THE LAW PERTAINING TO THE STATE
AB AND ITS RELATIONSHIP WITH ITS
CITIZEN
OUTLINE:
q Constitutional Law
q International Law
q Labor Law
q Taxation Law
Constitutional Law
q Basic principles of political law (e.g., separation of
powers, sovereignty, judicial review, fundamental
powers of the State, i.e., police power, eminent
domain and taxation)
q Bill of Rights (due process, equal protection,
freedom of expression, rights during
expropriation, searches and seizures)
q Composition and powers of the government
organs
q Judicial Review
q Supervision of courts
q Powers of the Supreme Court
q Qualifications, disqualifications, and selection of
the president, senators, members of the House of
Representatives, justices and judges, the
ombudsman, and constitutional commissioners
q Immunity of the president, privileges of senators
and members of the House of Representatives
q Structure of government (composition, functions,
powers and privileges, separation of powers, and
system of checks and balances)
q Process of legislation
q Natural resources (nationalization principle for
natural resources and economic activities
including advertising and media)
q Amendment and revision of the Constitution
(Article XVII)
BASIC PRINCIPLES OF POLITICAL LAW
SEPARATION OF POWERS
Rationale: It aims to prevent a concentration of authority
in one person or group of persons that might lead to an
irreversible error or abuse in its exercise to the detriment
of our republican institutions. It is intended to secure
action, forestall overaction, to prevent despotism and to
obtain efficiency.
Duka: The state is divided into branches, and each branch
of the state has separate and independent powers and
AB
NOTES
areas of responsibility. The normal division of branches is
into the Executive, the Legislative, and the Judicial.
Our government structure rests on the principle of
separation of powers. Under our constitutional order, the
legislative branch enacts law, the executive branch
implements the law, and the judiciary construes the law.
CHECKS AND BALANCES
The Constitution gives each department certain powers
by which it may definitely restrain the others from
improvident action, thereby maintaining the balance
among them and preserving the will of the sovereign
expressed in the Constitution. The President’s veto
power, the power of the Congress to override veto, the
power of impeachment, and the court’s power to declare
legislative and executive acts unconstitutional are
examples of checks and balances under the Constitution.
Duka: The Constitution has provided for an elaborate
system of checks and balances to secure coordination in
the workings of the various departments of the
governments.
UP BOC
Ordains that each of the 3 branches of government has
exclusive cognizance of and is supreme in matters failing
within its constitutionally allocated sphere; each branch
cannot invade the domain of others. Powers of the
government are separated to avoid concentration of
powers in any one branch.
Separation of powers is a fundamental principle in our
system of government and is founded on the belief that,
by establishing equilibrium among the three (3) power
holders, harmony will result and power will not be
concentrated and tyranny will be avoided.
Any system that is violative of the principle of separation
of powers is unconstitutional and void. (Belgica v. Ochoa)
The Philippine government is divided into three (3)
branches of government, namely:
1. Legislative;
2. Executive; and
3. Judiciary
The principle of separation of powers ordains that each of
the three government branches has exclusive cognizance
of and is supreme in concerns failing within its own
constitutionally allocated sphere. It intends to secure
action, to forestall over-action, to prevent despotism, and
to promote efficiency.
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While the separation of powers is not expressly provided
for in the Constitution, it obtains from actual division in
the Constitution. Each department
has exclusive cognizance of matters within its jurisdiction
and is supreme within its own sphere.
Political Question Doctrine
A question of which a resolution has been vested by the
Constitution exclusively in the people, or in which full
discretionary authority has been delegated to a co-equal
branch of government (separation of powers) cannot be
decided upon by the Courts.
This is as opposed to a justiciable question which deals
with matters re: the law and its interpretation, not left to
the wisdom of the people.
Application
A. Belgica v Ochoca
The pork Barrel System violates the separation of
powers because it is a form of post-enactment
authority in the implementation or enforcement of
the budget.
• The system permits legislative
encroachment upon the executive
prerogative of implementing the law, by
giving individual legislators: (a) The
power to determine projects after the
General Appropriations Act (GAA) is
passed; and (b) through congressional
committees, authority in the areas of
fund release and realignment, the system
encroaches on the Executive’s power to
implement the law.
• Furthermore, identification of a project
by a legislator being a mandatory
requirement before his PDAF can be
tapped as a source of funds, his act
becomes indispensable in the entire
budget execution process.
B. Ocampo v. Enriquez
In the exercise of his powers under the Constitution and
the Executive Order No. 292, to allow the internment of
Marcos at the LNMB, which is a land of the public domain
devoted for national military cemetery and military
shrine purposes, President Duterte decided to question of
policy based on his wisdom that it shall promote national
healing and forgiveness. There being no taint of grave
abuse of discretion, as discussed below, President
Duterte’s decision on that political question is outside the
ambit of judicial review.
C. Forietrans Manufacturing Corporation v.
Davidoff Er Cia
The task of determining probable cause is lodged with the
public prosecutor and ultimately, the Secretary of Justice.
Under the doctrine of separation of powers, courts have
no right to decide matters over which full discretionary
authority has been delegated to the Executive Branch of
the Government.
D. OCA v. Reyes
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The legislative power imposing policies through laws is
subject to the substantive and constitutional limitations.
It cannot limit the Court’s power to impose disciplinary
actions against erring justices, judges, and court
personnel. Neither should such policy be used to restrict
the Court’s power to preserve and maintain the
Judiciary’s honor, dignity and integrity and public
confidence that can only be achieved by imposing strict
and rigid standards of decency and propriety governing
the conduct of justices, judges and court employees.
SOVEREIGNTY
DEFINITION
It is the supreme power of the state to command and
enforce obedience, the power to which all interests are
practically subjected and all will subordinate. It is also
defined as freedom from outside control in the conduct
of internal and external affairs.
The supreme and uncontrollable power inherent in a
State by which that State is governed.
DUAL ASPECT:
1. Internal sovereignty – supremacy of a person or
body of persons in a state over the individuals or
association of individuals within the area of
jurisdiction.
2. External sovereignty – the absolute
independence of one state as a whole with
reference to other states (freedom from external
control)
KINDS:
1. Legal sovereignty – the possession of unlimited
power or authority that by law involves the
power to issue final commands.
2. Political sovereignty – the sum total of all the
influences in a state which lie behind the law. It is
also described as the power of the people.
CHARACTERISTICS:
1. Permanence – sovereignty continues to exist
without interruption as long as the state itself
exists.
2. Exclusiveness – there can be but one supreme
power in the state legally entitled to the
obedience of the inhabitants.
3. Comprehensiveness – sovereign power extends
over all persons, associations and things within
territorial limits.
4. Inalienability – the state cannot cede away any of
its essential elements without self-destruction.
5. Imprescriptibility – the powers of the state cannot
be lost as a consequence of its non-assertion or
non-exercise through a period of time.
6. Unity – the power cannot be divided without
producing another state.
DOMINIUM AND IMPERIUM
Dominium – refers to the independent proprietary right
of possession, use, exploration, disposition or sale and
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control by the State over its territorial lands; refers to the This is not an assertion of superiority by the courts over
capacity to own and acquire property including lands the other departments, but merely an expression of the
held by the State in its proprietary capacity. supremacy of the Constitution.

Imperium – includes the state’s right to enact its own laws The duty remains to assure that the supremacy of the
and employ the same to secure obedience thereto, Constitution is upheld.
maintain peace and order, defend the state against
foreign invasion and any other act of government over its The power is inherent in the Judicial Department, by
own territory; is the authority possessed by the state virtue of the doctrine of separation of powers.
embraced in the concept of sovereignty.
FUNDAMENTAL POWERS OF THE STATE
EFFECT OF CHANGE IN SOVEREIGNTY
Upon the transfer of territory, either by conquest or State’s inherent Purpose Means
otherwise, the political laws of the conquered territory powers
immediately cease to have effect, except in so far as they Police Power To promote Limits a
are continued in force by express consent of the new general welfare person’s
sovereign. Municipal laws of the transferred territory, right
however not in conflict with the laws of the new Eminent To make the Takes a
sovereign continue in force without the express consent Domain property available private
of the new sovereign. for public use property
Taxation To raise funds for Collect
EFFECTS OF MILITARY OCCUPATION the government contribution
Sovereignty always resides in and remains with the State from the
as a juristic person, while its exercise is delegated, as a people
rule, to the government or its organs, electorate or to
certain officials. Similarities:
1. All inherent powers of the state
Sovereignty itself is not transferred or suspended, what 2. When exercised, a person’s right is affected;
was merely suspended was the exercise of the rights of society is benefitted and a person affected get
the sovereign. something in return
3. Legislative in nature – there must be a law
Law of non-political nature remained in force unless authorizing the exercise of these powers;
repealed by the belligerent occupant. Laws of political Congress may delegate the power to other
nature are suspended, except the law on treason, subject governmental agencies (rule-making power or
to the revival after the occupation under the doctrine of subordinate legislation)
jus posliminium.

TERRITORIAL, PERSONAL, AND

EXTRATERRITORIAL JURISDICTION
Territorial jurisdiction – authority of the state to have all
persons and things within the territorial limits to be
completely subject to its control and protection.

Personal jurisdiction – authority of the state over its

nationals, their persons, property and acts, whether
within or outside its territory.

Extraterritorial jurisdiction – authority of the state over

persons, things and acts, outside its territorial limits by
reason of their effects to its territory.

ACTS OF STATE
It is an act done by or under the authority of the sovereign
power.
e.g. deportation A. POLICE POWER
JUDICIAL REVIEW - the power of promoting the public welfare by
The power of the courts to test the validity of executive restraining and regulating the use of liberty and property
and legislative acts in light of their conformity with the - the most pervasive, the least limitable, and the most
Constitution. demanding of the three powers

