonomous
entities. The central organ will have personality in
lnternational law, but the extent of the international
personality of the component entities can be a
problem. ·
3. Mandate and Trust Territories : Territories placed by
the League of Nations under one or other of the
victorious allies of WWI.
E. JURISDICTION OF STATES ·
OVERVIEW
Definition
Jurisdiction means the power of a state under international
law to govern persons and property by its municipal law.
This may be criminal or civil, and may be exclusive or
concurrent with other states. [HARRIS)
Kinds of Jurisdictlo»
a. Prescriptive jurisdiction refers to the power of a State
to make Its law applicable to the activities, relations, or
· status of persons, or the Interests of persons in things,
whether by legislation, by executive act or order, by
administrative rule or regulation, or by determination by
a court.
b. Adjudicative jurisdiction refers to a State's
jurisdiction to subject persons or things to the process
of its courts or administrative tribunals, whether in civil
or in crimina: proceedings, whether or not the state is a
party to the proceedings.
c. Enforcement jurisdiction refers to a State's
jurisdiction to enforce or compei compliance or to
punish noncompliance with its laws or regulations,
whether through the courts or by use of executive,
administrative, police, or other nonjudicial action.
Basis of jurisdiction
(a) Territoriality Principle
The fundamental source of Jurisdiction is sovereignty over
territory. A State has absolute, thouqn not necessarily
exclusive. power to prescribe, adjudicate, and enforce
rules for conduct within its territory.
--~
! .
i
' .e
 ATENEO CENTRAL
BAR OPERATIONS 2019
(b) Nationality Principle
Every State has jurisdiction over its nationals even when
those nationals are outside the State.
(c) Protective Principle
A State may exercise jL•risdiction over conduct outside its
territory that threatens it~ security, as long as that conduct
· is generally recognizer! as criminal by the States in the
international community.
(d) Universality Prlnclple
. Recognizes that certain offenses are so heinous and so
widely condemned that any State, if it captures the
offender, may prosecute and punish that person on behalf
of the international community, regardless of the nationality
of the offender or victim or where the crime was committed.
(e) Passive Personality Principle
A State may apply law, particular!y criminal law, to an act
committed outside its territory by a person not its national
where the victim of the act was its national.
This principle has not been ordinarily accepted for ordinary
torts or crimes, but is increasingly accepted as applied to
terrorist and other crganized attacks on a State's nationals
by reason of their nationality, or to assassination of a
State's diplomatic representatives of other officials.
Conflicts of Jurisdiction
More than one State may have a valid claim to jurisdiction.
In order to resolve conflict, the following modes may be
resorted to:
1. Balancing Test - Employed tripartite analysis to
determine whether to assume jurisdiction or not:
i\_} a. Was there an actual or intended effect on t~e
State acquiring jurisdlctlon?
b. Is the effect sufficiently large to present a
coqnizable injury?
{ .
'\. ; c. Are the interest and link to the State sufficiently
strong, vis-a-vis those of other nations, to justify
an assertion of extraordinary authority?
If the answer is yes to all, then the court will assume
jurisdiction. (Timberlane Lumber Co. v. Bank of
America, 549 .F2d 597, 1976).
~.v. .-~~;,
2. International Comity - If exercising jurisdiction will be
~ ; . unreasonable, the State should refrain from doing so.
Unreasonableness is determined by evaluating various
factors, such as the link of tt;e activity to the territory of
c-~.J
t~e regulating State, the connection, such as
nationality and residence. (Hartford Fire Insurance Co.
·.::.-" v. California, 509 US 764, 1993).
3. Forum non conveniens - The principle is based on
the real unfairness to one of the suitors in permitting
·'.;, Page 289 of 320
POLITICAL LAW
the choice of a forum which is not the natural or proper
forum, either on the ground of convenience of trial or
the residence or domicile of parties or of its being the
locus contractus, or locus solutionis. Its appllcation is
discretionary on the part of the court. Forum
conveniens presumption is with the plaintiff. (Piper
Aircraft Co. v. Reyno, 545 U.S. 235, 1981).
• Under the rule of forum non conveniens, a
Philippine court orragency may assume jurisdiction
over the case if it chooses to do so, provided: (1)
that the Philip;,ine court is one to which the parties
may conveniently resort to; (2) that the Philippine
court is in a position to make an intelligent decision
as to the law and the facts; and (3) that the
Philippine court has or is likely to have power to
enforce its decision. (Manila Hotel v. NLRC, G.R.
No. 120077, 2000).
Reserved Domain of Domestic Jurisdiction
It is the domain of state activities where the Jurisdiction of
the state is not bound by international law. The extent of
this domain depends on international law and varies
according to its development (i.e., when a norm crystallizes
into custom).
The reservation of this domain is without prejudice to the
use of enforcement measures under UN Charter, ch. Vt!'.
EXEMPTION FROM JURISDICTION
(a) Act of State Doctrine
Courts of one country will not sit In judgment on the acts of
the government of another in due deference to the
independence of sovereignty of every sovereign State
(PCGG v. Sandiganbayan, G.R. No. 124n2, 2007).
The Act of State doctrine is one of the methods by which
states prevent their national courts from deciding disputes
which relate to the internal affairs of another State, the
·, other two being immunity and non-justiciability. It is an
avoidance techn.que that is directly related to a State's
obligation to respect the independence and equality of
other' States by not requiring them to submit to adjudication
in a national court or to settlement of their disputes without
their consent. It requires the forum court to exercise
restraint in the adjudication of disputes relating to
legislative or other governmental acts which a foreign State
has performed within its territorial limits. (PCGG v.
Sandiganbayan, G.R. No. 124772, 2007).
(b) International Org,mizatlons and its Officers
One of the basic immunities of an international
organization is immunity from local jurisdiction, i.e., it is
immune from the legal writs and processes issued by the
tribunals of the country where it is found. The obvious
reason for this is that the subjection of such an
------ --··· ... ··-···- ------· __
,, .... -- ···-
ATENEO CENTRAL
BAR OPERATIONS 2019
organization to the authority of the local courts would afford
a convenient medium thru which the host government may ·
interfere in their operations or even influence or control its
policies and decisions of the organization; besides, such
subjection to local jurisdiction would impair the capacity of
such body to discharge its responsibilities impartially on
behalf of its member-elates. (Southeast Asian Fisheries v.
NLRC, G.R. No. 86773, 1992).
There are basically three propositions underlying the grant
of International immunities to international organizations.
These principles, contained in the ILO Memorandum are
stated thus:
1. International institutions should have a status which
protects them against control or interference by any
one government in the performance of functions for the -,
effective discharge of which they are responsible to
democratically constituted international bodies in which
all the nations concerned are represented;
2. No country should derive any national financial
advantage by levying fiscal charges on common
international funds; and
3. The international orqanzanon should, as a collectivity
of States members, be accorded the facilities for the
conduct of its official business customarily extended to
each other by its individual member States.
(International Catholic Immigration Commission v. ·
Calleja. G.R. No. 85750, 1990)
Doctrine of State Immunity
It refers to a principle by which a state, its agents, and
property are immune from the jurisdiction of another state
[MAGALLONA].
This principle is premised on the juridical equality of states,
according to which a state may not impose its authority or
extend its jurisdiction to another state without the consent
of the latter through a waiver of immunity.
Thus, domestic courts must decline to hear cases against
foreign sovereigns out of deference to their role as
sovereigns.
Immunity may be:
1. Absolute sovereign immunity, where a state cannot
be sued in a foreign court no matter what the act it is
sued for; or ; investigation in connection with any crime committed
2. Restrictive sovereign Immunity, where a state is
immune from suits involving governmental actions
Gure imperr i), but not from those arising from
commercial or non-governmental activity (jure
gestionis).
A State which owns or operates a ship cannot invoke
immunity from jurisdiction before a court of another State
Page 290 of 320
POLITICAL LAW
Immunity as a customary norm
The principle of sovereign immunity from suits ts a
customary norm of International law that holds, unless
waived by the state concerned.
Such immunity applies even if the claim against the state
is for violation of a jus cogens norm in international law.
Furthermore, State assets are also lmmune from execution
in connection with such claim. [Jurisdictional Immunities of
the State Case (ICJ, 2012)1 ·
Who determines immunity in the Phlllpphres?
Under Philippine law, the DFA's function includes the
determination of persons and institutions covered by
diplomatic immunities. While exclusive to the DFA, the
DFA's determination is not conclusive. Even with a DFA
certification, however, the court is not precluded from
making an inquiry into the intrinsic correctness of such
certification. [China Nat'I Machinery & Equipment Corp.
(Group) v. Sta. Maria (2012), or the Northrail Case)
Criminal Jurisdiction on board merchant ships and
government ships operated for commercial purpose
The criminal jurisdiction of the coastal State should not be
exercised on board a foreign ship passing through the
territorial sea to arrest any person or to conduct any
investigation in connection with any crime committed on
board the ship during its passage. EXCEPTIONS:
1. if the consequences of the crime extend to the coastal
State; ·
2. if the crime is of a kind to disturb the peace of the
country or the good order of the territorial sea;
3. if the assistance of the local authorities has been
· requested by the master of the ship or by a diplomatic '.·. I,
1 ... •
agent or consular officer of the flcig State; or
4. if such measures are necessary for the suppression of
illicit traffic in narcotic drugs or psychotropic
substances. ...
;..,
'
;;
Except as provided in Part XII (Protection and Preservation
of the Marine Environment) or with respect to violations of
laws and regulations adopted in accordance with Part V
(Exclusive Economic Zone), the coastal State may not take
any steps on board a foreign ship passing through the
territorial sea to arrest any person or to conduct any !.....-;.,·
.I;
before the ship entered the territorial sea, if the ship, ·
proceeding from a foreign port, is only passing through the
territorial sea without entering internal waters. [Article 27,
UNCLOSJ
'Immunity cannot be Invoked in commercial
transactions of ships owned and operated by a State
 ATENEO CENTRAL
BAR OFERATIONS 2019 POLITICAL LAW

in a proceeding which relates to the operation of that ship ownership used for the used excluslvely for the
if, at the time the c.ause of action arose, the ship was used purpose of the mission purposes of consular post.
for other than government . non- commercial purposes. including the residence
{Article 16, United Nations Convention on Jurisdictional of the head of mission.
Immunities of States and Their Property]
The consular premises, their
Immunity of warships from execution furnishings, the property of
A state's naval vessel may not be proceeded against to the consular post and its
answer for said state's financial liabilities to a third party. It means of transport shall be
stated that, "in accordance with general international law, immune from any form of
a warship enjoys immunity" and that "any act which requisition for purposes of
prevents by force a warship from discharging its mission national defense or public
and duties is a source of conflict that may endanger utility. If expropriation is
friendly relations among States." [Argentina v, Ghana necessary for such purposes,
(ITLOS, 2012)] all possible steps shall be
taken to avoid impeding the
performance of consular
BASIC PRINCIPLES OF DIPLOMATIC AND CONSULAR
functions, and prompt,
LAW
adequate and effective
compensation shall be paid to
Diplomatic And Consular Relations the senJing State.
I

DIPLOMATS CONSULS
The agents of the The agents of the receiving
Administrative and receiving State may not State may not enter the
Political relatlons of the premises except with the
economic issues of the enter the premises
state except with the consent consent of the head ·cif
state
of the head of the consular post.
mission.
Right of Legation
The consent may be
The right of a state to maintain diplomatic relations with
assumed in case of fire or
other states. other disaster requiring
prompt protective action
Types
1. Active - right to send diplomatic representatives. The diplomatic bag shall The consular bag shall not be
2. Passive - right to receiv~ diplomatic representatives, not be opened or opened or detained.
detained.
Diplomatic And Consular Immunities Authorities may request that
• Personal Inviolability the bag be opened in their
• Inviolability/Immunity of premises presence by an authorized
representative of the sending
f • • Right of protection
state if they have serious
• Immunity from local jurisdiction on the basis of reason to believe that the bag
r :
international custom contains objects other than
..~··-''
\: • Exemption from taxes and personal services articles, documents,
I' ·;.
• lnviolabil!ty of means of communication correspondence or articles.
•; y • Immunity from search of diplomatic bag
A diplomatic agent is not Members of the consular post
obliged to give evidence may be called upon to attend
DIPLOMATIC as a witness. as witnesses.
CONSULAR IMMUNlrf
IMMUNITY (Vienna
(Vienna Convention on
Convention on If a consular officer should
Consular Relations)
Diplomatic Relations) decline to do so, no coercive
measure or penalty may be
"Premises of the "Consular premises" - Include applied.
mission" - Include the the buildings or parts . of '1--~~~~~~~~-1--~~~~~~~~~--l
buildings or parts of buildings and the land A diplomatic agent shali Members of the consular post
buildings and the land irrespective of ownership enj~y immunity from the shall enjoy immunity from the
irrespective of
Page 291 of 320
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

State immunity now extends only to acts jure imperii. When

jurisdiction of the jurisdiction of the receiving
the proceedings arise out of commercia.1 ~~nsactions of t~e
receiving State except in State in respect of acts
foreign sovereign, its corrrnerclal activities or economic
case of: performed In the exercise of
affairs, such are jus gestionis, which are not covered by
1. Real action relating consular function except in
immunity. However, it does not apply where the contract
to private immovable case of:
relates to the exercise of its sovereign functions (USA v
property Exception: 1. Civil action arising out of Guinto, G.R. No. 76607, 1990}.
He holds it on behalf a contract concluded by a
of the sending State person who did not
contract expressly or Doctrine of Sovereign Immunity
for the purpose of the
mission impliedly as an agent of Immunity from jurisdiction is enjoyed by both the head of
2. Actions for the sending State State and by the State Itself.
succession 2. Civil action by a third
3. Professional or party for damage arising Process of Suggestion
commercial activity from an accident in the . In the Philippines, the practice is for the foreign
receiving State caused by government or the international organization to first secure
a vehicle, vessel or an executive endorsement of its claim of sovereign or
aircraft diplomatic immunity. The DFA has made the endorsement
through the following: .
1. A letter that the defendant cannot be sued because
Diplomatic v. Consular Immunity · it has diplomatic immunity (International Catholic
The Agreement between the Asian Development Bank and · Migration Comrniselon v. Calleja, G.R. No. 85750,
the Philippines only provides officers and staff of the bank . 1990).
immunity from legal process with respect to acts performed 2. A manifestation in Court and memorandum as
by them in their official capacity, except when the Bank amicus curiae (Baerv. Tizon, G.R. L-24294, 1974).
waives the immunity. Slander cannot be considered as
falling within the purview of the immunity granted since it is The fact that the Solicitor General has endorsed a claim of
not an act performed in an official capacity. (Jeffrey Liang a State's immunity from suit does not sufficiently substitute
v. People of the Philippines G.R. No. 125865, 2001) for the DFA certiflcauon (GTZ v. CA, GR No. 152318,
2009).
The establishment of a diplomatic mission as well as its
upkeep and maintenance are acts Jure imperii. Hence, the The determination by the department is considered a
State may enter into contracts with private entities to political question that is conclusive upon Philippine courts.
maintain the premises, furnishings, and equipment of the
embassy and the living quarters of its agents and officials.
Immunity of Foreign Armed Forces
(Rep. of Indonesia v. Vinzon, G.R.. No. 154705, 2003)
The rule in international law is that foreign armed forces
allowed to enter one's territory are immune from Inca!
State And Dlplomatlc Immunity jurisdiction. except to the extent agreed upon. The Status ("
of Forces Agreements involving foreign military units
Immunity around the world vary in terms and conditions, according ,
General Rule: The juri:.diction of a State within its territory to the situation of the parties involved and thslr bargaining ..
is complete and absolute. power. (Nicolas v. Romu/o, G.R. No. 175888, 2009).
;,__ ,.
Exceptions: Sovereign immunity and diplomatic
immunity. F. GENERAL PRINCIPLES Of TREATY LAW

State Immunity Definition

The State may not be sued without its consent. This is
based on the principle of par in parem non habet imperium
(an equal has no power over an equal).
Scope of State Immunity
1. Absolute
2. Qualified immunity or restrictive application of
State lmmunlty.
Page 292 of 320
It is an international agreement concluded between States
in written form and governed by international law, whather
embodied in a single instrument or in two or more related
instruments, and whatever its particular designation
(Vienna Convention on the Law of Treaties, art. 2). '~-.. ~
Under the VCLT, the term "treaty" includes all agreements
between states, regardless of how they are called. Thus.
for purposes of international law, treaties. executive
agreements. exchanges of notes, etc., are all treaties.
.r.
,__
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

President, but only the Senate (AKBA YAN v. Aquino, G.R.