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Basis:
- salus populi est suprema lex (the welfare of the people is
the supreme law)
- sic utere tuo ut alienum non laedas (so as to use your
property as not to injure the property of others)
Police power is lodged primarily in the national
legislature. By virtue of a valid delegation of legislative
power, it may also be exercised by the President and
administrative boards as well as the lawmaking bodies on
all municipal levels, including the barangay.
Local Government Code Section 16:
General Welfare. - Every local government unit 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 those which are essential to the
promotion of the general welfare. Within their respective
territorial jurisdictions, local government units 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 capabilities,
improve public morals, enhance economic prosperity and
social justice, promote full employment among their
residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
Requisites:
1. Lawful subject – the interests of the public
generally, as distinguished from those of a
particular class, require the exercise of the police
power, otherwise, it may violate the equal
protection of the laws.
2. Lawful means – the means employed are
reasonable necessary for the accomplishment of
the purpose and not unduly oppressive upon
individuals.
Tests to determine valid exercise of police power:
(1) Reasonable Connection Test
A reasonable relation must exist between the purposes of
the measure and the means employed for its
accomplishment.
Applicable to life, liberty and property rights
(a) Check the purpose: it must be for general welfare:
1. Public morals;
2. Public safety;
3. Public health;
4. Public order;
5. Public comfort and convenience;
6. Social Justice;
7. Public policy
(b) Check the means employed: limit a person’s rights
Regulate Prohibit
Lawful Acts
✔ ✘
Unlawful Acts ✘ ✔
AB
(c) Is there a relation between the purpose and the means
employed?
(d) Is the relation reasonable?
Relation between the purpose and the means employed
may be established by:
- Empirical evidence
- Statistics, medical and scientific studies
(2) Clear and Present Danger Test
Is there a clear and present danger of substantive evil that
the state must prevent/prohibit?
Clear: degree of danger; must be real
Present: proximity, imminent
(3) Dangerous Tendency Test – used during the Marcos
era; not applicable anymore
When the two conflicting rights are between private persons:
Balancing of Interests Test
- which right is more important?
-life and liberty rights over property rights
B. EMINENT DOMAIN
Section 9. Private property shall not be taken for public
use without just compensation.
The power of eminent domain is a power inherent in
sovereignty, it is a power which need not be granted by
any fundamental law.
The provisions in the Constitution to effect that private
property shall not be taken for public use without
compensation have their origin in the recognition of a
necessity for restraining the sovereign and protecting the
individual.
In the hands of the legislature, the power of eminent
domain is an inherent power. In the hands of government
agencies, local governments and public utilities, however,
eminent domain is only a delegated power. This
distinction has important legal consequences both with
respect to the scope of the power and with respect to the
scope of judicial review of the exercise of the power.
Requisites:
1. Taking of private property
2. Public use/purpose
3. Payment of just compensation
4. Observance of due process of law
The following exercise the power of expropriation:
1. Congress
2. President of the Philippines
3. Various local legislative bodies
4. Certain public corporations
5. Quasi-public corporations
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Where expropriation suit is filed: An expropriation suit is
incapable of pecuniary estimation. Accordingly, it falls
within the jurisdiction of RTC, regardless of the value of
the subject property.
C. TAXATION
It is the power by which the States raises revenue to
defray the necessary expenses of the Government. It is the
enforced proportional contributions from persons and
property, levied by the State by virtue of its sovereignty,
for the support of the government and for all public
needs.
Requisites:
1. Uniform and Equitable
2. Progressive system of taxation
3. Delegated tax legislation
Tax is the lifeblood of the government.
Article VI, Section 28. (1) The rule of taxation shall be uniform
and equitable. The congress shall evolve a progressive system of
taxation.
(2) The Congress may, by law, authorize the President to fix
within specified limits, and subject to such limitations and
restrictions as it may impose, tariff 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.
(3) Charitable institutions, churches and parsonages or
convents appurtenant thereto, mosques, non-profit cemeteries,
and all lands, buildings, and improvements actually, directly
and exclusively used for religious, charitable, or educational
purposes shall be exempt from taxation.
(4) No law granting any tax exemption shall be passed without
the concurrence of a majority of all the members of the Congress.
The obvious primary and specific purpose of the power
to tax is to raise revenue.
Justice Marshall: the power to tax is the power to destroy
The power of taxation should only be exercised for a
public purpose.
Specific limits on the taxing power: uniform and equitable
Progressive system of taxation – a tax is progressive when
the rate increases as the tax base increases (taxing power
may be made to fall more heavily upon some than upon
others)
Reason: social justice – more equitable distribution of
wealth
Tax exemption is only for taxes assessed as property taxes
as contra-distinguished from excise taxes.
Double Taxation: when additional taxes are laid on the
same subject by the same taxing jurisdiction during the
same taxing period for the same purpose.
The power to regulate as an exercise of police power does
not include the power to impose fees for revenue
purposes. Fees for purely regulatory purposes may only
be of sufficient amount to include the expenses of issuing
the license and the cost of the necessary inspection or
AB
police surveillance, taking into account not only the
expense of direct regulation but also incidental expenses.
May a local government unit levy real property tax on
submarine or undersea communications cables?
Yes. Submarine wires or cables used for communications
may be taxed like other real estate.
Submarine or undersea communications cables are akin
to electric transmission lines. To the extent that the
equipment's location is determinable to be within the
taxing authority's jurisdiction, the Court sees no reason
to distinguish between submarine cables used for
communications and aerial or underground wires or
lines used for electric transmission, so that both pieces of
property do not merit a different treatment in the aspect
of real property taxation. (Capitol Wireless, Inc. vs. The
Provincial Treasurer of Batangas, G.R. No. 180110. May 30,
2016)
BILL OF RIGHTS
DUE PROCESS
- The constitution did not define due process because if it
did, it will be stuck to that definition. What the law does
not include, it excludes. It left to the Courts the discretion
on how to apply it so it can fit the changing times.
- No attempt was made to spell out the meaning of due
process or to define the concept with some degree of
exactitude. Due process continues to be dynamic and
resilient, adaptable to every situation calling for its
application. The very elasticity of the provision makes
this possible and thus enlarges the rights of the individual
to his life, liberty or property.
– General understanding: a law which hears before it
condemns; which proceeds upon enquiry, and renders
judgment only after trial
Two Aspects:
Requisites Exercised by:
Substantive (1) Law = Legislative and
reasonable quasi
(2) Publication legislative
Procedural Notice and Judicial and
Hearing Quasi-judicial
Quasi-legislative v Quasi-judicial function:
If the rules and regulations are directed to a particular
person, the function becomes quasi-judicial.
A. PROCEDURAL DUE PROCESS
Requisites of procedural due process:
1. There must be a court or tribunal clothed with judicial
power to hear and determine the matter before it
2. Jurisdiction must be lawfully acquired over the person
of the defendant or over the property which is the subject
of the proceedings
3. The defendant must be given an opportunity to be
heard
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4. Judgment must be rendered upon lawful hearing
Once the court acquires jurisdiction, jurisdiction is never
lost until the finality of the case.
The essence of procedural due process is opportunity to
be heard, it does not always require a trial-type hearing.
Doctrine of prejudicial publicity – allegation and proof
that the judge was actually influenced by the barrage of
publicity.
Totality of circumstances doctrine
Administrative due process (CFI vs. Ang Tibay):
1. The right to a hearing, which includes the right to
present one’s case and submit evidence in support thereof
2. The tribunal must consider the evidence presented
3. The decision must have something to support itself
4. The evidence must be substantial
5. 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
6. The tribunal or body or any of its judges must act on its
own independent consideration of the law and facts of the
controversy, and not simply accept the views of a
subordinate
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 reason for the decision rendered.
The heart of procedural due process is the need for notice
and an opportunity to be heard.
There is violation of due process when the officer who
reviews a case is the same person whose decision is on
appeal.
While notice and hearing are required in judicial and
quasi-judicial proceedings, they are not prerequisites in
the promulgation of general rules.
Due process in school: Right of students to education vs.
the right of schools to academic freedom
The contractual obligation of school to afford its students
a fair opportunity to complete the course a student has
enrolled for is recognizes. However, when a student
commits serious breach of discipline or fails to maintain
the required academic standards of the school, the
student forfeits his rights and courts are not at liberty to
reverse the discretion of university authorities in this
matter.
Requisites:
1. The students must be informed in writing of the nature
and cause of accusation against them
2. They shall have the right to answer the charges against
them, with the assistance of counsel, if desired
3. They shall be informed of the evidence against them
4. They shall have the right to adduce evidence in their
own behalf
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5. The evidence must be duly considered by the
investigating committee of official designated by the
school authorities to hear and decide the case
B. SUBSTANTIVE DUE PROCESS
– deals with the intrinsic validity of the law (that the law must
be reasonable)
1. Publication Requirement
- Legislative and quasi-legislative bodies
Test of substantive due process:
1. Void-for-vagueness
- a law may be said to be vague when it lacks
comprehensible standards that men of common
intelligence must necessarily guess at its meaning and
differ as to its application
Repugnant to the Constitution in two respects:
a. it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the
conduct to avoid
b. it leaves law enforcers unbridled discretion in carrying
out its provisions and become an arbitrary flexing of the
Government muscles
2. Overbreadth doctrine - a proper governmental
purpose, constitutionally subject to state regulation, may
not be achieved by means that unnecessarily sweep its
subject broadly, thereby invading the area of protected
speech. [prohibits unprotected speech but it also
affects/invades protected speech]
EQUAL PROTECTION
CONCEPTS:
Equality and Freedom
(1) Personal/Individual Equality = Freedom/Liberty
(equality and freedom are synonymous in this respect)
All are free, but some are freer that others.
(2) Equality of opportunities – Equality is a necessary
means to liberty (To be free, you need to have access to
equal opportunities)
(3) Equality of outcome (collective equality) – equality
here is antagonistic to freedom because to achieve similar
outcome, the government would have to regulate
individual’s/person’s rights.
Equal Protection means Legal Equality:
- All persons similarly situated must be treated alike
both as to the rights conferred and the liabilities
involved.
- Classification must be reasonable; classification has
been defined as the grouping of persons or things
similar to each other in certain particulars and
different from all others in these same particulars.
Requisites of Reasonable Classification:
1. The classification must be based on substantial
distinction
2. It must be germane to the purposes of the law
3. It must not be limited to existing conditions only
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4. It must apply equally to all members of the same class
KINDS OF TESTS IN DETERMINING THE
REASONABLENESS OF CLASSIFICATION:
1. Strict scrutiny test requires government to show that the
challenged classification serves compelling state interest
and that the classification is necessary to serve that
interest.
- 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 means to protect such interest.
Applicable to: legislative classification which impermissibly
interferes with the exercise of a fundamental right (religion,
speech, privacy) or operates to the peculiar disadvantage of a
suspect class
2. Intermediate or middle-tier scrutiny test which requires
government to show that the challenged classification
serves an important state interest and that the
classification is at least substantially related to serving
that interest.
Applicable to: life and liberty rights
3. Rational basis scrutiny – the government need only show
that the challenged classification is rationally related to
serving a legitimate state interest.
Applicable to: property rights
FREEDOM OF EXPRESSION
Section 4. 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.
Prior restraint – official governmental restrictions on the
press or other forms of expression in advance of actual
publication or dissemination. Its most blatant form is a
system of licensing administered by an executive officer.
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.
Motion picture censorship:
1. the burden of proving that the film is unprotected
expression must rest on the censor
2. censor’s determination is not final; it must be subjected
to judicial determination
FREEDOM OF EXPRESSION V RIGHT TO PRIVACY:
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
to 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.
A public figure has been defined as a person who, by his
accomplishments, fame or mode of living, or by adopting
a profession or calling which gives the public a legitimate
AB
interest in his doings, his affairs, and his character, has
become a public personage. He is, in other words, a
celebrity.
Such public figures were held to have lost, to some extent
at least, their right of privacy.
Fear of Subsequent Punishment – unduly curtailing
speech and expression through a system of providing
penalties after the speech/express is published.
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.
Test for determining the validity of curtailment of
speech:
1. Dangerous tendency rule – for speech to be punishable,
there must be a rational connection between the speech
and the evil apprehended.
2. Clear and present danger test – the question in every
case is whether the words used 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 that Congress has a right to prevent
3. Balancing of interest test
Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the absences of officialdom.
A public officer must not be too thin skinned with
reference to comment upon his official acts.
Regulation:
1. content-neutral – based on the time, place or manner of
dissemination; what is being regulated is not really the
speech
Test: Intermediate Scrutiny Test
2. content-based – based on the substance being
communicated
Test: Strict Scrutiny Test
Core Speeches:
Social, Political and Religious Speech [test: strict scrutiny]
vs.
Commercial speech – communication whose sole
purpose is to propose a commercial transaction.
Commercial speech has not been accorded the same level
of protection as that given to what is called “core speech”
such as political speech.
[test: intermediate scrutiny test]
Requirements for the protection of commercial speech:
1. The speech must not be false or misleading or
proposing an illegal activity
2. The governmental interest sought to be served by the
regulation must be substantial
3. The regulation must directly advance the government
interest
4. The regulation must not be overbroad (more excessive
than is necessary to protect state interest)
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Unprotected speech:
(1) Libel and other defamatory speeches
Art. 353 (RPC). A libel is public and malicious imputation
of a crime, or a vice or defect, real or imaginary, or any
act, omission, condition, status, or circumstance tending
to cause the dishonor, discredit or contempt of a natural
or juridical person, or to blacken the memory of one who
is dead.
Publicity means making the defamatory matter, after it
has been written, known to someone other than the
person to whom it has been written.
Art. 354. Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the
following cases:
1. A private communication made by any person to
another in the performance of any legal, moral or social
duty; and
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other
official proceedings which are not of confidential nature,
or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public
officers in the exercise of their functions.
It is immaterial if the statement is true or not.
(2) Alarming and Scandalous Statements
(3) Inciting to Rebellion or Sedition
(4) Obscenity/Pornography
Tests:
a. Average person test;
b. Community standard test;
c. National character test;
d. Aggregate community standard test;
e. Contemporary standard test;
f. Isolated passage test (Hicklin Test);
g. Dominant Theme Test
Hicklin rule
- whether the tendency of the matter charged as obscene
is to deprave and corrupt those whose minds are open to
such immoral influences, and into whose hands a
publication of this sort may fall (susceptible person test)
- isolated passages test: book could be rejected on the
basis of isolated obscene passages without regard to the
total effect of the entire work
Roth case
- Dominant theme test
whether to the average person applying the
contemporary community standards, the dominant
theme of the material taken as a whole appeals to the
prurient interest
Memoirs v Massachusetts: three elements must coalesce –
AB
(a) the dominant theme of the material taken as a whole
appeals to a prurient interest in sex
(b) the material is patently offensive because it affronts
contemporary community standards relating to the
description or representation of sexual matters and
(c) the material is utterly without redeeming social value
Miller v California:
a. whether the average person , applying contemporary
community standards would find that the work, taken as
whole, appeals to the prurient interest
b. whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
applicable state law
c. whether the work, taken as a whole, lacks serious
literary, artistic, political or scientific value
O’Brien Test (a regulation is justified):
1. If it is within the constitutional power of the
Government;
2. If it furthers an important or substantial governmental
interest;
3. If the governmental interest is unrelated to the
suppression of free expression;
4. If the incidental restriction is no greater than is essential
to the furtherance of that interest.
Assembly and Petition
The right of assembly and petition is equally fundamental
as freedom of expression, the standards for allowable
impairment of speech and press are also those for
assembly and petition.
The granting of permit was subject only to the Mayor’s
reasonable discretion to determine or specify the streets
or public places to be used for the purpose, with a view to
prevent confusion by overlapping, to secure convenient
use of the streets and public places by others, and to
provide adequate and proper policing to minimize the
risk of disorder.
Rules on assembly and petition:
1. the applicant for a permit to hold an assembly should
inform the licensing authority of the date, the public place
where and the time when it will take place. (If it a private
place, only the consent of the owner or the one entitled to
its legal possession is required).
2. Such application should be filed well ahead in time to
enable the public official concerned to appraise whether
there may be valid objection to the grant of the permit or
to its grant but to another public place. It is an
indispensable condition to such refusal or modification
that the clear and present danger test be the standard for
the decision reached.
Government can also be over anxious in times of frequent
anti-government rallies. Thus was born what was called
by the government as calibrated preemptive response to
demonstration and rallies. But the court in Bayan v
Ermita said that calibrated preemptive response had no
place in the constitutional firmament and that the proper
response was maximum tolerance prescribed in Batas
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Pambansa 880. BP 880 also orders political units to set up
freedom parks.
In case of denial of permit, it is incumbent upon the
Mayor to state the reasons for the denial (must be based
on clear and present danger).
In case of freedom parks, there is no need for a permit. If
there is no designated freedom parks, all open and public
spaces are deemed freedom parks.
There is also no need for a permit if the rally will be held
in a privately-owned property, only the consent of the
owner must be obtained.
RIGHTS DURING EXPROPRIATION
Section 9. Private property shall not be taken for public use
without just compensation.
Requisites for Valid Expropriation
1. Private Property
2. Genuine Necessity
3. For Public use
4. Payment of Just Compensation
5. Due Process
Requisites of Eminent Domain:
(1) Taking (expropriating)
Two types of taking:
a. Possessory taking
b. Regulatory taking
There are two different types of taking that can be identified. A
"possessory" taking occurs when the government confiscates or
physically occupies property. A "regulatory" taking occurs
when the government's regulation leaves no reasonable
economically viable use of the property.
xxxx
No formula or rule can be devised to answer the questions of
what is too far and when regulation becomes a taking. In
Mahon, Justice Holmes recognized that it was "a question of
degree and therefore cannot be disposed of by general
propositions." On many other occasions as well, the U.S.
Supreme Court has said that the issue of when regulation
constitutes a taking is a matter of considering the facts in each
case. x x x.
What is crucial in judicial consideration of regulatory takings
is that government regulation is a taking if it leaves no
reasonable economically viable use of property in a manner that
interferes with reasonable expectations for use. A regulation
that permanently denies all economically beneficial or
productive use of land is, from the owner's point of view,
equivalent to a "taking" unless principles of nuisance or
property law that existed when the owner acquired the land
make the use prohibitable. When the owner of real property has
been called upon to sacrifice all economically beneficial uses in
the name of the common good, that is, to leave his property
economically idle, he has suffered a taking.
xxxx
A restriction on use of property may also constitute a "taking"
if not reasonably necessary to the effectuation of a substantial
public purpose or if it has an unduly harsh impact on the
distinct investment-backed expectations of the owner.
AB
Requisites of taking (Republic vs. Vda. De Castellvi):
1. the expropriator must enter a private property
2. the entry must be for more than a momentary period
3. the entry must be under warrant or color of legal
authority
4. the property must be devoted for public use or
otherwise informally appropriated or injuriously affected
5. the utilization of the property for public use must be in
such a way to oust the owner and deprive him of
beneficial enjoyment of the property
(2) The property to be taken must be a private property
Local government has two characters:
Public Function (agent of the state);
Private function (agent of its inhabitants)
Civil Code enumerates what are public properties of local
government units. Anything not enumerated are
patrimonial properties.
Patrimonial property – property of the community
Art. 424 (Civil Code): Property for public use, in the
provinces, cities and municipalities, consist of the
provincial roads, city streets, municipal streets, the
squares fountains, public waters, promenades, and public
works for public service for by said provinces, cities or
municipalities.
All other property possessed by any of them is
patrimonial and shall be governed by this Code, without
prejudice to the provisions of special laws.
Can the government expropriate a local government
private property? Yes.
Expropriation of municipal property:
If the property is owned by the municipality (municipal
corporation) in its public and governmental capacity, the
property is public and Congress has absolute control over
it. But if the property is owned in its private or
proprietary capacity then it is patrimonial and Congress
has no absolute control. The municipality cannot be
deprived of it without due process and payment of just
compensation.
(3) Use must be for public use
- as long as it is beneficial to the State
Sena v Manila Railroad Co.: whatever is beneficially
employed for the community is a public use.
Public use = public welfare, public necessity
(4) Payment of just compensation
Just compensation is the just and complete equivalent of
the loss which the owner of the thing expropriated has to
suffer by reason of the expropriation.
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Fair Market Value + [Consequential Damages –
Consequential Benefits]
Market value – price fixed by the buyer and seller in the
open market in the usual and ordinary course of legal
trade and competition; the price and value of the article
established or shown by sale, public or private, in the
ordinary way of business; the fair value of property as
between one who desires to purchase and one who
desires to sell; the current price, the general or ordinary
price for which property may be sold in that locality.
It must include consequential damages (consequential
benefits must be deducted from this). In case 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.
Form of just compensation: Cash
XPN: CARP
Association of Small Landowners vs. Secretary of
Agrarian Reform:
It cannot be denied from these cases that the traditional medium
for the payment of just compensation is money and no other.
And so, conformably, has just compensation been paid in the
past solely in that medium. However, we do not deal here with
the traditional excercise of the power of eminent domain. This
is not an ordinary expropriation where only a specific property
of relatively limited area is sought to be taken by the State from
its owner for a specific and perhaps local purpose.
What we deal with here is a revolutionary kind of expropriation.
The expropriation before us affects all private agricultural lands
whenever found and of whatever kind as long as they are in
excess of the maximum retention limits allowed their owners.
This kind of expropriation is intended for the benefit not only of
a particular community or of a small segment of the population
but of the entire Filipino nation, from all levels of our society,
from the impoverished farmer to the land-glutted owner. Its
purpose does not cover only the whole territory of this country
but goes beyond in time to the foreseeable future, which it hopes
to secure and edify with the vision and the sacrifice of the
present generation of Filipinos. Generations yet to come are as
involved in this program as we are today, although hopefully
only as beneficiaries of a richer and more fulfilling life we will
guarantee to them tomorrow through our thoughtfulness today.
And, finally, let it not be forgotten that it is no less than the
Constitution itself that has ordained this revolution in the
farms, calling for "a just distribution" among the farmers of
lands that have heretofore been the prison of their dreams but
can now become the key at least to their deliverance.
DETERMINATION OF JUST COMPENSATION
What is the point of reference for assessing the value of a piece
of property? The value must be that as the time of the filing
of the complaint for expropriation.
XPN: when the filing of the case comes later than the time
of taking
a. when 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
AB
b. if the value increased independently of what the
expropriator did, then the value is that of the later filing
of the case
In Socialized Housing and CARP, it is at the time of
taking.
When there is a delay of payment, the landowner is
entitled to interest. (6% annual interest or the legal rate as
of July 1, 2013)
If more than 5 years of non-payment: the remedy is
recovery of property + damages.
If the government project is abandoned, the landowner
may recover the property but he must return the just
compensation (without interest).
If the claim is merely for damages to property (there is
really no eminent domain here), the action is subject to
prescription.
If the claim is for just compensation because there was
taking, it is not subject to prescription.
Inverse Condemnation
It is an action to recover just compensation from the State
or its expropriating agency. It has the objective to recover
the value of property taken in fact by the government,
even though no formal exercise of the power of eminent
domain has been attempted by the taking agency.
Inverse condemnation is an action to recover, while on the
other hand, payment for damages is predicated on
statutory enactments and emanates from a transgression
of a right. (National Power Corporation vs. Heirs of
Macabangkit Sangkay, G.R. No. 165828, August 24, 2011)
Just compensation is due not to the owner alone but to all
those who have lawful interest in the property to be
condemned.
For purposes of entry into the property prior to full
payment, Section 10 of RA 7160 requires a deposit with
the proper court of at least fifteen percent (15%) of the
FMV of the property based on the current tax declaration
of the property to be expropriated.
XPN: in expropriation for infrastructure projects, the
government must make a direct payment of the proffered
value of the property.
Can just compensation be fixed by legislation? PD 42
fixed the just compensation at either the value declared
by the owner for tax purposes or the assessed value,
whichever is lower.
EPZA v Dulay: the method of ascertaining just
compensation under the aforecited decrees constitutes
impermissible encroachment on judicial prerogatives.
The court has only to choose between the valuation of the
owner and that of the assessor, and its choice is always
limited to the lower of the two. The court cannot exercise
discretion or independence in determining what is just or
fair.
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Just compensation embraces not only the correct
determination of the amount to be paid to the owners of
the land, but also payment within a reasonable time from
its taking.
The following aspects of the exercise of the power have
been subjected to judicial scrutiny:
1. the adequacy of compensation
2. the necessity of taking
3. the public use character of the purpose of the taking
Procedure in expropriation cases: judicial appointment of
three commissioners to view the premises and assess the
damages to be paid for the condemnation
Does res judicata apply in expropriation proceedings? No.
Once the right to expropriate has been denied the state in
a specific case, it does not mean that the state may not
come back to the same property. The very nature of
eminent domain dictates the right to exercise the power
be absolute and unfettered by a prior judgment or res
judicata.
Expropriation by municipal government:
Additional Requirement: Genuine Necessity of Taking
The determination of whether there is genuine necessity
for the exercise of eminent domain is a justiciable
question. However, when the power is exercised by the
Legislature, the question of necessity is essentially a
political question.
Expropriation Procedure for Local Government Units:
1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the LGU,
to make a definite and specific writing to the owner to buy
the property stating the:
(a) purpose of expropriation; and
(b) the offer (how much)
2. Attach the copy of the Ordinance and Certification
from the City Treasurer that there are enough funds to
buy the property; and another Certification that those
funds will not be used for any purpose other than to buy
the property
3. If the owner is willing to sell, then a contract of sale will
be executed.
4. In case the owner is willing to sell but they cannot agree
on the price, a committee will be created to hold a
preliminary conference to determine the price
5. If the owner is not willing to sell OR the price cannot be
agreed upon, expropriation should follow.
6. Another Ordinance authorizing expropriation then the
Chief Executive will file a Complaint for Expropriation.
Equal protection does not apply to eminent domain.
Expropriation is always the last resort.
AB
In case of indirect taking, there is no just compensation.
This is, in fact, an exercise of police power, not eminent
domain.
SEARCHES AND SEIZURES
Section 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures, of whatever nature and for any purpose shall be
inviolable. And no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons
or things to be seized.
Purpose: To protect a person’s right to privacy; the right
to be left alone
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 civilized men," but also from our
adherence to the Universal Declaration of Human Rights
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."
Our Bill of Rights, enshrined in Article III of the
Constitution, provides at least two guarantees that
explicitly create zones of privacy. It highlights a person's
"right to be let alone" or the "right to determine what, how
much, to whom and when information about himself shall be
disclosed." Section 2 guarantees "the right of the people to
be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever
nature and for any purpose." Section 3 renders
inviolable the "privacy of communication and
correspondence" and further cautions that "any evidence
obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any
proceeding."
It operates against "unreasonable" searches and seizures
only.
Two Categories of Privacy:
1. Decisional Privacy – involves the right to independence
in making certain important decisions
2. Informational Privacy – refers to the interest of
avoiding disclosure of personal matters.
Two Aspects of Informational Privacy:
a., Right not to have private information disclosed;
b. Right to live freely without surveillance and intrusion
Entitlement to Right, two-fold test:
1. Subjective Test: one claiming the right must have an
actual or legitimate expectation of privacy over a certain
matter.
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 The Law Pertaining to the State and Its Relationship with Its Citizens
2. Objective Test: His/Her expectation of privacy must be
one society is prepared to accept as objectively
reasonable.
What are unreasonable searches and seizures? As a
general rule, searches and seizures without a validly
issued search warrant or warrant of arrest
Requisites of a valid warrant:
1. Existence of probable cause
Probable case for a search would mean such facts and
circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been
committed and that the objects sought in connection with
the offense are in the place sought to be searched.
Stonehill v Diokno: existence of probable cause
presupposes the introduction of competent proof that the
party against whom it is sought has performed particular
acts, or committed specific omissions violating a given
provision of our criminal law.
2. Personal determination by the judge
3. Personal examination of the witnesses
a. The judge shall personal 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 of the existence of probable cause
b. If he is not satisfied that probable cause exists, he 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
4. Particularity of description
Purpose: to limit the things to be seized to those, and only
those, particularly described in the search warrant – to
leave the officers of the law with no discretion regarding
what articles they shall seize, to the end that unreasonable
searches and seizures may not be made, - that abuses may
not be committed; the elimination of general warrants
THINGS TO BE SEIZED:
1. Things used to commit the offense;
2. Things that may be used in evidence;
3. Things that are illegal per se.
The search must be conducted in the presence of the
lawful occupant or immediate relatives or in the presence
of two witnesses.
The sufficiency of the description of the object of the
search is closely related with the sufficient particularity of
the averments of the offense. The possibility of properly
identifying the object of the search may depend on the
proper identification of the offense committed.
G.R.: One warrant for one offense.
XPN: Different offenses belonging to the same
specie/genus punished under one special law
Example: offenses under the Dangerous Drugs Act
AB
For warrant of arrest – personal description
John Doe warrant of arrest is generally void except in
those cases where it contains a description personae such
as will enable the officer to identify the accused.
Remedy:
1. Motion to quash warrant in case of questionable
warrant;
2. Motion for investigation if there’s no warrant
(warrantless search)
WARRANTLESS ARREST:
Sec. 5 Rule 113, Rules of Court:
Arrest without warrant; when lawful. 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) – applicable to continuing crime
e.g. rebellion
b. When an offense has in fact been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and
c. when the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another
Arrest is the taking of a person into custody in order that
he may be forthcoming to answer for the commission of
an offense.
Any objection involving a warrant of arrest or procedure
in 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
questioning the validity of the arrest.
Application for bail or the admission to bail by an accused
is not considered a waiver of his right to assail a warrant
issued for his arrest or the legalities or irregularities
thereof.
Warrantless searches and seizures; when valid
Why allowed?
a. Reasonable – no legitimate expectation of privacy;
b. Practical – there’s urgency
A reasonable search, on the one hand, and a warrantless search,
on the other, are mutually exclusive. While both State
intrusions are valid even without a warrant, the underlying
reasons for the absence of a warrant are different. A reasonable
search arises from a reduced expectation of privacy, for which
reason Section 2, Article III of the Constitution finds no
application. Examples include searches done at airports,
seaports, bus terminals, malls, and similar public ·places. In
contrast, a warrantless search is presumably an "unreasonable
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search," but for reasons of practicality, a search warrant can be
dispensed with. Examples include search incidental to a lawful
arrest, search of evidence in plain view, consented search, and
extensive search of a private moving vehicle.
(1) Consent/Waiver
To be valid, the consent must be voluntary such that it is
unequivocal, specific, and intelligently given,
uncontaminated by any duress or coercion. Relevant to
this determination of voluntariness are the following
characteristics of the person giving consent and the
environment in which consent is given: (a) the age of the
consenting party; (b) whether he or she was in a public or
secluded location; (c) whether he or she objected to the
search or passively looked on; (d) his or her education and
intelligence; (e) the presence of coercive police
procedures; (f) the belief that no incriminating evidence
will be found; (g) the nature of the police questioning; (h)
the environment in which the questioning took place; and
(i) the possibly vulnerable subjective state of the person
consenting.
Note:
Implied acquiescence, if at all, may have been no more
than mere passive conformity given under coercive or
intimidating circumstances.
(2) Search incidental to arrest
The arrest must be lawful, it can either be an arrest with
warrant or a valid warrantless arrest. The arrest must
precede the search.
An officer making an arrest may take from the person
arrested any money or property found upon his person
which –
a. was used in the commission of the crime or was the
fruit of the crime
b. which might furnish the prisoner with the means of
committing violence or escaping
c. which may be used in evidence in the trial of the cause
Purpose: to protect the arresting officer against physical
harm and to prevent the person arrested from destroying
evidence within his reach.
The search is limited to the person and the immediate
surrounding which the person being arrest has control.
(3) Emergency Circumstance
- because time is of the essence
(4) Airport/Seaport Search
Airport Search: Persons may lose the protection of the
search and seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack of
subjective expectation of privacy, which expectation
society is prepared to recognize as reasonable. Such
recognition is implicit in airport security procedures.
With increased concern over airplane hijacking and
terrorism has come increased security at the nation's
airports. Passengers attempting to board an aircraft
routinely pass through metal detectors; their carry­on
baggage as well as checked luggage are routinely
subjected to x­ray scans. Should these procedures suggest
AB
the presence of suspicious objects. physical searches are
conducted to determine what the objects are. There is
little question that such searches are reasonable, given
their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations
associated with airline travel. Indeed, travelers are often
notified through airport public address systems, signs.
and notices in their airline tickets that they are subject to
search and, if any prohibited materials or substances are
found, such would be subject to seizure. These
announcements place passengers on notice that ordinary
constitutional protections against warrantless searches
and seizures do not apply to routine airport procedure
Seaport Search: Seaport searches are reasonable searches
on the ground that the safety of the traveling public
overrides a person's right to privacy.
(5) Search of a moving vehicle
Reason: because a vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant must be
sought
Automobile, or no automobile, there must be probable
cause for the search. Probable cause is the minimum
requirement for a reasonable search permitted by the
Constitution.
Instances that could lead to warrantless search and seizure:
(1) Plain view doctrine – without conducting a search, an
illegal object is exposed to the eye or hand.
This doctrine is usually applied where the police officer is
not searching for evidence against the accused, but
nonetheless inadvertently comes upon an incriminating
object.
Elements:
1. Prior valid intrusion seizure based on the valid
warrantless arrest in which the police are legally present
in the pursuit of their official duties;
2. The evidence was inadvertently discovered by the
police who have the right to be where they are;
3. The evidence must be immediately apparent;
4. Plain view justified the seizure of the evidence without
any further search.
(2) Check point – must be limited to visual search
Guidelines:
a. Point;
b. Lighted;
c. Uniform;
d. Police Station Written
(3) Stop and frisk – limited protective search of outer
clothing for weapons
Elements:
a. stop = reasonable ground to suspect;
b. frisk = to search for weapons;
c. seize = plain view;
d. arrest = in flagrante delicto;
e. search = incident to a lawful arrest
Two-fold interest:
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 The Law Pertaining to the State and Its Relationship with Its Citizens
a. the general interest of effective crime prevention and
detection, which underlies the recognition that a police
officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of
investigating possible criminal behavior even without
probable cause
2. the more pressing interest of safety and 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 unexpectedly
and fatally be used against the police officer.
Saluday vs. People:
Concededly, a bus, a hotel and beach resort, and a
shopping mall are all private property whose owners
have every right to exclude anyone from entering. At the
same time, however, because these private premises are
accessible to the public, the State, much like the owner,
can impose non­intrusive security measures and filter
those going in. The only difference in the imposition of
security measures by an owner and the State is, the
former emanates from the attributes of ownership under
Article 429 of the Civil Code, while the latter stems from
the exercise of police power for the promotion of public
safety. Necessarily, a person's expectation of privacy is
diminished whenever he or she enters private premises
that arc accessible to the public.
Guidelines on bus searches:
1. Prior to entry, passengers and their bags and
luggages can be subjected to a routine inspection
akin to airport and seaport security protocol. In
this regard, metal detectors and x­ray scanning
machines can be installed at bus terminals.
Passengers can also be frisked. In lieu of
electronic scanners, passengers can be required
instead to open their bags and luggages for
inspection, which inspection must be made in the
passenger's presence. Should the passenger
object, he or she can validly be refused entry into
the terminal.
2. While in transit, a bus can still be searched by
government agents or the security personnel of
the bus owner in the following three instances:
a. First, upon receipt of information that a
passenger carries contraband or illegal
articles, the bus where the passenger is
aboard can be stopped en route to allow for
an inspection of the person and his or her
effects. This is no different from an airplane
that is forced to land upon receipt of
information about the contraband or illegal
articles carried by a passenger onboard.
b. Second, whenever a bus picks passengers en
route, the prospective passenger can be
frisked and his or her bag or luggage be
subjected to the same routine inspection by
government agents or private security
personnel as though the person boarded the
bus at the terminal. This is because unlike an
airplane, a bus is able to stop and pick
passengers along the way, making it possible
AB
for these passengers to evade the routine
search at the bus terminal.
c. Third, a bus can be flagged down at
designated military or police checkpoints
where State agents can board the vehicle for
a routine inspection of the passengers and
their bags or luggages.
3. In both situations, the inspection of passengers
and their effects prior to entry at the bus terminal
and the search of the bus while in transit must
also satisfy the following conditions to qualify as
a valid reasonable search.
a. First, as to the manner of the search, it must
be the least intrusive and must uphold the
dignity of the person or persons being
searched, minimizing, if not altogether
eradicating, any cause for public
embarrassment, humiliation or ridicule.
b. Second, neither can the search result from
any discriminatory motive such as insidious
profiling, stereotyping and other similar
motives. In all instances, the fundamental
rights of vulnerable identities, persons with
disabilities, children and other similar
groups should be protected.
c. Third, as to the purpose of the search, it must
be confined to ensuring public safety.
d. Fourth, as to the evidence seized from the
reasonable search, courts must be convinced
that precautionary measures were in place to
ensure that no evidence was planted against
the accused.
Note: Aside from public transport buses, any moving
vehicle that similarly accepts passengers at the terminal
and along its route is likewise covered by these
guidelines. Hence, whenever compliant with these
guidelines, a routine inspection at the terminal or of the
vehicle itself while in transit constitutes a reasonable
search. Otherwise, the intrusion becomes unreasonable,
thereby triggering the constitutional guarantee under
Section 2, Article III of the Constitution.
Not applicable: The guidelines do not apply to
privately­owned cars. Neither are they applicable to
moving vehicles dedicated for private or personal use, as
in the case of taxis, which are hired by only one or a group
of passengers such that the vehicle can no longer be
flagged down by any other person until the passengers
on board alight from the vehicle.
Drug Test:
Can mandatory drug testing be imposed on the
following classes of persons:
(a) candidates for public office;
(b) students of secondary and tertiary schools;
(c) employees of public and private offices; and
(d) persons charged with certain offense?
a. No. If Congress cannot require a
candidate for Senator to meet such
additional qualification, the Commission
on Elections, to be sure, is also without
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 The Law Pertaining to the State and Its Relationship with Its Citizens
such power. The right of a citizen in the
democratic process of election should not
be defeated by unwarranted impositions
of requirement not otherwise specified in
the Constitution. The unconstitutionality
of this requirement is rooted on its
having infringed the constitutional
provision defining the qualification or
eligibility requirements for one aspiring
to run for and serve as Senator.
b. Yes. The constitutional viability of the
mandatory, random, and suspicionless
drug testing for students emanates
primarily from the waiver by the
students of their right to privacy when
they seek entry to the school, and from
their voluntarily submitting their
persons to the parental authority of
school authorities.
c. Yes. In the case of private and public
employees, the constitutional soundness
of the mandatory, random, and
suspicionless drug testing proceeds from
the reasonableness of the drug test policy
and requirement.
d. No. In the case of persons charged with a
crime before the Prosecutor’s Office, a
mandatory drug testing can never be
random or suspicionless. The ideas of
randomness and being suspicionless are
antithetical to their being made
Defendants in a criminal complaint. They
are not randomly picked; neither are they
beyond suspicion. When persons
suspected of committing a crime are
charged, they are singled out and
are impleaded against their will. The
persons thus charged, by the bare fact of
being hailed before the Prosecutor’s
Office and peaceably submitting
themselves to drug testing, if that be the
case, do not necessarily consent to the
procedure, let alone waive their right to
privacy. To impose mandatory drug
testing on the accused is a blatant
attempt to harness a medical test as•a tool
for criminal prosecution, contrary to the
stated objectives of Republic Act No.
9165. (Social Justice Society vs. Dangerous
Drugs Board, G.R. No. 157870, November
3, 2008)
COMPOSITION AND POWERS OF THE
GOVERNMENT ORGANS
Definition
It is the agency or instrumentality through which the will
of the State is formulated, expressed and realized.
Government of the Republic of the Philippines defined,
Sec 2 (1) Administrative Code
is the corporate governmental entity through which the
functions of government are exercised throughout the
Philippines, including, save as the contrary appears from
AB
the context, the various arms through which political
authority is made effective in the Philippines, whether
pertaining to the autonomous regions, the provincial,
city, municipal or barangay subdivisions or other forms
of local government.
The Philippine government is divided into three (3)
branches of government, namely:
1. Legislative
2. Executive; and
3. Judiciary
JUDICIAL REVIEW
This power is controversial because it gives the courts the
power to review the acts of other departments which may
be a violation of the separation of powers and touches on
the political question issue. But this is an expanded power
given by the Constitution so that there may be no abuse
in the exercise of power.
Judicial Review – power to test the validity of the acts of
any branch of government
Judicial Department – final judgments or order
of lower courts
i. Constitutionality or validity of:
i.1 Treaty, International or Executive
Agreements
i.2 Presidential Decrees, Proclamation,
Order, Instruction, Ordinance,
Regulations, Memoranda
i.3 Law (statute) passed by the legislative
ii. Legality of
ii.1 Tax, impost, assessment, toll and
ii.2 Penalty thereto
iii. Penalty Imposed (reclusion perpetua
or higher) – death penalty –
magappeal o hindi – automatic
reviewz
iv. Pure Question of Law
v. Jurisdictional issue
v.1 lack or excess of jurisdiction
v.2 grave abuse of discretion
Executive Department
i. Presidential Decrees, Proclamation, Order,
Instruction, Ordinance, Regulations,
Memoranda
ii. Grave Abuse of Discretion
iii. Art. VII, Sec. 18: “The Supreme Court may
review, in an appropriate proceeding led by
any citizen, the sufficiency of the factual basis
of the proclamation of martial law or the
suspension of the privilege of the writ or the
extension thereof, and must promulgate its
decision thereon within thirty days from its
filing.” [Sui Generis]
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 The Law Pertaining to the State and Its Relationship with Its Citizens

b. Not all non-justiciable are political

Legislative Department questions. E.g. Religious question
i. Laws (statute)
ii. Grave abuse of discretion Requisites of Judicial Review:
1. There must be an actual case or controvery
Constitutional Commissions a. Justiciable
Art. IXA Sec. 7. Unless otherwise provided b. Not moot and academic (XPNs)
by this Constitution or by law, any decision, i. If there’s a grave violation of the
order, or ruling of each Commission may be constitution;
brought to the Supreme Court on certiorari ii. It is of transcendental
by the aggrieved party within thirty days importance or paramount
from receipt of a copy thereof. consideration;
iii. To guide the bench and the bar;
Ministerial Act v Discretion Act iv. It is capable of repetition yet
Ministerial act – the discharge of function is imperative or evading review.
necessary which requires no judgment or discretion on c. Ripe for judicial review
the part of the public officer. 2. Issue must be raised by the proper party (legal
standing/locus standi)
Discretion act – those imposed upon a public officer who a. Locus standi – right to appear in a court
has the right to decide how and when the duty shall be of justice on a given question. The
performed. question to be resolved must be one
where you will benefit or injured by the
Judgment vs Discretion judgment in the suit (real party in
Judgment – is a judicial function. Only courts give interest)
judgment. This is the determination of a question of law. b. Kinds
In judgment, there is only one way to be right and that i. Voters – validity of elections
must be in accordance with the law. (voter)
ii. Citizen – direct and personal
Discretion – is a judicial or administrative function by interest over the case; there must
which a decision may be either way and still be right. be actual or imminent injury to
you (must be injury in fact)
Grave abuse of discretion – such capricious, whimsical iii. Associational – there must be
exercise of discretion as to amount to lack or excess of injury to the association and the
jurisdiction. Must be patent, gross, despotic and arbitrary. association must have legal
personality to sue and be sued
Questions of Law v Questions of Fact iv. Taxpayer – must involve
Questions of Law – when the doubt or controversy expenditure of public money
concerns the application of law or jurisprudence to a v. Legislative – there is an act of the
certain set of facts. The truth or falsehood of such facts are executive that injures Congress
admitted. as an institution
vi. Governmental – this is to assert
Questions of fact – the issue calls for an examination of the authority of the government
the probative value of the evidence presented. The truth under the constitution.
or falsehood of the facts are disputed. vii. Intergenerational – when it
comes to environmental cases
Limitations on the power of judicial review: viii. Epistolary
1. There must be a majority of members who 3. The constitutional issue must be raised at the
actually took part in the deliberations of the issue earliest opportunity
in the case and voted thereon. a. XPN: In civil cases, the constitutional
2. A law (executive or legislative act) must be issue may be raised for the first time on
sustained unless clearly repugnant to the appeal if the determination of the
Constitution in view of presumption of validity question is necessary to the decision in a
of laws. criminal case
a. If there are two possible interpretations: i. In criminal cases, the
one is valid and the other is not, it should constitutional issue may be
be declared valid. raised anytime upon the sound
3. The question of wisdom, propriety or necessity of discretion of the court.
a law or an act is not open to determination of b. Jurisdiction may be raised at any time.
courts i. XPN: Estoppel
a. Political questions are generally 4. Necessity of deciding the constitutional issue (lis
addressed to the other departments mota)
(executive or legislative) or to the people a. The constitutional issue must be the crux
themselves. of the controversy. The issue must be a

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 The Law Pertaining to the State and Its Relationship with Its Citizens
clear and unequivocal breach of the
constitution.
Three functions of judicial review:
1. Checking
2. Legitimating
3. Symbolic
As-applied v facial challenge
In as applied challenge, the petitioner who claims
violation of his constitutional right can raise any
constitutional ground – absence of due process, etc. Here,
one can challenge the constitutionality of a statute only if
he asserts a violation of his own rights. It prohibits one
from assailing the constitutionality of the statue based
solely on the violation of the rights of third persons not
before the court.
In facial challenge, the petitioner may challenge the
constitutionality of a statute even if he claims no violation
of his own rights under the assailed statute where it
involved free speech on grounds of overbreadth or
vagueness of the statute. The rationale for this is to
counter the chilling effect on protected speech that comes
from statutes violating free speech. A person who does
not know whether his speech constitutes a crime under
an overbroad or vague law may simply restrain himself
from speaking in order to avoid being charged of a crime.
The overbreadth or vague law thus chills him into silence.
Kind of facial challenge:
1. Void-for-vagueness challenge – the law is vague
and therefore void. When a statute which either
forbids or requires an act in terms so vague that
persons of common intelligence must necessarily
guess as to its meaning and differ as to its
interpretation.
2. Overbreadth doctrine – a proper governmental
purpose, constitutionally subject to state
regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby
invading the area of protected speech.
SUPERVISION OF COURTS
The Supreme Court exercises administrative supervision
over all lower courts. (Art. VIII, Sec 6)
The SC is assisted by the Court Administrator and the
Deputy Court Administrators in exercising the
administrative function.
Administrative Powers of the Supreme Court:
1. Assign temporarily judges of lower courts to
other stations as public interest may require;
2. Shall not exceed 6 months without consent of the
Judge concerned;
3. Order a change of venue or place of trial to avoid
miscarriage of justice;
4. Appoint all officials and employees of the
Judiciary in accordance with the Civil Service
Law
5. Supervision over all courts and the personnel
thereof;
AB
6. Discipline judges of lower courts or order their
dismissal.
Period of Deciding Cases:
1. SC – 24 months
2. Lower Collegiate Courts – 12 months
3. Other Lower Courts – 90 days
POWERS OF THE SUPREME COURT
1. Original Jurisdiction: over cases affecting
ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus.
2. Appellate Jurisdiction: Review, revise, reverse,
modify, or affirm on appeal or certiorari as the
law or Rules of Court may provide, final
judgments and orders of lower courts in (i) all
cases in which the constitutionality or validity of
any treaty, international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance or regulation is in
question; (ii) all penalty imposed in relation
thereto; (iii) all cases in which the jurisdiction of
any lower court is in issue; (iv) all criminal cases
in which the penalty imposed is reclusion
perpetua or higher; and 9v) all cases in which
only an error or question of law is involved.
3. Temporary assignment of judges of lower courts
to other stations as public interest may require;
but the assignment shall not exceed 6 months
without the consent of the judge concerned.
4. Order change of venue or place of trial, to avoid
miscarriage of justice.
5. Rule-making power: promulgate rules
concerning the protection and enforcement of
constitutional rights, pleadings, practice and
procedure in all courts the admission to the
practice of law, the Integrated bar, and legal
assistance to the underprivileged.
6. Power of appointment: The Supreme Court
appoints all officials and employees of the
Judiciary in accordance with Civil Service Law.
7. Power of Administrative Supervision: The SC
shall have administrative supervision over all
courts and the personnel thereof.
8. Annual Report: SC to submit, within 30 days
from the opening of each regular session of
Congress, to the President and to Congress an
annual report on the operations and activities of
the Judiciary.
QUALIFICATIONS, DISQUALIFICATIONS, AND
SELECTION OF THE PRESIDENT, SENATOR,
MEMBERS OF THE HOUSE OF REPRESENTATIVES,
JUSTICES AND JUDGES, THE OMBUDSMAN, AND
CONSTITUTIONAL COMMISSIONERS
CONGRESS
QUALIFICATIONS
Senators House of
Representatives
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 The Law Pertaining to the State and Its Relationship with Its Citizens

Natural-Born citizen Natural-born citizen years immediately

preceeding such election
At least 35 years old on At least 25 years old on
the day of the election the day of the election PRIVILEGES, PROHIBITION, INHIBITIONS AND
DISQUALIFICATIONS, ARTICLE VII, SECTIONS 6,
Able to read and write Able to read and write 13
A registered voter A registered voter in the
[Sec. 6.] The President shall have an official residence. The
district he seeks to
salaries of the President and Vice-President shall be
Resident of the represent
determined by law and shall not be decreased during
Philippines for at least 2
their tenure. No increase in said compensation shall take
years immediately A resident of the said
effect until after the expiration of the term of the
preceding the day of the district for at least 1 year
incumbent during which such increase was approved.
election immediately preceeding
They shall not receive during their tenure any other
the day of the election
emolument from the Government or any other source.
DISQUALIFICATIONS [Sec. 13.] The President, Vice-President, the Members of
1. Incompatible office – No Senator or Member of the Cabinet, and their deputies or assistants shall not,
the House of Representatives may hold any other unless otherwise provided in this Constitution, hold any other
office or employment in the government during office or employment during their tenure. They shall not,
his term without forfeiting his seat during said tenure, directly or indirectly, practice any
2. Forbidden office – Neither shall be appointed to other profession, participate in any business, or be
any office created or whose emoluments were financially interested in any contract with, or in any
increased during the term for which he was franchise, or special privilege granted by the Government
elected or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations
Other restrictions: or their subsidiaries. They shall strictly avoid conflict of
1. 1. No Senator or Member of the House of interest in the conduct of their office.
Representatives may personally appear as
counsel before any court of justice or before the The spouse and relatives by consanguinity or affinity
Electoral Tribunals, or quasi-judicial and other within the fourth civil degree of the President shall not
administrative bodies. during his tenure be appointed as members of the
2. 2. Neither shall he, directly or indirectly, be Constitutional Commissions, or the Office of the
interested financially in any contract with, or in Ombudsman, or as Secretaries, Undersecretaries,
any franchise or special privilege granted by the chairmen or heads of bureaus or offices, including
Government, or any subdivision, agency, or government-owned or controlled corporations and their
instrumentality thereof, including any subsidiaries.
government-owned or controlled corporation, or
its subsidiary, during his term of office. Case: Pormento v Estrada, 629 SCRA 530 (2010)
3. 3. He shall not intervene in any matter before any
office of the Government for his pecuniary Facts:
benefit or where he may be called upon to act on
account of his office. Joseph Ejercito Estrada was elected President of the
Republic of the Philippines in the general elections held
on May 11, 1998. He was removed from office in 2001. He
sought the presidency again in the general elections held
PRESIDENT on May 10, 2010. Petitioner Atty. Evillo Pormento
QUALIFICATIONS opposed Estrada’s candidacy and filed a petition for
President Vice President disqualification. Because his petition was denied by the
Natural-born citizen of Same as the President, COMELEC, Estrada was able to participate as a candidate
the Philippines but no Vice President for the position of President in the May 10, 2010 elections
shall serve for more than where he garnered the second highest number of votes.
A registered voter 2 successive terms. The Estrada was not elected President the second time he ran.
VP may be appointed as
Able to read and write Members of the Cabinet. Issue:
Such appointment
At least 40 years of age requires no confirmation Whether or not Estrada was covered by the ban on the
on the day of the election; by the Commissions on President from any reelection?
and Appointments.
Held:
A resident of the
Philippines for at least 10 The case has been rendered moot and academic. Since the
issue on the proper interpretation of the phrase any

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 The Law Pertaining to the State and Its Relationship with Its Citizens

reelection will be premised on a person’s second (whether Philippi es for public public Philippine
immediate or not) election as President, there is no case nes for fifteen office in office in s or has
or controversy to be resolved in this case. No live conflict fifteen (15) years the the held office
of legal rights exists. There is in this case no definite, (15) or more.* Philippin Philippin requiring
years or es es admission
concrete, real or substantial controversy that touches on
more. *Same requiring requiring to the bar
the legal relations of parties having adverse legal qualificati admissio admissio as a pre-
interests. No specific relief may conclusively be decreed ons as n to the n to the requisite
upon by this Court in this case that will benefit any of the provided practice practice for at least
parties herein. As such, one of the essential requisites for in the of law as of law as ten (10)
the exercise of the power of judicial review, the existence 1987 an an years.
of an actual case or controversy, is sorely lacking in this Constituti indispens indispens
case. on for able able
Justices of requisite requisite
the for at least for at least
JUSTICES AND JUDGES Supreme ten (10) five (5)
QUALIFICATIONS: Court. years. years.
(Sec. 7,
Ch. 1,
(1) A Judicial and Bar Council is hereby created under Batas
the supervision of the Supreme Court composed of the Pambansa
Chief Justice as ex officio Chairman, the Secretary of Blg. 129)
Justice, and a representative of the Congress as ex officio At least 35 At least 30 At least 40
At least 40 years of
years of years of years of
Members, a representative of the Integrated Bar, a age
age age age
professor of law, a retired Member of the Supreme
Court, and a representative of the private sector.
(1) No person shall be appointed Member of the Supreme
Court or any lower collegiate court unless he is a natural-
(2) The regular Members of the Council shall be
born citizen of the Philippines. A Member of the Supreme
appointed by the President for a term of four years with
Court must be at least forty years of age, and must have
the consent of the Commission on Appointments. Of the
been for fifteen years or more a judge of a lower court or
Members first appointed, the representative of the
engaged in the practice of law in the Philippines.
Integrated Bar shall serve for four years, the professor of
law for three years, the retired Justice for two years, and
(2) The Congress shall prescribe the qualifications of
the representative of the private sector for one year.
judges of lower courts, but no person may be appointed
judge thereof unless he is a citizen of the Philippines and
(3) The Clerk of the Supreme Court shall be the Secretary
a member of the Philippine Bar.
ex officio of the Council and shall keep a record of its
proceedings.
(3) A Member of the Judiciary must be a person of proven
competence, integrity, probity, and independence.
(4) The regular Members of the Council shall receive
such emoluments as may be determined by the Supreme
Court. The Supreme Court shall provide in its annual
budget the appropriations for the Council. How they will operationalize “must be a person of
proven competence, integrity, probity, and
(5) The Council shall have the principal function of independence”?
recommending appointees to the Judiciary. It may The JBC has the power to formulate rules in
exercise such other functions and duties as the Supreme measuring these qualifications provided those rules
Court may assign to it. are published in the Official Gazette and a copy is
given to the ONAR.
Supreme Court of Regional Metropolit Sandiganb
Court Appeals Trial Court an Trial ayan The power to appoint belongs to the President. The
Court, only limitation when it comes to judiciary is that the
Municipal appointee must come from the nominees shortlisted
Trial
Court,
by the JBC.
Municipal
Circuit
Trial Court Ombudsman
Natural born citizen of the Philippines Composition: An Ombudsman to be known as the
A judge A judge Has been Has been Has been Tanodbayan, one overall Deputy and at least one Deputy
of a of a lower engaged engaged a judge of each for Luzon, Visayas and Mindanao. S separate
lower court of in the in the a court of Deputy for the military establishment may likewise be
court of engaged practice practice record or appointed.
engage in the of law in of law in been
d in the practice the the engaged
practice of law in Philippin Philippin in the QUALIFICATIONS:
of law the es or has es or has practice of 1. Natural-born citizen of the Philippines
in the Philippin held a held a law in the 2. At least 40 years of age,
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 The Law Pertaining to the State and Its Relationship with Its Citizens

3. Of recognized probity and independence Additional With proven Holders of Certified Public
4. Members of the Philippine Bar qualifications capacity for College Accountant with at
public Degrees least 10 years of
5. Must not have been candidates for any elective administration auditing
office in the immediately preceding election. N.B.: Majority, experience or a
6. Must have been a judged or engaged in the including the lawyer who
practice of law for 10 years or more. Chairman, practiced law for at
must be least 10 years
members of the
DISQUALIFICATIONS: Philippine Bar N.B.: At no time
and practiced shall all Members
During their tenure, shall not hold any other office or law for at least of the Commission
employment; shall not engage in the practice of any 10 years. belong to the same
profession or in the active management or control of any profession
business which in any way may be affected by the
functions of his office; shall not be financially interested, Appointments Needs the confirmation of the Commission on
directly or indirectly, in any contract with, or in any Appointments
Disqualifications No Member of a Constitutional Commission shall,
franchise or privilege granted by the Government, or any during his tenure, hold any other office or employment.
of its subdivision, etc. and shall not be qualified to run for Neither shall he engage in the practice of any profession
any office in the election immediately succeeding their or in the active management or control of any business
cessation from office. which in any way 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
Constitutional Commissioners privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations or their
CIVIL COMMISSIO COMMISSION subsidiaries.
SERVICE N ON ON AUIDIT
COMMISSIO ELECTIONS Term of Office 7 years without reappointment
N Removal from Impeachment
Composition 1 Chairman 1 Chairman 1 Chairman Office
2 6 2 Commissioners
Commissioners Commissioners
Common Natural born Natural born Natural born
Qualifications citizens; citizens; citizens;

At least 35 At least 35 At least 35 years at

years at the years at the the time of the IMMUNITY OF THE PRESIDENT, PRIVILEGES OF
time of the time of the appointment;
appointment; appointment; SENATORS AND MEMBERS OF THE HOUSE OF
Not candidates for REPRESENTATIVE
Not candidates Not candidates any elective
for any elective for any elective position in the PRESIDENTIAL IMMUNITY
position in the position in the election The President cannot be sued. But the validity of his acts
election election immediately can be tested by an action against other executive officials.
immediately immediately preceding
preceding preceding appointment
appointment appointment The President by virtue of the office and may be invoked
Cannot be only by the holder of the office; not by any other person
Cannot be Cannot be appointed within in the President’s behalf. The President may waive the
appointed appointed one year after
within one year within one year election (whether protection afforded by the privilege and submit to the
after election after election candidate/s or court’s jurisdiction.
(whether (whether not)
candidate/s or candidate/s or But presidential decisions may be questioned before the
not) not) Must not be
related within the courts where there is grave abuse of discretion or that the
Must not be Must not be fourth degree of President acted without or in excess of jurisdiction.
related within related within consanguinity or
the fourth the fourth affinity to the Immunity co-extensive with tenure and covers only
degree of degree of President
consanguinity consanguinity including the official duties. After tenure, the Chief Executive cannot
or affinity to the or affinity to spouse (under RA invoke immunity from suit for civil damages arising out
President the President 6730, included are acts done by him while he was President which were not
including the including the bilas, balae and inso) performed in the exercise of official duties.
spouse (under spouse (under
RA 6730, RA 6730,
included are included are The presidential privilege of immunity cannot be invoked
bilas, balae and bilas, balae and by a non-sitting president even for acts committed during
inso) inso) his or her tenure.

XPN: The president may be sued if the act is one not

arising from official conduct.

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 The Law Pertaining to the State and Its Relationship with Its Citizens

PRIVILEGES OF SENATORS AND HOUSE OF A. May Congress, through the Joint Congressional
REPRESENTATIVES Oversight Committee created in Section 25 of Rep. Act
1. Freedom from arrest – A senator or member of No. 9189, exercise the power to review, revise, amend,
and approve the Implementing Rules and Regulations
the house of representatives shall, in all offenses
that the Commission on Elections shall promulgate
punishable by not more than 6 years
without violating the independence of the COMELEC
imprisonment, be privileged from arrest while
the Congress is in session. under Section 1, Article IX-A of the Constitution?
2. Privilege of speech and of debate – No member
shall be questioned nor be held liable in any other No. The ambit of legislative power under Article VI of the
Constitution is circumscribed by other constitutional
place for any speech or debate in the Congress or
in any committee thereof. provisions. One such provision is Section 1 of Article IX­A
of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be
STRUCTURE OF GOVERNMENT independent.
Article II, Sec. 1. The Philippines is a democratic and
republican State. Sovereignty resides in the people and all By vesting itself with the powers to approve, review,
government authority emanates from them. amend, and revise the IRR for The Overseas Absentee
Voting Act of 2003, Congress went beyond the scope of its
Legislative constitutional authority. Congress trampled upon the
constitutional mandate of independence of the
COMPOSITION COMELEC.
CONGRESS
SENATE HOUSE OF Justice Puno’s Concurring and Dissenting Opinion:
REPRESENTATIVES Concept and bases of congressional oversight
24 senators elected at Not more than 250 Broadly defined, the power of oversight embraces all
large members, unless activities undertaken by Congress to enhance its
otherwise provided by understanding of and influence over
law, consisting of: (a) the implementation of legislation it has enacted. Clearly,
District Representatives; oversight concerns post-enactment measures
(b) Party-List undertaken by Congress: (a) to monitor bureaucratic
Representatives compliance with program objectives, (b) to determine
whether agencies are properly administered, (c) to
PRIVILEGES eliminate executive waste and dishonesty, (d) to prevent
executive usurpation of legislative authority, and (d) to
a. Freedom for Arrest
assess executive conformity with the congressional
b. Speech and Debate Clause
perception of public interest.
POWERS OF CONGRESS Categories of congressional oversight functions:
1. Plenary Power – Legislative power is the power The acts done by Congress purportedly in the exercise of
to propose, enact, amend, and repeal laws. its oversight powers may be divided into three
2. Power of Appropriation – No money shall be categories, namely: scrutiny, investigation and
paid out of the treasury except in pursuance of an supervision.
appropriation made by law.
3. Power of Taxation a. Scrutiny
4. Power of Legislative Investigation Congressional scrutiny implies a lesser intensity and
continuity of attention to administrative operations.
The Senate or the House of Representatives or any of its Its primary purpose is to determine economy and
respective committees may conduct inquiries in aid of efficiency of the operation of government activities. In the
legislation in accordance with its duly published rules of exercise of legislative scrutiny, Congress may
procedure. The rights of persons appearing in or affected request information and report from the other branches
by such inquiries shall be respected. [Sec. 21] of government. It can give recommendations or pass
resolutions for consideration of the agency involved.
Requisites of Legislative Inquiries:
a. Must be in aid of legislation Legislative scrutiny is based primarily on the power of
b. Is in accordance with duly published appropriation of Congress. Under the Constitution, the
rules of procedure power of the purse belongs to Congress. The President
c. Right of persons appearing in or affected may propose the budget, but still, Congress has the final
by such inquiries shall be respected say on appropriations. Consequently, administrative
officials appear every year before the appropriation
Makalintal v Comelec, GR 157013, Jul 10, 2003 committees of Congress to report and submit a budget
Issue: Whether or not Republic Act No. 9189 (The Overseas estimate and a program of administration for the
Absentee Voting Act of 2003) is unconstitutional on the succeeding fiscal year. During budget hearings,
following grounds: administrative officials defend their budget proposals.
Also, Congress can ask the heads of departments to
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 The Law Pertaining to the State and Its Relationship with Its Citizens
appear before and be heard by either House of Congress
on any matter pertaining to their departments.
Likewise, Congress exercises legislative scrutiny thru its
power of confirmation.
b. Congressional investigation
While congressional scrutiny is regarded as a passive
process of looking at the facts that are readily
available, congressional investigation involves a more
intense digging of facts.
c. Legislative supervision
The third and most encompassing form by which
Congress exercises its oversight power is thru
legislative supervision. Supervision connotes a go back and resume residency in the Philippines, but
continuing and informed awareness on the part of a
congressional committee regarding executive
operations in a given administrative area. While both
congressional scrutiny and investigation involve inquiry
into past executive branch actions in order to influence
future executive branch performance, congressional
supervision allows Congress to scrutinize the exercise
of delegated law-making authority, and permits
Congress to retain part of that delegated authority.
Congress exercises supervision over the executive
agencies through its veto power. It typically utilizes
veto provisions when granting the President or an
executive agency the power to promulgate regulations
with the force of law. These provisions require the
President or an agency to present the proposed
regulations to Congress, which retains a right to
approve or disapprove any regulation before it takes
effect. Such legislative veto provisions usually provide
that a proposed regulation will become a law after the
expiration of a certain period of time, only if Congress
does not affirmatively disapprove of the regulation in the
meantime. Less frequently, the statute provides that a
proposed regulation will become law if Congress
affirmatively approves it.
Other issues:
B. Does Section 5(d) of Rep. Act No. 9189 allowing the
registration of voters who are immigrants or permanent
residents in other countries by their mere act of
executing an affidavit expressing their intention to
return to the Philippines violate the residency
requirement in Section 1 of Article V of the
Constitution?
No. The intent of the Constitutional Commission is to
entrust to Congress the responsibility of devising a
system of absentee voting. The qualifications of voters as
stated in Section 1 shall remain except for the residency
requirement. This is in fact the reason why the
Constitutional Commission opted for the term qualified
Filipinos abroad with respect to the system of absentee
voting that Congress should draw up. It is in pursuance
of that intention that the Commission provided for
Section 2 immediately after the residency requirement of
Section 1. By the doctrine of necessary implication in
statutory construction, which may be applied in
construing constitutional provisions, the strategic
location of Section 2 indicates that the Constitutional
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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.
Second, residency has been interpreted as synonymous with
domicile.
Lastly, contrary to the claim of petitioner, the execution of
the affidavit itself is not the enabling or enfranchising act.
The affidavit required in Section 5(d) is not only proof of
the intention of the immigrant or permanent resident to
more significantly, it serves as an explicit expression that
he had not in fact abandoned his domicile of origin. Thus,
it is not correct to say that the execution of the affidavit
under Section 5(d) violates the Constitution that
proscribes provisional registration or a promise by a voter
to perform a condition to be qualified to vote in a political
exercise.
C. Does Section 18.5 of the same law empowering the
COMELEC to proclaim the winning candidates for
national offices and party list representatives including
the President and the Vice-President violate the
constitutional mandate under Section 4, Article VII of
the Constitution that the winning candidates for
President and the Vice-President shall be proclaimed as
winners by Congress?
Section 18.5 of R.A. No. 9189 appears to be repugnant to
Section 4, Article VII of the Constitution only insofar as
said Section totally disregarded the authority given to
Congress by the Constitution to proclaim the winning
candidates for the positions of president and
vice­president.
In addition, the Court notes that Section 18.4 of the law,
to wit:
18.4. . . . Immediately upon the completion of the canvass,
the chairman of the Special Board of Canvassers shall
transmit via facsimile, electronic mail, or any other means
of transmission equally safe and reliable the Certificates
of Canvass and the Statements of Votes to the
Commission, . . .
clashes with paragraph 4, Section 4, Article VII of the
Constitution which provides that the returns of every
election for President and Vice­President shall be certified
by the board of canvassers to Congress.
The constitutionality of Section 18.5 of R.A. No. 9189 is
UPHELD with respect only to the authority given to the
COMELEC to proclaim the winning candidates for the
Senators and party­list representatives but not as to the
power to canvass the votes and proclaim the winning
candidates for President and Vice­President which is
lodged with Congress under Section 4, Article VII of the
Constitution.
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 The Law Pertaining to the State and Its Relationship with Its Citizens
5. Question Hour
The heads of departments may upon their own initiative,
with the consent of the President, or upon the request of
either House, as the rules of each House shall provide,
appear before and be heard by such House on any matter
pertaining to their departments. Written questions shall
be submitted to the President of the Senate or the Speaker
of the House of Representatives at least three days before
their scheduled appearance. Interpellations shall not be
limited to written questions, but may cover matters
related thereto. When the security of the State or the
public interest so requires and the President so states in
writing, the appearance shall be conducted in executive
session. [Sec. 22]
Legislative Inquiries and Oversight Functions
Legislative Inquiries v Question Hour
In aid of legislation On any matter
pertaining to
subject’s department
Any person upon Heads of
subpoena departments only
Appearance of Appearance of
executive officials executive officials
generally via request or upon
mandatory executive official’s
volition with the
consent of the
president
The requirement of securing prior consent of the
President prior to appearing before wither House
of Congress applies only to Cabinet Members
and not to other public officials and only when
either House of Congress conducts a Question
Hour and not in cases of inquiries in aid of
legislation as the latter should be untrammeled
because it is co-extensive with the power to
legislate.
6. War powers – by a vote of 2/3 of both House in
joint session assembled, voting separately,
declare the existence of a state of war
(1) The Congress, by a vote of two-thirds of both Houses
in joint session assembled, voting separately, shall have
the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to
carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers
shall cease upon the next adjournment thereof.
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7. Power to act as Board of Canvasses in election of
President
The returns of every election for President and Vice-
President, duly certified by the board of canvassers of
each province or city, shall be transmitted to the
Congress, directed to the President of the Senate. Upon
receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the
election, open all certificates in the presence of the Senate
and the House of Representatives in joint public session,
and the Congress, upon determination of the authenticity
and due execution thereof in the manner provided by
law, canvass the votes.
8. Power to call a special election, for President and
Vice President
The Congress shall, at ten o’clock in the morning of the
third day after the vacancy in the offices of the President
and Vice-President occurs, convene in accordance with its
rules without need of a call and within seven days enact
a law calling for a special election to elect a President and
a Vice-President to be held not earlier than forty-five days
nor later than sixty days from the time of such call. The
bill calling such special election shall be deemed certified
under paragraph 2, Section 26, Article VI of this
Constitution and shall become law upon its approval on
third reading by the Congress. Appropriations for the
special election shall be charged against any current
appropriations and shall be exempt from the
requirements of paragraph 4, Section 25, Article VI of this
Constitution. The convening of the Congress cannot be
suspended nor the special election postponed. No special
election shall be called if the vacancy occurs within
eighteen months before the date of the next presidential
election.
9. Power to judge President’s physical fitness to
discharge the functions of the Presidency
To determine by 2/3 vote whether the President is unable
to discharge the powers and duties of his office. This
occurs after the Cabinet sends a written declaration to the
Senate President and Speaker notifying them of the
President’s disability, a matter disputed by the President,
and the Cabinet stands by its findings. [Art. VII, Sec. 11]
For that purpose, the Congress shall convene, if it is not
in session, within forty-eight hours, in accordance with its
rules and without need of call.
If the Congress, within ten days after receipt of the last
written declaration, or, if not in session, within twelve
days after it is required to assemble, determines by a two-
thirds vote of both Houses, voting separately, that the
President is unable to discharge the powers and duties of
his office, the Vice-President shall act as the President;
otherwise, the President shall continue exercising the
powers and duties of his office.
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 The Law Pertaining to the State and Its Relationship with Its Citizens
10. Power to revoke or extend suspension of the
privilege of the writ of habeas corpus or
declaration of martial law
The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by
a vote of at least a majority of all its Members in regular
or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such
proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four
hours following such proclamation or suspension,
convene in accordance with its rules without any need of
a call.
11. Power to concur in Presidential amnesties –
Concurrence of majority of all the members of the
Congress.
Except in cases of impeachment, or as otherwise provided
in this Constitution, the President may grant reprieves,
commutations and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the
Congress.
12. Power to concur in treaties or international
agreements – concurrence of at least 2/3 of all the
members of the Senate
No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all
the Members of the Senate.
13. Power to confirm certain
appointments/nominations made by the
President
There shall be a Commission on Appointments consisting
of the President of the Senate, as ex officio Chairman,
twelve Senators and twelve Members of the House of
Representatives, elected by each House on the basis of
proportional representation from the political parties and
parties or organizations registered under the party-list
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system represented therein. The Chairman of the
Commission shall not vote, except in case of a tie. The
Commission shall act on all appointments submitted to it
within thirty session days of the Congress from their
submission. The Commission shall rule by a majority vote
of all the Members.
14. Power of impeachment
Article XI, Section 3
(1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon
a resolution of endorsement by any Member thereof, which shall
be included in the Order of Business within ten session days,
and referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote
of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt
thereof.
(3) A vote of at least one-third of all the Members of the House
shall be necessary either to arm a favorable resolution with the
Articles of Impeachment of the Committee, or override its
contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment
is filed by at least one-third of all the Members of the House, the
same shall constitute the Articles of Impeachment, and trial by
the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of the Supreme
Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the
Members of the Senate.
(7) Judgment in cases of impeachment shall not extend further
than removal from office and disqualification to hold any office
under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial, and
punishment according to law.
(8) The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section.
Impeachable public officers:
1. President;
2. Vice President;
3. Members of the Supreme Court;
4. Members of the Constitutional Commissions;
5. Ombudsman.
Grounds:
1. culpable violation of the Constitution;
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 The Law Pertaining to the State and Its Relationship with Its Citizens

2. treason; (OIC), Office of the Administrator, MARINA, in

3. bribery;
4. graft and corruption;
5. other high crimes; or
6. betrayal of public trust.
15. Power to relative to natural resources
The Congress may, by law, allow small-scale utilization
of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and
lagoons.
The President may enter into agreements with foreign-
owned corporations involving either technical or
financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and
other mineral oils according to the general terms and
conditions provided by law, based on real contributions
to the economic growth and general welfare of the
country. In such agreements, the State shall promote the
development and use of local scientific and technical
resources.
concurrent capacity as DOTC Undersecretary. Dennis
Funa, in his capacity as taxpayer, concerned citizen and
lawyer, filed the instant petition challenging the
constitutionality of Bautista’s appointment/designation,
which is proscribed by the prohibition on the President,
Vice­ President, the Members of the Cabinet, and their
deputies and assistants to hold any other office or
employment.
Issue:
Whether or not the designation of Bautista as OIC of
MARINA concurrently as Undersecretary of DOTC
violates Sec. 13, Art. VII of the Constitution?
Held:
Yes. Section 13, Article VII of the 1987 Constitution
provides:
The President, Vice­President, the Members of the
Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold
any other office or employment during their tenure.