Effect of an Unwritten Treaty , No. 170516, 2008).
1. Convention rules on Matters governed by international
law independently of convention shall apply; The signing of a treaty is composed of two separate and
2. Convention rules apply to the Relations of states as distin'ct processes to which each requires the exclusive
between themselves under international agreement prerogative and act of the executive and legislative. One is
with other subjects as parties; and the signing of the treaty which is handled by the executive
department during the negotiation stage. The other is the
3. Has Legal force
ratification stage where the president ratifies a treaty but
with the concurrence c:,f 2/3 of the Senate.
Treaty v, Executive Agreement
EXECUTIVE it is within the power of the President to refuse to submit a
TREATY treaty to the Senate or, having refused its consent for
AGREEMENT
ratification, refuse to ratify it. The Senate's role is limited
SUBJECT MATTER: (PNP) SUBJECT MATTER: only to giving or withholding its concurrence to the
1. folitical issues (TITA) ratification. The Senate cannot, by mandamus, compel the
2. Changes in National 1. Arrangemnnts of executive to transmit a treaty for concurrence (Pimentel v.
policy Iemporary nature Executive Secretary, G.R. No. 158088, 2005).
3. International 2. Implementation of
arrangements of a treaties and statutes EDCA remained within the parameters set by the two
f ermanent character 3. Iransitory effectivity treaties (the MDT and the VFA). Mere adjustments in detail
4. Adjustment of details to impiement the MDT and the VFA can be in the form of
carrying out executive aqreernents. The "activities" referred to in the
established national MDT are meant to be specified and identified in further
policies and traditions agreements. EDCA is an example ~>f such agreement. The
President's choice to enter into EDCA by way of executive
Must be ratified by 2/3 of the Does not need to be agreement is in view of the vast constitutional powers and
Senate to become valid and ratified by the Senate. prerogatives granted to him in the field of foreign affairs.
effective ( 1987 Constitution, (Saguisag v. Executive Secretary, G.R. Nos.
art. 7, § 21). 2124~6/212444, 2016)

Full Powers
There is no hard and fast rule on the propriety of entering,
The authority granted unto a representative of the state to
on a given subject, into a treaty or an executive agreement
enter into, negotiate, sign and seal a treaty. This shall be
as an instrument of ir,ternational relations. The primary
made by the President 01: the Secretary of the DFA, whel
consideration in the choice of the form of agreement is the
:,j I delegated. (E.O No. 459)
parties' intent and desire to craft an international
agreement in the 1orm they so wish to further their
respective interests. The matter of form takes a back seat Persons exempted from showing full powers
when it comes to effectiveness and binding effect of the 1. Secretary of the DFA
'.
",
\.
J
enforcement of a treaty or an executive agreement, as the 2. Heads of Philippine diplomatic missions (for the
parties in an international ag,eement each labor under purpose of adopting the text of a treaty or an
the pacta sunt servanda principle. (Bayan Muna v.. agreement between the Philippines and the State to
\'..;_, ,,/
Romulo, G.R. No. 159618, 2011). which they are accredited):
3. Representatives accredited by the Philippines to an
Power to Negotiate and Senate Concurrence international conference or to an international
In the realm oi treaty-making, the President has the sole organization er one of its organs, for the purpose of
authority to negotiate with other Slates. It follows that adopting the text of a treaty in that conference,
Congress, while possessing vest legislative powers, may organization or organ (EO No. 459)
not interfere in the field of treaty negotiations. While Article
VII, Section 21 provides for Senate concurrence, such Requisites for Validity
pertains only to the validity of the treaty under
1. Treaty making capacity, which is possessed by all
consideration, not to the conduct of negotiations attendant
states as an attribute of sovereignty. International
to its conclusion. Moreover, it is not even Congress as a
organizations also possess treaty- making capacity,
whole that has been giv1m the authority to concur as a
although limited by the organization's purpose;
means of checking the treaty-making power of the
·. ... 2. Competence of the representative/organ making the
treaty, which may be the head of state, which generally
Page 293 of 320

--- - -··~---------------------------------------1
ATENEO CENTRAL
BAR OPERATIONS 2019
has full powers, or other persons called
plenipotentiaries, which must produce an instrument
showing authority to sign a treaty binding their
government;
3. Consent freely givf3n by the parties. If consent was
given erroneously, or was induced by fraud, the treaty .
shall be voidable;
4. Object and subject matter, which must be lawful;
5. Ratification in accordance with the constiMional
process of the parties concerned.
In addition to the constitutional requirement,
ratification is necessary under international law when:
1. The treaty provides for consent to be expressed by
means of ratification;
2. It is otherwise established that the negotiating states
agreed that ratification should be required;
3. The representative of the state has signed the treaty
subject to ratification [VCLT, art. 14(1 )], that Is, when
the intent was to make it subject to ratification.
Treaty-making process
1. Negotiation. The state representative 1 discuss the
terms and provisions of the treaty.
2. Adoption. When the form and content have been
settled by the negotiating states, the treaty is adopted.
This is only preparatory to (1) the authentication of the
text of the treaty and (2) the signing thereof. [VCLT,
art. 9}
3. Authentication. A definitive text of the treaty is
established as the correct and authentic one;
4. Expression of consent. The state parties express
their consent to be bound by the terms of the treaty.
The modes of such expression are provided in the
VCLT.
5. Registration. The treaty is then registered with the
Secretariat of the United 5 Nations. Otherwise, the
treaty may not be invoked before any UN organ [UN
Charter, art. 102(2)] including the ICJ.
In the Philippines, the negotiation of treaties and their
ratification are executive functions, subject to concurrence
of the Senate.
Consent to be bound by the terms of a treaty may be
expressed through:
1. Signature, when the negotiator is authorized to sign the
treaty. This signature is sufficient to bind the state under
the treaty if: · 5. Subsequent Practice
a. The treaty provides that signature shall have that
effect;
b. It is otherwise established that the negotiating states
agreed that signature should have that effect; or
c. The state can be shown to have had the intention to be '
bound by the signature (e.g., based on the powers of
Page 294 of 320
POLITICAL LAW
its representative) (Article 12( 1 ), VCLOT);
Practice of Alternat
Arrangement under which each negotiator is allowed to
sign first on the copy of the treaty which he will bring
home to his own country, the purpose being to preserve
the formal appearance of equality among the
contracting states and to avoid delicate questions of
precedence among the signatories.
Effect of Signature with respect to Ratification
Signature does not create an obligation to ratify.
Obligation not to Defeat the Object and Purpose of
a Treaty before its Entry Into Force
A State is obliged to refrain from acts which would
defeat the object and purpose of a treaty when:
2. it has signed the treaty or has exchanged
instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall
have made its intention clear not to become a party
to the treaty; or
3. it has expressed its consent to be bound by the
treaty, pending the entry into force of the treaty and
provided that such entry into force is not unduly
delayed. (VCLT, Art.18)
2. Ratification , the formal consent to the treaty given by
the head of state, sometimes in conjunction with the
legislature; ·
1. Exchange of instruments constituting the treaty;
2. Acceptance;
3. Approval;
4. Accession, the method by which a state, becomes
a party to a treaty of which it is not a signatory and
in the negotiation of which it did not take part;
l ....
Kinds of Accession
1. Accession proper - non-signatory becomes a party to
all the provisions of the treaty
2. Adhesion or Adherence: non-signatory becomes a
party in some o'i the provisions of the treaty
Interpretation of Treaties
1. Actuality - based on actual text
2. Natural and Ordinary meaning -, ,,/
3. Integration - interpreted as a whole;
4. Effectiveness - based on object and purpose
.,......
6. Contemporaneity - interpreted in light of linguistic \:.._:i
usage current at the time when the treaty was
concluded ,, r,
"\:,.,,:...
.
\.
,· ....,
~
! ·~
 A TENEO CENTRAL
BAR OPERATIONS 2019
Travaux Preparatolres
The 'preparatory work; of a treaty that contains its
legislative history. It is used as a supplementary means of
interpretation of a treaty. (VCLT, Art. 32)
Amendment or modification of treat.y
General rule: Consent of all the parties is required.
Exception: If the treaty itself so allows, two states may
modify a provision only insofar as their relationship inter
se.
Reservations
General rule: A reservation is a unilateral statement made
by a state upon entering a treaty and operates to exclude
or modify the legal effect of certain provision/s of the treaty
in their application to the reserving state. (VCL T, art. 19)
Exceptions: A reservation shall not operate to modify or
exclude the provisions of a treaty: .
1. Where the treaty expressly prohibits reservations in ·
general;
(6) Where the treaty expressly prohibits · that specific
reservation being made; or
(7) Where the reservation is incompatible with the object
and purpose of the treaty. [Reservation to the
Genocide Conventions Advisory Opinion ( ICJ, 1951)]
Invalid treaties
1. If the treaty violates a jus cogens norm of international
law;
2. If the conclusion of a treaty is procured by threat or use
of force;
3. Error of tact, provided that such fact formed an
essential basis of a state's consent to be bound;
4. If the representative of a state was corrupted to
consent by another negotiating state;
5. If consent was obtained through fraudulent conduct of
another negotiating state;
6. If th~ representative consented in violaton of specific
I - restnctlons on authority, p r o v i d e d the restriction
'\ w
was notified to the other negotiating states prior to the
representative expressing such consent;
7. If consent was given in violation of provisions of
internal law regarding competence to conclude treaties
that is manifest and of fundamental importance.
(VCLT] .
Grounds for termination
1. Expiration of the term, or withdrawal of a party in
accordance with the treaty;
2. Extinction of a party to the treaty, when the treaty rights
and obligations would not devolve.upon the successor-
state;
3. Mutual agreement of parties;
''~., .I 4.. Denunciation or. desistance by a party;
5. . Supervening impossibility of performance;
Page 295 of 320
POLITICAL LAW
6. Conclusion of a subsequent inconsistent treaty;
7. Loss of subject matter; ·
8. Material breach or vlolation of treaty
9. Fundamental change in circumstance (similar to the
customary norm of rebus sic stantibus) such that the
foundation upon which the consent of a state to be
bound initially rested has disappeared. [VCL T, art. 62).
The requisites are:
a. The change is so substantial that the foundation of
the treaty has altogether disappeared;
b. The change was unforeseen or unforeseeable at
the time of the perfection of the treaty;
c. The change was not caused by the party invoking
the doctrine
d. The doctrine was invoked within a reasonable
time;
e, The duration of the treaty is indefinite;
f. The doctrine cannot operate retroactively (it must
not adversely affect provisions which have already
. · been complied with prior to the vital change);
10. Outbreak of war between the parties, unless the treaty
relates to the conduct of war;
11. ~~ve:ance of diplomatic relations, if such relationship
rs indispensable for the treaty's application;
12. Jus cogens application, or the emergence of a new
peremptory norm of general international law which
renders void any existing, conflicting treaty.
Pacta Sunt Servanda
Every treaty in force is binding upon the parties to it and
must be performed by them in good faith. (Vienna
Convention on the Law of Treaties, art. 26).
A state can avoid performance if the treaty collides with its
Constitution, but it cannot escape liability that It may incur
as a result of such non-performance.
From the perspective of public International law, a treaty is
favored over municipal law pursuant to the principle of
pacta sunt servanda. A party to a treaty is not allowed to
Invoke the provisions of Its internal law as justification for
its failure to perform a treaty. Nevertheless as far as the
Court is concerned, a treaty is always subject to
~ualifi?3tion or amendment by a subsequent law, or that, it
rs subject to the police power of the State (Um v. Executive
Secretary, G.R. No. 151445, 2002).
'
Rebus Sic Stantlbus
General Rule: A fundamental change of circumstances is
not a ground for a treaty to be suspended or terminated.
Exceptions:
1. The circumstance Is the essential basis of consent.
2. The obligation is transformed radically that It becomes
burdensome or unreasonable.
 ATENEO CENTRAL
BAR OPERATIONS 2019
· Exceptions to the Exceptions:
A. If the treaty establishes a boundary;
B. If the fundamental change Is the result of a breach by
the party invoking it either of an obligation under the
treaty or of any other international obligation owed to
any other party to the treaty. (Vienna Conventionon the
Law of Treaties, art. 62)
Rebus sic stantibus is an excepti »n to the rule of pacta sunt
servanda.
Grounds for Invalidity of a Treaty: DJ-FEC
1. .P.uress
2. J,us cogens
3. fraud
4. 5rror of fact
5. .Q.orruption
Clean Slate Rule
General Rule: When one State ceases to exist and is
succeeded by another on the same territory, the newly
independent State is not bound to maintain in force, or
become a party to, any treaty made by its predecessor
although, at the date of succession of States, the treaty
was in force with respect to the territory to which the
succession of State relates. (Vienna Convention on the
Succession of States in Respect of Treaties, art. 16)
Exceptions:
1. When the new State agrees to be bound by the treaties
made by Its predecessor.
2. Treaties affecting boundary regime (uti possidetis
juris).
3. Customary international law.
G. DOCTRINE OF STATE RESPONSIBILITY
Definition
State responsibility is a fundamental principle of
international law whereby a State, either by an act or
omission, has breached an internatlonal obligation in force'
and incurs, in the absence of circumstances precluding
wrongfulness of its conduct, certain legal consequences
for the internationally wrongful act attributable to it,
including the obligation to cease the wrongful conduct and
make such full reparation of any material and moral
damage to the injured State or States as is reasonably
adequate depending on the merits of the case in question.
(Boczek, The A to Z of International Law, 121, 2010).
Every internationally wrongful act of a state entails the
international responsibility of that State [Artir,les on State
Responsibility ("ASR"), art. 1]
Page 296 of 320
· POLITICAL LAW
Elements .
There is an internationaily wrongful act of a stale when the
conduct consisting of an action or omission:
1. Is attributable to the State under international law: and
2. Constitutes a breach of an international obligation of a
State. [ASR, art. 2].
The characterization of an act of a state asinternationally
wrongful is governed by international law. Such
characterization is not affected by the characterization of
the same act as lawful by internal !aw. [ASR. art. 4]
Attribution
the following acts are attributable to States, i.e. States may
be held Internationally responsible for them:
1. Conducts of organs of a state (art. 4 );
2. French secret service agents conducted undercover
operations which led to the sinking of the Dutch-
registered Greenpeace ship Rainbow Warrior. France
admitted responsibility. (Rainbow Warrior Case);
3. Conducts of persons or entities exercising elements of
governmental authority (art. 5);
4. P.. State is responsible for damage suffered by a
foreigner as the result of acts or omissions of
autonomous institutions exercising public functions of .
a legislative or administrative character, if such acts or
omissions contravene the international obllqations of
the State. {League of Nations, Conference for the
Codification of International Law, Bases of Discussion)
5. Conducts of organs placed at the disposal of a state
by another state (art. 6); A section of the health service
or some other unit placed under the orders of another
country to assist in overcoming an epidem!c or natural
disaster, or judges appointed in particular cases to act
as judicial organs of another State. (Draft articles on
Rasponsibllity of States for Internationally Wrongful
Acts, with commentaries)
6. Acts done in excess of authority or in contravention of
instructions (ultra vires acts) (art. 7); Two Mexican
military officers, having failed to extort money from
Caire, a French natioral, killed the latter. Such acts
,• -
were deemed attributable to Mexico. (Caire Case) ',_,;:~.
7. Conduct directed or controlled by a state (art. 8);
The United States was responsible for the •planning,
direction and support" given by the United States to
Nicaraguan operatives. (Nicaragua Case)
8. Conduct carried out in the absence or default of the
official authorities (art. 9);
··-·
9. The acts of the Revolutionary Guards or "Komitehs" in
performing immigration, customs and similar functions
at Tehran airport immediately after the revolution in the
Islamic Republic of Iran was attributable to the Islamic
Republic of lran, on the basis that, if it was not actually
authorized by the Government, then the Guards at
least exercised elements of governmental authority in \ .;
the absence of official authorities, in operations of
'l.....
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

which the new Government must have had knowledge

Provides a higher Presents lower threshold
and to which it did not specifically object. (Yeager v threshold for attribution. for attribution.
Iran)
10. Conductofinsurrectional or other movements (art. 10);
A general situation of There need not be a
11. An American citizen, employed by an American dependence and support showing of actual or direct
company in Iran, alleged that he was forcefully
would thus be insufficient control.
expelled from Iran three days before the Islamic
to justify attribution.
Revolutionary Government took office and claimed
damages for his loss of employment benefits. The When dealing with the When dealing with the
commission affirmed the principle that where a matter of state matter of individual criminal
revolution leads lo the establishment of a new resoonsibility responsibility and the
government, the state is held responsible for the act of application of the rules of
the overthrown government. (Short v Iran) international humanitarian
12. Conduct acknowledged and adopted by a state as its law (e.g. Prosecutor v
own (art. 11 ). Tadic)
13. The policy announced by the Ayatollah Khomeini of
maintaining the occupation of the Embassy and the
detention of its inmates as hostages for the purpose of . IMPLICATIONS AND CONSEQUENCE OF STATE
exerting pressure on the US Government as complied RESPONSIBILITY
with by other Iranian authorities and endorsed by them A. Duty to cease the act
repeatedly in statements made in various contexts
were attributable to the State. (United States The State responsible for the wrongful act is under the
Diplomatic and Consular Staff In Tehran) obligation to:
1. Cease the act if it is still continuing; and
Effective Control 2. Offer appropriate assurances and guarantees of
non-repetition (ASR, art. 30) ·· ·
A state is responsible only for the acts of its organs and
per the Nicaragua case, for those non- state actors over
which it exercised "effective control," that is, it should have
._ B. Duty to make reparations
instructions or provided the direction pursuant to which the The responsible State is under an obligation to make
perpetrators of the wrongful act acted. full reparation for the injury caused by the
internationally wrongful act.
In the 2007 Application of the Convention on the
Prevention and Punishment of the Crime of Ge,,ocide Injury includes any damage, whether material or moral,
case, the ICJ said the "over-all control test" was only caused by the internationally wrongful act of a State.
relevant in in so far as the question of the characterization [ASR, art. 31)
of the Yugoslav conflict as an international armed conflict
or whether or not the conflict has been Internationalized; it The responsible State may not rely on the provisions of
is not relevant in so far but not to the task of determining its internal law as justification for failure to comply with
whether a state is responsible for the acts of certain non- its obligations to make reparations. [ASR, art. 32)
state organs involved in that same international armed
conflict. · · There are three forms of reparation:
a. Restitution
EFFECTIVE CONTROL OVER-ALL CONTROL b. Compensation
{ ~·· c. Satisfaction
Control must have been Control must have gone
exercised in respect to "beyond the mere financing Restitution
each individual act or and equipplnq of such A State responsible for an internationally wrongful act is
r -~ omission which constitutesforces" and must have under an obligation to make restitution, that is, to re-
the breach. involved "partic'patlon in establish the situation which existed before the wrongful
the planning and act was committed, provided and to the extent that
The private persons or supervision of military
restitution:
groups must have been operatlcns." 1. Is not materially Impossible;
mere agents of the state 2. Does not involve fl burden O!Jt of all proportion to the
who were told what had to benefit of the party deriving from restitution instead of
r be done at all stages. compensation. [ASR, art. 35]
:.,... i

Page 297 of 320

...... ,
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Compensation State. This right has a corollary, a duty: the obligation to

The State responsible for an internationally wrongful act is
under an obligation to compensate for the damage caused
thereby, insofar as such damage is not made good by
restitution.
The cornpensaton shall cover any financially assessable
damage induding loss of profits insofar as it is ostablished.
[ASR, art. 36]
Satisfaction
The State responsible for an internationally wrongful act is
under an obligation to give satisfaction for the injury
caused by that act insofar as it cannot be made good by
restitution or compensation.
Satisfaction may consist in an acknowledgement of the
breach, an expression of regret, a formal apology or
another appropriate modality.
Satisfaction shall not be out of proportion to the Injury and
may not take a form humiliating to the responsible State.
[ASR, art. 37)
protect within the territory the :ights of other States, in
particular their right to integrity and inviolabllity in peace
and ir. war. together with the rights which each Slate may
claim for its nationals in foreign territory." [Island of Las
Palrnas Arb. (PCA, 1928)]
Alien not Preferred over Nationals
However, an alien cannot claim a preferred position vis-a-
vis the national of the state. [see Calvo Doctrine, infra]
Various forrns of ill-treatment:
1. Mistreatment by judicial or police authorities,
2. Unlawful expropriation of property,
3. Failure to prosecute those who attack foreign
nationals. or a denial of justice (der.ial of due process
of the law). ·
Standards for the Protection of Allens
NATIONAL MINIMUM
TREATMENT/ EQUALITY INTERNATIONAL
OF TREATMENT STANDARD

Aliens are treated in the This is a standard which

ADDITIONAL DISCUSSION ON TREATMENT OF same manner as nationals must be accorded to aliens
ALIENS of the State where they by all States irrespective of
reside. It is also known as how they treat their own
STANDARD OF TREATMENT , the doctrine of equality cf nationals. European
treatment. powers often upheld this
Protection Of Aliens standard in contrast to the
As an aspect of sovereignty, no State is obliged to admit
In essence, aliens and Latin American States'
aliens into Its territory unless a treaty requires it. However, their property are not assertion of the national
practically speaking, it is difficult to deny admission to all.
entitled to a more favorable treatment principle.
Therefore, what a State does is to impose legal standards
treatment than that of the
for admission. Once an alien is admitted into a State, ~ '
nationals of the host State. Historically applied to 'I
he/she cannot be expelled without due process. Thus, a State fulfills its property rights ahd
international obligc1tion on investment issues.
They are considered "nationals abroad" and remain under the treatment of aliens and However, with the
their own State's protection. their property by extending development of human
equal treatment (Roth, The rights law, individuals are
Practice of proper treatment of aliens is based on the Minimum Standards of equally protected
commonality of interests between States, in the International Law, 62, regardless of nationality.
expectation that a State's own nationals will be protected 1949).
when residlng or sojourning abroad.
STATE RESPONSIBILITY
Effect of State Admission of Aliens
A state may be held responsible for:
Once it admits aliens, under the international standard of ·
1. Ar, international delinquency; {'-,'
justice, which calls for compliance with the ordinary norms ·.:. ..:.-
of official conduct observed in civilized jurisdictions. aliens 2. Directly or indirectly imputable to it;
should be orotected by certain minimum standards of 3. Which causes injury to the national of another state.
humane protection, however harsh the municipal laws of a
state may be. Liability will attach to the state where its treatment of the ( :·
alien falls below the international standard of justice or \~ ... '
States have concomitant obligations with their rights as where it is remiss in according him the protection or I ,
sovereigns over their territories 'Territorlal sovereignty[ ... ] redress that is warranted by the circumstances. '(..;.