The President shall notify the Congress of every contract
entered into in accordance with this provision, within
thirty days from its execution.
16. Power to propose amendments to the
Constitution (See discussion on Amendment v
Revision)
These sweeping, all­embracing prohibitions imposed on
the President and his official family, which prohibitions
are not similarly imposed on other public officials or
employees such as the Members of Congress, members of
the civil service in general and members of the armed
forces, are proof of the intent of the 1987 Constitution to
treat the President and his official family as a class by
itself and to impose upon said class stricter prohibitions.

EXECUTIVE While all other appointive officials in the civil service

are allowed to hold other office or employment in the
PRIVILEGES government during their tenure when such is allowed
1. Official Residence by law or by the primary functions of their positions,
2. Salary members of the Cabinet, their deputies and assistants
3. Presidential Immunity may do so only when expressly authorized by the
4. Presidential Privilege Constitution itself. In other words, Section 7, Article IX­B
is meant to lay down the general rule applicable to all
POWERS OF THE PRESIDENT elective and appointive public officials and employees,
1. Executive Power while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice­President,
The President shall have control of all the executive Members of the Cabinet, their deputies and assistants.
departments, bureaus and offices. He shall ensure that the The phrase unless otherwise provided in this
laws be faithfully executed. Constitution must be given a literal interpretation to refer
only to those particular instances cited in the Constitution
2. Power of Appointment itself, to wit: the Vice­President being appointed as a
member of the Cabinet under Section 3, par. (2), Article
VII; or acting as President in those instances provided
IN GENERAL under Section 7, pars. (2) and (3), Article VII; and, the
Cases: Secretary of Justice being ex­officio member of the Judicial
Funa v Ermita, 612 SCRA 308 (2010) and Bar Council by virtue of Section 8 (1), Article VIII.
Facts: Bautista being then the appointed Undersecretary of
DOTC, she was thus covered by the stricter prohibition
Maria Elena Bautista was appointed as Undersecretary of under Section 13, Article VII and consequently she cannot
DOTC. Bautista was designated as Undersecretary for invoke the exception provided in Section 7, paragraph 2,
Maritime Transport of the department. Following the Article IX­B where holding another office is allowed by
resignation of then MARINA Administrator Vicente law or the primary functions of the position. Neither was
Suazo, Jr., Bautista was designated as Officer­in­Charge
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 The Law Pertaining to the State and Its Relationship with Its Citizens
she designated OIC of MARINA in an ex­officio capacity,
which is the exception recognized in Civil Liberties Union.
Given the vast responsibilities and scope of
administration of the Authority, it cannot be considered
that Bautista’s designation as OIC of MARINA was
merely an imposition of additional duties related to her
primary position as DOTC Undersecretary for Maritime
Transport. It appears that the DOTC Undersecretary for
Maritime Transport is not even a member of the Maritime
Industry Board, which includes the DOTC Secretary as
Chairman, the MARINA Administrator as
Vice­Chairman, and the following as members: Executive
Secretary (Office of the President), Philippine Ports
Authority General Manager, Department of National
Defense Secretary, Development Bank of the Philippines
General Manager, and the Department of Trade and
Industry Secretary.
Funa v Agra, 691 SCRA 196 (2013)
Facts:
Alberto Agra was appointed as the Acting Secretary of
Justice following the resignation of Secretary Agnes VST
Devanadera. Subsequently, he was designated as Acting
Solicitor General in a concurrent capacity. Dennis Funa
challenged the constitutionality of Agra’s concurrent
appointments or designations, claiming it to be
prohibited under Section 13, Article VII of the 1987
Constitution.
Issue:
Whether or not the designation of Agra as the Acting
Secretary of Justice, concurrently with his position of
Acting Solicitor General, violate the constitutional
prohibition against dual or multiple offices for the
Members of the Cabinet and their deputies and
assistants?
Held:
Yes. Being designated as the Acting Secretary of Justice
concurrently with his position of Acting Solicitor General,
therefore, Agra was undoubtedly covered by Section 13,
Article VII.
It was of no moment that Agra’s designation was in an
acting or temporary capacity. The text of Section 13, supra,
plainly indicates that the intent of the Framers of the
Constitution was to impose a stricter prohibition on the
President and the Members of his Cabinet in so far as
holding other offices or employments in the Government
or in government­owned or government
controlled­corporations was concerned. In this regard, to
hold an office means to possess or to occupy the office, or
to be in possession and administration of the office, which
implies nothing less than the actual discharge of the
functions and duties of the office. Indeed, in the language
of Section 13 itself, supra, the Constitution makes no
reference to the nature of the appointment or designation.
The prohibition against dual or multiple offices being
held by one official must be construed as to apply to all
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appointments or designations, whether permanent or
temporary, for it is without question that the avowed
objective of Section 13, supra, is to prevent the
concentration of powers in the Executive Department
officials, specifically the President, the Vice­ President,
the Members of the Cabinet and their deputies and
assistants.
To underscore the obvious, it is not sufficient for Agra to
show that his holding of the other office was "allowed by
law or the primary functions of his position." To claim the
exemption of his concurrent designations from the
coverage of the stricter prohibition under Section 13,
supra, he needed to establish herein that his concurrent
designation was expressly allowed by the Constitution.
But, alas, he did not do so.
To be sure, Agra’s concurrent designations as Acting
Secretary of Justice and Acting Solicitor General did not
come within the definition of an ex officio capacity. The
term ex officio means "from office; by virtue of office." It
refers to an "authority derived from official character
merely, not expressly conferred upon the individual
character, but rather annexed to the official position." Ex
officio likewise denotes an "act done in an official
character, or as a consequence of office, and without any
other appointment or authority other than that conferred
by the office." An ex officio member of a board is one who
is a member by virtue of his title to a certain office, and
without further warrant or appointment.
Even assuming that Agra, as the Acting Solicitor General,
was not covered by the stricter prohibition under Section
13, he nonetheless remained covered by the general
prohibition under Section 7, supra.
The general rule contained in Article IX­B of the 1987
Constitution permits an appointive official to hold more
than one office only if "allowed by law or by the primary
functions of his position." In the case of Quimson v. Ozaeta,
this Court ruled that, "[t]here is no legal objection to a
government official occupying two government offices
and performing the functions of both as long as there is no
incompatibility." The crucial test in determining whether
incompatibility exists between two offices was laid out in
People v. Green ­ whether one office is subordinate to the
other, in the sense that one office has the right to
interfere with the other.
[I]ncompatibility between two offices, is an inconsistency
in the functions of the two; x x x Where one office is not
subordinate to the other, nor the relations of the one to the
other such as are inconsistent and repugnant, there is not
that incompatibility from which the law declares that the
acceptance of the one is the vacation of the other. The
force of the word, in its application to this matter is, that
from the nature and relations to each other, of the two
places, they ought not to be held by the same person, from
the contrariety and antagonism which would result in the
attempt by one person to faithfully and impartially
discharge the duties of one, toward the incumbent of the
other. X x x The offices must subordinate, one [over] the
other, and they must, per se, have the right to interfere,
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 The Law Pertaining to the State and Its Relationship with Its Citizens
one with the other, before they are incompatible at
common law.
Clearly, the primary functions of the Office of the Solicitor
General are not related or necessary to the primary
functions of the Department of Justice. Considering that
the nature and duties of the two offices are such as to
render it improper, from considerations of public policy,
for one person to retain both, an incompatibility between
the offices exists, further warranting the declaration of
Agra’s designation as the Acting Secretary of Justice,
concurrently with his designation as the Acting Solicitor
General, to be void for being in violation of the express
provisions of the Constitution.
De facto officer doctrine:
During their tenure in the questioned positions,
respondents may be considered de facto officers and as
such entitled to emoluments for actual services rendered.
It has been held that "in cases where there is no de jure,
officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties
pertaining thereto, is legally entitled to the emoluments
of the office, and may in an appropriate action recover the
salary, fees and other compensations attached to the
office.
A de facto officer is one who derives his appointment from
one having colorable authority to appoint, if the office is
an appointive office, and whose appointment is valid on
its face. He may also be one who is in possession of an
office, and is discharging its duties under color of
authority, by which is meant authority derived from an
appointment, however irregular or informal, so that the
incumbent is not a mere volunteer. Consequently, the acts
of the de facto officer are just as valid for all purposes as
those of a de jure officer, in so far as the public or third
persons who are interested therein are concerned.
COMMISSION ON APPOINTMENTS
CONFIRMATION
permanent or temporary
Permanent appointments are those extended to persons
possessing the requisite eligibility and are thus protected
by the constitutional guarantee of security of tenure.
Temporary appointments are given to persons without
such eligibility, revocable at will and without the
necessity of just cause or a valid investigation; made on
the understanding that the appointing power has not yet
decided on a permanent appointee and that the
temporary appointee may be replaced at any time a
permanent choice is made.
An acting appointment is a temporary appointment and
revocable in character.
Steps in the appointing process:
1. For regular appointment:
a. Nomination by the President;
b. Confirmation by the Commission on Appointments;
c. Issuance of the commission;
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d. Acceptance by the appointee.
2. For appointments which do not require confirmation:
a. Appointment by appointing authority;
b. Issuance of the commission;
c. Acceptance by the appointee.
Classes of Service
1. Career Service – characterized by entrance based
on merit and fitness to be determined, as far as
practicable by competitive examinations, or
based on highly technical qualifications,
opportunity for advancement to higher career
positions, and security of tenure.
a. Open career positions – 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, etc., where the appointee is
required to possess the appropriate Career
Executive Service Officer (CESO) eligibility;
d. Career Officers (other than those belong to the
Career Executive Service) who are appointed
by the President;
e. Positions in the Armed Forces of the Philippines,
although governed by a separate merit
system;
f. Personnel of government-owned or controlled
corporations with original charter;
g. Permanent laborers.
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 specified by law, or which is co-terminous
with that of the appointing authority or subject to
his pleasure, or which is limited to the duration
of a particular project for which purpose the
employment was made.
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
boards with fixed terms of office, and their
personal and confidential staff.
d. Contractual personnel or those whose
employment in government is on accordance
with a special contract to undertake a specific
work or job requiring special or technical skills
not available in the employing agency, to be
accomplished within a specific period not
exceeding one year, under their own
responsibility, with the minimum direction and
supervision; and
e. Emergency and seasonal personnel.
Exceptions from competitive examination to determine merit
and fitness to enter the civil service:
1. Policy determining – in which the officer lays
down principal or fundamental guidelines or
rules; or formulates a method of action for
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 The Law Pertaining to the State and Its Relationship with Its Citizens
government or any of its subdivisions, e.g. a
department head.
2. Primarily confidential – denoting not only
confidence in the aptitude of the appointee for the
duties of the office but primarily close intimacy
which ensures freedom of intercourse without
embarrassment or freedom from misgivings or
betrayals on confidential matters of state; or one
declared to be so by the President of the
Philippines upon recommendation of the Civil
Service Commission.
3. Highly technical – which requires possession of
technical skill or training in a supreme or
superior degree.
Definition of terms:
1. Appointment – the selection, by the authority
vested with the power, of an individual who is to
perform the functions of a given office.
2. Commission – the written evidence of the
appointment.
3. Designation – the imposition of additional duties,
usually by law, on a person already in public
service.
4. Promotion – a movement from one position to
another with increase in duties and
responsibilities as authorized by law and usually
accompanied by an increase in pay.
5. Transfer – movement from one position to
another which is of equivalent rank, level or
salary without break in service.
6. Reinstatement – any person who has been
permanently appointed to a position in the career
service and who has, through no delinquency or
misconduct, been separated therefrom, may be
reinstated to a position in the same level for
which he is qualified.
7. Detail – the movement of an employee from one
agency to another without the issuance of an
appointment, and shall be allowed only for a
limited period in the case of employees
occupying professional, technical and scientific
positions.
8. Reassignment – movement of an employee from
one organizational unit to another in the same
department or agency, which does not involve a
reduction in rank, status or salary.
9. Reemployment – names of persons who have been
appointed permanently to positions in the career
service and who have been separated as a result
of reduction in force and/or reorganization, shall
be entered in a list from which selection for
reemployment shall be made.
regular or ad interim
A regular appointment is one made by the President
while Congress is in session, takes effect only after
confirmation by the COA, and once approved, continues
until the end of the term of the appointee.
An ad interim appointment is one made by the President
while Congress is not in session, takes effect immediately,
AB
but ceases to be valid if disapproved by the COA or upon
the next adjournment of Congress.
Midnight appointments
[Sec. 15.] Two months immediately before the next
presidential elections and up to the end of his term, a
President or Acting President shall not make
appointments, except temporary appointments to
executive positions when continued vacancies therein
will prejudice public service or endanger public safety.
Cases:
De Castro v JBC, 615 SCRA 666 (2010)
Facts:
Chief Justice Renato Puno was set to retire on May 17,
2010, or seven days after the presidential election. Under
Section 4(1), in relation to Section 9, Article VIII, that
vacancy shall be filled within ninety days from the
occurrence thereof from a list of at least three nominees
prepared by the Judicial and Bar Council for every
vacancy.
In January 2010, the JBC has already begun the process for
the filling of the position of Chief Justice Puno in
accordance with its rules, however, the JBC is not yet
decided on when to submit to the President its list of
nominees for the position due to the present controversy
on the seemingly conflicting provisions of the
Constitutions:
Section 15, Art. VII provides:
Two months immediately before the next presidential
elections and up to the end of his term, a President or
Acting President shall not make appointments, except
temporary appointments to executive positions when
continued vacancies therein will prejudice public service
or endanger public safety.
Section 4 (1), Article VIII provides:
The Supreme Court shall be composed of a Chief Justice
and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members.
Any vacancy shall be filled within ninety days from the
occurrence thereof.
Issue:
Whether or not the prohibition under Section 15, Article
VII applies to appointments to fill a vacancy in the
Supreme Court or to other appointments to the Judiciary?
Held:
No.
Had the framers intended to extend the prohibition
contained in Section 15, Article VII to the appointment of
Members of the Supreme Court, they could have
explicitly done so. They could not have ignored the
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 The Law Pertaining to the State and Its Relationship with Its Citizens

meticulous ordering of the provisions. They would have presidential appointments. If that was their intention in
easily and surely written the prohibition made explicit in respect of appointments to the Judiciary, the framers, if
Section 15, Article VII as being equally applicable to the only to be clear, would have easily and surely inserted a
appointment of Members of the Supreme Court in Article similar prohibition in Article VIII, most likely within
VIII itself, most likely in Section 4 (1), Article VIII. That Section 4 (1) thereof.
such specification was not done only reveals that the
prohibition against the President or Acting President Velicaria-Garafil v O.P. GR 203372, Jun 16, 2015
making appointments within two months before the next
presidential elections and up to the end of the Presidents Facts:
or Acting Presidents term does not refer to the Members
of the Supreme Court. Prior to the conduct of the May 2010 elections, then
President Gloria Macapagal­Arroyo issued more than 800
Sections 4(1) imposes on the President the imperative duty appointments to various positions in several government
to make an appointment of a Member of the Supreme offices. The ban on midnight appointments in Section 15,
Court within 90 days from the occurrence of the vacancy. Article VII of the 1987 Constitution reads: Two months
The failure by the President to do so will be a clear immediately before the next presidential elections and up to the
disobedience to the Constitution. The 90­day limitation end of his term, a President or Acting President shall not make
fixed in Section 4(1), Article VIII for the President to fill appointments, except temporary appointments to executive
the vacancy in the Supreme Court was undoubtedly a positions when continued vacancies therein will prejudice
special provision to establish a definite mandate for the public service or endanger public safety.
President as the appointing power, and cannot be
defeated by mere judicial interpretation in Valenzuela to Thus, for purposes of the 2010 elections, March 10, 2010
the effect that Section 15, Article VII prevailed because it was the cutoff date for valid appointments and the next
was couched in stronger negative language. day, March 11, 2010, was the start of the ban on midnight
appointments.
Given the background and rationale for the prohibition in
Section 15, Article VII, the Court concluded that the When President Benigno Aquino assumed office as
Constitutional Commission confined the prohibition to President, he issued Executive Order No. 2 recalling,
appointments made in the Executive Department. The withdrawing, and revoking appointments issued by
framers did not need to extend the prohibition to President Macapagal­Arroyo which violated the
appointments in the Judiciary, because their constitutional ban on midnight appointments.
establishment of the JBC and their subjecting the Consequently, the following petitions were filed when
nomination and screening of candidates for judicial the said EO was enforced by different executive agencies.
positions to the unhurried and deliberate prior process of Petitioners’ schedule of appointments are detailed in the
the JBC ensured that there would no longer be midnight table below:
appointments to the Judiciary. If midnight appointments
in the mold of Aytona were made in haste and with Date of
Date
irregularities, or made by an outgoing Chief Executive in Receipt by
Date of Date of of
the last days of his administration out of a desire to G.R. No. Appointme Transmitt
Malacañan
Oath
Assumptio
subvert the policies of the incoming President or for nt Letter al Letter
g Records
of
n of Office
partisanship, the appointments to the Judiciary made Office
Office
(MRO)
after the establishment of the JBC would not be suffering
from such defects because of the JBCs prior processing of
candidates. Also, the intervention of the JBC eliminates 203372 22
(Atty. 5 March 8 March 13 May Marc 6 April
the danger that appointments to the Judiciary can be
Velicaria­ 2010 2010 2010 h 2010
made for the purpose of buying votes in a coming
Garafil) 2010
presidential election, or of satisfying partisan
considerations. The experience from the time of the
206290 15
establishment of the JBC shows that even candidates for
(Atty. 23 February 9 March 12 March Marc 15 March
judicial positions at any level backed by people influential Venturanza 2010 2010 2010 h 2010
with the President could not always be assured of being ) 2010
recommended for the consideration of the President,
because they first had to undergo the vetting of the JBC 209138 13
and pass muster there. Indeed, the creation of the JBC was (Villanueva
3 March
4 May 2010 April
precisely intended to de­politicize the Judiciary by doing )
2010
2010
away with the intervention of the Commission on
Appointments. 18
209138 5 March 13 May Marc
Moreover, Section 14 and Section 16 of Art. VII refer only (Rosquita) 2010 2010 h
to appointments within the Executive Department means 2010
that that Section 15 also applies only to the Executive
Department. It is absurd to assume that the framers 212030 1 March 25
deliberately situated Section 15 between Section 14 and (Atty. 2010 Marc
Section 16, if they intended Section 15 to cover all kinds of Tamondon h