involves the exdusive right to display the activities of a

Page 298 of 320
 ATENEO CENTRAL
BAR OPERATIONS 2019
The propriety of governmental acts should be put to the
test of international standards. The treatment of an alien,
in order to const'tute an international delinquency, should
amount to an outrage, to bad faith, to willful neglect of duty,
or to an insufficiency of governmental action so far short of
international standards that every reasonable and impartial
man would readily recognize its insufficiency [Neer Case
(PCIJ, 1926)].
For the enforcement of this state responsibility, the
following must be complied with:
1. Exhaustion of local administrative remedies;
2. Representation of the alien by his own state in the
international claim for damages.
Calvo Clause ·
A stipulation which states that the foreign party must rely
exclusively on local remedies and not seek any diplomatic
protection.
Rationale:
1. Non-intervention; and
2. aliens are entitled only to such rights as are accorded
nationals and thus had to seek redress for grievances
exclusively in the dornestlc arena. [SHAW]
e.g. A stipulation may be made by virtue of which an alien
waives or restricts his right to appeal to his own state in
connection with any claim arising from a contract with a
foreign state and limits himself to the remedies available
under the laws of that state. · between returning them to the State from which they might
I. REFUGEES
Definition
·, . One who, owing to a well-founded fear of being persecuted
for reason of race, religion, nationality, membership oi a
particular social group or political opinion, is outside the
country of his nationality, and is unable to, or owing to such
fear, is unwilling to avail himself of the protection of that
country. (1951 Convention Relating to the Status of
Refugees, art. 1)
t >
Governing Statute
r.'• n . The controlling international convention on refugee law is
the 1951 Convention relating to the Status of
Refugees (1951 Convention) and its 1967 Optional
Protocol relating to the Status of Refugees
Some persons not covered by the 1951 Convention
Relating to the Status of Refugees . Under the Convention Relating to the Status of Stateless
--~· 1. 0ne who has committed a crime against peace, a war
crime, or a crime against humanity, as defined in the
'c.....,;' international instruments draw up to make provision in
respect of such crimes. .
.[ .
<, ;
Page 299 of 320
POLITICAL LAW
2. One who has committed a serious non-political crime
outside the country of refuge prior to his admission to
that country as a refugee.
3. One who has been guilty ol acts contrary to the
purposes and principles of the United Nations. (1951
Convention Relating to the Status of Refugees, art 1).
Rights of Refugees
Refugee law and lnternatlenal human rights law are closely
intertwined; refugees are tleeing governments that are
either unable or unwilling to protect their basic human
rights. Additionally, in cases where the fear of persecution
or threat to life or safety arises in the context of an armed
conflict, refugee law. also intersects with international
humanitarian law.
1. Non-Refoulment
2. Freedom of Movement
3. Right to Liberty and Security of Person
4. Right to Family Life
5. Others (rights to education, access to justice,
employment, and other fundamental freedoms and
privileges similarly enshrined in international and
regional human rights treaties.
Principle Of Non-Refoulement
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. (1951 Convention Relating to the
Status of Refugees, art. 33). It does not distinguish
have come or to one that will also maltreat them.
Internally Displaced Persons
People or groups of people who have been forced or
obliged to flee or to leave their homes of places of habitual
residence, in particular as a result of or in order lo avoid
the effects of armed conflict, situations of generalized
violence, violations of human rights or natural or human-
' made disasters, and who have not crossed an
internationally recognized State border. (UN Guiding
Principles on Internal Displacement, par. 2).
!
Statelessness
Statelessness is the condition or status of an individual
who Is born without any nationallty or who loses his
nationality without retaining or acquiring another [CRUZ].
Persons ~1960), a stateless person is entitled to, among
others, the right to religion and religious instruction, access
to courts, elementary education, public relief and
assistance and rationing of products in short supply, as
well as treatment of no less favorable than that accorded
to aliens.
 ATENEO CENTRAL
BAR OPF-RATIONS 2019
Also, under the Universal Declaration of Human Rights:
Everyone has a right to the nationality.
No one shall be arbitrarily deprived of his
nationality nor denied the right to change his
nationality.
Stateless Persons . In a case decided by the Supreme Court, the Chief Justice
A person who is not considered as a national by any State
under the operation of its law. (1954 Convention Relating
to the Status of Stateless Persons, art 1).
Types of Statelass Persons
1. De Jure Stateless Persons - Those who have lost
their nationality if they had one, and have not acquired
a new one.
2. De Facto Stateless Persons -Those who have a
nationality but to whom protection is denied by their
state when out of the state. This is the situation of
many refugees.
Asylum Seeker
A person who has left their country of origin and formally
applied for asylum in another country but whose
application has not yet been concluded.
Foundlings
Definition
A child, whose parents are both unknown shall have the
nationality of the country of his or her birth' A foundling is
until the contrary is proved, presumed to have been bor~
on the territory of the State in which he or she was found.
(F::~·Llamanzares v, COMELEC, G.R. No. 221697, 2016,
c,tmg 1961 Convention on the Reduction of Statelessness
art. 2; 1930 Hague Convention on Certair. Question;
Relating ~o t~e Conflict of Nationa/J~, Laws, art. ·t4) This
presumption in favor of foundlings is a generally accepted
principle of international law. (Poe-Llamanzares v.
COMELEC, G.R. No. 221697, 2016).
While the Philippines is not a party to the 1961 Convention
on the Reduction of Statelessness (UNCRS) and the 1930
Hague Convention, it is a signatory to the Universal
Declaration on Human Rights (UDHR}. Article 2 of the
UNCRS and Article 14 of the Hague Convention merely
give effect to Article 15(1) of the UDHR. (Poe-Llamanzares
v. COMELEC, G.R. No. 221697! 2016).
Citizenship of Foundlings
Foundlings are citizens under international law. Article 24
of the International Covenant on Civil and Political Rights
provides for the right of every child "to acquire a
nationality." The Philippines is obligated under various
c?nventions such as the ICCPR to grant nationality from
birth and ensure that no child is stateless. This grant of
Page 300 of 320
~-~----------------·- .... ··-
POLITICAL LAW
nationality must be at the time of birth, and it cannot be
accomplished by the application of our present
naturalization laws, Commonwealth Act No. 473, as
amended, and RA 9139, both of which require the
applicant to be at least 18 years old. [Poe- Llamanzares v.
COMELEC, G.R. No. 221697 (2016)]
pointed out that in 166 out of 189 countries surveyed (or
87.83%), foundlings are recognized as citizens. These
circumstances, including the practice of jus sanguinis
· countries, show that it is a generally accepted principle of
international law to presume foundlings as having been
born of nationals of the country in which the foundling is
found. [Poe-Uamanzares v. COMELEC, G.R. No. 221697
'·
(2016))
J. EXTRADITION
Deflnltlon
a. The removal of an accused from the jurisdiction of a
Host State with the object of placing him at the disposal
of foreign aulhcrities to enable the Requesting State or
government to hold him in connection with any criminal
investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law
of the Requesting State or Government.
b. Extradition means the surrender of a person by one
state to another state where he is wanted for
prosecution or, if already convicted, for punishment
Fundamental Principles
General Rule: There can only be extradition if there is a
treaty between the States. Outside a treaty, there is no rule
in inte,national law compelling a State to extradite anyone.
Such may be done, however, as a gesture of cornity.
Exception: Even with a treaty, crimes with political and
religious cornplexlon are exempted.
Exception to the Exception: The assassination of a head
l .'.
of State or any member of his family is not regarded as '1 ·'
political offense for purposes of extradition. This is also
known as the attendant clause. It also applies for the crime
of genocide.
Principle of Specialty
As a general rule, a fugitive who is extradited may be tried
only for the crime specified in the request for extradition,
and such crime is included in the list of extraditable / j_
"-i- • ...,.-
offenses in the treaty.
Who may be Extradited
Any person may be extradited, whether he be a national of
the requesting state, of the state of refuge or of another
' ·. .,-
state.
 ATENEO CENTRAL
BAR OPERATIONS 2019
Political and Religious Offenders
Political and religious offenders are generally not subject
to extradition, For the purpose of extradition, genocide and
murder of the head of state or any member of his family
are not political offenses.
Absence of Special Agreement
In the absence of special agreement, the offense must
have been committed within the territory or against the
interests of the demanding state
Aut dedere aut judicare
(means 'either extradite or prosecute') is a conventional
obligation of States found in various treaties. A state
subject to this obligation is bound to extradite if it does not
prosecute, and prosecute if it does not extradite.
Principle of Double Criminality
According to this principle, a person may be extradited only
when his/her actions constitute an offense In both the
Requesting and Requested States. This principle is now
commonly accepted by States and is embodied in
extradition treaties. A party to an extradition treaty may ask
the ether party to extradite a person for a crime committed
before the effectivity of a treaty. It does not violate the
prohibition against ex post facto laws. The constitutional
prohibition applies to penal laws only. An extradition treaty
is not a penal law. (Wright v. CA, G.R. No. 113213, 1994).
Notice and Hearing
A person does not have the right to notice and hearing
during the evaluation stage of ~he extradition process.
Extradition is a proceeding sui generls. It is not a criminal
proceeding which will call into operation all the rights of an
..: .
_:,
accused guaranteed by the Bill of Rights. The process of
extradition does not Involve the determination of the guilt
or innocence of an accused. There Is no deprivation of the
right to due process. (Secretary of Justice v. Hon. Lant/on
and Mark Jimenez, G.R. No. 139465, 2000).
\. ; Extradition v De ortation
Right to Bail
An extraditee should not be deprived of his right to apply
for bail, provided that a certain standard for the grant is
satisfactorily met. The standard or proof required in
granting or denying bail in extradition cases is clear and
,; t Based
•.:...:.' convincing evidence that the extraditee is not a flight risk
and will abide with the orders of the extradition court.
( Government of Hong Kong v. 0/alia,Jr., G.R. No. 153675,
2007).
If bail can be granted in deportation· proceedings, there is
t-._~' no justification not to allow it for extradition because both
are administrative proceedings where the innocence or
' . guilt of the parties is not in issue.
~ ._:
I :
Page 301 of 320
-----~--------------- - . -· .
POLITICAL LAW
Procedure For Extradition (Presldent/11/ Decree 1069)
1. Foreign diplomat of the Requesting State or
Government requests for extradition with Secretary of
Foreign P.ffairs.
2. DFA forwards request to DOJ.
3. DOJ files petition for extradition with RTC.
4. RTC issues summons or Wamint of Arrest to compel
the appearance of the individual.
5. Hearing (provide counsel de officio, if necessary).
6. Appeal to CA within 10 days whose decision shall be
final and executory.
7. Decision forwarded to DFA through the DOJ.
8. Individual placed at the disposal of the authorities of
requesting State. Costs and expenses to be
shouldered by Requesting state.
Distinguished from deportation
(a) Extradition is the "removal of an accused from the
Philippines with the object of placing him at the
disposal of foreign authorities." (PD 1069, §2(a)). It is a
form of international iudicial assistance designed to
deny criminals a safe haven abroad. It is a formal
procedure whereby a,, individual, accused or convicted
of a crime under the laws of one State, is arrested in
another State and handed over to the former State, at
that State's request, for trial or punishment. (Boczek,
The A to Z of /ntemational Law, 60, 2010).
(b) Deportation is the act or an instance of removing a
person to another country (Black's Law Dictionary,
504, 2004). It is exercised by the President to expel or
deport aliens whose presence is deemed inimical to the
public interest. Deportation is based on the fact that
since the aliens are not part of the nation, their
admission into the territory is a matter of pure
permission and simple tolerance which creates no
obligation on the part of the government to permit them
to stay. (Djumantan v. Domingo, G.R. No. 99358,
1995).
EXTRADITION DEPORTATION
Effected at the request of Unilateral act of the State
another state
on offenses Elased on causes arising in
committed in the state or the local state.
origin.
Calls for the return of the An undesirable alien may
fugitive to the requesting be deported to a state other
state than his own or the state of
origin.
However, aliens may be expelled or deported from the
Philippines only on grounds and in the manner provided for
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

by the Constitution, the Philippine Immigration Act of ; 940, Despite this. the UDHR is considered a normative
as amended, and administrative issuances pursuant instrument that creates binding obligations for all states
thereto. (Sec. of Justice v. Koruga, G.R. No. 166199, ... because of the consensus evidenced by the practice of
2009). . . states that the UDHR is now binding as part of international
law [CARILLO) .
.K. INTERNATIONAL HUMAN RIGHTS LAW
Rights Covered
PRELIMINARIES 1. Civil and political rights .
Definition of Human Rights 2. Economic, social, and cultural rights
Human rights are those fundamental and inalienable rights
which are essential for life as a human being. They pertain The UDHR embodies both first and second generation
to rights of an individual as a human being which are rights. The civil and political rights enumerated
recognized by the international community as a whole lncluds:
through their protection and promotion under 1. The right to life, liberty, privacy and security of person;
contemporary lntematlonal law. 2. · Prohibition against slavery; ·
3. The right not to be subjected to arbitrary arrest,
Classlflcatfon detention or exile;
1. First generation right5 consist of civil and political 4. The right to fair trial and presurnpton of innocence;
rights; 5. The right to a nationality;
2. Second generation rights consist of economic, social 6. The right to freedom of thought, conscience and
and cultural rights; religion;
3. Third generation rights consists of the ,rights to 7. The right to freedom of opinion and expression;
development, to peace, and to environment. [VasakJ 8. Right to peaceful assembly and association;
9. The right to take part in the government of his country.
FIRST GENERATION SECOND GENERATION The economic, social and cultural rights enumerated
include:
ObiigatoryForce
1. The right to social security;
Strictly (or objectively) Relatively obligatory, 2. The right to work and protection against
obligatory, whatever the unemployment;
states are required to
economic or other progressively achieve the 3. The right to equal pay for equal work; ·
conditions of the states full realization of these 4. The right to form and join trade unions:
obligated tights "to the maximum of 5. The right to rest and leisure.
th~ir available resources"
UDHR as Customary Internatlonal Law
Derogation/Restriciton · Rights covered by UDHR are customary international law;
May only be derogated in a May be restricted for the hence, even during the times when the Bill of Rights under
public emergency the Constitution are inoperative, rights under UDHR
general welfare. with or
remained in E3ffect (Republic v. Sandiganbayan, G.R. No. ~...
without an "emergency that
104768, 2003). .
threatens the
independence or security ''• .
of a state party." INTERNATIONAL COVENANT ON CIVIL · AND
POLITICAL f~IGHTS (ICCPR)
Overview
Universal Declaration of Human Rights
Overview The ICCPR ls an international covenant and is binding on i".,·.
the respective state parties. It ernbodies the first
The UDHR is the basic international statement of the generation of human rights, although it lists more rights .~. '.
inalienable and inviolable rights of human beings. It is the than the UDHR.
; . :-
first comprehensive international human rights instrument .. ,
!-
proclaimed by an irlternational organization. Rights Guaranteed \;.,,,....,'

1. Right of the peoples to self-determination

It is not a treaty. It has no obligatory character because it 2. Right to an effective remedy
was adopted by the UN General Assembly as Resolution
3. Equal rights of men and women in the enjoyment of
217A (Ill). As a resolution, it is merely recommendatory.
'civil and political rightstnon-discrimination on the basis
of sex I .'
Page 302 of 320 ' ·~.
\.
 ATENEO CENTRAL
BAR OPERATIONS2019 POLITICAL LAW

4. Right to life Non-Derogable Rights

5. Freedom from torture or cruel, inhuman or degrading -, 1. Right to life
punishment 2. Freedom from torture or cruel, inhuman or degrading
6. Freedom from slavery pnnlshrnent
7. Right to liberty and security of person 3. Freedom from slavery
8. Right to be treated with humanity in cases of 4. Freedom from imprisonment for failure to fulfill a
deprivation of liberty contractual obligation
9. Freedom from imprisonment for failure to fulfill a · 5. Freedom from ex post facto laws
contractual obligation 6. Right of rec:ognitioneverywhere as a person before the
10. Freedom of movement and the right to travel law
11. Right to a fair, impartial and oublic trial 7. Freedom of thought, conscience, and religion
12. Freedom from ex post facto laws
13. Right of recognition everywhere as a person before the Even in times of national emergency, no derogation can be
law made.
14. Right to privacy
15. Freedom of thought, conscience, and religion Lawful Derogation Under ICCPR
16. Freedom of expression A state party to the ICCPR may derogate from the treaty in
17. Freedom of peaceful assembly times of public emergency which threatens the security of
18. Freedom of association the nation. Such measures requh ed by the exigencies
19. Right to marry and found a family should NOT be inconsistent with their other obligations
20. Right of a child to protection, a name and nationality under international law and must not involve discrimination
solely on the ground of race, sex, religion, etc.
21. Right to participation, suffrage, and access to public
service
22. Right to equal protection before the law Permissible Derogations
23. Right of minorities to enjoy their own culture, to profess 1. During a state of emergency threatening the life of the
and practice their religion and to use their own nation;and
language. 2. subject to compliance with condltlons:
iv) Prescribed by Law
Nature of the Obligations under ICCPR v) Legitimate Aim
Obligations under the ICCPR are both positive and vi) Reasonableness
negative obligations: positive obligation to perform acts to vii) Necessity: necessary to protect the invoked
protect rights of an individual, and negative obligation to legitimate aim
prevent acts violative of rights. viii)Proportionality: it ,is the least intrusive measure
available.
Obligations of State Parties under the ICCPR ix) Compatibility with the aims and provisions of the
1. State parties undertake to respect and to ensure to all ICCPR: derogation should not undermine the
individuals within their territory the rights enumerated state's ability to respect and protect other rights
therein, without dlstlnction of any kind, such as race, found in the ICCPR
color. sex, language, rellgion, political or other opinion,
national or social origin, birth or other status. INTERNATIONAL COVENANT ON ECONOMIC,
2. State parties are required to take the necessary steps SOCIAL, AND CULTURAL RIGHTS (ICESCR)
to adopt legislative or other measures that are The ICESCR, like the ICCPR, is an internationai covenant
necessary to give effect to the rights recognized in the and is binding on the respective State Parties. It embodies
ICCPR. . .
the second generation of human rights, although it lists
3. State parties must ensure that any person whose more r;ghts than the UDHR.
rights or freedoms are violated have an effective
r : remedy, notwithstanding that the violation has been Rights Guaranteed
.:.. .f committed by persons action in an ofi'icial capacity .
1. Right of self-determination
4. State parties must ensure that any person claiming
2. Right to work and accompanying rights thereto
such remedy shall have his right thereto determined by
3. Right to social security and other social rights
competent judicial, administrative or legislative
authority, and that they shall enforce the remedy when 4. Adequate standard of living Including:
granted. 5. Right to adequate housing
6. Right to adequate food
7. Right to adequate clothing
., 'r

Page 30~ of 320

ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

8. Right to health Both will apply simultaneously in times of International

9. Right to education & non-international armed conflicts
10. Cultural rights
Non-discriminatory Ensuring a minimum
State Parties' Obliqations In ICESCR treatment to everybody at protection of victims in
General Duties/ Obligations Of States all times (peacetime or armed conflicts by
war/upheaval} outlawing excessive
1. Respect - Refrain from interfering with enjoyment of
human suffering & materiat
rights.
destruction in the light of
2. Protect (negative obligation) - Prevent violations by
military necessity
third parties.
3. Fulfill (positive obligation) - Take apptopriate Wider personal, temporal Less egalitarian in nature,
measures (legislative, judicial, etc.) towards the full & material fields of although non-
realization of the rights. applicability discrimination is
guaranteed with regard to
Specific Obligations Under Article 2 of the ICESCR the enjoyment of the rights
1. Take steps to the maximum extent of available afforded by this law
resources, towards the progressive realization of the
rights in the covenant.
2. Non-discrimination - States guarantee the exercise of CATEGORIES OF ARMED CONFLlt;TS
the rights without discrimination. When Existing
Armed conflict exists if one party used armed force against
L. BASIC PRINCIPLES Of INTERNATIONAL another party.
HUMANITARIAN LAW
When Armed Conflict considered War
Overview For an armed conflict to be considered a war, hostilities
International Humanitarian Law (IHL) is the brar.ch of must be preceded by a declaration of war or an ultimatum
public international law which governs armed conflicts to with a fixed limit. This is rarely followed. Usually, it is the
the end that the use of violence is limited and that human victim of the first attack which will be the ones declaring
suffering is mitigated or reduced by regulating or limiting war. In the Philippi:1es, the power to declare the existence.
the means of military operations and by protecting those of a state of war is in the legislature, while the power to
who do not or no longer participate in the hostilities. It make war is in the executive ..
provides for instances when the use of armed force is
justifiable (jus ad be/lum) and it regulates the conduct of Types of Armed Conflict
armed conflict (jus in be/lo). ·
IHL distinguishes two types of. armed conflicts, namely:
1. International armed conflicts, opposing two or more
Two Branches States, and
1. Law of The Haque: which establishes the rights and 2. Non-international armed contlicts, between
obligations of belligerents in the conduct of military governm,.mtal forces and non-governmental armed
operations, and limits the means of harming the . groups, or between such groups only.
enemy; and An internationalized non-international armed conflict is a
2. Law of Geneva: which is designed to safeguard civil war characterized by the intervention of the armed
military personnel who are no longer taking part In the forces of a foreign power [GASSER].
fighting and people not actively engaged In hostilities
(i.e. civilians). [International Committee of the Red A. International Armed Cor.flicts
Cross ("ICRC")].
Occur when one or more States have recourse to armed
force against another State, regardless of the reasons or
International Human Rights Law v. International
the intensity of this confrontation. ( Common Article 2 to the
Humanitarian Law
Geneva Conventions of 1949).
INTERNATIONAL. INTERNATIONAL ,.. ':
;
""~--~
HUMAN RIGliTS LAW HUMANITARIAN LAW Relevant rules of IHL may be applicable even in the
absence of open hostilities. Moreover, no formal
Aimed at protecting the individual. declaration of war or recognition of the situation is required.

The existence of an international armed conflict, and as a

consequence, the possibility to apply IHL to this situation,
Page 304 of 320

-, ;"1
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

depends on what actually happens on the ground. It is Does not include interual situations such as riots,
based on factual conditions. [ICRC] Isolated and sporadic acts of violence
However, it c1oes r.ot include internal situations such as
Jus Ad Bel/um - use of armed force riots, isolated and sporadic acts of violence, other acts of
General Rule: Under Article 2(4) of the UN Charter, all similar nature. (Additional Protocol II to the Geneva
Member States are bound to refrain from the threat or use Conventions of 1949).
of force against the territorial integrity or political
independence of a State. Additional Protocol II requires control over territory. For this
Exception: Self-defense reason, the Philippine-NDF conflict is not governed by AP
II but by the Common Article 3 to the Geneva Convention
Anticipatory Self Defense of 1949, which requires only minimum humanitarian
Article 51 of the UN Charter recognizes the inherent right protection.
of States to self-defense if an armed attack occurs.
Collective Self-Defense Common Article 3
Before a State can be justified in assisting another by way ' The main legal sources in this regard are the Common
of collective self -defense: Article 3, Geneva Conventions, and Artide 1, Additional
1. The second State must be a victim of an armed Protocol 11.
attack
2. The second State must request from the first State Common Article 3 applies to "armed conflicts not of an
military assistance international character occurring in the territory of one of
the High Contracting Parties." These include armed
Self Defense v. Just War conflicts in which one or more non-governmental armed
groups are involved.
SELF-DEFENSE JUST WAR THEORY
Applicability of Com:non Article 3
Permits only the use of Once a state has a valid
force to put an end to an reason for resorting to Article 1 develops Common Article 3. It applies to:
armed attack and to any force, there is no limit on 1. All armed conflicts which take place in the territory of a
occupation of territory or the extent of force which state party;
other forcible violation of could be employed. 2. Between its armed forces and dissident armed forces
rights which may have or other organized groups;
been committed. 3. Which, under responsible command, exercise such
control over a part of its territory;
Armed attacks include not only action by regular armed 4. As to enable to carry out sustained and concerted
forces across an international border but also sending by military operations and to implement the Protocol.
or on behalf of the State of armed groups, bands, irregulars
or mercenaries. IHL also establishes a distinction between non-
intemational armed conflicts in the meaning of Common
Authorized Military Actions By The UN or Competent Article 3, Geneva Conventions of 1949 and non-
Regional Organizations (Such As NATO) intemational armed conflicts falling within the definition
provided in Article 1, Additional Protocol II.

·~~---ii Jus In Bello ·· Regulation of the conduct of armed conflict

B. Internal or Non-lr.ternational Armed Conflict
These are armed conflicts that take place in the territory of
a High Contracting Party between its armed forces and
dissident armed forces or other organizes armed groups
which, under responsible ccmmand, exercise such control
over a part of its territory as to enable them to carry out
,{ .. sustained and concerted military operations. (Common
Article 3 to the Geneva Conventions of 1949).
'•:._.., '
The definition under the Article 1 is narrower than that
under Common Article 3:
1. It introduces a requirement of territorial control, by
providing that non-governmental parties must exercise
. such territorial contra: "as to enable them to carry out
sustained and concerted military operations and to
implement this Protocol."
2. Additional Protocol II expressly applies only to anned
conflicts between State armed forces and dissident
armed forces or other organized armed groups.
However, Additional Protocol II "develops and
supplements" Common Article 3 "without modifying its
existing conditions of application" (Article 1, 1st par.). This