AB Page 29 of 69
 The Law Pertaining to the State and Its Relationship with Its Citizens
g) 2010
and
 antedate appointment papers and make it appear that
6 July
2010
Issue:
Whether or not the above appointments violated the
constitutional ban on midnight appointments?
Held:
Yes.
Based on prevailing jurisprudence, appointment to a
government post is a process that takes several steps to
complete. Any valid appointment, including one made
under the exception provided in Section 15, Article VII of
the 1987 Constitution, must consist of the President
signing an appointee's appointment paper to a vacant
office, the official transmittal of the appointment paper
(preferably through the MRO), receipt of the appointment
paper by the appointee, and acceptance of the
appointment by the appointee evidenced by his or her
oath of office or his or her assumption to office.
The following elements should always concur in the
making of a valid (which should be understood as both
complete and effective) appointment: (1) authority to
appoint and evidence of the exercise of the authority; (2)
transmittal of the appointment paper and evidence of the
transmittal; (3) a vacant position at the time of
appointment; and (4) receipt of the appointment paper
and acceptance of the appointment by the appointee who
possesses all the qualifications and none of the
disqualifications. The concurrence of all these elements
should always apply, regardless of when the
appointment is made, whether outside, just before, or
during the appointment ban. These steps in the
appointment process should always concur and operate
as a single process. There is no valid appointment if the
process lacks even one step.
In this case, all of petitioners' appointments are midnight
appointments and are void for violation of Section 15,
Article VII of the 1987 Constitution. None of the
petitioners have shown that their appointment papers
(and transmittal letters) have been issued (and released)
before the ban." The dates of receipt by the MRO, which
in these cases are the only reliable evidence of actual
transmittal of the appointment papers by President
Macapagal­Arroyo, are dates clearly falling during the
appointment ban. Thus, all the appointments in these
cases are midnight appointments in violation of Section
15, Article VII of the 1987 Constitution.
Excluding the act of acceptance from the appointment
process leads us to the very evil which we seek to avoid
(i.e., antedating of appointments). Excluding the act of
acceptance will only provide more occasions to honor the
Constitutional provision in the breach. The inclusion of
acceptance by the appointee as an integral part of the
entire appointment process prevents the abuse of the
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Presidential power to appoint. It is relatively easy to
they were issued prior to the appointment ban, but it is
more difficult to simulate the entire appointment process
up until acceptance by the appointee.
Petitioners have failed to show compliance with all four
elements of a valid appointment. They cannot prove with
certainty that their appointment papers were transmitted
before the appointment ban took effect.
3. Power of Control
The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed.
a. Doctrine of qualified political agency
/ alter ego principle
Under this doctrine which recognizes the establishment
of a single executive, all executives and administrative
organizations are adjuncts of the Executive Department,
the heads of the various executive departments are
assistants and agents of the Chief Executive, and except
in cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of
the situation demand that he act personally, the
multifarious executive and administrative functions of
the Chief Executive are performed by and through the
executive departments, and the acts of the Secretaries of
such departments performed and promulgated in the
regular course of business, are unless disapproved or
reprobated by the Chief Executive, presumptively the
acts of the Chief Executive.
Cse: Hontiveros-Baraquel v Toll
Regulatory Board, GR 181293, Feb 23, 2015
Facts:
The Toll Regulatory Board (TRB) was created to supervise
and regulate, on behalf of the government, the collection
of toll fees and the operation of toll facilities by the private
sector. Philippine National Construction Corporation
(PNCC) was given the right, privilege, and authority to
construct, operate, and maintain toll facilities in the North
and South Luzon Toll Expressways for a period of 30
years starting 1 May 1977. TRB and PNCC later entered
into a Toll Operation Agreement (TOA).
PNCC entered into an agreement with PT Citra Lamtoro
Gung Persada (CITRA) whereby the latter committed to
provide PNCC with a pre­feasibility study on the
proposed Metro Manila Expressway (MME) project. As a
result of the feasibility and related studies, PNCC and
CITRA submitted, through the TRB, a Joint Investment
Proposal (JIP) to the Republic of the Philippines. The JIP
embodied the implementation schedule for the financing,
design and construction of the MMS in three stages: the
South Metro Manila Skyway, the North Metro Manila
Skyway, and the Central Metro Manila Skyway. PNCC
and CITRA then entered into a Business and Joint
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 The Law Pertaining to the State and Its Relationship with Its Citizens
Venture Agreement and created the Citra Metro Manila
Tollways Corporation (CMMTC). CMMTC was a joint
venture corporation organized under Philippine laws to
serve as a channel through which CITRA shall participate
in the construction and development of the project. The
Republic of the Philippines – through the TRB – as
Grantor, CMMTC as Investor, and PNCC as Operator
executed a Supplemental Toll Operation Agreement
(STOA) covering Stage 1, Phases 1 and 2; and Stage 2,
Phase 1 of the South Metro Manila Skyway. Under the
STOA, the design and construction of the project roads
became the primary and exclusive privilege and
responsibility of CMMTC. The operation and
maintenance of the project roads became the primary and
exclusive privilege and responsibility of the PNCC
Skyway Corporation (PSC), a wholly owned subsidiary
of PNCC, which undertook and performed the latter’s
obligations under the STOA. CMMTC completed the
design and construction of Stage 1 of the South Metro
Manila Skyway, which was operated and maintained by
PSC. Subsequently, the Republic of the Philippines,
through the TRB, CMMTC, and PNCC executed an
Amendment to the Supplemental Toll Operation
Agreement (ASTOA). The ASTOA incorporated the
amendments, revisions, and modifications necessary to
cover the design and construction of Stage 2 of the South
Metro Manila Skyway. Also under the ASTOA, Skyway
O & M Corporation (SOMCO) replaced PSC in
performing the operations and maintenance of Stage 1 of
the South Metro Manila Skyway. The DOTC Secretary
Leandro Mendoza approved the ASTOA.
Petitioners now assail the validity of the ASTOA on the
ground that the approval by the DOTC Secretary of the
ASTOA could not take the place of the presidential
approval required under P.D. 1113 and P.D. 1894
concerning the franchise granted to PNCC, among
others.
Respondents countered that there can be no valid
objection to the approval of the ASTOA by the DOTC
Secretary, because he was authorized by the President to
do so by virtue of E.O. 497. Also, the phrase “subject to
the approval of the President of the Philippines” in P.D.
1112 and 1113 does not in any way mean that the
presidential approval must be obtained prior to the
execution of a contract, or that the approval be made
personally by the President. The presidential approval
may be obtained under the doctrine of qualified political
agency.
Issue:
Whether or not the approval of the DOTC Secretary of the
ASTOA was valid?
Held:
Yes. The doctrine of qualified political agency declares
that, save in matters on which the Constitution or the
circumstances require the President to act personally,
executive and administrative functions are exercised
through executive departments headed by cabinet
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secretaries, whose acts are presumptively the acts of the
President unless disapproved by the latter.
Applying the doctrine of qualified political agency, we
have ruled that the Secretary of Environment and Natural
Resources can validly order the transfer of a regional
office by virtue of the power of the President to
reorganize the national government. In Constantino v.
Cuisia, the Court upheld the authority of the Secretary of
Finance to execute debt­relief contracts. The authority
emanates from the power of the President to contract
foreign loans under Section 20, Article VII of the
Constitution. In Angeles v. Gaite, the Court ruled that there
can be no issue with regard to the President’s act of
limiting his power to review decisions and orders of the
Secretary of Justice, especially since the decision or order
was issued by the secretary, the President’s “own alter
ego.”
There can be no question that the act of the secretary is the
act of the President, unless repudiated by the latter. In this
case, approval of the ASTOA by the DOTC Secretary had
the same effect as approval by the President. The same
would be true even without the issuance of E.O. 497, in
which the President, on 24 January 2006, specifically
delegated to the DOTC Secretary the authority to approve
contracts entered into by the TRB.
b. Executive departments and offices
c. General supervision over local
government units, Article X
The President of the Philippines shall exercise general
supervision over local governments. Provinces with
respect to component cities and municipalities, and cities
and municipalities with respect to component barangays
shall ensure that the acts of their component units are
within the scope of their prescribed powers and
functions.
4. Military Powers
Cases:
- Kulayan v Tan, 675 SCRA 482 (2012)
Facts:
Three members of the International Committee of the Red
Cross (ICRC) were kidnapped by three armed men who
were later confirmed to be members of the Abu Sayyaf
Group (ASG).
In March 2009, Governor Abdusakur Mahail Tan, the
Provincial Governor of Sulu, issued Proclamation No. 1,
Series of 2009 (Proclamation 1-09), declaring a state of
emergency in the province of Sulu. It cited the
kidnapping incident as a ground for the said declaration,
describing it as a terrorist act pursuant to the Human
Security Act (R.A. 9372). It also invoked Section 465 of the
Local Government Code of 1991 (R.A. 7160), which
bestows on the Provincial Governor the power to carry
out emergency measures during man-made and natural
disasters and calamities, and to call upon the appropriate
national law enforcement agencies to suppress disorder
and lawless violence. In the same Proclamation,
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 The Law Pertaining to the State and Its Relationship with Its Citizens
respondent Tan called upon the PNP and the CEF
[Civilian Emergency Force, a group of armed male
civilians coming from different municipalities], to set up
checkpoints and chokepoints, conduct general search and
seizures including arrests, and other actions necessary to
ensure public safety.
Some residents were detained pursuant to the said
Proclamation for being suspected as ASG supporters.
Petitioners assail the constitutionality of the Proclamation
No. 1 and its Implementing Guidelines contending that
they were issued ultra vires, and thus null and void, for
violating Sections 1 and 18, Article VII of the Constitution,
which grants the President sole authority to exercise
emergency powers and calling-out powers as the chief
executive of the Republic and commander-in-chief of the
armed forces.
Issue:
(1) Whether or not a Provincial Governor has the power
to declare a state of national emergency and exercise
emergency powers?
(2) Whether or not the Provincial Governor has power to
convene CEF?
Held:
(1) No.
Governor Tan is not endowed with the power to call upon
the armed forces at his own bidding. In issuing the
assailed proclamation, Governor Tan exceeded his
authority when he declared a state of emergency and
called upon the Armed Forces, the police, and his own
Civilian Emergency Force. The calling-out powers
contemplated under the Constitution is exclusive to the
President. An exercise by another official, even if he is the
local chief executive, is ultra vires, and may not be justified
by the invocation of Section 465 of the Local Government
Code.
There is nothing in the Local Government Code which
justifies the acts sanctioned under the said Proclamation.
Not even Section 465 of the said Code, in relation to
Section 16.
Tan cannot rely on paragraph 1, subparagraph (vii) of
Article 465 above, as the said provision expressly refers to
calamities and disasters, whether man-made or natural.
The governor, as local chief executive of the province, is
certainly empowered to enact and implement emergency
measures during these occurrences. But the kidnapping
incident in the case at bar cannot be considered as a
calamity or a disaster. He cannot find any legal mooring
under this provision to justify its actions.
Paragraph 2, subparagraph (vi) of the same provision is
equally inapplicable for two reasons. First, the Armed
Forces of the Philippines does not fall under the category
of a “national law enforcement agency,” to which the
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National Police Commission (NAPOLCOM) and its
departments belong.
Its mandate is to uphold the sovereignty of the
Philippines, support the Constitution, and defend the
Republic against all enemies, foreign and domestic. Its
aim is also to secure the integrity of the national territory.
Second, there was no evidence or even an allegation on
record that the local police forces were inadequate to cope
with the situation or apprehend the violators. If they were
inadequate, the recourse of the provincial governor was
to ask the assistance of the Secretary of Interior and Local
Government, or such other authorized officials, for the
assistance of national law enforcement agencies.
(2) No. Pursuant to the national policy to establish one
police force, the organization of private citizen armies is
proscribed.
Discussion:
There is one repository of executive powers, and that is
the President of the Republic. Corollarily, it is only the
President, as Executive, who is authorized to exercise
emergency powers as provided under Section 23, Article
VI, of the Constitution, as well as what became known as
the calling-out powers under Section 7, Article VII
thereof.
Springing from the well-entrenched constitutional
precept of One President is the notion that there are
certain acts which, by their very nature, may only be
performed by the president as the Head of the State. One
of these acts or prerogatives is the bundle of Commander-
in-Chief powers to which the “calling-out” powers
constitutes a portion.
Moreover, a local chief executive, such as the provincial
governor, exercises operational supervision over the
police, and may exercise control only in day-to-day
operations, it is still the President who is authorized to
exercise supervision and control over the police, through
the National Police Commission. The framers never
intended for local chief executives to exercise unbridled
control over the police in emergency situations.
- Ampatuan v Puno, 651 SCRA 228
(2011)
Facts:
After the gruesome massacre of 57 men and women,
including some news reporters, then President Gloria
Macapagal­Arroyo issued Proclamation 1946, placing the
Provinces of Maguindanao and Sultan Kudarat and the
City of Cotabato under a state of emergency. She directed
the Armed Forces of the Philippines (AFP) and the
Philippine National Police (PNP) to undertake such
measures as may be allowed by the Constitution and by
law to prevent and suppress all incidents of lawless
violence in the named places.
President Arroyo also issued Administrative Order 273
(AO 273) transferring supervision of the Autonomous
Region of Muslim Mindanao (ARMM) from the Office of
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 The Law Pertaining to the State and Its Relationship with Its Citizens
the President to the Department of Interior and Local
Government (DILG). But, due to issues raised over the
terminology used in AO 273, the President issued
Administrative Order 273­A (AO 273­A) amending the
former, by delegating instead of transferring supervision
of the ARMM to the DILG.
 And she did not act pursuant to any law enacted by
Petitioners subsequently assail the validity of the
proclamation and the orders which empowered the DILG
Secretary to take over ARMMs operations and seize the
regional governments powers, in violation of the
principle of local autonomy under Republic Act 9054 (also
known as the Expanded ARMM Act) and the
Constitution. The President gave the DILG Secretary the
power to exercise, not merely administrative supervision,
but control over the ARMM since the latter could suspend
ARMM officials and replace them. Petitioner ARMM
officials claimed that the President had no factual basis
for declaring a state of emergency, especially in the
Province of Sultan Kudarat and the City of Cotabato,
where no critical violent incidents occurred. The
deployment of troops and the taking over of the ARMM
constitutes an invalid exercise of the Presidents
emergency powers.
Issue:
(1) Whether or not Proclamation 1946 and AOs 273 and
273­A violate the principle of local autonomy under
Section 16, Article X of the Constitution, and Section 1,
Article V of the Expanded ARMM Organic Act?
(2) Whether or not President Arroyo invalidly exercised
emergency powers when she called out the AFP and the
PNP to prevent and suppress all incidents of lawless
violence in Maguindanao, Sultan Kudarat, and Cotabato
City?
Held:
(1) No. The DILG Secretary did not take over control of
the powers of the ARMM. After law enforcement agents
took respondent Governor of ARMM into custody for
alleged complicity in the Maguindanao massacre, the
ARMM Vice­Governor, petitioner Ansaruddin Adiong,
assumed the vacated post on December 10, 2009 pursuant
to the rule on succession found in Article VII, Section 12,
of RA 9054. In turn, Acting Governor Adiong named the
then Speaker of the ARMM Regional Assembly,
petitioner Sahali­Generale, Acting ARMM
Vice­Governor. In short, the DILG Secretary did not take
over the administration or operations of the ARMM.
 areas of the Moro Islamic Liberation Front.
(2) No. Such deployment is not by itself an exercise of
emergency powers as understood under Section 23 (2),
Article VI of the Constitution, which provides:
Sec. 23. x x x (2) In times of war or other national
emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the
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Congress, such powers shall cease upon the next
adjournment thereof.
The President did not proclaim a national emergency,
only a state of emergency in the three places mentioned.
Congress that authorized her to exercise extraordinary
powers. The calling out of the armed forces to prevent or
suppress lawless violence in such places is a power that
the Constitution directly vests in the President. She did
not need a congressional authority to exercise the same.
The Presidents call on the armed forces to prevent or
suppress lawless violence springs from the power vested
in her under Section 18, Article VII of the Constitution,
which provides:
Sec. 18. The President shall be the Commander­in­Chief
of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or
rebellion.
It is to the President that the Constitution entrusts the
determination of the need for calling out the armed forces
to prevent and suppress lawless violence. Unless it is
shown that such determination was attended by grave
abuse of discretion, the Court will accord respect to the
President’s judgment.
- Fortun v Macapagal-Arroyo 668
SCRA 504 (2012)
Facts:
On November 23, 2009 heavily armed men, believed led
by the ruling Ampatuan family, gunned down and buried
under shoveled dirt 57 innocent civilians on a highway in
Maguindanao. In response to this carnage, on November
24 President Arroyo issued Presidential Proclamation
1946, declaring a state of emergency in Maguindanao,
Sultan Kudarat, and Cotabato City to prevent and
suppress similar lawless violence in Central Mindanao.
Believing that she needed greater authority to put order
in Maguindanao and secure it from large groups of
persons that have taken up arms against the constituted
authorities in the province, on December 4, 2009
President Arroyo issued Presidential Proclamation 1959
declaring martial law and suspending the privilege of the
writ of habeas corpus in that province except for identified
Two days later (December 6, 2009), President Arroyo
submitted her report to Congress. On December 9, 2009
Congress, in joint session, convened pursuant to Section
18, Article VII of the 1987 Constitution to review the
validity of the Presidents action. But, two days later or on
December 12 before Congress could act, the President
issued Presidential Proclamation 1963, lifting martial law
and restoring the privilege of the writ of habeas corpus in
Maguindanao.
Petitioners assail the constitutionality of Proclamation
1959.
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 The Law Pertaining to the State and Its Relationship with Its Citizens
Issue:
Whether or not Proclamation 1959 is unconstitutional?
Held:
The case is moot and academic. President Arroyo
withdrew Proclamation 1959 before the joint houses of
Congress, which had in fact convened, could act on the
same. Consequently, the petitions in these cases have
become moot and the Court has nothing to review. The
lifting of martial law and restoration of the privilege of
the writ of habeas corpus in Maguindanao was a
supervening event that obliterated any justiciable
controversy.
Discussion:
Although the power to proclaim martial law or suspend
the privilege of the writ of habeas corpus is specifically
vested in the President, he shares such power with the
Congress. Thus:
1. The President’s proclamation or suspension is
temporary, good for only 60 days;
2. He must, within 48 hours of the proclamation or
suspension, report his action in person or in writing to
Congress;
3. Both houses of Congress, if not in session must jointly
convene within 24 hours of the proclamation or
suspension for the purpose of reviewing its validity; and
4. The Congress, voting jointly, may revoke or affirm the
Presidents proclamation or suspension, allow their
limited effectivity to lapse, or extend the same if Congress
deems warranted.
It is evident that under the 1987 Constitution the
President and the Congress act in tandem in exercising
the power to proclaim martial law or suspend the
privilege of the writ of habeas corpus. They exercise the
power, not only sequentially, but in a sense jointly since,
after the President has initiated the proclamation or the
suspension, only the Congress can maintain the same
based on its own evaluation of the situation on the
ground, a power that the President does not have.
Consequently, although the Constitution reserves to the
Supreme Court the power to review the sufficiency of the
factual basis of the proclamation or suspension in a
proper suit, it is implicit that the Court must allow
Congress to exercise its own review powers, which is
automatic rather than initiated. Only when Congress
defaults in its express duty to defend the Constitution
through such review should the Supreme Court step in as
its final rampart. The constitutional validity of the
President’s proclamation of martial law or suspension of
the writ of habeas corpus is first a political question in the
hands of Congress before it becomes a justiciable one in
the hands of the Court. If the Congress procrastinates or
altogether fails to fulfill its duty respecting the
proclamation or suspension within the short time
expected of it, then the Court can step in, hear the
petitions challenging the President's action, and ascertain
if it has a factual basis. [note: this passage will be revisited
AB
in Lagman vs. Medialdiea; in that case, the SC said that
the Court can simultaneously exercise its power of review
with, and independently from, the power to revoke by
Congress. Corollary, any perceived inaction or default on
the part of Congress does not deprive or deny the Court
of its power to review]
- Lagman v Medialdea, GR 231658, Jul
4, 2017
Facts:
Effective May 23, 2017, and for a period not exceeding 60
days, President Rodrigo Roa Duterte issued Proclamation
No. 216 declaring a state of martial law and suspending
the privilege of the writ of habeas corpus in the whole of
Mindanao. He cited the series of violent acts committed
by the Maute terrorist group such as the attack on the
military outpost in Butig, Lanao del Sur in February 2016,
killing and wounding several soldiers, and the mass
jailbreak in Marawi City in August 2016, freeing their
arrested comrades and other detainees and that the same
Maute terrorist group has taken over a hospital in Marawi
City, Lanao del Sur, established several checkpoints
within the City, burned down certain government and
private facilities and inflicted casualties on the part of
Government forces, and started flying the flag of the
Islamic State of Iraq and Syria (ISIS) in several areas.
Several petitions were filed questioning the validity of
Proclamation No. 216 on the following grounds:
(1) the declaration of martial law has no sufficient factual
basis;
(2) there is no factual basis for the imposition of martial
law in the entire Mindanao.
Main Issue: whether Proclamation No. 216, Declaring a
State of Martial Law and Suspending the Privilege of the
Writ of Habeas Corpus in the whole of Mindanao, lacks
sufficient factual basis?
Preliminaries:
The President as the Commander­in­Chief wields the
extraordinary powers of: a) calling out the armed forces;
b) suspending the privilege of the writ of habeas corpus;
and c) declaring martial law. These powers may be
resorted to only under specified conditions.
Among the three extraordinary powers, the calling out
power is the most benign and involves ordinary police
action. The President may resort to this extraordinary
power whenever it becomes necessary to prevent or suppress
lawless violence, invasion, or rebellion. "[T]he power to
call is fully discretionary to the President;" the only
limitations being that he acts within permissible
constitutional boundaries or in a manner not constituting
grave abuse of discretion. In fact, "the actual use to which
the President puts the armed forces is x x x not subject to
judicial review."
The extraordinary powers of suspending the privilege of
the writ of habeas corpus and/or declaring martial law
may be exercised only when there is actual invasion or
rebellion, and public safety requires it. The 1987
Constitution imposed the following limits in the exercise
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of these powers: "(1) a time limit of sixty days; (2) review
and possible revocation by Congress; [and] (3) review and
possible nullification by the Supreme Court."
What really happens during martial law?
A state of martial law is peculiar because the President, at
such a time, exercises police power, which is normally a
function of the Legislature. In particular, the President
exercises police power, with the military’s assistance, to
ensure public safety and in place of government agencies
which for the time being are unable to cope with the
condition in a locality, which remains under the control
of the State. Quoting Justice Mendoza, under a valid
declaration of martial law, the President as
Commander­in­Chief may order the "(a) arrests and
seizures without judicial warrants; (b) ban on public
assemblies; (c) [takeover] of news media and agencies and
press censorship; and (d) issuance of Presidential Decrees
x x x" But the above­cited acts that the President may
perform do not give him unbridled discretion to infringe
on the rights of civilians during martial law. This is
because martial law does not suspend the operation of the
Constitution, neither does it supplant the operation of
civil courts or legislative assemblies. Moreover, the
guarantees under the Bill of Rights remain in place during
its pendency. And in such instance where the privilege of
the writ of habeas corpus is also suspended, such
suspension applies only to those judicially charged with
rebellion or offenses connected with invasion.
What is the scope of the power of judicial review on the
determination of the sufficiency of the factual basis of
the declaration of martial law and suspension of the
privilege of habeas corpus?
The "sufficiency of factual basis test"- The Court does not
need to satisfy itself that the President's decision is
correct, rather it only needs to determine whether the
President's decision had sufficient factual bases.
As Commander­in­Chief, the President has the sole
discretion to declare martial law and/or to suspend the
privilege of the writ of habeas corpus, subject to the
revocation of Congress and the review of this Court. Since
the exercise of these powers is a judgment call of the
President, the determination of this Court as to whether
there is sufficient factual basis for the exercise of such,
must be based only on facts or information known by or
available to the President at the time he made the
declaration or suspension, which facts or information are
found in the proclamation as well as the written Report
submitted by him to Congress. These may be based on the
situation existing at the time the declaration was made or
past events. As to how far the past events should be from
the present depends on the President. Past events may be
considered as justifications for the declaration and/or
suspension as long as these are connected or related to the
current situation existing at the time of the declaration.
Thus, the review would be limited to an examination on
whether the President acted within the bounds set by the
Constitution, i.e., whether the facts in his possession prior
to and at the time of the declaration or suspension are
AB
sufficient for him to declare martial law or suspend the
privilege of the writ of habeas corpus.
What are parameters for determining the sufficiency of
the/actual basis/or the declaration of martial law and/or the
suspension of the privilege of the writ of habeas corpus?
l) actual rebellion or invasion;
2) public safety requires it; the first two requirements
must concur; and
3) there is probable cause for the President to believe that
there is actual rebellion or invasion.
Graduation" of powers
refers to hierarchy based on
scope and effect; it does not refer to a sequence, order,
or arrangement by which the Commander­in­Chief
must adhere to.
These extraordinary powers are conferred by the
Constitution with the President as Commander­in­Chief;
it therefore necessarily follows that the power and
prerogative to determine whether the situation warrants
a mere exercise of the calling out power; or whether the
situation demands suspension of the privilege of the writ
of habeas corpus; or whether it calls for the declaration of
martial law, also lies, at least initially, with the President.
The power to choose, initially, which among these
extraordinary powers to wield in a given set of conditions
is a judgment call on the part of the President. As
Commander­in­Chief, his powers are broad enough to
include his prerogative to address exigencies or threats
that endanger the government, and the very integrity of
the State.
Whether Proclamation No. 216, Declaring a State of
Martial Law and Suspending the Privilege of the Writ
of Habeas Corpus in the whole of Mindanao, lacks
sufficient factual basis?
No. A review of the facts similarly leads the Court to
conclude that the President, in issuing Proclamation No.
216, had sufficient factual bases tending to show that
actual rebellion exists. The President's conclusion, that
there was an armed public uprising, the culpable purpose
of which was the removal from the allegiance of the
Philippine Government a portion of its territory and the
deprivation of the President from performing his powers
and prerogatives, was reached after a tactical
consideration of the facts. In fine, the President
satisfactorily discharged his burden of proof.
Inaccuracies in the reports relied upon by the President
are just pieces and parcels of the Report; along with these
alleged false data is an arsenal of other independent facts
showing that more likely than not, actual rebellion exists.
Moreover, the Court is not concerned about absolute
correctness, accuracy, or precision of the facts because to
do so would unduly tie the hands of the President in
responding to an urgent situation.
Whether or not the declaration of martial law in the
WHOLE of Mindanao justified?
Section 18, Article VII of the Constitution states that "[i]n
case of invasion or rebellion, when the public safety
requires it, [the President] may x x x suspend the privilege
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of writ of habeas corpus or place the Philippines or any
part thereof under martial law." Clearly, the Constitution
grants to the President the discretion to determine the
territorial coverage of martial law and the suspension of
the privilege of the writ of habeas corpus. He may put the
entire Philippines or only a part thereof under martial
law.
The “gravamen of the crime of rebellion is an armed
public uprising against the government;" and that by
nature, "rebellion is x x x a crime of masses or multitudes,
involving crowd action, that cannot be confined a priori,
within predetermined bounds." We understand this to
mean that the precise extent or range of the rebellion
could not be measured by exact metes and bounds.
In fine, it is difficult, if not impossible, to fix the territorial
scope of martial law in direct proportion to the "range" of
actual rebellion and public safety simply because
rebellion and public safety have no fixed physical
dimensions. Their transitory and abstract nature defies
precise measurements; hence, the determination of the
territorial scope of martial law could only be drawn from
arbitrary, not fixed, variables. The Constitution must
have considered these limitations when it granted the
President wide leeway and flexibility in determining the
territorial scope of martial law.
Moreover, the President's duty to maintain peace and
public safety is not limited only to the place where there
is actual rebellion; it extends to other areas where the
present hostilities are in danger of spilling over. It is not
intended merely to prevent the escape of lawless elements
from Marawi City, but also to avoid enemy
reinforcements and to cut their supply lines coming from
different parts of Mindanao. Thus, limiting the
proclamation and/or suspension to the place where there
is actual rebellion would not only defeat the purpose of
declaring martial law, it will make the exercise thereof
ineffective and useless.
Also, Marawi lies in the heart of Mindanao. In fact, the
Kilometer Zero marker in Mindanao is found in Marawi
City thereby making Marawi City the point of reference
of all roads in Mindanao.
Thus, there is reasonable basis to believe that Marawi is
only the staging point of the rebellion, both for symbolic
and strategic reasons. Marawi may not be the target but
the whole of Mindanao.
5. Pardoning Power
Sec. 19. Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant
reprieves, commutations and pardons, and remit fines
and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the
Congress.
Sec. 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and
AB
regulations shall be granted by the President without the
favorable recommendation of the Commission
[COMELEC].
a, Nature and limitations
Cases:
- Monsanto v Factoran, Jr., 170 SCRA
190 (1989)
Facts:
Salvacion Monsanto (then assistant treasurer of Calbayog
City) was convicted of the complex crime of estafa thru
falsification of public documents. Monsanto appealed her
conviction before the Supreme Court but her conviction
was affirmed, she then filed a motion for reconsideration
and while that motion was pending, she was extended by
President Marcos an absolute pardon which she accepted.
By reason of said pardon, Monsanto wrote the Calbayog
City treasurer requesting that she be restored to her
former post as assistant city treasurer since the same was
still vacant. His letter-request was referred to the Ministry
of Finance and the latter ruled that she may be reinstated
to her position without the necessity of a new
appointment not earlier than the date she was extended
the absolute pardon. She sought reconsideration arguing
that the full pardon bestowed on her has wiped out the
crime which implies that her service in the government
has never been interrupted and therefore the date of her
reinstatement should correspond to the date of her
preventive suspension which is August 1, 1982; that she
is entitled to backpay for the entire period of her
suspension. The Ministry of Finance referred the matter
to the Office of the President. The OP opined that
acquittal, not absolute pardon, of a former public officer
is the only ground for reinstatement to his former position
and entitlement to payment of his salaries, benefits and
emoluments due to him during the period of his
suspension pendente lite. In fact, in such a situation, the
former public official must secure a reappointment before
he can reassume his former position.
Issue:
Whether or not Monsanto, after her pardon, may be
restored to his former position without need of a new
appointment?
Held:
Pardon is defined as "an act of grace, proceeding from the
power entrusted with the execution of the laws, which
exempts the individual, on whom it is bestowed, from the
punishment the law inflicts for a crime he has committed.
It is the private, though official act of the executive
magistrate, delivered to the individual for whose benefit
it is intended, and not communicated officially to the
Court. ... A pardon is a deed, to the validity of which
delivery is essential, and delivery is not complete without
acceptance."
At the time the antecedents of the present case took place,
the pardoning power was governed by the 1973
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Constitution as amended in the April 7, 1981 plebiscite.
The pertinent provision reads:
The President may, except in cases of impeachment, grant
reprieves, commutations and pardons, remit fines and
forfeitures, and with the concurrence of the Batasang
Pambansa, grant amnesty.
The 1981 amendments had deleted the earlier rule that
clemency could be extended only upon final conviction,
implying that clemency could be given even before
conviction. Thus, petitioner's unconditional pardon was
granted even as her appeal was pending in the High
Court. It is worth mentioning that under the 1987
Constitution, the former limitation of final conviction was
restored. But be that as it may, it is our view that in the
present case, it is not material when the pardon was
bestowed, whether before or after conviction, for the
result would still be the same. Having accepted the
pardon, petitioner is deemed to have abandoned her
appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
While a pardon has generally been regarded as blotting
out the existence of guilt so that in the eye of the law the
offender is as innocent as though he never committed the
offense, it does not operate for all purposes. The very
essence of a pardon is forgiveness or remission of guilt.
Pardon implies guilt. It does not erase the fact of the
commission of the crime and the conviction thereof. It
does not wash out the moral stain. It involves forgiveness
and not forgetfulness.
A pardon looks to the future. It is not retrospective. It
makes no amends for the past. It affords no relief for what
has been suffered by the offender. It does not impose
upon the government any obligation to make reparation
for what has been suffered. "Since the offense has been
established by judicial proceedings, that which has been
done or suffered while they were in force is presumed to
have been rightfully done and justly suffered, and no
satisfaction for it can be required." This would explain
why petitioner, though pardoned, cannot be entitled to
receive backpay for lost earnings and benefits.
Pardon does not ipso facto restore a convicted felon to
public office necessarily relinquished or forfeited by
reason of the conviction although such pardon
undoubtedly restores his eligibility for appointment to
that office.
The absolute disqualification or ineligibility from public
office forms part of the punishment prescribed by the
Revised Penal Code for estafa thru falsification of public
documents. It is clear from the authorities referred to that
when her guilt and punishment were expunged by her
pardon, this particular disability was likewise removed.
Henceforth, petitioner may apply for reappointment to
the office which was forfeited by reason of her conviction.
And in considering her qualifications and suitability for
the public post, the facts constituting her offense must be
and should be evaluated and taken into account to
determine ultimately whether she can once again be
entrusted with public funds. Stated differently, the
pardon granted to petitioner has resulted in removing her
AB
disqualification from holding public employment but it
cannot go beyond that. To regain her former post as
assistant city treasurer, she must re­apply and undergo
the usual procedure required for a new appointment.
- Risos-Vidal v Comelec, 747 SCRA
210 (2015)
Facts:
Sandiganbayan convicted Joseph Ejercito Estrada, a
former President of the Republic of the Philippines, for
the crime of plunder. He was sentence to suffer the
penalty of Reclusion Perpetua and the accessory penalties
of civil interdiction during the period of sentence and
perpetual absolute disqualification. Subsequently, former
President Gloria Arroyo extended executive clemency, by
way of pardon, to former President Estrada. Former
President Estrada received and accepted the pardon.
In 2012, Estrada filed his COC for the position of Mayor
of Manila. Risos-Vidal filed a Petition for Disqualification
against Estrada before the COMELEC arguing that
Estrada was disqualified to run because of the
disqualification [his prior conviction] under the Local
Government Code and in the Omnibus Election Code.
The COMELEC Second Division dismissed the petition
ruling that Estrada’s right to seek public office has been
effectively restored by the pardon vested upon him by
former President Gloria M. Arroyo. The MR was also
denied. Hence, the petition before the SC. Risos-Vidal
argues that the pardon granted to former President
Estrada was conditional as evidenced by the latter’s
express acceptance thereof. The "acceptance," she claims,
is an indication of the conditional natureof the pardon,
with the condition being embodied in the third Whereas
Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito
Estrada has publicly committed to no longer seek any
elective position or office." She explains that the
aforementioned commitment was what impelled former
President Arroyo to pardon former President Estrada,
without it, the clemency would not have been extended.
And any breach thereof, that is, whenformer President
Estrada filed his Certificate of Candidacy for President
and Mayor of the City of Manila, he breached the
condition of the pardon; hence, "he ought to be
recommitted to prison to serve the unexpired portion of
his sentence and disqualifies him as a candidate for the
mayoralty [position] of Manila." Also, she avers that it is
not enough that a pardon makes a general statement that
such pardon carries with it the restoration of civil and
political rights. By virtue of Articles 36 and 41, a pardon
restoring civil and political rights without categorically
making mention what specific civil and political rights are
restored "shall not work to restore the right to hold public
office, or the right of suffrage; nor shall it remit the
accessory penalties of civil interdiction and perpetual
absolute disqualification for the principal penalties of
reclusion perpetua and reclusion temporal.
Issue:
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 The Law Pertaining to the State and Its Relationship with Its Citizens
Whether or not former President Estrada is qualified to
vote and be voted for in public office as a result of the
pardon granted to him by former President Arroyo?
Held:
Yes. Former President Estrada was granted an absolute
pardon that fully restored all his civil and political rights,
which naturally includes the right to seek public elective
office, the focal point of this controversy. The wording of
the pardon extended to former President Estrada is
complete, unambiguous, and unqualified. It is likewise
unfettered by Articles 36 and 41 of the Revised Penal
Code. The only reasonable, objective, and constitutional
interpretation of the language of the pardon is that the
same in fact conforms to Articles 36 and 41 of the Revised
Penal Code.
The pardoning power of the President cannot be limited
by legislative action. This doctrine of non­diminution or
non­impairment of the President’s power of pardon by
acts of Congress, specifically through legislation, was
strongly adhered to by an overwhelming majority of the
framers of the 1987 Constitution when they flatly rejected
a proposal to carve out an exception from the pardoning
power of the President in the form of "offenses involving
graft and corruption" that would be enumerated and
defined by Congress through the enactment of a law.
Articles 36 and 41 of the Revised Penal Code cannot, in
any way, serve to abridge or diminish the exclusive
power and prerogative of the President to pardon persons
convicted of violating penal statutes.
The Court cannot subscribe to Risos­Vidal’s
interpretation that the said Articles contain specific
textual commands which must be strictly followed in
order to free the beneficiary of presidential grace from the
disqualifications specifically prescribed by them. The
phrase in the presidential pardon at issue which declares
that former President Estrada "is hereby restored to his
civil and political rights" substantially complies with the
requirement of express restoration.
A close scrutiny of the text of the pardon extended to
former President Estrada shows that both the principal
penalty of reclusion perpetua and its accessory penalties
are included in the pardon. The first sentence refers to the
executive clemency extended to former President Estrada
who was convicted by the Sandiganbayan of plunder and
imposed a penalty of reclusion perpetua. The latter is the
principal penalty pardoned which relieved him of
imprisonment. The sentence that followed, which states
that "(h)e is hereby restored to his civil and political
rights," expressly remitted the accessory penalties that
attached to the principal penalty of reclusion perpetua.
Hence, even if we apply Articles 36 and 41 of the Revised
Penal Code, it is indubitable from the textof the pardon
that the accessory penalties of civil interdiction and
perpetual absolute disqualification were expressly
remitted together with the principal penalty of reclusion
perpetua.
AB
In this jurisdiction, the right toseek public elective office
is recognized by law as falling under the whole gamut of
civil and political rights.
The third preambular clause of the pardon did not
operate to make the pardon conditional.
Contrary to Risos­Vidal’s declaration, the third
preambular clause of the pardon, i.e., "[w]hereas, Joseph
Ejercito Estrada has publicly committed to no longer seek
any elective position or office," neither makes the pardon
conditional, nor militate against the conclusion that
former President Estrada’s rights to suffrage and to seek
public elective office have been restored.
This is especially true as the pardon itself does not
explicitly impose a condition or limitation, considering
the unqualified use of the term "civil and political rights"
as being restored. Jurisprudence educates that a preamble
is not an essential part of an act as it is an introductory or
preparatory clause that explains the reasons for the
enactment, usually introduced by the word "whereas."
Whereas clauses do not form part of a statute because,
strictly speaking, they are not part of the operative
language of the statute. In this case, the whereas clause at
issue is not an integral part of the decree of the pardon,
and therefore, does not by itself alone operate to make the
pardon conditional or to make its effectivity contingent
upon the fulfilment of the aforementioned commitment
nor to limit the scope of the pardon.
b. Forms of executive clemency
Reprieves –
Commutations –
Parole –
Probation –
6. Borrowing Power
The President may contract or guarantee foreign loans on
behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board, and subject to such
limitations as may be provided by law. The Monetary
Board shall, within thirty days from the end of every
quarter of the calendar year, submit to the Congress a
complete report of its decisions on applications for loans
to be contracted or guaranteed by the Government or
government-owned and controlled corporations which
would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.
7. Diplomatic Power
Cases:
- Saguisag v Ochoa, Jr. GR 212426 and
212444, Jan 12, 2016
Main Issue: Can the President enter into the Enhanced
Defense Cooperation Agreement (EDCA) between RP
and US without the concurrence of Senate?
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 The Law Pertaining to the State and Its Relationship with Its Citizens
Petitioners: EDCA is required to be in a treaty and
therefore there is a need for Senate concurrence.
Held:
The President had the choice to enter into EDCA by way
of an executive agreement or a treaty. No court can tell
the President to desist from choosing an executive
agreement over a treaty to embody an international
agreement, unless the case falls squarely within Article XIII,
Section 25.
Does EDCA fall under Section 25? No.
Sec. 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be allowed in
the Philippines except under a treaty duly concurred in
by the Senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a
treaty by the other contracting State.
Article XIII, Section 25 applies only to a proposed
agreement between our government and a foreign
government, whereby military bases, troops, or facilities
of such foreign government would be "allowed" or would
"gain entry" in Philippine territory.
Note that the provision "shall not be allowed" is a
negative injunction. This wording signifies that the
President is not authorized by law to allow foreign
military bases, troops, or facilities to enter the Philippines,
except under a treaty concurred in by the Senate. Hence,
the constitutionally restricted authority pertains to the
entry of the bases, troops, or facilities, and not to the
activities to be done after entry.
It is evident that the constitutional restriction refers solely
to the initial entry of the foreign military bases, troops, or
facilities. Once entry is authorized, the subsequent acts
are thereafter subject only to the limitations provided by
the rest of the Constitution and Philippine law, and not to
the Section 25 requirement of validity through a treaty.
The admission and presence of U.S. military and civilian
personnel in Philippine territory are already allowed
under the VFA, the treaty supposedly being implemented
by EDCA. What EDCA has effectively done, in fact, is
merely provide the mechanism to identify the locations in
which U.S. personnel may perform allowed activities
pursuant to the VFA. As the implementing agreement, it
regulates and limits the presence of U.S. personnel in the
country.
The President may enter into an executive agreement on
foreign military bases, troops, or facilities, if (a) it is not
the instrument that allows the presence of foreign
military bases, troops, or facilities; or (b) it merely aims to
implement an existing law or treaty.
Discussion:
AB
History of US Military Base in the Philippines (to explain
why the VFA already allowed entry of military troops in
the RP):
(1) 1947 Military Base Agreement - The Senate concurred
on the premise of "mutuality of security interest," which
provided for the presence and operation of 23 U.S.
military bases in the Philippines for 99 years or until the
year 2046.
Ø Ramos-Rusk Agreement of 1966 – reduced the
term of the treaty from 99 years to a total of 44
years or until 1991.
(2) Military Defense Treaty (MDT) of 1951 - Concurred in
by both the Philippine and the U.S. Senates, the treaty has
two main features: first, it allowed for mutual assistance
in maintaining and developing their individual and
collective capacities to resist an armed attack;
and second, it provided for their mutual self-defense in the
event of an armed attack against the territory of either
party.
(3) 16 September 1991 – The Philippine Senate rejected the
renewal of the 1947 MBA.
(4) 1999 Visiting Forces Agreement (VFA) – revived the
military arrangements between RP and US.
Ø Reaffirmation of the obligations under MDT.
Ø VFA has laid down the regulatory mechanism for
the treatment of U.S. military and civilian
personnel visiting the country. It contains
provisions on the entry and departure of U.S.
personnel; the purpose, extent, and limitations of
their activities; criminal and disciplinary
jurisdiction; the waiver of certain claims; the
importation and exportation of equipment,
materials, supplies, and other pieces of property
owned by the U.S. government; and the
movement of U.S. military vehicles, vessels, and
aircraft into and within the country.
Ø Philippine Senate concurred in the first VFA on
27 May 1999.
(5) January 2002 - U.S. military and civilian personnel
started arriving in Mindanao to take part in joint military
exercises with their Filipino counterparts.
Called Balikatan, these exercises involved trainings aimed
at simulating joint military maneuvers pursuant to the
MDT.
(6) 2014 EDCA - authorizes the U.S. military forces to
have access to and conduct activities within certain
"Agreed Locations" in the country.
Ø President Benigno S. Aquino III ratified EDCA on
6 June 2014.
I. The role of the President as the executor of the law
includes the duty to defend the State, for which purpose
he may use that power in the conduct of foreign
relations.
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 The Law Pertaining to the State and Its Relationship with Its Citizens
In light of this constitutional duty, it is the President's
prerogative to do whatever is legal and necessary for
Philippine defense interests. It is no coincidence that the
constitutional provision on the faithful execution clause
was followed by that on the President's commander-in-
chief powers, which are specifically granted during
extraordinary events of lawless violence, invasion, or
rebellion. And this duty of defending the country is
unceasing, even in times when there is no state of lawlesss
violence, invasion, or rebellion. At such times, the
President has full powers to ensure the faithful execution
of the laws.
It would therefore be remiss for the President and
repugnant to the faithful-execution clause of the
Constitution to do nothing when the call of the moment
requires increasing the military's defensive capabilities,
which could include forging alliances with states that
hold a common interest with the Philippines or bringing
an international suit against an offending state.
II. Limitation on the President's dual role as defender of
the State and as sole authority in foreign relations.
Despite the President's roles as defender of the State and
sole authority in foreign relations, the 1987 Constitution
expressly limits his ability in instances when it involves
the entry of foreign military bases, troops or facilities. The
initial limitation is found in Section 21 of the provisions
on the Executive Department: "No treaty or international
agreement shall be valid and effective unless concurred
in by at least two-thirds of all the Members of the Senate."
The specific limitation is given by Section 25 of the
Transitory Provisions, the full text of which reads as
follows:
Sec. 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be allowed in
the Philippines except under a treaty duly concurred in
by the Senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a
treaty by the other contracting State.
The President, however, may enter into an executive
agreement on foreign military bases, troops, or facilities,
if (a) it is not the instrument that allows the presence of
foreign military bases, troops, or facilities; or (b) it merely
aims to implement an existing law or treaty.
Article XIII, Section 25 applies only to a proposed
agreement between our government and a foreign
government, whereby military bases, troops, or facilities
of such foreign government would be "allowed" or would
"gain entry" in Philippine territory.
Note that the provision "shall not be allowed" is a
negative injunction. This wording signifies that the
President is not authorized by law to allow foreign
military bases, troops, or facilities to enter the Philippines,
except under a treaty concurred in by the Senate. Hence,
the constitutionally restricted authority pertains to the
AB
entry of the bases, troops, or facilities, and not to the
activities to be done after entry.
It is evident that the constitutional restriction refers solely
to the initial entry of the foreign military bases, troops, or
facilities. Once entry is authorized, the subsequent acts
are thereafter subject only to the limitations provided by
the rest of the Constitution and Philippine law, and not to
the Section 25 requirement of validity through a treaty.
Executive agreements may cover the matter of foreign
military forces if it merely involves detail adjustments
(EDCA merely involves "adjustments in detail" in the
implementation of the MDT and the VFA).
III. Treaty vs. Executive Agreement
From the viewpoint of International Law:
The distinction between a treaty and an international
agreement or even an executive agreement is irrelevant
for purposes of determining international rights and
obligations.
From the domestic setting:
First, executive agreements must remain traceable to an
express or implied authorization under the Constitution,
statutes, or treaties. The absence of these precedents puts
the validity and effectivity of executive agreements under
serious question for the main function of the Executive is
to enforce the Constitution and the laws enacted by the
Legislature, not to defeat or interfere in the performance
of these rules. In turn, executive agreements cannot create
new international obligations that are not expressly
allowed or reasonably implied in the law they purport to
implement.
Second, treaties are, by their very nature, considered
superior to executive agreements. Treaties are products of
the acts of the Executive and the Senate unlike executive
agreements, which are solely executive actions. Because
of legislative participation through the Senate, a treaty is
regarded as being on the same level as a statute. If there
is an irreconcilable conflict, a later law or treaty takes
precedence over one that is prior. An executive
agreement is treated differently. Executive agreements
that are inconsistent with either a law or a treaty are
considered ineffective. Both types of international
agreement are nevertheless subject to the supremacy of
the Constitution.
IV. Guidelines
1. Section 25, Article XVIII of the Constitution, contains
stringent requirements that must be fulfilled by the
international agreement allowing the presence of foreign
military bases, troops, or facilities in the Philippines: (a)
the agreement must be in the form of a treaty, and (b) it
must be duly concurred in by the Senate.
2. If the agreement is not covered by the above situation,
then the President may choose the form of the agreement
(i.e., either an executive agreement or a treaty), provided
that the agreement dealing with foreign military bases,
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 The Law Pertaining to the State and Its Relationship with Its Citizens
troops, or facilities is not the principal agreement that first
allows their entry or presence in the Philippines.
3. The executive agreement must not go beyond the
parameters, limitations, and standards set by the law
and/or treaty that the former purports to implement; and
must not unduly expand the international obligation
expressly mentioned or necessarily implied in the law or
treaty.
4. The executive agreement must be consistent with the
Constitution, as well as with existing laws and treaties.
V. Three legal standards to allow foreign military bases,
troops, or facilities in the Philippines
1. Independence from foreign control;
2. Sovereignty and applicable law;
3. National security and territorial integrity.
- Bayan v Executive Secretary, GR
138570, Oct 10, 2000
Facts:
The Philippines entered into a Visiting Forces Agreement
(VFA) with the United States. The VFA was approved by
President Ramos and subsequently, President Estrada
also ratified the VFA. The VFA was transmitted to the
Senate of the Philippines. It was concurred in by the
Senate by a 2/3 votes of its members. The VFA, which
consists of a Preamble and nine (9) Articles, provides for
the mechanism for regulating the circumstances and
conditions under which US Armed Forces and defense
personnel may be present in the Philippines
Several petitions were filed to assail the constitutionality
of the VFA. One focal point of inquiry in this controversy
is the determination of which provision of the
Constitution applies, with regard to the exercise by the
senate of its constitutional power to concur with the VFA.
Petitioners argue that Section 25, Article XVIII is
applicable considering that the VFA has for its subject the
presence of foreign military troops in the Philippines.
Respondents, on the contrary, maintain that Section 21,
Article VII should apply inasmuch as the VFA is not a
basing arrangement but an agreement which involves
merely the temporary visits of United States personnel
engaged in joint military exercises.
Petitioners also contend that the phrase recognized as a
treaty, embodied in section 25, Article XVIII, means that
the VFA should have the advice and consent of the United
States Senate pursuant to its own constitutional process,
and that it should not be considered merely an executive
agreement by the United States.
Issue:
(1) Which of the two provisions should apply on VFA?
(2) Whether or not the VFA should have the advice and
consent of the United States Senate?
Held:
AB
(1) Section 25, Article XVIII.
The 1987 Philippine Constitution contains two provisions
requiring the concurrence of the Senate on treaties or
international agreements. Section 21, Article VII, which
herein respondents invoke, reads:
No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all
the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of
America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by
the senate and, when the Congress so requires, ratified by
a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a
treaty by the other contracting State.
Section 21, Article VII deals with treatise or international
agreements in general, in which case, the concurrence of
at least two­thirds (2/3) of all the Members of the Senate
is required to make the subject treaty, or international
agreement, valid and binding on the part of the
Philippines. This provision lays down the general rule on
treatise or international agreements and applies to any
form of treaty with a wide variety of subject matter, such
as, but not limited to, extradition or tax treatise or those
economic in nature. All treaties or international
agreements entered into by the Philippines, regardless of
subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be
valid and effective.
In contrast, Section 25, Article XVIII is a special provision
that applies to treaties which involve the presence of
foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of the
Senate is only one of the requisites to render compliance
with the constitutional requirements and to consider the
agreement binding on the Philippines. Section 25, Article
XVIII further requires that foreign military bases, troops,
or facilities may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the Senate, ratified
by a majority of the votes cast in a national referendum
held for that purpose if so required by Congress, and
recognized as such by the other contracting state.
It is our considered view that both constitutional
provisions, far from contradicting each other, actually
share some common ground. These constitutional
provisions both embody phrases in the negative and thus,
are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause No treaty x x
x, and Section 25 contains the phrase shall not be allowed.
Additionally, in both instances, the concurrence of the
Senate is indispensable to render the treaty or
international agreement valid and effective.
On the whole, the VFA is an agreement which defines the
treatment of United States troops and personnel visiting
the Philippines. It provides for the guidelines to govern
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 The Law Pertaining to the State and Its Relationship with Its Citizens
such visits of military personnel, and further defines the
rights of the United States and the Philippine government
in the matter of criminal jurisdiction, movement of vessel
and aircraft, importation and exportation of equipment,
materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically
deals with treaties involving foreign military bases,
troops, or facilities, should apply in the instant case. To a
certain extent and in a limited sense, however, the
provisions of section 21, Article VII will find applicability
with regard to the issue and for the sole purpose of
determining the number of votes required to obtain the
valid concurrence of the Senate, as will be further
discussed hereunder.
Moreover, it is specious to argue that Section 25, Article
XVIII is inapplicable to mere transient agreements for the
reason that there is no permanent placing of structure for
the establishment of a military base. On this score, the
Constitution makes no distinction between transient and
permanent. Certainly, we find nothing in Section 25,
Article XVIII that requires foreign troops or facilities to be
stationed or placed permanently in the Philippines.
The provision contemplates three different situations ­ a
military treaty the subject of which could be either (a)
foreign bases, (b) foreign troops, or (c) foreign facilities ­
any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
Section 25, Article XVIII disallows foreign military bases,
troops, or facilities in the country, unless the following
conditions are sufficiently met, viz: (a) it must be under a
treaty; (b) the treaty must be duly concurred in by the
Senate and, when so required by congress, ratified by a
majority of the votes cast by the people in a national
referendum; and (c) recognized as a treaty by the other
contracting state. The concurrence requirement under
Section 25, Article XVIII must be construed in relation to
the provisions of Section 21, Article VII. In a more
particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means that
at least two­thirds of all the members of the Senate
favorably vote to concur with the treaty­the VFA in the
instant case.
There is no dispute as to the presence of the first two
requisites in the case of the VFA.
(2) No. The phrase recognized as a treaty means that the
other contracting party accepts or acknowledges the
agreement as a treaty. To require the other contracting
state, the United States of America in this case, to submit
the VFA to the United States Senate for concurrence
pursuant to its Constitution, is to accord strict meaning to
the phrase. Moreover, it is inconsequential whether the
United States treats the VFA only as an executive
agreement because, under international law, an executive
agreement is as binding as a treaty. To be sure, as long as
the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken
equally as a treaty.
AB
Discussion:
A treaty, as defined by the Vienna Convention on the Law
of Treaties, is an international instrument 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. There are many other
terms used for a treaty or international agreement, some
of which are: act, protocol, agreement, compromis d
arbitrage, concordat, convention, declaration, exchange of
notes, pact, statute, charter and modus vivendi. All writers,
from Hugo Grotius onward, have pointed out that the
names or titles of international agreements included
under the general term treaty have little or no legal
significance. Certain terms are useful, but they furnish
little more than mere description.
In international law, there is no difference between
treaties and executive agreements in their binding effect
upon states concerned, as long as the negotiating
functionaries have remained within their powers.
International law continues to make no distinction
between treaties and executive agreements: they are
equally binding obligations upon nations.
Ratification is generally held to be an executive act,
undertaken by the head of the state or of the government,
as the case may be, through which the formal acceptance
of the treaty is proclaimed. A State may provide in its
domestic legislation the process of ratification of a treaty.
The consent of the State to be bound by a treaty is
expressed by ratification when: (a) the treaty provides for
such ratification, (b) it is otherwise established that the
negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the
treaty subject to ratification, or (d) the intention of the
State to sign the treaty subject to ratification appears from
the full powers of its representative, or was expressed
during the negotiation.
In our jurisdiction, the power to
ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is
limited only to giving or withholding its consent, or
concurrence, to the ratification.
By constitutional fiat and by the intrinsic nature of his
office, the President, as head of State, is the sole organ and
authority in the external affairs of the country. In many
ways, the President is the chief architect of the nations
foreign policy; his dominance in the field of foreign
relations is (then) conceded. Wielding vast powers an
influence, his conduct in the external affairs of the nation,
as Jefferson describes, is executive altogether."
8. Budgetary Power
The President shall submit to the Congress within thirty
days from the opening of every regular session, as the
basis of the general appropriations bill, a budget of
expenditures and sources of financing, including receipts
from existing and proposed revenue measures.
9. Informing Power
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The President shall address the Congress at the opening
of its regular session. He may also appear before it at any
other time.
10. Other Powers
a. Call Congress to a special session
b. Power to approve or veto bills
c. To consent to deputation of government
personnel by the Commission on
elections
d. To discipline such deputies
e. By delegation from Congress, emergency
powers and tariff powers
f. General supervision over local
governments and autonomous regional
governments
The Supreme Court
COMPOSITION
A Chief justice and 14 Associate Justices. It may sit en
banc or in its discretion, in divisions of three, five or seven
members. Any vacancy shall be filled within 90 days from
occurrence thereof.
ADDITIONAL FUNCTIONS AND POWERS FOR
THE CHIEF JUSTICE
a. Presiding officer in the Impeachment court,
Article XI, Section 3 (6)
b. Chair, Judicial and Bar Council, Article VIII,
Section 8
c. Chair, Presidential Electoral Tribunal, Article
VII, Section 4
d. Supervisory powers over all Justices and
Judges, Article VIII, Section 6
e. Control & supervision over all officials &
employees of Judiciary, Article VIII, Section 6
SAFEGUARDS OF JUDICIAL INDEPENDENCE
1) The SC is a constitutional body; it may not be
abolished by the legislature;
2) The members of the SC are removable only by
impeachment;
3) The SC may not be deprived of its minimum
original and appellate jurisdiction; appellate
jurisdiction may not be increased without its
advice and concurrence;
4) The SC has administrative supervision of all
inferior courts and personnel;
5) The SC has the exclusive power to discipline
judges/justices of inferior courts;
6) The members of the Judiciary have security of
tenure;
7) The members of the Judiciary may not be
designated to any agency performing quasi-
judicial or administrative functions;
8) Salaries of judges may not be reduced; the
Judiciary enjoys fiscal autonomy.
AB
JUDICIAL POWER
1. Adjudicatory Powers
Adjudicatory powers – to settle disputes and
controversies by interpreting the applicable law.
What are these disputes and controversies can they settle?
i. those involving rights legally enforceable and demandable –
the right must be derived from law. Example: right of a
wife to be supported by the husband; right of support of
children by the parents. Example of a right which is non-
demandable? Plus 5 for perfect attendance because it is
not derived from law.
ii. disputes affecting ambassadors, public ministers and
consuls.
iii. sole judge in all questions involving elections, qualifications
and returns of the President and Vice President.
Prior to the 1987 Constitution, there was this law which
has not yet been repealed creating the Presidential
Electoral Tribunal. And it says there that it should be the
sole judge for President and VP. It was questioned in the
case of Macalintal v PET. The SC held that the SC and PET
are one and the same. The chairman of the PET is the
Chief Justice and the members are the Associate Justices
so it is also the SC. The change in the name is only a
change in the nomenclature in order to emphasize the
singularity and importance of their functions as PET. But
it is the same SC. What does that imply? That once PET
has decided on it, that is final and executory.
2. Judicial Review – power to test the validity of
the acts of any branch (see discussion on
Judicial Review)
3. Incidental Powers – powers necessary to
discharge its functions
a. Cite contempt
b. Issue subpoena/orders
c. Grant/deny motions
d. Order arrest
4. Rule-Making Powers -
RULE-MAKING POWERS – to promulgate rules
concerning:
a. The protection and enforcement of
constitutional rights;
i. Writ of Amparo – 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 entity.
ii. Writ of Habeas Data – remedy available
to any person whose right to privacy in
life, liberty or 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
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 The Law Pertaining to the State and Its Relationship with Its Citizens
entity engaged in the gathering,
collecting or storing of data or
information regarding the person,
family, honor and correspondence of the
aggrieved party.
iii. Writ of Kalikasan – remedy available to
a natural or juridical person, entity
authorized by law, people’s
organization, non-governmental
organization, or any public interest
group accredited by or registered with
any government agency, on behalf of
persons whose right to a balanced and
healthful ecology is violated, or
threatened with violation by an unlawful
act of omission of a public 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.
iv. Writ of Continuing Mandamus - When
any agency or instrumentality of the
government or officer thereof unlawfully
neglects the performance of an act which
the law specifically enjoins as a duty
resulting from an office, trust or station
in connection with the enforcement or
violation of an environmental law rule or
regulation or a right therein, or
unlawfully excludes another from the
use or enjoyment of such right and there
is no other plain, speedy and adequate
remedy in the ordinary course of law, the
person aggrieved thereby may file a
verified petition in the proper court,
alleging the facts with certainty,
attaching thereto supporting evidence,
specifying that the petition concerns an
environmental law, rule or regulation,
and praying that judgment be rendered
commanding the respondent to do an act
or series of acts until the judgment is
fully satisfied, and to pay damages
sustained by the petitioner by reason of
the malicious neglect to perform the
duties of the respondent, under the law,
rules or regulations.
v. Strategic lawsuit against public
participation (SLAPP) - A legal action
filed to harass, vex, exert undue pressure
or stifle any legal recourse that any
person, institution or the government
has taken or may take in the enforcement
of environmental laws, protection of the
environment or assertion of
environmental rights shall be treated as a
SLAPP. In a SLAPP filed against a person
involved in the enforcement of
environmental laws, protection of the
environment, or assertion of
environmental rights, the defendant may
file an answer interposing as a defense
that the case is a SLAPP
AB
b. Pleading, practice, procedure in all courts;
c. Admission to the practice of law
d. IBP
e. Legal assistance to the underprivileged
5. Auxiliary Administrative Powers
a. Detailing of lower courts judges
b. Change of venue or place of trial
c. Power of appointment (officials and employees
of the judiciary)
d. Administrative supervision of all courts and
court personnel
e. Fiscal autonomy
- In order to maintain the independence of
the Judiciary.
• The Judiciary shall enjoy fiscal autonomy.
Appropriations for the Judiciary may not be
reduced by the legislature below the amount
appropriated for the previous year and, after
approval, shall be automatically and
regularly released. (Art. VIII, Sec. 3)
f. Annual report
g. Supervision of JBC
(1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and
a representative of the Congress as ex officio Members, a
representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a
representative of the private sector.
(2) The regular Members of the Council shall be
appointed by the President for a term of four years with
the consent of the Commission on Appointments. Of the
Members first appointed, the representative of the
Integrated Bar shall serve for four years, the professor of
law for three years, the retired Justice for two years, and
the representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary
ex officio of the Council and shall keep a record of its
proceedings.
(4) The regular Members of the Council shall receive such
emoluments as may be determined by the Supreme
Court. The Supreme Court shall provide in its annual
budget the appropriations for the Council.
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. It may
exercise such other functions and duties as the Supreme
Court may assign to it.
6. Plenary Powers over the BAR
Bar – is the collectivity of all persons whose names
appear in the Roll of Attorney of the SC.
7. Supervisory Powers over the IBP
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 The Law Pertaining to the State and Its Relationship with Its Citizens
IBP – national official organization of all lawyers in the
Philippines. It is created by law, RA 6397, pursuant to Art.
VIII, Sec. 5(5) of the Constitution. The rules= governing
the IBP is made by the SC, Rule 139-A.
Why the need to integrate?
a. To elevate the standard of the legal
profession;
b. To improve the administration of justice;
c. To enable to bar to discharge its public
responsibility more effectively.
The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Implications:
1. Judicial power is also vested in such lower courts but
these lower courts are created by law. The Supreme Court
is created by the Constitution. The SC does not owe its
creation to Congress, unlike other courts. Therefore, the
jurisdiction of the SC cannot be decreased by Congress. It
can be increased but upon the advice and concurrence of
the SC.
The 1987 Constitution has prospective application. There
was a law enacted prior to the 1987 Constitution granting
jurisdiction to the SC which is not found in the 1987
Constitution. That is still within the jurisdiction of the SC
because the 1987 Constitution is not given retroactive
effect.
2. There is only one Supreme Court. All other courts are
lower than the SC. There can be no two SCs nor another
court with equal power as that the SC. Otherwise, there
would be no end to controversy. So as far as issues and
controversies are concerned, the SC is the court of last
resort.
3. The SC’s main power is judicial power but judicial
power is also exercised by lower courts. What is judicial
power? It is the power to interpret laws. There must be an
applicable law to interpret. Under judicial power, there
are three important powers.
CONSTITUTIONAL COMMISSIONS AND OTHER
CONSTITUTIONAL BODIES/AGENCIES
A. CSC, COA, COMELEC, Article IX, A, B, C, D
The Civil Service Commission, as the central personnel
agency of the Government, shall:
1. establish a career service and adopt measures to
promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy
in the civil service.
2. It shall strengthen the merit and rewards
system,
3. integrate all human resources development
programs for all levels and ranks, and
AB
4. institutionalize a management climate
conducive to public accountability. It shall
submit to the President and the Congress an
annual report on its personnel programs.
The Commission on Audit (COA) is the central auditing
agency of the government.
Functions:
1. to examine and audit all forms of government
revenues;
2. to examine and audit all forms of government
expenses;
3. to settle government accounts;
4. to promulgate accounting and auditing rules
(including those for the prevention and
disallowance of expenses which are irregular,
unnecessary, excessive, extravagant and
unconscionable expenditures)
5. Quasi-judicial function: to decide
administrative cases involving expenditures of
public funds.
If the government agency has internal auditing system,
COA has no power to pre-audit.
Pre-audit – examination of financial transactions before
the consumption of payment. The purpose of pre-audit
is to determine if the proposed expenditure complies
with the appropriation law, if there are sufficient funds
from the government, if the proposed expense is not
unreasonable, extravagant, unconscionable or if the
transaction is duly-approved by proper authorities.
Subject to post-audit:
1. Constitutional bodies with fiscal autonomy;
2. Autonomous colleges and state universities;
3. Government-owned and controlled
corporations;
4. NGOs which receive subsidy or equity from the
government.
The COMELEC is the central election agency of the
government.
Function:
1. To enforce election laws
a. Can declare a failure of election;
b. Can call for holding of special elections;
c. Can order manual recount of votes;
d. Can deny due course and cancel certificate
of candidacy;
e. Can correct manifest errors in the election
returns or certificate of canvass;
f. Decide for the annulment of plebiscite
results.
2. Decide administrative questions affecting
elections EXCEPT the right to vote. The
COMELEC has no jurisdiction if the issue is the
right to vote.
a. Can file a petition for inclusion or exclusion
of voters
b. Can prosecute election law violators;
c. Can recommend pardon, amnesty, parole or
suspension of service of sentence for
violation of election laws (one of the
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 The Law Pertaining to the State and Its Relationship with Its Citizens