Page 305 of 320

----~----~----------------------------------- - -·
 ATENEO CENTRAL
BAR OPERATIONS 2019
means that the restrictive definition is relevant for the
application of Protocol II only, but dces not extend to the
law of non-internauonal armed conflict in general.
In any case, while Common Article 3 is recognized as a
customary norm of international law and binding to all
states, Additional Protocol II is a treaty binding only to state
parties. Its rules may, however, develop onto customary
norms (ICRC).
C. War of National Liberation
Armed conflicts in which people are fighting against
colonial domination and alien occupation and against racist
regimes in the exercise of their right of self-determination,
Those engaged in such c1 conflict receive combatant status
and are entitled to combatant rights and duties. This
conflict is considered an international armed conflict under
Article 1, 3rd and 4th pars., Protocol 1. (AdditionalProtocol
I to the Geneva Conventions of 1949).
Wars by peoples against racist, colonial and alien
domination "for the implementation of their right to self-
deterrnination and independence is legitimate and in full
accord with principles of international law," and that any
attempt to suppress such struggle is unlawful (Resoiution
3103 (XXVIII)).
When peoples subjected to alien domination resort to
forcible action in order to exercise their right to self-
determination, they "are entitled to seek and to receive
support in accordance with the purposes and principles of
the Charter." [UN GA Reso. 2625 (XXV))
PHILIPPINE PRACTICE: . R.A. 9851 (PHILIPPINE ACT
ON CRIMES AGAINST INTERNATIONAL
HUMANITARIAN LAW, GENOCIDE, AND
OTHER CRIMES AGAINST HUMANffY)
RA 9851 was enacted on December 11, 2009. It 1::. the
Philippine act on crimes against international humanitarian
law, genocide, and other crimes against humanity. Its .,_
policies are: . means the international infliction of conditions of life, inter
1. The Philippines renounces war as an instrument of
national policy, adopts the generally accepted
principles of International law as a part of the law of the
land.
2. The state adopts the generally accepted principles of
international law, including the Hague Conventions of
1907, the Geneva Conventions on the protection of
victims of war and international humanitarian law, as
part of the law our nation.
3. The most serious crimes of concern to the intematior.al ·
community as a whole must not go unpunished and
their effective prosecution must be ensured by taking
measures at the national levol, in order to put an end
to impunity for the perpetrators of these crimes and
Page 306 of 320
·------------- ..... ·- .. . ... ---
POLITICAL LAW
· thus contribute to the prevention of such crimes, it
being the duty of every State to exercise its criminal
Jurisdiction over those responsible for international
crimes
Definition of Terms
Apartheid
Inhumane acts committed in the context of an
institutionalized regime of systematic oppression and
domination by one racial group or groups and committed
with the intention of maintaining that regime
Armed conflict
Any use of force or armed violence:
a. between States or
b. a protracted armed violence between governmental
authorities and organized armed groups; or ·
c. between such groups within that State:
Provided, That such force or armed violence gives rise, or
may give rise, to a situation to which the Geneva
Conventions of 12 August 1949, including their common
Article 3, apply.
i. Armed conflict may be international, that is, between
two (2) or more States, including belligerent
occupation; or
ii. Non-international, that is, between governmental
authorities and organized armed gmups or between
such groups within a state. It does not cover internal
disturbances or tensions such as riots, isolated and
sporadic acts of violence or other acts of a similar
nature.
Enslavement
the exercise of any or all of the powers attaching to the
right of ownership over a person and includes the exercise
of such power in the course of trafficking in persons, in
particular women and children.
''· .
.;
Extermination
alia, the deprivation of access to food and medicine,
calculated to bring about the destruction of a· part of a
population.
Hors de Combat
A person who:
( 1) is in the power of an adverse party;
(2) has clearly expressed an intention to surrender; or
(3) has been rendered unconscious or otherwise
incapacitated by wounds or sickness and therefore is
incapable of defending hlmself: Provided, that in any of
. ...,
/
d
....... _.,,
.,
these cases, the person form any hostile act and does { :·,
'~,.J
not attempt to escape.
 ATENEO CENTRAL
BAR OPERATIONS 2019
Military necessity
means the necessity of employir:g measures which are
indispensable to achieve a legitimate aim of the conflict
and are not otherwise prohibited by International
Humanitarian Law
Non-defended locality
means a locality that fulfills the following conditions:
(1) all combatants, as well as mobile weapons and mobile
military equipment, must have been evacuated;
(2) no hostile use of fixed military installations or
establishments must have been made;
(3) no acts of hostility must have been committed by the
authorities or by the population; and
(4) no activities in support of military operations, must have
been undertaken. · Conventions:
'No quarter will be given'
means refusing to spare the life of anybody, even of
persons manifestiy unable to defend themselves or who
clearly express their intention to surrender.
Perfidy
means acts which invite the confidence of an adversary to
lead him/her to believe he/she is entitled to, or is obliged to
accord, protection under the rules of International
Humanitarian Law, with the intent to betray that
confidence, including but not limited to:
(1) feigning an intent to negotiate under a flag of truce;
(2) feigning surrender;
(3) feigning incapacitation by wounds or sickness;
(4) feigning civilian or noncombatant status; and
(5) feigning protective status by use of signs, emblems or
uniforms of the United Nations or of a neutral or other
State not party to the conflict.
Protect person
in an armed conflict means:
(1 ). a person wounded, sick or shipwrecked, whether
civilian or military;
(2) a prisoner of war or any person deprived of liberty for
\· .•.. ; reasons related to an armed conflict;
(3) a civilian or any person not taking a direct part or
having ceased to take part in the hostilities in the power
of the adverse party;
(4) a person who, before the beginning of hostilities, was
... ... ,
considered a stateless person or refugee under the
relevant international instruments accepted by the
parties to the conflict concerned or under the national
legislation of the state of refuge or state of residence;
(5) a member of the medical personnel assigned
exclusively to medical purposes or to the
j •
1,,_,.,
administration of medical units or to the operation of or
administration of medical transports; or
Page 307 of 320
• ... #
POLITICAL LAW
(6) a member of the religious personnel who is exclusively
engaged in the work of their rnhistry and attached to
the armed forces of a party to the conflict, its medical
units or medical transports, or non-denominational,
noncombatant military personnel carrying out functions
similar to religious personnel.
Punishable Acts
1. War Crimes or Crimes Against Humanity
2. Genocide
3. Other Crimes Against Humar.ity
War Crimes or Crimes AiJalnst Humanity
A. For International Armed Conflict: Grave breaches of
the Geneva Conventions, namely, any of the following acts
against persons or property protected under the Geneva
1. Willful killfng
2. Torture or inhuman treatment, including biological
experiments
3. Willfully causing great suffering, or serious injury to
body or health
4. Extensive destruction and appropriation of property not ·
justified by military necessity and carried out unlawfully
and wantonly;
5. Willfully depriving a prisoner of war or other protected
" person of the rights of fair and regular trial
6. Arbitrary deportation or forcible transfer of population
or unlawful confinement
7. Taking of hostages
8. Compelling a prisoner a prisoner of war or other
protected person to serve in the forces of a hostile
power; and
9. Unjustifiable delay in the repatriation of prisoners of
war or other protected persons.
B. In case of a non-International armed conflict, serious
violations of common Article 3 to the four (4) Geneva
Conventions of 12 August 1949, namely , any of the
following acts committed against persons taking no active
· part in the hostilities, including member of the armed forces
who have laid down their arms and those placed hors de
combat by sickness, wounds, detention or any other
cause;
(1) Violence to life and person, in particular, willful killings,
mutilation, cruel treatment and torture;
(2) Committing outrages upon personal dignity. in
particular, humiliating and degrading treatment;
(3) Taking of hostages; and
( 4) The passing of sentences and the carrying out of
executions without previous judgment pronounced by
a regularly constituted court, affording all judicial
guarantees which are generally recognized as
indispensable.
ATENEO CENTRAL
BAR OPERATIONS 2019
Torture
Intentional infliction of severe pain or suffering, whether
physical, mental, or psychological
Except: those pain or suffering arising only from, inherent
in or incidental to, lawful sanctions.
Arbitrary deportation of forcible transfer of population
Forced displacement by expulsion or other coercive acts
of persons from the area in which they are lawfully present,
without grounds permitted under domestic or international
law.
Other serious violations of the law and customs
applicable in armed conflict, within the established
framework of international law
1. Internationally directing attacks against the civilian
population as such or against Individual civilians not
taking direct part in hostilities;
2. Intentionally directing attacks against civilian objects:
that is, object which are nut military objectives;
3. Intentionally directing attacks against buildings,
material, medical units and transport, and personnel
using the distinctive emblems of the Ger:eva
Conventions or Additional Protocol Iii in conformitywith
intentional law;
4. ~ntentio~ally directing attacks against personnel,
mstallatlons, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in , .
accordance with the Charter of the United Nations, as
ling as they are entitled to the protection given to
civilians or civilian objects under the international law
of armed conflict;
5. Launching an attack in the knowledge that such attack
will cause incidental loss of life or injury to civilians or
damage to civilian objects or widespread, long-term
and severe damage to the natural environment which
would be excessive in relation to the concrete and
direct military advantage anticipated;
6. Launching an attack against works or installations
containing dangerous forces in the knowledge that
such attack will cause excessive loss of life, injury to
civilians or darnaqe to civilian objects, and causing
death or serious injury to body or health .
7. Attacking or bombarding, by whatever means, towns,
villages, dwellings or buildings which are undefended
and which are not military objectives, or making non-
defended localities or demilitarized zones the object of
attack;
8. Killing or wounding a person in the knowledge that
he/she is hors de combs; Including a combatant who,
having laid down his/her arms or no longer having
means of defense, has surrendered at discretion;
9. Making improper use of a flag of truce, of the flag or the
military Insignia and uniform of the enemy or of the
United Nations, as well as of the distinctive emblems of
the Geneva Conventions or other protective signs
Page 308 of 320
POLITICAL LAW
under International Humanitarian Law, resulting in
death, serious personal injury or capture:
10. Intentionally directing attacks against buildings
dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals
and places where the sick and wounded are collected,
provided they are not military objectives. In case of
doubt whether such building or place has been used to
make an effective contribution to military action, it shall
be presumed not to be so used;
11. Subjecting persons who are in the power of an adverse
party to physical mutilation or to medical or scientific
experiments of any kind, or to removal of tissue or ·
organs for transplantation, which are neither justified
by the medical, dental or hospital treatment of the
person concerr.ed nor carried out in his/her interest,
and which cause death to or seriously endanger the
health of such person or persons;
12. Killing, wounding or capturing an adversary by resort to
perfidy; ·
'i 3. Declaring that no quarter will be given;
14. Destroying or seizing the enemy's property unless such
deslruction or seizure is Imperatively demanded by the
necessities of war;
15. Pillaging a town or place, even wher. taken by assault;
16. Ordering the displacements of the civilian population
for reasons related to the conflict, unless the security
of the civilians involved or imperative military reasons
so demand;
17. Transferring, directly or indirectly, by the occupying
power of parts of Its own civilian population into the
territory it occupies, or the deportation or transfer of all
or parts of the population of the occupied territory within
· or outside this territory;
18. Committing outrages upon personal dignity, in
particular, humiliating and degrading treatments;
19. Committing rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any other
form of sexual violence also constituting a grave
breach of the Geneva Conventions or a serious
violation of common Article 3 to the Geneva
Conventions; (. ,.
•.,;.,:/
20. Utilizing the presence of a civilian or other protected
person to render certain points, areas or military forces
immune from military operations;
21. lntentionally using starvation of civilians as a method of
warfare by depriving them of objects indispensable to
. their survival, including willfully impeding relief supplies
as provided for under the Geneva Conventions and
their Additional Protocols;
22. Jn an internetional armed conflict, compelling the ! ~·
\..;..,'
nationals of the hostile party to take part in the
operations of war directed against their own country,
even if they were in the belligerent's service before the
commencement of the war;
 ATENEO CENTRAL
BAR OFERATIONS 2019
23. In an international armed conflict, declarinq abolished,
suspended or inadmissible in a court of law the rights
and actions of the nationals of the hostile party;
24. Committing any of the following acts:
a. Conscripting, enlisting or recruiting children under
the age of fifteen ( 15) years into the national armed
forces; · population;
b. Conscripting, enlisting or recruiting children under
the age of eighleen (18) years into an armed force
or group other than the national armed forces; and
c. Using children under the age of eighteen (18)
years to participate actively in hostilities; and
25. Employing means of warfare which are prohibited
under international law, such as:
a. Poison or poisoned weapons;
b. Asphyxlating, poisonous or other gases, and all
analogous liquids, materials or devices;
c. Bullets which expand or flatten easily in the human
body, such as bullets with hard envelopes which
do not entirely cover the core or are pierced with
incisions; and
d. Weapons, projectiles and material and methods of
warfare which are of the nature to cause
superfluous injury or unnecessary suffering or
which are inherently indiscriminate in violation of
the international law of armed conflict.
Genocide
Any of the following acts with intent to destroy, in whole
or in part, a national, ethnic, religious, social, or any
other similar stable and permanent group
1. Killing members of the group; · contrary to international law by reason of identity of the
2. Causing serious bodily or mental harm to members of
the group;
.~ :-
3. Deliberately inflicting on the group conditions of life
calculated to bring about Its physical destruction in
whole or in part;
4. Imposing measures intended to prevent births within
the group; and ·
5. Forcibly transferring children of the group to another
group.
Also unlawful to directly and publicly incite others to
commit genocide.
Forced Pregnancy
Unlawful confinement of women to be forcibly made
pregnant, with the intent of affecting the ethnic composition
,... ~· of any population carrying out other grave violations of
International law.
Other Crimes Against Humanity
1. Committed as part of a widespread/systematic
attack
2. Directed against any civilian population
Page 309 of 320
POLITICAL LAW
3. With knowledge of the attack
4. Any of the following acts: .
a. Willful killing;
b. Extermination;
c. Enslavement;
d. Arbitrary deportation or forcible transfer of
e. Imprisonment or other severe deprivation of
physical liberty in violation of fundamental
rules of International law;
f. Torture;
g. Rape. sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or
any other form of sexual violence of
comparable gravity;
h. Persecution against any Identifiable group or
collectivity on political, racial, national, ethnic,
cultural, religious, gender, sexual orientation or
other grounds that are universally recognized
as impermissible under international law, in
'connecuon with any act referred to in this
paragraph or any crime defined in this Act;
i. Enforced or involuntary disappearance of
persons;
j. Apartheid; and
k. Other inhumane acts of a similar character
intentionally causing grea~suffering, or serious
injury to body or to mental or physical health.
Persecution
International and severe deprivation of fundamental rights
group or collectivity
Enforced or Involuntary Disappearance
The arrest, detention, or abduction of persons authorized
by the State or political organization fellowed by a refusal
to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons,
, with the intention of removing from the protection of the law
for a prolonged period of time.
Prlnclples of Criminal Liability
Individual Criminal Responsibility
I. Liable as principal
a. Commits such a crime, whether as an individual,
jointly with or through another regardless of
whether that other person is liable
b. Orders, solicits or induces the commission of such
a crime which occurs or is attempted
c. In any other way contributes to the commission or
attempted commission by persons in conspiracy:
i. With the aim of furthering the criminal activity
or criminal purpose of the group
 ATENEO CENTRAL
BAR OPERATIONS 2019
ii. Be made in the knowledge of the intention of
the group to commit the crime.
2. Llable as accomplice
Facilitates the commission of a crime; aids, abets or
otherwise assists in its commission or attempted
commission, including providing the means for its
commission
3. Liable for a crime punished under this act
Attempts to commit such a crime by taking action that
commences its execution by means of a substantial
step, but the crime does not occur because of
circumstances independent of the person's intention
4. No llablllty ·
A person who abandons the effort to commit the crime
or prevents the completion. if completely and voluntarily -,
gave up the criminal purpose.
Irrelevance of Official Capacity
The provisions of the act shall apply equally to all persons
without any distinction based on official capacity. However
the following shall be considered:
1. Immunities or special procedural rules that may be
attached to the official capacity of a person under
P~ilippine law other than the President's immunity from
suit, shall not bar the court from exercising jurisdiction
over such a person
2. Immunities that may be attached to the official capacity
of a person under international law may limit the
application of this Act
Jurisdiction
Requisites to acquire jurisdiction
1. The accused is a Filipino citizen
2. The accused regardless of citizenship or residence, is
present in the Philippines
3. The accused has committed the said crime against a
Filipino citizen
Foreign Accused
1. The Philippine authorities may dispense with the
invesligation or prosecution of a crime under this act if
another court or international tribunal is already
conducting such proceedings. In this case, the
authorities may surrender or extradite the accused
persons to the appropriate ~tate or Court. . part in the fighting; and
2. No criminal proceedings shall be initiated against
f~reign nationals accused of violating this act, if already
tned by a court outside the Philippines with tile same
offense and acquitted of it, or convicted and has
already served sentence.
Page 310 of 320
POLITICAL LAW
CORE INTERNATIONAL OBLIGATIONS OF STATES
IN INTERNATIONAL HUMANITARIAN LAW
Common Article 1 of all four Geneva Conventions is a key
provision when it comes to a state's responsibilities under
IHL. It provides that states are responsible to "respect and
ensure respect" for the conventions in all circumstances.
In general, IHL defines the following obligations:
1. Parties to an armed conflict, together with their armed
forces, do not have unlimited choice of methods or
means of warfare. They are prohibited from employing
weapons or means of warfare that cause unnecessary
damage or excessive suffering.
2. Parties to an armed conflict shall, at all times,
distingubh between civilian population and the
combatants (prindple of distinction). Civilians shall be
spared frcm military attacks which shall be directed
only against military objectives.
3. Persons hors de combat are those who have been
injured in the course of hostile battle. action and are no
longer able to directly take part in hostilities. They shall
be protected and treated humanely without any
adverse distinction. Their right to life and physical and
moral integrity shall be respected.
4. It is prohibited to kill or injure an enemy who is hors de
combat or who surrenders.
5. The wounded and the sick shall be protected and
cared for by the party to the conflict which has them in
its power. Protection shall also apply to medical
persor.nel, establishments, transports and material.
6. Combatants and civilian who are captured by authority
of the party to a dispute are entitled to respect for their
right to life, dignity, conviction, and other personal
rights. They shall be protected against acts of violence
or reprisals. [Legality of the Threat or Use of Nuclear
Weapons Advisory Opinion (1990)]
The ICCPR, particularly its protection on the right to life,
does not determine the legality of the use of nuclear
weapons in an armed conflict. What applies is the lex
specialis, which is the IHL. It determines whether the taking
of life in times of war has been arbitrary. .
International Humanitarian Law covers two areas:
1. the protection of those who are not, or no longer, taking
2. resfrictions on the means ot' wariare, in particular, ...
t{
weapons and methods of warfare, such as military
tactics.
Obligations are found primarily in the four Geneva
Conventions of 1949 and the Additional Protocols I and II
;
\',
.
.,,
... ; ....
thereto. Other sources include:
!
• 1954 Convention for the Protection of Cultural Property '·'
in the Event of Armed Conflict, and its two protocols;
 ATENEO CENTRAL
BAR OPERATIONS 2019
• 1972 Biological Weapons Convention;
• 1980 Conventional Weapons Convention and its five
protocols; · Geneva Conventions. Including:
• 1993 Chemical Weapons Convention;
• 1997 Ottawa Convention on anti-personnel mines;
• 2000 Optional Protoccl to the Convention on the Rights
of the Child on the involvement of children in armed
conflict.
PRINCIPLES ON INTERNATIONAL.
HUMANITARIAN LAW
MilitarJ Necessity
The oniy legitimate object which parties to an armed
conflict should endeavor to accomplish is to weaken
enemy forces,
Proportionality
Bel!igerents or State forces may employ any amount and
kind of force to compel complete submission of enemy with
least possible loss of lives, time, and money.
Principle Of Distinction
Requires States and other parties to an armed conflict to
distinguish between military objectives (e.g. combatants)
and civilian objects (e.g. non-combatants, hors de
combat), to direct their attacks only against the former.
Perfidy
This principle prohibits the use of any treacherous means
and methods of warfare.
Requirement for Humanitarian Intervention
1. There are grave and massive human rights violations
2. The other state is incapable or unwilling to meet the
redress
3. There is no other practical alternative than to intervene
4. The action should be limited in time and scope.
.... ,__ Hors de combat
Under Article 41(2), Protocol 1, a person is hors de combat
if:
1. He is in the power of an adverse party to the conflict;
2. He clearly expresses an intention to surrender; or
3. He has been rendered unconscious or is otherwise
incapacitated by wounds or sickness, and is therefore
<,»
incapable ot defending himself, provided that in any of
these cases, he abstains from any hostile act and does
not attempt to escape.
'~.J . Persons hors de combat shall be protected and treated
f •
humanely without any adverse distinction. Their right to liff3
' ·, and physical and moral integrity shall be respected.
II '
-.. I
Page 311 of 320
POLITICAL LAW
Protected Persons
Those who enjoy or are entitled to protection under the
1. The wounded, the sick, and shipwrecked;
2. Prisoners of war;
3. Civilians.
Civilians
For purposes of protection, civilians are further classified
as:
1. Civilians who are victims of conflict in countries
involved;
2. Civilians in territories of the enemy;
3. Civilians in occupied territories;
4. Civilians internees.
Treatment of Civilians
Parties to a conflict shall at all times distinguish between
the civilian population and combatants in order to spare
civilian population and property. Neither the civilian
population as such nor civilian persons shall be the object
of attack. Attacks shall be directed only aqainst military
objectives.
·~
It is forbidden to klll or injure an enemy who surrenders or
is hors de combat.
Collateral damage to a certain extent is allowed but it
should not be excessive.
Journalists are protected as civilians provided that they
take no action adversely affecting their status as civilians.
Combatants are not entitled to the rights afforded to
civilians.
Prisoners of War (POW)
Prisoners of war are captured for security reasons and not
for punishment.
General Rule: A prisoner of war shall not be liable to
judicial prosecution even If he has committed to facilitate
escape (e.g., theft, drawing of false papers).
Exception: When the escapee has used violence against
life arid limb during his escape.
Persons belonging to one of the following categories:
1. Members of the armed forces of a party to the conflict,
including militias or volunteer corps;
2. Militias or volunteer corps operating in or outside their
own territory, even if such territory is occupied
provided:
·. 3. They are being commanded by a person responsible
for his subordinates;
4. Have a fixed distinctive sign recognizable at a
distance;
ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

5. Carries arms openly; .

Combatants v Non Combatants
6. Conducts their operations in accordance with the laws COMBATANTS NON-COMBATANTS
and customs of war; '
7. Members of regular armed forces who profess 1) Armed Forces - all its 1) With POW Status
allegiance to a government or authority not recognized organized armed forces,
by the detaining power; groups and units No Combat Mission
8. Civilians who accompany the armed forces, provided Judges
that they have received authorization from the armed Note: Children below the Blue-Collar Worker
forces which they accompany; age of 15 shall not take Government Officials
9. Members of crews of merchant marine and the crews direct part in hostilities Prosecutors
of civil aircraft of tM parties to the conflict; Engineers
10. Inhabitants of a non-occupied territory who on the 2) Paramilitary/ Armed Law
approach of the enemy spontaneously take up arms to Enforcement Agencies- e.g. 2) No POW Status
resist the invading forces, without having had time to when civilian police
form themselves into regular armed units, provided transforms as part of armed Medical and Religious
they carry arms openly and respect the laws and forces Personnel
customs of war;
11. Persons oolonging to the armed forces of the occupied 3) levee en masse-
territory · inhabitants of a territory
which has not yet been
occupied and who, on the
Rights of Prisoners of War: HIT-PNB2-CFR
approach of the enemy,
• To be treated humanely spontaneously take up
• Not subject to torture arms to resist the Invading
• Allowed to cornrnunicatewith their families troops
• Receive food, clothing, religious articles, medicine
• Bare minimum of information 4) Spies- no POW status
• Keep personal belongings
5) Reconnaissance Forces
• Proper burial
• Grouped according to nationality
• Establishment of an informed bureau Law On Neutrality
• Repatriation for sick and wounded In a conflict, there are some who w:sh to stay out of the
way and adopt an attitude of impartiality. Such an attitude
must be recognized by the opposinq Party-States and
The wounded and the sick shall be collected and cared for
creates both rights and duties in the neutral States. The.
by the party to the conflict which has them in its power. ~. ·
decision to employ a neutral stance is dictated by
Protection also covers medical personnel, estabbshments,
transports and equipment. political/internal mechanisms and not Pll.
{ ·~·
. . ....
Combatants Neutral States must not engage in activities which interfere
i
with the activities of the belligerents whilP. the latter respect •. ,-:
Members of the armed forces of a party to a conflict (Article the formers rights.
3(2), Protocol 1 ). They have the right to participate directly
and indirectly in hostilities (Art 43(2) Protocol 1 ). Only
Neutral power
combatants are allowed to engage in hostilities. .
The Hague Convention Respecting the Rights and Duties t .
''l, ..•
of Neutral Powers (1907) governs the status of neutrality
A combatant is allowed to use force, even to kill, and will
by the following rules: .
not be held personally responsible for his acts, as he would
be where he to the same as a normal citizen (Gasser). 1. The territory of the neutral power is in-,iolable. .
2. Belligerents are forbidden to move troops or munitions t .

Martens clause/principle of humanity
I~ ?!ises not covered by other international agreements,
c1V1hans and combatants remain under the protection and
.suthority of the principles of international law derived from
established custom, from the principles of humanity and
from the dictates of public conscience.
of war and supplies across the territory of a neutral
power.
3. A neutral power is forbidden to allow belligerents to
use its territory for moving troops, establishing
communication facilities, or forming corps of
combatants.

Paga 312 of 320 ~. .

 ATENEO CENTRAL
BAR OPERATIONS 2019
4. Troops of belligerent armies received by a neutral
power in its territory shall be interned by away from the
theatre of war.
5. The neutral power may supply them with food, clothing
or relief required by humanity.
6. If the neutral power receives escaped prisoners of war,
it shall leave them at liberty. It may assign them a place
of residence if it allows them to remain in its territory.
7. The neutral power may authorize the passage into its
territory of the sick and wounded if the means of
transport bringing them does not carry personnel or
materials of war.
The Geneva Convention (Ill) allows neutral powers lo
cooperate with the parties to the armed conflict in making
arrangements for the accommodation in the forrner's
territory of the sick and wounded prisoners of war.
Interned persons among the civilian population, in
particular the children, the pregnant women, the mothers
with infants and young children, wounded and sick, may be
accommodated in a neutral state in the course of
hostiiities, by agreement between the parties to the
conflict. ·
Protecting power
A protecting power is a state or an organization:
1. Not taking part in the hostilities;
2. Which may be a neutral state;
3. Designated by one party to an armed conflict with the
consent of the other;
· 4. To safeguard or protect its humanitarian interests in
the conflict, the performance of which IHL defines
specific rights and duties.
Responsibility To Protect
The State carries the primary responsibility for protecting
populations from genocide, war crimes, crimes against
humanity and ethnic cleansing, and their incitement;
·.. ;;
The international community has a responsibility to
l . encourage and assist States in fulfilling this responsibility;
\...,.)
The international community has a responsibility to use
appropriate diplomatic, humanitarian and other means to
protect populations from these . crimes. If a State is
manifestly failing to protect its populations, the
international community must be prepared to take
·......
collective action to protect popuiations, in accordance with
the Charter of the United Nations (UN General Assembly
Resolution 60/1, 2005).
International Terrorism
In international law, it is difficult to criminalize terrorism
because of the difficulty in defining the prohibited act. The
draft definition at the lnt13rnational Convention for the
Page 313 of 320
POLITICAL LAW
Suppression of the Financing of Terrorism (1999) is as
-, follows:
An act done by any person intended to cause (a) death or
serious bodily injury to any person, or (b) serious damage
to a State or Government facility with intent to cause
extensive destruction of such a place, facility or system, or
where such destruction results or is likely to result in major
economic loss, when the purpose of such an act is to
intimidate a populatior. or to compel a Government or an
international organization to do or abstain from doing any
act.
Criminal acts intended or calculated to provoke a state of
terror in the general public, .:. group of persons or particular
persons for political purposes are in any circumstance
unjustifiable, whatever the considerations of a political,
philosophical, ideological, racial, ethnic, religious or any
other nature that may be invoked to justify them. ( UN
General Assembly Resolution 51/210, 1996).
Criminal acts, including against civilians, committed with
the intent tu cause death or serious bodily injury, or taking
of hostages, with the purpose to provoke a state of terror
in the general public or In a group of persons or particular
persons, intimidate a population or compel a government
or an international organization to do or to abstain from
doing any act, which constitute offenses within the scope
of and as defined in the international conventions and
protocols relating to terrorism, are under no circumstances
ju~tifiable by considerations of a political, philosophical,
ideological, racial, ethnic, religious or other similar nature
(UN Security Council Resolution 1566, 2004).
Right to unilateral s1~cession or external self-
determination under International Law?
General Rule: The people's right to self-determination
should not be understood as extending to a unilateral right
of secession.
Exception: International law, at best, only recognizes the
right to external self-determination in situations of {1)
former colonies; (2) whore a people is oppressed, as for
example under foreign military occupation; or (3) where a
definable group is denied meaningful access to
government to pursue their political, economic, social and
cultural development (Province of North Cotabato v. GRP.
G.R. No. 183591, 2008).
M. LAW OF THE SEA
Overvi~w
The United Nations Convention on Law of the Sea
(UNCLOS) is the body of treaty rules and customary norms
governing the use of the sea, the exploitation of its
resources, and the exercise of jurisdiction over maritime
regimes (Magallona).
 ATENEO CENTRAL
BAR OPERATIONS 2019
It is the branch or public international law which regulates
the relations of states with respect to the use of the oceans.
BASELINES
Definition
A baseline is the line from which a breadth of the territorial
sea and other maritime zones, such as the contiguous
zone arid the exclusive economic zone is measured. Its
purpose is to determine the starting point to begin
measuring maritime zones boundary of the coastal state.
Kinds of Baselines: . b. R o c k s which cannot sustain human habitation or
a. Normal Baseline Method : The territorial sea is
drawn from the low-water mark of the coast to the
breadth claimed, followlng Its curvatures but
excluding the Internal waters In bays and
gulfs.(Art. 5, UNCLOS)
b. Straight Baseline Method: Straight lines are made to
connect appropriate points on the coast without
departing radically from ii~ general direction. The
waters inside the lines are considered internal. This is
the method used by the Philippines in drawing
baselines. (Art.7, UNCLOS) .
ARCHIPELAGIC STATES
Definition
It is a state made up of wholly one or more archipelagos. It
may include other islands [Article 46, UNCLOSJ.
Archipelago
An archipelago is a group of islands, includi:,g parts of
islands, interconnecting wators and other natural features
which are so closely related that such islands, waters and
natural features form an intrinsic geographical, economic
and political entity, or which historically have been
regarded as such.
There are two kinds of archipelagos:
1. Coastal, situated close to a mainland and may be
considered part thereof (l.e., Norway);
2. Mid-Ocean, situated in the ocean at such distance
from the coasts of firm land, (i.e., Indonesia).
The archipeiagic state provisions apply only to mid-ocean
archipelagos composed of islands, and not to a partly
continental state.
Straight Archipelaglc Baseline
Straight lines are made to connect appropriate poir,·.s on
the coast without departing radically from its general
direction. The waters inside the lines are considered .
internal. This is the method used by the Philippines in ·
drawing baselines.
Page 314 of 320
POLITICAL LAW
The breadth of the territorial sea, the. contiguous zone, and
the exclusive ecor.omic zone is measured from the straight
archipelagic baselines.
Archipelagic Waters
Waters covered by the straight baseline which are areas
which had not previously been considered as such. This
has a right of innocent passage.
Island and Rocks; Distinguished
a. An island is a naturally formed area of land, surrounded
by water, which is above water at high tide.
economic life of their own shall have no exclusive
economic zone or continental shelf. [Article 121,
UNCLOSJ
Archlpelagic Sea Lanes Passage
It is the right of foreign ships and aircraft to have
continuous, expeditious and unobstructed passage in sea
lanes and air routes through or over the archipelagic
waters and the adjacent territorlel sea of the archipelagic
state, "in transit between one part of the high seas or an
exclusive economic zone." All ships and aircraft are
entitled to the right of archipelagic sea lanes passage
[Magallona; Article 53(1) in relation to Article 53(3)
UNCLOS].
The archipelagic state designates the sea lanes as
proposals to the "competent international organization." It
is the International Marine Organization (IMO) which
adopts them through Article 53(9), UNCLOS, which states
that "the Organization may adopt only sea tanes and traffic
separation schemes as may be agreed with the
archipelagic state, after which such state may designate,
prescribe or substitute them."
Right of Innocent Passage
Innocent passage refers to navigation through the
\ .
territorial sea without entering internal waters, going to { :
1..:.,:
internal waters, or coming from internal waters and mc1king
for the high seas. It must:
{ !
1. Involve only acts that are required by navigation or by
distress, and
2. Not prejudice the peace, security, or good order of the
coastal state.
Transit Passage
I •
Transit passage refers to the right to exercise freedom of \.:_ 7
navigation and over flight solely for the purpose of
continuous and expeditious transit through the straights
used for international navigation. The right cannot be
unilaterally suspended by the coastal state.
' ,
'.. .,,
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

Other Rights relating to Archlpelaglc Waters

INNOCENT PASSAGE TRANSIT PASSAGE
1. Contractual Rights: Rights under existing agreement
Pertains to navigation of Includes the right of over on the part of third states should be respected by the
ships only flight archipelagic state.
2. Fishing Rights: Within its archipelagic waters, the
Requires submarines and Submarines are allowed to archipelagic state shall recognize traditional fishing
other underwater vehicles navigate in "normal mode" rights and other legitimate activities of immediately
to navigate on the surface - i.e. submerged adjacent neighboring states.
and show their flag. 3. Submarine Cables: The archipelagic state shall res
p e c t existing submarine cables laid by other states
Can be suspended but Cannot be suspended
under the condition that it and "passing through its waters without making a
does not discriminate landfall."
among foreign ships, and
such suspension is Under Article 1 of the 1987 Constitution, the archipelagic
essential for the -, waters of the Philippines are characterized as forming part
protection of its security, · of "the internal waters of the Philippines."
and suspension is
effective only after having However. under the UNCLOS, archipelagic waters consist
been duly published mainly of the "waters around, between. and connecting the
islands of the archlpelago, regardless of breadth or
In the designation of sea Designation of sea lanes dimension."
lanes and traffic and traffic separation
separation schemes, the schemes is subject to Thus, conversion from internal waters under the
coastal state shall only adoption by competent Constitution into archipelagic waters under the UNCLOS
.~~ ,. take into account the lnternational organization gravely derogates the sovereignty of the Philippine state,
recommendations of the upon the proposal and · because sovereignty over internal waters may preclude the
competent international agreement of states right of innocent passage and other rig;1ts pertaining to
organization. bordering the straits. archipelagic waters under the UNCLOS.

Also, under Article 47, UNCLOS, it is not mandatory upon

Hot Pursuit concerned states to declare themselves as archipelagic
Involves a foreign vessel and where there is good reason states; the Philippines did, under its new baselines law, RA
to believe that the ship has violated laws or regulations of · 9522 upheld as constltutional [Magallona v. Executive
a coastal State. Secretary (2011 )).
Rules:
1. The pursuit must commence when the foreign Regime of Islands
vessel is within the: (CITA) The "regime of islands" Is:
a. ~ontiguous zone a. an island naturally formed area of land, surrounded by
b. [nternal waters water which is above wate,· at high tide,
c. Ierritorial sea b. Except as provided for in the next number, the territorial
d. ~rch;pelagic waters of the pursuing State sea, the contiguous zone, the exclusive economic zone
2. It may continue into the high seas if the pursuit has and the continental shelf of an island are determined in
not been interrupted. accordance with the provisions of this Convention
;· , '; applicable to other land territory,
3. If the foreign ship is in the contiguous zone, it may
be pursued only for violations of the rights of the . c. Rocks which cannot sustain human habitation or
coastal State in the contiguous zone (customs. economic life of their own shall have no exclusive
fiscal, immigration, or sanitary). economic zone or cc;ntinental shelf. (UNCLOS, Art.
4. Hot pursuit must stop as soon as the ship pursued 121)
enters the territorial waters of its own State or of a
third State. INTERNAL WATERS
5. It may be carried· out only by warships or military Definition
~- I!'.
aircraft, or any other ship or aircraft properly All waters (part of the sea, rivers, lakes, etc.) landwards
'V;,:•
marked for that purpose. from the baseline of the territory. Sovereignty over these
I
waters is the same In extent as sovereignty over land, and
:1
'-"
' there is no right of Innocent passage.

Page 315 of 320

ATENEO CENTRAL
BAR OPERATIONS 2019
Where the establishment of a straight baseline in
accordance with the method set forth in Article 7 has the
effect of enclosing as internal waters areas which had not
previously been considered as such, a right of innocent
passage as provided in this Convention shall exist in those.
waters. (UNCLOS. art. 8)
TERRITORlAL SEA
Definition
Belt of sea outwards from the baseline and up to 12
nautical miles beyond. Sovereignty over these waters
(including the airspace above it and the seabed under it) is
the same extent as its sovereignty over land. There is a
right of innocent passage, and in case of certain straits, to
transit passage.
Under the UNCLOS, features that are above water at high
tide generate an entitlement to at ieast a 12 nauticai mile
territorial sea, whereas features that are submerged at
high tide generate no entitlement to maritime zones. (The
South China Sea Arbitration, 2013-19, July 12, 2016)
CONTIGUOUS ZONE
Definition
Area of water not exceeding 24 nautical miles from the
baseline. It thus extends 12 nautical miles from the edge
of the territorial sea.
Jurisdiction over Contiguous Zone
In the contiguous zone, the coastal State may exercise the
control necessary to:
• Prevent infringement of its customs, fiscal,
immigration, or sanitary raws and regulations within its
territory or territorial sea;
• Punish infringement of the above laws and regulat!ons
committed within its territory or territorial sea.
EXCLUSIVE ECONOMIC ZONE
Definition
An Area extending not more than 200 nautical miles ·~
beyond the baseline. The coastal State has rights over the
economic resources of the sea, seabed and subsoil, but
the right does not affect the right of navigation and
overflight of other States. ( UNCLOS, art. 55).
Jurisdiction over EEZ
The UNCLOS gives the coastal State sovereign rights over
all economic resources of the sea, seabed and subsoil in
an area extending not more than 200 nautical miles
beyond the baseline from which the territorial sea is
measured (Arts. 55 and 57, UNCLOS).
Undar the UNCLOS, states have the sovereign right to
exploit the resources of this zone, but shall share that part
of the catch that is beyond its capacity to harvest.
Page 316 of 320
POLITICAL LAW
The resources covered include living and non- living
resources in the waters of the seabed and its subsoil.
Obligations of Coastal State
The primary obligations of coastal States are:
1. Proper conservation and management measures
that the living resources of the EEZ are not
subjected to overexploitation;
2. Promote the objective ot "optimum utilization" of
the living resources. ·
The entitlement of a feature to an exclusive economic zone
depends on the objective capacity of a feature, in its
natural condition, to sustain either a stable community of
people or economic activity that is neither dependent on
outside resources nor purely extractive in nature. The
current presence of official personnel on the features is not
enough to establish the right to an EEZ. (The South China
Sea Arbitration, 2013-19, July 12, 2016)
Coastal states have the responsibillty to utilize, manage
and conserve the living resources within their EEZ (i.e.,
ensuring that living resources are not endangered by
overexploitation), and the duty to promote optimum
utilization of living resources by determining allowable
catch.
If after determining the maximum allowable catch, the
coastal state does not have the capacity to harvest the
entire catch, it shall give other states access to the surplus
.
by means of arrangements allowable under the UNCLOS.
The UNLCOS, however, does not specify the method for
determining "allowable catch."
Within its EEZ, a coastal state may also:
1. Establish and use of artificial islands, installations and r
structures;
2. Conduct scientific research; (
1, .
3. Preserve and protect its marine environment.
4. However. under Article 58, UNCLOS, all states enjoy I .
the freedom of navigation, over flight, and laying of ,:,,a;.
submarine cables and pipelines in the EEZ of coastal
states.
The coastal state has the right to enforce all laws and
regulations enacted to conserve and manage the living
· . resources in its EEZ. It may board and inspect a ship,
arrest a ship and its crew and institute judicial proceedings
against them. In detention of foreign vessels. the coastal t '
state has the duty to promptly notif°'J the flag state of the
'<::
action taken.
Conflicts regarding the attdbution of rights and jurisdiction
in the EEZ must be resolved on lhe basis of equity and in
the light of all relevant circumstances, taking into account
.,,w•'
 ATENEO CENTRAL
BAR OPERATIONS 2019 POLITICAL LAW