limitations of the President’s power to the votes of the En Banc, the decision of the
pardon) COMELEC Division is affirmed.
• No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, • If the decision of the COMELEC Division is
and regulations shall be granted by the in the exercise of its original jurisdiction, it
President without the favorable goes to the COMELEC En Banc by MR. In
recommendation of the Commission. case of tie, there would be a re-hearing of the
case to break the tie. In case the votes remain
3. Can deputize election law enforcement equal, the decision of the COMELEC
agencies and recommend their removal Division is affirmed (the MR is denied). The
4. Can register political parties, organizations and Supreme Court will not entertain cases
coalitions coming from COMELEC En Banc unless
5. Can accredit citizens-arms (NAMFREL) there is a re-hearing of the case.
6. Can regulate public utilities and media of
information • Legal basis: Section 6. Procedure if Opinion
7. Quasi-judicial function: Decide election is Equally Divided. - When the Commission
contests and cases en banc is equally divided in opinion, or the
necessary majority cannot be had, the case
shall be reheard, and if on rehearing no
• Election Contest • Jurisdiction decision is reached, the action or proceeding
• Brgy. Officials • MTC shall be dismissed if originally commenced
in the Commission; in appealed cases, the
• Municipal officials • RTC judgment or order appealed from shall stand
• Regional • COMELEC affirmed; and in all incidental matters, the
• Provincial petition or motion shall be denied.
• City Officials
• Members of House • HRET PROCESS OF LEGISLATION
of Representatives
• Senators • SET Requirements as to bills:
1. Only one subject to be expressed in the title
• President and Vice • PET
thereof.
President
2. Appropriation, revenue or tariff bills, bills
authorizing increase in public debt, bills of local
The COMELEC has administrative functions, application, and private bills shall originate
quasi-judicial functions and quasi-legislative exclusively in the House of Representatives.
functions.
How does a bill become a law?
• En Banc • Division
Exercise of 1. All election [Sec. 26] No bill passed by either House shall become a
administrative cases law unless it has passed three readings on separate days,
powers including and printed copies thereof in its final form have been
a. Violation pre- distributed to its Members three days before its passage,
of election proclamatio except when the President certifies to the necessity of its
laws n immediate enactment to meet a public calamity or
b. Correction controversie emergency. Upon the last reading of a bill, no amendment
of errors s; thereto shall be allowed, and the vote thereon shall be
from 2. Petition to taken immediately thereafter, and the yeas and nays
election cancel COC; entered in the Journal.
returns 3. Cases
(ER) to appealed First Reading: Only the title of the bill or resolution is
statement from read before the House. The presiding officer then refers
of votes RTC/MTC the bill to the proper committee for appropriate action.
(Board of After due consideration of the bill or resolution, the latter
Canvasser is returned to the body together with the committee’s
s) amendments, objections or recommendations. If the
report is favorable, the bill is calendared for second
• • reading. If the report is unfavorable, the matter shall be
laid on the table, unless the body as a whole decides
• If the decision of the MTC or RTC is affirmed otherwise.
by the COMELEC Division (in the exercise of
its appellate jurisdiction), it goes to the Second Reading: The bill or resolution is read in full
COMELEC En Banc by MR. In case of tie in before the floor, with such amendments as proposed by
the committee. A period of debate, discussion and
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 The Law Pertaining to the State and Its Relationship with Its Citizens