the respective importance of the interests involved to the When the continental shelf extends beyond 200 nautical
parties as well as to the international community as a miles, the coastal state shall establish its outer limits.
whole (Article 59, UNCLOS).
At any rate, the continental shelf shall not extend beyond
Geographically Disadvantaged States 350 nautical miles from the baseline of the territorial sea,
Geographically disadvantaged states (i.e., those who have or 100 nautical miles from the 2500-meter isobath (i.e., the
no EEZ of their own or those coastal states whose point where the waters are 2500 meters deep).
geographical situations make them dependent on the
exploitation of the living resources of the EEZ of other Rights of the Coastal State
states) and land-locked states have the right to participate, The continental shelf does not form part of the territory of
on equitable basis, in the exploitation of the surplus of the the coastal state.
living resources in the EEZ of coastal states of the same
sub region or region. It only has sovereign right~ with respect to the exploration
A coastal state whose economy is overwhelmingly and exp!oitation of its natural resources, including the
dependent on the exploitation of its EEZ, however, ls not mineral and other non-living resources of the seabed and
required to share its resources. subsoil together with living organisms belonging to the
sedentary species.
CONTINENTAL SHELF
Definition The coastal state has the exclusive right to authorize and
'
Also known as the archipeJagicor insular shelf which refers regu!ate oil--drillihg on its continental shelf.
to:
1. The seabed and subsoil of the submarine areas These rights are exclusive in the sense that when the
adjacent to the coastal State but outside the . coastal state does not explore its continental shelf or
territorial sea, to a depth of 200 meters, or beyond exploit ;ts resources, no one may undertake these activities
that limit, to where the depth allows exploitation, without the coastal state's consent.
and
2. The seabed and subsoil of areas adjacent to
islands. (UNCLOS, art. 76). ' CONTINENTAL SHELF EXCLUSIVE ECONOMIC
ZONE
Extended Ccntinental Shelf Duty to manage and conserve living resources
It is part of the Continental Shelf that lies beyond the 200.
nautical miles from the coastal baselines. It is the seabed No duty Coastal state is obliged to
and subsoil of the submarine areas extending beyond the manage and conserve living
territorial sea of the coastal state throughout the natural resources in the EEZ
prolongation of its lands territory up to: Rights of the coastal state to natural resources
1. The outer edge of the continental margin; or
2. A distance of 200 nautical miles from the baselines of Relate to mineral and Have to do with natural
the territorial sea where the outer edge of the other non-living resources of both waters
continental margin does not extend. up to that distance. resources of the seabed super adjacent to the
and the subsoil seabed and those of the
~ontinental margin.
the submerged prolongation of the land mass of the
I seabed and subsoil

Rights of the coastal state to living resources

continental state, consisting of the continental shelf proper,
the continental slope, and the continental rise Apply only to sedentary Do no' pertain to seoentary
species of such living species
'
Limits of the Continental Shelf resources
The juridical or legal continental shelf covers the area until Continental Shelf and EEZ, Distinguished
?OD nautical miles from baselines.
:' .. High Seas
The extended continental shelf covers the area from the
All parts of the sea that are not included in the territorial
200-mile mark to 350 nautical miles from the baselines
sea or in the internal waters of a State ( UNCLOS, art. 86).
depending on geomorphologic or geological data and
information.
i ';
'e.•_...

·.. ,..:· Page 317_ of 320

ATENEO CENTRAL
BAR OPERATIONS 2019
Allowable Acts in the High Seas
1. Freedom of navigation
2. Freedom of overflight
3. Freedom cf scientific research
4. Freedom to construct artificial islands and structures
5. Freedom of fishing
6. Freedom to lay submarine cables and pipelines
(UNCLOS, art. 87).
China's "nine-dash linfl" and its claim to resources based
on historic right is incompatible with the detailed allocation
of rights and maritime zones under the UNCLOS. Even if
China had historic rights to resources in the waters of the
South China Sea, such rights were extinguished by the
entry into force of the Convention to the extent they were
incompatible with the Convention's system of maritime
zones. Further, China's historical navigation and fishing in
the waters of the South China sea represents the exercise
of high seas freedom, not the exercise of historic right.
(The South China Sea Arbitration, 2013-19, July 12, 2016)
Bays
Well-marked indentation whose penetration is in such
proportion to the width of its mouth as to contain
landlocked arees and constitute more than a mere
curvature of the coast. An indentation shall not be reg.:.rded
as a bay unless its area is as large as, or larger than, that
of the semi-circle whose diameter is a line drawn across
the rnouth of that indentation. (UNCLOS, art. 10(2))
THE AREA
Definition
"Area" means the seabed and ocean floor and subsoil
thereof, beyond the limits of national jurisdiction.
Legal Status of the Area and Its Resources
No State shall claim or exercise sovereignty or sovereign
rights over any part of the Area or its resources, nor shall
any State or natural or juridical person appropriate any part
thereof. [Article 137, UNCLOSJ
The Area and its resources are the common heritage of
mankind. {Article 136, UNCLOSJ Activities in the Area shall
be carried out for the benefit of mankind as a whole. [Article
140, UNCLOS]
The Area shall be open to use exclusively for peaceful
purposes by all States. [Article 141, UNCLOS)
INTERNATIONAL SEABED AUTHORITY
Definition
It is the organization established by UNCLOS which acts
on behalf of mankind in governing the regime of resources
Page 318 of 320
POLITICAL LAW
in the Area. It organizes, carries out and controls the
activities of the Area on behalf of mankind as a whole.
Composition
The following form the Authority:
1. The Assembly - all state parties to the UNCLOS
2. The Council - the executive organ whose 36 members
are elected by the Assembly
3. The Enterprise - the organ directly ·engaged in the
exploration and exploitation of the resources of the
Area, including the transporting,· processing and
marketing of minerals
Activities In the Area
The Enterprise carries out mining activities on behalf of the
Authority:
1. Directly; or
2. By joint ventures with: a. State parties; b. State
enterprises; or c. Natural or juridical persons
sponsored by state parties.
Applicants for license in deep seabed mining are limited to
those controlled by states parties to the UNCLOS or by
their nationals.
INTERNATIONAL TRIBUNAL FOR
JHE LAW OF THE SEA {ITLOS)
' Definition
The International Tribunal for the Law of the Sea is an
independent judicial body to adjudicate disputes arising out
of the interpretation and application of the UNCLOS. It is
the proper venue to resolve the issue on the Baselines
Law.
i .
Jurisdiction of the ITLOS
Its jurisdiction comprises all disputes and all applications rc....,'.
submitted to it in accordance with the Convention. It also
includes all matters specifically provided for in any other .
. '
agreement which confers Jurisdiction on the Tribunal
(UNCLOS, Art. 21). It has jurisdiction to deal with disputes
(contentious jurisdiction) and legal questions (advisory t ........ ;
jurisdiction) submitted to it.
The ·Tribunal, however cannot exercise jurisdiction over
certain types of disputes such as disputes over sovereignty
over the islands of South China Sea and the delimitation of
maritime boundary. (The South China Sea Arbitration,
2013-19, July 12, 2016)
r -.
\., .....i
Certain preconditions must be present before the Tribunal
can exercise jurisdiction. This includes a dispute
settlement mechanism entered into by State Parties and
\" ·\
,...;,,·
an exchange of views between the State Parties on the
mear.s of settling their dispute. This requirement was met
in the record of diplomatic communications between
..~-· ,
 ATENEO CENTRAL
BAR OPERATIONS 2019
Philippines and China. (The South China Sea Arbitration,
2013-19, July 12, 2016) · In order to protect the environment, the precautionary
Both the Philippines and China are parties to the
Convention and bound by its provisions on the settlement
of disputes. China's decision not to participate does not
deprive the Tribunal of jurisdiction and Philippines'
decision to commence arbitration unilaterally was not an
abuse of the Convention's dispute settlement procedures.
(The South China Sea Arbitration, 2013-19, July 12, 2016)
Peaceful Settlement of Disputes
Under Article 2, 3rd par., UN Charter, states have the duty
to settle disputes by peaceful means. This obligation
extends to state parties of the UNCLOS, underscoring the
right of the parties to resort to peaceful means of their own
choice on which they can agree any time.
Compulsory Settlement of Disputes
Where no successful settlement can be achieved, or if the
parties are unable to agree on the means of settlement of
a dispute concerning the application of UMCLOS, such
dispute may be governed by the principle of compulsory
settlement, where procedures entail binding decisions.
The parties may choose, through a written revocable and
replaceable declaration, to submit the dispute to:
1. ITLOS;
2. ICJ;
3. Arbitral tribunal;
4. Special arbitral tribunal
The court or tribunal has jurisdiction over:
1. Any dispute submitted to it concerning the application
i : or interpretation of UNCLOS; or
~ J,
2. Any dispute concerning the interpretation or
applicafion of an international agreement:
a. Related to the purposes of the UNCLOS;
b. When such dispute is submifted to it in
'·, s
accordance w'th that agreement.
N. BASIC PRINCIPLES OF
INTERNATIONAL ENVIRONMENTAL LAW
Overview
--~.v
It is the branch of public international law comprising those
substantive, procedural, and institutional rules which have
as their primary objective the protection of the
environment, the term environment being understood as
encompassing "both the features and the products of the
natural world and those of human civilization" (Sands,
·,
c~· Principles of International Environmental Law).
Page 319 of 320
POLITICAL LAW
Precautionary Principle
approach shall be widely applied by States according to
their capabilities. Where there arc threats of serious or
irreversible damage, lack offull scientific certainty shall not
be used as a reason for postponing cost-effective
measures to prevent environmental degradation (Principle
15, Rio Declaration). ·
Factors to be Considered
a. Threatening to human life of health or
b. Inequity to present or future generations
c. Prejudice to the environment without legal
consideration of the environmental rights of those
affected
For purposes of evidence, the precautionary principle
should be treated as a principle of last resort, where
application of the regular Rules of Evidence would cause
in an inequitable result for the environmental plaintiff.
(International Service for the Acquisitio."'I of Agri-Biotech
Applications v.' Greenpeace, G.R. No. 209271, 2015)
The case for the precautionary principle is strongest when
the following features coincide:
1. Settings in which the risks of harm are uncertain;
2. Settings in which harm might be irreversible and what
is lost is irreplaceable; and
3. Settings in which the harm that might result would be
serious. (International Service for the Acquisfflon of
Agri-Biotech Applications v. Greenpeace, G.R. No.
209271, 2015)
When in doubt, cases must be resolved in f;JVC\r of the
constitutional right to a balanced and healthful ecology.
Parenthetically, judicial adjudication is one of the strongest
fora ir. which the precautionary i:;rinciple may find
applicability. (International Service for the Acquisition of
Agri-Biotech Applications v. Greenpeace, G.R. No.
, 209271, 2015)
The precautionary principle only applies when the link
between the cause, that is the human aotlvity sought to be
inhibited, and the effect, that is the damage to the
environmer,t, cannot be established with full scientific
certainty. (West Tower Condomimium v. First Philippine
Industrial Corporation, G.R. No. 194239, 2015)
OTHER CONCEPTS COVERED BY INT'L
ENVIRONMENTAL LAW
Principle of Common but Differentiated Responsibility
States shall cooperate in a spirit of global partnership to
conserve, protect and restore the health and integrity of the
earth's ecosystem. In view of the different contributions to
 ------·-. -

ATENEO CENTRAL
BAR OPF.RATIONS 2019 POLITICAL LAW

global environmental degradation, States have common

but differentiated responsibilities. The developed countries
acknowledge the responsibility that they bear In the
international pursuit to sustainable development in view of
the pressures their societies place on the global
environment and of the technologies and financial
resources they command (Principle 7, Rio Declaration).
Sic Utere Tuo Ut Alienum Non Laedas {Principle 21 of
the Stockholm Declaration)
Principle 21: States have the sovereign right to exploit
their own resources pursuant to their own environmental
policies, and tha responslbllity to ensure that act;:,ities
within their jurisdiction or control do not cause damage_ to
the environment of other States or of areas beyond the
limits of national jurisdiction.
Sustainable Development
It is development that meets the needs of the present
without compromising the ability of future generations to
meet their own needs (Case Concerning the Gabcikovo-
Nagymaros Project (1997)). · ·
N~ state has the right to use or permit the use of its territory
in such a manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein,
when the case is of serious consequer.ce and the injury is
established by clear and convincing evidence (US v.
Canada (Trail Smeltor Case) (1938)). · ·
Some exceptions are allowed. For example, countries can
set up a free trade agreement that applies only to goods
· traded within the group -- discriminating against goods
from outside. Or they can give developing countries special
access to their markets. Or a country can raise barriers
against products that are considered to be traded unfairly
from specific countries. And in services, countries are
allowed, in limited circumstances, to discriminate. But the
agreements only permit these exceptions under strict
conditions. In general, MFN means that every time a
country lowers <1 trade barrier or opens up a market, it has
to do so for the same goods or services from all its trading
partners - whether rich or poor, weai< or strong.
' National Treatment Clause
Imported and locally-produced goods should be treated
equally - at least after the foreign goods have entered the
market. The same should apply to foreign and· domestic
services, and to foreign and local trademarks, copyrights
and patents. This principle of "national treatment" (giving
others the same treatment as one's own nationals) is also
found in all the three main WTO agreements (Article 3 of
GATI, Article 17 of GATS and Article 3 of TRIPS),
although once again the principle is handled slightly
differently in each of these.
---- end of topic·---

ADDITIONAL DISCUSSION: INTERNATIONAL

ECONOMIC LAW

Overview
!ntemational Economic law is international law rslatinq to
rnvestment, economic relations, economic development,
economic institutions, and regional economic integration t,"~ '
•I
(Black's Law Dictionary, 2004). . '· .
i '
1
Most Favoured Nation Clause
Under the WTO agreements, countries cannot normally
discriminate between their trading partners or grant one
State party a special favour (such as a lower customs duty 4' ~ :
~- I
rate for one of their products) witr,out extending the same
to all other WTO members.

It is so important that it is the 11irst article of the General

Agreement on Tariffs and Trade {GATI), which governs
trade in goods. The clause is also a priority in the General
Agreement on Trade in Services (GATS, art. 2) and the '"'" '.~.
Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS, art. 4), although in each
agreement the principle is handled slightly differently.
'. -~-.
Together, those three agreements cover all three main
areas of trade handled by the WTO.

P_age 320 of 320

1-
---------------···- ··- ---