amendment will ensue. Thereafter, a motion to close the for another 25

debate is made and a vote is taken on whether or not to years.
pass the bill on the basis of the amendments and Rules on Educational
discussion. The bill as amended and approved is printed agricultural Institutions
in final form and copies are distributed to the lands:
membership three days before its passage. Congress may
Citizens may increase Filipino
Third Reading: The bill or resolution is announced by its lease only < 500 equity
name and title on the floor and a vote is taken right away, ha. participation
with the yeas and nays entered into the journal.
Amendments are no longer allowed. Citizens may
acquire by
Three ways for a bill to become a law: purchase,
1. Upon approval by the President; homestead or
2. When the veto of the President is overridden by 2/3 grant only < 12
vote of all the members of both Houses; ha.
3. Upon failure of the President to vote on the bill and to Practice of Areas of
return it with his objections, to the House where it professions save Investment as
originated, within 30 days after the date of receipt. in cases Congress may
[Presidential inaction] provided by prescribe
law (Congress may
- Effectivity of laws, NCC, Article 2 prescribe a
higher
Laws shall take effect after fifteen days following the percentage)
completion of their publication either in the Official Small-scale Operation of
Gazette, or in a newspaper of general circulation in the utilization of public utilities
Philippines, unless it is otherwise provided. natural
resources, as Cannot be for
may be longer period
provided by than 50 years
law.
NATURAL RESOURCES Executive and
managing
NATIONALIZATION PRINCIPLE FOR NATURAL officers must be
RESOURCES
Filipino
REGALIAN DOCTRINE
Sec. 2, Art. XII
All lands of public domain, waters, minerals, coal, Note: The Constitution holds that private corporations or
petroleum, and other mineral oils, all forces of potential associations may not hold alienable lands of the public
energy, fisheries, forest or timber, wildlife, flora and domain except by lease, for a period of not exceeding 25
fauna, and other natural resources are owned by the State. years, renewable for not more than 25 years, and not to
With the exception of agricultural lands, all other natural exceed 1000 ha. In area, but the Constitution does not
resources shall not be alienated. … specify the capital requirements for such corporations.

NATIONALITY AND CITIZENSHIP REQUIREMENT A joint venture falls within the purview of an
PROVISIONS “ASSOCIATION” and must comply with the 60-40%
Filipino foreign capitalization requirement.
Filipino Filipino Filipino
Citizens, or Citizens or 60- Citizens, or 70- The 60% capital requirement applies to both the voting
100% Filipino 40 Filipino 30 Filipino control and the beneficial ownership of the public utility.
Corporattions Corporations Corporations Therefore, it shall apply uniformly, separately, and across
Use and Co-production, Engagement in the board to all classes of shares, regardless of
enjoyment of Joint venture, advertising nomenclature or category, comprising the capital of the
marine wealth, and Production Industry corporation.
exclusive to sharing
Filipino citizens. agreements Two test are employed to determine whether the
over natural Nationality Requirement was met:
resources.
1. Control Test – Filipino must own at least 60% of
the corporation’s capital. This test is generally
Agreements
used, however when there is doubt as to the
shall not exceed
beneficial ownership and control of the
a period of 25
corporation, it must be subject to the grandfather
years renewable
test.

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 The Law Pertaining to the State and Its Relationship with Its Citizens
2. Grandfather Test – Where percentage of Filipino
equity in a corporation is computed by
attributing the nationality of the second or even
subsequent tier of ownership to determine the
nationality of the second or even subsequent tier
of ownership to determine the nationality of the
corporate shareholder.
Note: If the Filipino has the voting power of the “specific
stock”, or the Filipino has the investment power over the
“specific stock”, or both, then such Filipino is the
beneficial owner of that specific stock.
Being considered Filipino, that “specific stock” is then
counted as part of the 60% Filipino ownership
requirement under the Constitution.
The right to dividends, jus fruendi – aright emanating
from ownership of that specific stock necessarily accrues
to its Filipino beneficial owner.
FILIPINO FIRST
Sec. 10, Art. XII
In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give
preference to qualified Filipinos. The State shall regulate and
exercise authority over foreign investments within its national
jurisdiction and in accordance with its national goals and
priorities.
Such provision is per se enforceable and requires no
further guidelines or implementing rules or laws for its
operation.
The Constitution does not impose a policy of Filipino
monopoly of the economic environment. It does not rule
out the entry of foreign investments, goods, and services.
While it does not encourage their unlimited entry into the
country, it does not prohibit them either. In fact, it allows
an exchange on the basis of equality and reciprocity,
frowning only on foreign competition that is unfair.
ECONOMIC ACTIVITIES
The State, being the owner of the natural resources is
accorder the primary power and responsibility in the
exploration, development and utilization thereof. As
such it may undertake these activities through four
modes:
1. The State may directly undertake such activities;
2. The State may enter into co-production, joint
venture or production-sharing agreements with
Filipino citizens or qualified corporations;
3. Congress may, by law, allow small-scale
utilization of natural resources by Filipino
citizens;
4. For the large-scale exploration, development and
utilization of minerals, petroleum and other
mineral oils, the President may enter into
agreements with foreign-owned corporations
involving technical or financial assistance subject
to the following limitations:
AB
a. As to Parties. Only the President, in
behalf of the State, may enter into these
agreements, and only with corporations.
b. As to Size of Activities. Only large-scale
exploration, development and utilization
is allowed.
c. The natural resources subject of the
activities is restricted to minerals,
petroleum, and other mineral oils, the
intent being to limit service contracts to
those areas where Filipino capital may
not be sufficient.
d. Consistency with the Provisions of
Statute. The FTAA(financial and
technical assistance agreements), must
be in accordance with the terms and
conditions provided by law.
e. The FTAA must be based on real
contributions to economic growth and
general welfare of the country.
f. The FTAA must contain rudimentary
stipulations for the promotions of the
development and use of local scientific
and technical resources.
g. Notification Requirement. The President
shall notify the Congress of every FTAA
entered into within 30 days from its
execution.
h. Scope of FTAA. Only for agreements
involving either financial or technical
assistance and does not include “service
contracts” and “management or other
forms of assistance”
Requisites for a valid service contract
1. A general law that will set standards or uniform
terms, conditions, and requirements
2. The president shall be the signatory for the
government
3. Within 30 days of the executed agreement, the
President shall report it to Congress
AMENDMENT AND REVISION OF THE
CONSTITUTION
Sec. 1. Any amendment to, or revision of, this Constitution may
be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
Members; or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters
therein. No amendment under this section shall be authorized
within five years following the ratification of this Constitution
nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the
exercise of this right.
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 The Law Pertaining to the State and Its Relationship with Its Citizens

Sec. 3. The Congress may, by a vote of two-thirds of all its which 60 days nor
Members, call a constitutional convention, or by a majority vote every later than 90
of all its Members, submit to the electorate the question of legislativ days AFTER
calling such a convention. e district the
must be certification
Sec. 4. Any amendment to, or revision of, this Constitution represent by the
under Section 1 hereof shall be valid when ratified by a majority ed by at Commission
of the votes cast in a plebiscite which shall be held not earlier least 3% on Elections
than sixty days nor later than ninety days after the approval of of the of the
such amendment or revision. registered sufficiency of
voters the petition.
Any amendment under Section 2 hereof shall be valid when therein.
ratified by a majority of the votes cast in a plebiscite which shall REVISIONS Congress By a vote Ratified by a
be held not earlier than sixty days nor later than ninety days (as of ¾ of MAJORITY
after the certification by the Commission on Elections of the Constituen ALL its of the votes
sufficiency of the petition. t members cast in a
Assembly) plebiscite,
AMENDMENT VS. REVISION Constituti By a vote which shall
Amendment – refers to any alteration in the Constitution; onal of 2/3 of be held not
a piecemeal or isolated change in the Constitution Conventio ALL of its earlier than
involving a particular provision or certain provisions n members 60 days nor
thereof. or by a later the 90
MAJORIT days AFTER
Revision – total change involving a re-writing of the Y vote of the approval
entire instrument. ALL of its of such
members, revision.
BY PROPOSAL RATIFICATION submit to
the
AMENDMENTS
Congress By a vote Ratified by a
electorate
(as of ¾ of MAJORITY
the
Constituen ALL its of the votes
question
t members cast in a
of calling
Assembly) plebiscite,
such a
Constituti (1) By a which shall
conventio
onal vote of be held not
n.
Conventio 2/3 of earlier than
n ALL of its 60 days nor
Only Congress or a constitutional convention may
(Congress later than 90
propose revisions to the Constitution. A People’s
) days AFTER
the approval Initiative may propose only amendments to the
members;
Constitution.
or of such
amendment.
Doctrine of Proper Submission – the plebiscite must be
(2) By a
held not earlier than sixty days nor later than ninety days
MAJORIT
after the approval of the proposal by Congress or the
Y vote of
Constitutional Convention, or after the certification by the
ALL of its
COMELEC of the sufficiency of the petition.
members,
Purpose: To give the people sufficient and reasonable
submit to
time to study and discuss the proposed amendments.
the
electorate
The plebiscite may be held on the same day as the regular
the
elections. Piecemeal amendments are not allowed.
question
of calling
Cases:
such a
Santiago v Comelec, 270 SCRA 106 (1997)
conventio
Lambino v Comelec, 505 SCRA 160 (2006)
n.
Peoples’ A Petition Ratified by Is R.A. No. 6735 sufficient and adequate for purposes of
Initiative of at least MAJORITY amending the Constitution by way of People’s
12% of of the votes Initiative?
the total cast in a
Defensor-Santiago vs. COMELEC (1997): No.
number plebiscite Lambino vs. COMELEC (MR, 2006): Yes.
of which shall
registered be held not
voters, of earlier than

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 The Law Pertaining to the State and Its Relationship with Its Citizens

International Law certain provisions of the treaty in their application to

q Sources of international law that State.
q Relationship with domestic law Grounds for Terminating a Treaty
1. Provisions of Internal Law regarding competence
to conclude treaties
2. Specific restrictions on authority to express
SOURCES OF INTERNATIONAL LAW consent of a state
1. Primary Sources 3. Error
a. Conventional International Law 4. Fraud
b. Customary International Law 5. Corruption of a representative of a state
c. General Principles of Law 6. Coercion of a representative
2. Subsidiary Sources 7. Coercion of a state by threat or use of force
a. Judicial Decisions 8. Treaties conflicting with Jus Cogens
b. Teachings of the most highly qualified 9. Termination or suspension of a treaty as a
publicist consequence of its breach
10. Supervening impossibility of performance
11. Fundamental change of circumstances
CONVENTIONAL INTERNATIONAL LAW
Treaty is an international agreement concluded between CUSTOMARY INTERNATIONAL LAW
states in written form and governed by international
law, whether embodied in a single instrument or in two General Practice Accepted as law.
or more related instruments and whatever its particular
designation. Elements:
1. State Practice – the practice must be consistent
Requisites: and general. Consistency requires substantial
1. Written Form uniformity and not necessarily complete
2. Between States uniformity in practice. Generality does not
3. Governed by International Law require universality.
2. Opinio Juris – belief on the part of states that a
Basic Principles of Treaties: particular practice is required by law, and not
1. The primary body of law governing treaties is the because of courtesy or political expendiency.
Vienna Convention on the Law of Treaties, which
is considered binding as Customary International Binding Effect:
Law. General Rule: Binding on all states
2. It is based on consent XPN: Pesistent Objector
a. Treaty obligation is based on consent. No
state may be bound by a treaty obligation GENERAL PRINCIPLES OF LAW
unless it has so consented. Those general principles in municipal law that may be
b. Consent is manifested by: Signature, appropriated to apply to the relations of states.
exchange of instruments, constituting a
treaty, ratification, acceptance, approval JUDICIAL DECISIONS
of accession, or by any other means if so
Includes decisions of international tribunals and those of
agreed.
municipal courts.
3. Pacta Sunt Servanda – every treaty in force is
binding upon the parties to it and must be
performed by them in good faith.
4. Generally not binding on third states RELATIONSHIP WITH DOMESTIC LAW
a. XPN: International Domestic Law
i. When the third party accepts a Law
provision establishing an Scope The conduct of Applies to a
obligation for that third party States and single country
ii. When the third party accepts a International or nation,
right provided for and exercises organizations, within a
such right in accordance with the their relations determined
conditions established in the with each other territory and its
treaty. and, in certain inhabitants
5. Treaties are non-retroactive circumstances,
their relations
Reservations to Treaties with persons
A reservation is a unilateral statement, however phrased natural or
or named, made by a State, when signing, ratifying, juridical
accepting, approving or acceding to a treaty, whereby it How Made Through Issued by a
purports to exclude or to modify the legal effect of consent, political
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 The Law Pertaining to the State and Its Relationship with Its Citizens

adopted by superior for violation was manifest and concerned a rule of its internal
States as a observance law of fundamental importance.
common rule of
action *END*
Relations Regulated Issued by a
Regulated relations of political Labor Law
States as a superior for
common rule of observance q Basic principles
action q Existence of employer-employee relationship; tests
Sources Regulates Regulates q Termination of employment
relations of relations of q Requirements for valid labor-only contracting
States and other individuals q Rights of employees and of labor organizations;
international among membership in unions
persons themselves or q Management prerogative
with their own
States
q Illegal recruitment of overseas Filipino workers
Settlement of Deprived Consist mainly q Remedies (labor standards violations)
Disputes principally from of enactments
treaties, from the
international lawmaking
customs and authority of BASIC PRINCIPLES
general each state
principles of
Legal Basis
law
Responsibility Collective Generally 1. 1987 Constitution
for Wrongful responsibility entails
Acts because it individual Constitutional Mandates:
attaches directly responsibility in
to the State and case of breach Article II
not to its
nationals Section 9. The State shall promote a just and dynamic social
order that will ensure the prosperity and independence of the
How International Law becomes part of Philippine Law nation and free the people from poverty through policies that
1. Doctrine of Incorporation – the Philippines provide adequate social services, promote full employment, a
adopts the generally accepted principles of rising standard of living, and an improved quality of life for all.
international law as part of the law of the land.
They are deemed as national law whether or not Section 10. The State shall promote social justice in all phases
they are enacted as statutory or legislative rules of national development.
By this doctrine, the country is bound by Section 11. The State values the dignity of every human person
generally accepted principles of international and guarantees full respect for human rights.
law, which are considered to be automatically
part of our own laws. Section 13. The State recognizes the vital role of the youth in
nation-building and shall promote and protect their physical,
2. Doctrine of Transformation – treaties or moral, spiritual, intellectual, and social well-being. It shall
international agreements shall become valid and inculcate in the youth patriotism and nationalism, and
effective upon concurrence by at least 2/3 of all encourage their involvement in public and civic affairs.
the members of the senate. These rules of
international law are not part of municipal law Section 14. The State recognizes the role of women in nation-
unless they are transformed via legislation. building, and shall ensure the fundamental equality before the
law of women and men.
Philippine Domestic Law in Public International Law
GR: A State cannot invoke its own national law to resist Section 18. The State affirms labor as a primary social economic
an international claim or excuse itself from breach of duty force. It shall protect the rights of workers and promote their
under international law. welfare.

A party may not invoke the provisions of its internal law Section 20. The State recognizes the indispensable role of the
as justification for its failure to perform a treaty. private sector, encourages private enterprise, and provides
incentives to needed investments.
XPN: A state may invoke the fact that its consent to be
bound by a treaty has been expressed in violation of a Article III
provision of its internal law regarding competence to
conclude treaties as invalidating its consent if that

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 The Law Pertaining to the State and Its Relationship with Its Citizens
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
Section 4. 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.
Section 7. The right of the people to information on matters of
public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
Section 8. The right of the people, including those employed in
the public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged.
Section 10. No law impairing the obligation of contracts shall
be passed.
Section 16. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.
Section 18. (2) No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the party shall have
been duly convicted.
Article XII
Section 12. The State shall promote the preferential use of
Filipino labor, domestic materials and locally produced goods,
and adopt measures that help make them competitive.
Article XIII
Section 1. The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all
the people to human dignity, reduce social, economic, and
political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common
good.
To this end, the State shall regulate the acquisition, ownership,
use, and disposition of property and its increments.
Section 2. The promotion of social justice shall include the
commitment to create economic opportunities based on freedom
of initiative and self-reliance.
Section 3. The State shall afford full protection to labor,
local and overseas, organized and unorganized,
and promote full employment and equality of
employment opportunities for all.
It shall guarantee the rights of all workers to self-
organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to
strike in accordance with law. They shall be entitled to
AB
security of tenure, humane conditions of work, and a
living wage. They shall also participate in policy and
decision-making processes affecting their rights and
benefits as may be provided by law.
The State shall promote the principle of shared
responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes,
including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.
The State shall regulate the relations between workers
and employers, recognizing the right of labor to its just
share in the fruits of production and the right of
enterprises to reasonable returns to investments, and to
expansion and growth.
Section 13. The State shall establish a special agency for
disabled persons for their rehabilitation, self-development, and
self-reliance, and their integration into the mainstream of
society.
Section 14. 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.
Article XVI
Section 8. The State shall, from time to time, review to increase
the pensions and other benefits due to retirees of both the
government and the private sectors.
2. Civil Code
ARTICLE 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.
ARTICLE 20. Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify the latter
for the same.
ARTICLE 21. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.
ARTICLE 1700. The relations between capital and labor are not
merely contractual. They are so impressed with public interest
that labor contracts must yield to the common good. Therefore,
such contracts are subject to the special laws on labor unions,
collective bargaining, strikes and lockouts, closed shop, wages,
working conditions, hours of labor and similar subjects.
ARTICLE 1701. Neither capital nor labor shall act oppressively
against the other, or impair the interest or convenience of the
public.
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 The Law Pertaining to the State and Its Relationship with Its Citizens
ARTICLE 1702. In case of doubt, all labor legislation and all
labor contracts shall be construed in favor of the safety and
decent living for the laborer.
ARTICLE 1703. No contract which practically amounts to
involuntary servitude, under any guise whatsoever, shall be
valid.
ARTICLE 1704. In collective bargaining, the labor union or
members of the board or committee signing the contract shall be
liable for non-fulfillment thereof.
ARTICLE 1705. The laborer’s wages shall be paid in legal
currency.
ARTICLE 1706. Withholding of the wages, except for a debt
due, shall not be made by the employer.
ARTICLE 1707. The laborer’s wages shall be a lien on the goods
manufactured or the work done.
ARTICLE 1708. The laborer’s wages shall not be subject to
execution or attachment, except for debts incurred for food,
shelter, clothing and medical attendance.
ARTICLE 1709. The employer shall neither seize nor retain any
tool or other articles belonging to the laborer.
ARTICLE 1710. Dismissal of laborers shall be subject to the
supervision of the Government, under special laws.
3. Labor Code
PD No. 442, as amended
Art. 1. Name of Decree. This Decree shall be known as the
“Labor Code of the Philippines”.
Art. 2. Date of effectivity. This Code shall take effect six (6)
months after its promulgation.
Art. 3. Declaration of basic policy. The State shall afford
protection to labor, promote full employment, ensure equal
work opportunities regardless of sex, race or creed and regulate
the relations between workers and employers. The State shall
assure the rights of workers to self-organization, collective
bargaining, security of tenure, and just and humane conditions
of work.
Art. 4. Construction in favor of labor. All doubts in the
implementation and interpretation of the provisions of this
Code, including its implementing rules and regulations, shall
be resolved in favor of labor.
Art. 5. Rules and regulations. The Department of Labor and
other government agencies charged with the administration
and enforcement of this Code or any of its parts shall
promulgate the necessary implementing rules and regulations.
Such rules and regulations shall become effective fifteen (15)
days after announcement of their adoption in newspapers of
general circulation.
AB
Art. 6. Applicability. All rights and benefits granted to
workers under this Code shall, except as may otherwise be
provided herein, apply alike to all workers, whether agricultural
or non-agricultural. (As amended by Presidential Decree No.
570-A, November 1, 1974)
A. State policy towards labor
Art. 3. Declaration of basic policy. The State shall afford
protection to labor, promote full employment, ensure equal
work opportunities regardless of sex, race or creed and regulate
the relations between workers and employers. The State shall
assure the rights of workers to self-organization, collective
bargaining, security of tenure, and just and humane conditions
of work.
1. Security of tenure
All workers shall be entitled to security of tenure.
Police power allows the State to regulate the grant of the
right to security of tenure.
2. Social Justice
Q: Define Social Justice.
A: Social Justice simply means “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 proximated.” (Calalang vs.
Williams 70 Phil. 726)
This is the aim, reason and justification for the
enactment of labor laws.
Q: While m social justice is the aim, reason and justification
of labor laws, what is the foundation of labor laws?
A: The basis and foundation of labor laws is the police power
of the State. It is the power of the Government to enact
laws, within Constitutional limits, to promote the order,
safety, health, morals and general welfare of society.
3. Equal work opportunities
The State shall ensure equal work opportunities
regardless of sex, race or creed.
The State shall assure the rights of workers to:
a. Self-organization
b. Collective bargaining
c. Security of tenure and
d. Just and humane conditions of
work
4. Right to self-organization and collective
bargaining
The State shall guarantee the right of the people,
including those employed in the public and private
sectors, to form unions, associations or societies for
purposes not contrary to law.
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 The Law Pertaining to the State and Its Relationship with Its Citizens

The State shall guarantee the rights of all workers to self-
organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike
in accordance with law. They shall be entitled to security
tenure, humane conditions of work, and a living wage.
They shall also participate in policy and decision-making
processes affecting their rights and benefits as may be
provided by law.
5. Construction in favor of labor
Q: How should Labor Laws be construed?
A: Under the Article 4 of the Labor Code, as amended, it is
provided: “All doubts in the implementation and
interpretation of the provisions of this Code, including its
implementing rules and regulations, shall be resolved in
favor of labor.”
However, it should not be supposed that every
labor dispute be automatically decided in favor of labor.
The rule is applicable only if there is a doubt as to the
meaning of the legal and contractual provision. If the
provision is clear and unambiguous, it must be applied in
accordance with its express terms.
The law, in protecting the rights of the laborer,
authorizes neither oppression nor self-destruction of the
employer.
6. Burden of proof and quantum of
evidence
Existence of ER-EE Relationship: Employee
Fact of Dismissal: Employee
Validity of Dismissal: Employer
Not every form of control will have the effect of
establishing an employer-employee relationship. A line
should be drawn between:
e. Rules that merely serves as guidelines,
which only promote
the result. In such case, no employer-employee
relationship exist.
f. Rules that fix the methodology and bind
or restrict the party hired to the use of
such means of methods. These address
both the result and means employed to
achieve it and hence, employeremployee
relationship exist.
Cases where employer-employee relationship EXISTS:
a. Jeepney drivers on boundary system
(Martinez vs.
NLRC, 272 SCRA 793)
b. Drivers or helpers of salesman (Alhambra
Industries vs.
CIR, 355 SCRA 553)
c. Handicraft workers on “pakyaw system”
(Dy Keh Beng vs. Int’l. Labor, 90 SCRA 161)
d. Musicians who were engaged by musical
director for background music in making
of movies (LVN vs. Phil.
Musicians Guild, 1 SCRA 132)
e. Tailors, pressers and stitchers in COD
tailoring department (Rosario Bros vs.
Ople)
Cases where employer-employee DOES NOT EXIST:

EXISTENCE OF EMPLOYER-EMPLOYEE
a. Insurance company vis-à-vis
RELATIONSHIP; TESTS commission agents (Insular
Life vs. NLRC, 179 SCRA 459)
FOUR FOLD TEST b. Company vs. Collecting agents on
commission basis
In determining whether a given set of circumstances
(Singer Sewing Machine vs. Drilon,
constitute or exhibit an employer-employee relationship,
193 SCRA 270)
the accepted rule is that the elements or circumstances
relating to the following matters shall be examined and c. Softdrinks company vs. independent
considered: contractors selling softdrinks (Mafinco vs.
a. selection and engagement of the Ople, 70 SCRA 139)
employees d. Shoe shine boys (Besa vs. Trejano, 146
b. payment of wages SCRA 501)
c. power of dismissal e. TV anchors and radio broadcasters and
columnists of newspapers.
d. power to control the employees’ conduct
TERMINATION OF EMPLOYMENT
The “control test” is the most crucial and determinative
indication of the presence or absence of an employer-
What are the JUST CAUSES FOR DISMISSAL?
employee relationship. Absence of such despite the presence
of the other three elements will not suffice for the relationship 1. Serious MISCONDUCT OR WILLFUL
to exist. DISOBEDIENCE by the employee of the lawful
orders of his employer or representative in
connection with his work;

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 The Law Pertaining to the State and Its Relationship with Its Citizens
• Misconduct- transgression of some established
and definite rule of action, a forbidden act, a
dereliction of duty, willful in character, and
implies wrongful intent and not mere error in
judgment. (Dept. of Labor Manual, Sec.
4353.01)
2. Gross and habitual NEGLECT by the employee
of his duties;
3. FRAUD OR WILLFUL BREACH by the
employee of the trust reposed in him by his
employer or duly organized representative
• Fraud must be committed against the
employer or his representative and in
connection with the employee’s work. (Dept.
of Labor Manual, Sec. 4353.01 [3])
4. Commission of a CRIME OR OFFENSE BY THE
EMPLOYEE AGAINST THE PERSON OF HIS
EMPLOYER or any immediate member of his
family or his duly authorized representative;
and
• Conviction or prosecution is not required.
5. Other causes ANALOGOUS to the foregoing.
• A cause must be due to the voluntary or willful
act or omission of the employee. (Nadura v.
Benguet Consolidated, G.R. No. L-17780)
What are the AUTHORIZED CAUSES OF
TERMINATION BY THE EMPLOYER?
1. installation of labor-saving devices
(AUTOMATION)
2. REDUNDANCY (superfluity in the performance
of a particular work)
redundancy, for purposes of the Labor Code,
exists where the services of an employee are
in excess of what is reasonably demanded by
the actual requirements of the enterprise.
(Wiltshire File Co. Inc. vs. NLRC)
3. RETRENCHMENT to prevent losses (there is
excess of employees and employer wants to
prevent financial losses). Requirements:
(a) substantial losses which are not merely de
minimis in extent;
(b) imminence of such substantial losses;
(c) retrenchment would effectively prevent the
expected and additional losses;
(d) the alleged losses and expected losses must be
proven by sufficient and convincing evidence.
4. closing or CESSATION OF OPERATION of the
establishment or undertaking UNLESS the
closing is for the purpose of circumventing the
provisions of the Labor Code.
5. DISEASE
AB
a. the disease is incurable within 6 months and
the continued employment of the employee
is prohibited by law or prejudicial to his
health as well as to the health of his
coemployees
b. with a certification from public heath officer
that the disease is incurable within 6 months
despite due medication and treatment.
TERMINATION BY EMPLOYEE
WITHOUT JUST CAUSE- by serving a
WRITTEN NOTICE on the employer at least one
month in advance. The employer upon whom no
such notice was served may hold the employee
liable for damages.
WITH JUST CAUSE - An employee may put an
end to employment WITHOUT SERVING ANY
NOTICE on the employer for any of the following
just causes:
1. SERIOUS INSULT by the employer or his
representative on the hour and person of the
employee;
2. Inhuman and UNBEARABLE TREATMENT
accorded the employee by the employer or his
representative;
3. Commission of a CRIME OR OFFENSE by the
employer or his representative against the
person of the employee or any of the immediate
members of his family; and
4. Other causes ANALOGOUS to any of the
foregoing.
DISMISSAL, PRESENCE OF JUST/AUTHORIZED
CAUSE AND DUE PROCESS
Four possible situations under AGABON vs. NLRC,
November 17, 2004:
1. If dismissal is for a just/authorized cause and
due process was observed- dismissal is valid and
employer will not suffer any liability.
2. If dismissal is without just/authorized cause but
due process was observed – dismissal is illegal,
apply Art 279 regarding reinstatement and
backwages.
3. If dismissal is without just/authorized cause and
without due process- dismissal is illegal, apply
Art. 279 regarding reinstatement and
backwages.
4. Dismissal is for just/authorized cause but due
process was not observed – Dismissal is valid.
However, Sanctions must be imposed on the
employer. Such sanctions must be stiffer than
that imposed in Wenphil.
Under the WENPHIL DOCTRINE, if the services of
the employee was terminated due to a just or authorized
cause but the affected employee’s right to due process
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 The Law Pertaining to the State and Its Relationship with Its Citizens

has been violated, the dismissal is legal but the employee Components of Retirement Pay:
is entitled to damages by way of indemnification for the a) 15 days based on the employee’s latest
violation of the right. salary
SERRANO vs. ISETANN et al. abandoned the b) 1/12 of the 13th month pay
Wenphil doctrine and ruled that if the employee is c) cash equivalent of the 5 days service
dismissed under just or authorized cause but the affected incentive leave
employee’s right to due process has been violated, his
dismissal becomes ineffectual. Therefore, the employee is Computation: 22.5 days x number of years of service {22.5
entitled to backwages from the time he was dismissed days: 15 days plus 2.5 days representing 1/12 of the 13th month
until the determination of the justness of the cause of the pay plus 5 days of service incentive leave}
dismissal.

The case of AGABON vs. NLRC abandoned the REQUIREMENTS OF VALID LABOR-ONLY
CONTRACTING
Serrano doctrine and REINSTATED THE WENPHIL
DOCTRINE. The sanctions however must be stiffer than There is labor-only contracting where:
that imposed in Wenphil. 1) the person supplying workers to an employer
The Court in the case of JAKA FOOD PROCESSING does not have substantial capital or investment
CORP. vs. PACOT et al., March 28, 2005, said that “If the in the form of tools, equipment, machineries,
dismissal is based on a just cause under Article 282 but work premises, among others; and
the employer failed to comply with the notice
requirement, the sanction to be imposed upon him
2) the workers recruited and placed by such person
are performing activities which are directly
should be tempered because the dismissal process was,
related to the principal business of such
in effect, initiated by an act imputable to the employee;
employer (Baguio, et.al vs. NLRC, et al., 202
and
If the dismissal is based on an authorized cause Requirements:
under Article 283 but the employer failed to comply with
the notice requirement, the sanction should be stiffer 1. Distinct and independent business
because the dismissal process was initiated by the
employer’s exercise of his management prerogative.”
2. Substantial capital or investment
3. Free from control/direction of the principal
What is the TOTALITY OF INFRACTIONS 4. Compliance with labor laws
DOCTRINE ?
Where the employee has been found to have repeatedly RIGHTS OF EMPLOYEES AND OF LABOR
incurred several suspensions or warnings on account of ORGANIZATIONS; MEMBERSHIP IN UNIONS
violations of company rules and regulations, the law The State shall assure the rights of workers to:
warrants their dismissal as akin to “HABITUAL a. Self-organization
DELINQUENCY” (Villeno vs. NLRC, 251 SCRA b. Collective bargaining and negotiations
494) c. Peaceful concerted activities including the right
to strike in accordance with law
d. Security of tenure
When is the STRAINED RELATIONSHIP RULE e. Humane conditions of work
APPLICABLE? f. Living wage
Strained relationship may be invoked ONLY AGAINST g. Participate in policy and decision-making
affecting their rights and benefit as may be
EMPLOYEES WHOSE POSITIONS DEMAND TRUST
provided by law.
AND CONFIDENCE or whose DIFFERENCES WITH
THEIR EMPLOYER ARE OF SUCH NATURE OR Rationale for Unionization:
DEGREE AS TO PRECLUDE The interest of the individual worker can better be protected
REINSTATEMENT (Dimabayao vs. NLRC, 303 SCRA 655). by the union and secure for them the best wages and
It does not apply to ULP cases where the employee was working terms and conditions.
dismissed for union activities.
Rights of Labor Organization:
RETIREMENT (R.A 7641, approved on December 9, a. To represent its members in collective bargaining
1992 – it has a retroactive effect being a curative social b. To be certified as exclusive representative in
legislation) collective bargaining
c. To ask for financial statements
a) Compulsory – upon reaching 65 years of age; with at d. To own property
least 5 years of service e. To sue and be sued
b) Optional – upon reaching 60 years of age; with at least 5 f. To do acts which benefit the organization
years of service; at the option of the employee g. To collect membership fees

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 The Law Pertaining to the State and Its Relationship with Its Citizens
Who cannot Form, Join or assist labor organization
a. Managerial employees
b. Confidential employees
c. Non-employees
d. Member-employee of a cooperative
e. Employees of international organizations
f. High-level government employees
g. Members of AFP, Police officers, policemen,
firemen and jail guards
Note: The right to join union includes right not to join.
MANAGEMENT PREROGATIVES
What are included in the term “management
prerogatives?
a. right to CONDUCT business
b. right to PRESCRIBE RULES
c. right to SELECT and HIRE employees
d. right to TERMINATE employees
e. right to FAIR RETURN OF
INVESTMENT and EXPANSION of
business
Transfer of Employees
• As a general rule, the employer has the
inherent right to transfer or assign an
employee subject only to the condition that it
not be motivated by 1) discrimination or 2) bad
faith (PT&T vs. Laplana, 199 SCRA 485).
• An employee’s right to security of tenure does
not give him such vested right in his position
as would deprive the company of its
prerogative to change his assignment or
transfer him. It is the prerogative of
management to transfer an employee where he
can be most useful to the company (Blue Dairy
Corporation vs. NLRC, 314 SCRA 401).
• Transfer, even if due to promotion, cannot be
done without employee’s consent.
• Re-assignment pending administrative
investigations of irregularities allegedly
committed by an employee fall within the
ambit of management prerogative. The
purpose is no different from that of preventive
suspension which management could validly
impose as disciplinary measure for the
protection of the company’s property pending
investigation of any malfeasance or
misfeasance committed by the employee
(Consolidated Food Corp. vs. NLRC, 315 SCRA
129).
When is there constructive dismissal?
A transfer amounts to constructive dismissal when the
transfer is unreasonable, inconvenient, or prejudicial to the
employee, and involves a demotion in rank or diminution
of salaries, benefits and other privileges.
AB
Management is at liberty, absent any malice on its part,
to abolish positions which it deems no longer necessary.
• It is management prerogative to merge job
functions in line with streamlining of the
company to cut costs even if an employee would
thereby lose his employment due to abolition of
his position.
• Labor laws discourage interference with an
employer’s judgment in the conduct of his
business.
Limitations in the exercise of management prerogatives:
1) imposed by LAW
2) provisions in the COLLECTIVE
BARGAINING AGREEMENT
3) general principles of FAIR PLAY
and JUSTICE
ILLEGAL RECRUITMENT OF OVERSEAS FILIPINO
WORKERS
Illegal recruitment shall mean any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or
procuring workers and includes referring, contract
services, promising or advertising for employment
abroad, whether for profit or not, when undertaken by a
non-license or non-holder of authority contemplated
under Article 13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the
Philippines:
Provided, that any such non-licensee or non-holder who,
in any manner, offers or promises for a fee employment
abroad to two or more persons shall be deemed so
engaged. Illegal recruitment is deemed committed by a
syndicate if carried out by a group of three (3) or more
persons conspiring or confederating with one another. It
is deemed committed in large scale if committed against
three (3) or more persons individually or as a group.
• Undertakes any recruitment activity defined in
Article 13(b), LC without a valid license/
authority.
• Commits any of the prohibited acts in Sec.6
REMEDIES (LABOR STANDARD VIOLATIONS)
The aggrieved party from a decision of the SOLE may file
pne motion for reconsideration within 10 days from
receipt thereof.
If the motion for reconsideration is denied, the party may
appeal via Rule 65 to the CA 60 days from receipt of the
denial. Upon denial, the party may proceed via Rule 45 to
the SC.
Clearly, before a petition for certiorari under Rule 65 may
be availed of, the filing of a motion for reconsideration is
a condition sine qua non to afford an opportunity for the
correction of the error or mistake complained of.
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 The Law Pertaining to the State and Its Relationship with Its Citizens
*END*
Taxation Law
q Basic principles of taxation in the Constitution
q Income tax
q Value-added tax
q Donor’s tax
q Remedies (Jurisdiction of courts, prescription,
remedies against assessment notices)
BASIC PRINCIPLES OF TAXATION
DEFINITION AND CONCEPT OF TAXATION
• Taxation is an inherent power of the sovereign,
exercised through the legislature, to impose burdens
upon subjects and objects within its jurisdiction for
raising revenues to carry out the legitimate objects of
government.
• Taxation is the power by which the sovereign raises
revenue to defray the necessary expenses of
government. It is a way of apportioning the cost of
government among those who in some measure are
privileged to enjoy the benefits and must therefore
bear its burdens.
• It is a “symbiotic” relationship whereby in exchange
for the protection that the citizens get from the
Government, taxes are paid.
NATURE OF TAXATION
• It is an inherent attribute of sovereignty – it co-exists
with the State without the need of Constitutional
conferment.
• Legislative in Character – taxes are grant of the
people who are taxed and the grant must be made by
the immediate representatives of the people.
• Taxation is an awesome power but should not be
exercised arbitrarily. It is subject to inherent and
constitutional limitations to avoid abuses in its
exercise.
PURPOSES OF TAXATION
Main Purpose : TO RAISE REVENUES TO DEFRAY
THE EXPENSES OF GOVERNMENT.
Secondary or non-revenue purposes:
1. Promotion of general welfare
2. Regulation
3. Reduction of Social Equity
4. Encourage Economic growth
5. Protectionism
BASIC PRINCIPLES OF A SOUND TAX SYSTEM
• Fiscal Adequacy – amount of taxes raised must be
able to meet government expenditure.
• Administrative Feasibility – tax laws must be capable
of being easily enforced with the least inconvenience
to the taxpayers.
AB
• Theoretical Justice – taxes must be based on
taxpayer’s ability to pay.
Theory and Basis of Taxation
• Lifeblood theory – without taxes government will not
survive.
• Necessity theory – existence of government is a
necessity which gives it a right to compel all persons
within its jurisdiction to contribute.
• Benefit-protection theory – taxes are what we pay for
civilized society. This is also called the doctrine of
symbiotic relationship.
• Jurisdiction over subjects and objects – the state
exercises jurisdiction over persons, property and
privileges within its defined place of taxation.
PROSPECTIVITY OF TAX LAWS
General Rule: Tax laws are prospective in operation.
XPN: It may operate retroactively:
1. When clearly declared in the statute or
2. When it is clearly the legislative intent.
Retroactive application maybe allowed if it will not
amount to violation of due process. Hence, oppressive
taxes should not be imposed.
PRESCRIPTION OF TAXES
General Rule: Taxes are imprescriptible in the view of
the lifeblood doctrine.
Tax statutes may provide for rules on prescription which
will make the general rule inapplicable.
Prescriptive periods for the assessment and collection of
internal revenue taxes are provided by law. (Sec 203 and
222, NIRC)
DOUBLE TAXATION
Direct Duplicate Taxation – prohibitive double taxation.
Requisites:
1. The same subject matter is taxed twice
2. By the same taxing authority
3. Within the same jurisdiction or taxing district
4. For the same purpose/ same kind of tax
5. During the same taxable period
Indirect Double Taxation – a permissive kind of double
taxation. It arises in the absence of one or more of the
elements of direct double taxation.
CONSTITUTIONALITY OF DOUBLE TAXATION
• There is no prohibition against double taxation in the
Philippines.
• Double taxation becomes obnoxious only where the
taxpayer is taxed twice for the benefit of the same
governmental entity or by the same jurisdiction, for
the same purpose, but not in the case where a tax is
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 The Law Pertaining to the State and Its Relationship with Its Citizens
imposed by the State and the other by the city or
municipality.
ESCAPES FROM TAXATION
1. Shifting of the tax burden – transfer of the burden
by the original payor or the one on whom the tax
was imposed to another or someone else.
2. Tax avoidance – use of legally permissible ways
or methods of assessing a taxable property or
income in order to avoid or reduce tax liability.
3. Tax Evasion – use of pretenses and forbidden
devices to lessen or defeat taxes.
SHIFTING OF TAXES
• Forward Shifting – from producer to consumer
• Backward Shifting – from consumer to producer
• Onward Shifting – tax is shifted two or more times
either forward or backward
• Taxes that can be shifted – indirect taxes i.e. VAT,
Excise tax, other percentage tax, DST
• Impact of Taxation – point on which tax is originally
imposed or the one to whom the tax is formally
assessed. It is where the statutory liability for the tax
lies.
• Incidence of Taxation – point at which the tax burden
finally rests or settles down. It is where the economic
burden of the tax falls.
TAX EXEMPTION
It is a grant of immunity to a particular person or persons
from a tax which persons are generally, within the same
state or taxing district, are obliged to pay.
Construction: Construed in strictissimi juris against the
taxpayer and liberally in favor of the government
Kinds of tax exemption: Express, Implies and Contractual
Revocation:
• An act of liberality which could be taken back by
the granting authority.
• If the tax exemption constitutes a binding
contract and for valuable consideration, the
government cannot unilaterally revoke it.
COMPENSATION OR SET-OFF OF TAXES
• Set-off is inadmissible since a tax liability is a legal,
not a contractual obligation. The government and the
taxpayer are not debtors and creditors of each other.
• Compensation is allowed if both debts and taxes are
overdue, demandable, as well as fully liquidated.
• Doctrine of set-off may be applied when the amount
of debt due from the government to the taxpayer has
been appropriated through legislation, hence,
already due and liquidated.
TAX AMNESTY
• It is a general or intentional overlooking by the
State of its authority to impose penalties on
AB
persons otherwise guilty of evasion or violation
of a revenue or tax law.
• It partakes of an absolute waiver by the
government of its right to collect what is due it
and to give tax evaders who wish to relent a
chance to start with a clean slate.
• Distinction with Tax Exemption:
o Tax amnesty is immunity from all
criminal, civil and administrative
liabilities arising from non-payment of
taxes; while tax exemption is immunity
from civil liability only.
o Tax amnesty is retroactive in application;
while tax exemption is prospective.
INHERENT LIMITATIONS
1. Public purpose
2. Inherently legislative
3. Territoriality or Jurisdictional Requirement
4. International Comity
5. Exemption of Government Entities, Agencies and
Instrumentalities
CONSTITUTIONAL LIMITATIONS
• Provisions Directly Affecting Taxation:
1. Prohibition against imprisonment for non-
payment of poll tax
2. Uniformity and equality of taxation
3. Grant by Congress of authority to the President
to impose tariff rates
4. Prohibition against taxation of religious,
charitable and educational entities
5. Prohibition against taxation of non-stock, non-
profit educational institutions
6. Majority vote of Congress for grant of tax
exemption
7. Prohibition on use of tax levied for special
purpose for general purposes.
8. President’s veto power on appropriation,
revenue or tariff bills
9. Non-impairment of jurisdiction of the Supreme
Court
10. Grant of power to the LGUs to create their own
sources of revenue
11. Flexible tariff clause
12. Exemption from real property taxes
13. No appropriation or use of public money for
religious purposes
• Provisions Indirectly Affecting Taxation:
1. Due Process
2. Equal Protection
3. Press Freedom
4. Religious Freedom
5. Non-impairment of the obligations of contracts
STAGES OF TAXATION
1. Levy – the act of Congress in enacting a law
imposing taxes.
2. Assessment and Collection – refers to the
enforcement of the tax law by the administrative
agencies of the Executive Department.
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 The Law Pertaining to the State and Its Relationship with Its Citizens

3. Payment – act of compliance by the taxpayer, INCOME TAX

including such options, schemes or remedies as
DEFINITION
may be legally available to him.
4. Refund – remedy of seeking reimbursement of a Defined as a tax on all yearly profits arising from
tax erroneously paid or illegally collected. property, professions, trades, or offices, or as a tax on the
person’s income, emoluments, profits and the like. It may
be succinctly defined as a tax on income, whether gross
DEFINITION OF TAXES
or net, realized in one taxable year.
Taxes are:
q Enforced proportional contributions NATURE
q From persons, properties and privileges It is generally classified as an excise tax. It is not levied
q Levied by the law-making body of the State upon persons, property, funds or profits but upon the
q By virtue of its sovereignty right of a person to receive income or profits.
q For the support of the government and public
needs. GENERAL PRINCIPLES (Sec 23, NIRC)
TAXPAYER WITHIN WITHOUT
CHARACTERISTICS OF TAXES Resident TAXABLE TAXABLE
q Levied by the State which has jurisdiction over Citizen
the subject to be taxed Non-resident TAXABLE X
q Levied by the law-making body Citizen and
q Enforced proportional contributions Overseas
Contract
q Generally payable in money
Worker
q Levied on persons, properties or privileges Resident Alien TAXABLE X
q Levied for public purposes Non-Resident TAXABLE X
Alien
REQUISITES OF A VALID TAX Domestic TAXABLE TAXABLE
q Subject or object must be within the jurisdiction Corporation
of the taxing authority Foreign TAXABLE X
q Assessment and collection of taxes must comply Corporation
with due process of law
q Must be collected and used for public purposes INCOME TAX SYSTEMS
q Must be uniform GLOBAL
q Must not infringe on the inherent and Is one where the tax treatment views indifferently the tax
constitutional limitations base and generally treats in common all categories of
taxable income of the TP.
KINDS OF TAXES
SCHEDULAR
q As to subject matter:
Is one where the income tax treatment varies and is made
o Personal, capitation or poll tax
to depend on the kind or category of taxable income of
o Property tax
the TP.
o Excise or privilege tax
q As to who bears the burden
SEMI-SCHEDULAR OR SEMI-GLOBAL TAX
o Direct tax
SYSTEM
o Indirect tax
All compensation income, business or professional
q As to determination of the amount
income, capital gain and passive income not subject to
o Specific final tax, and other income are added together to arrive at
o Ad valorem
the gross income, and after deducting the sum of
o Mixed allowable deductions, the taxable income is subjected to
q As to purpose one set of graduated tax rates or normal corporate income
o General or fiscal tax. With respect to such income the computation is
o Special, regulatory or sumptuary global.
q As to scope or authority to impose
o National tax For those other income not mentioned above, they remain
o Local tax subject to different sets of tax rates and covered by
q As to graduation different returns.
o Progressive
o Regressive NOTE: The Philippines, under the NIRC, follows a semi-
o Mixed schedular and semi-global tax system.

FEATURES OF THE PHILIPPINE INCOME TAX LAW

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q Direct Tax – tax burden is borne by the income q Fringe benefits tax on fringe benefits of
recipient upon whom the tax is imposed. supervisory or managerial employees;
q Progressive – tax rate increases as the tax base q Branch profit remittance tax; and
increases. It is founded on the ability to pay q Tax on improperly accumulated earnings of
principle and is consistent with Sec 28, Article VI, corporations
1987 Constitution.
q Comprehensive – the PH has adopted the most KINDS OF TAXPAYERS
comprehensive system of imposing income tax For income tax purposes, taxpayers are classified
by adopting the citizenship principle, the generally as follows:
residence principle, and the source principle. q Individuals
Any of the three principles is enough to justify the
imposition of income tax on the income of a q Corporations
resident citizen and a domestic corporation that q Estates and Trusts
are taxed on a worldwide income. q Partnerships (General Partnership and General
q Semi-Schedular or Semi-Global Tax System – the Professional Partnerships)
PH follows the semi schedular or semi global tax
system of income taxation, although certain INDIVIDUAL TAXPAYERS
passive investment incomes and capital gains q Citizens
from sale of capital assets (a) shares of stock of o Resident Citizens
domestic corporations and (b) real property are o Non-resident Citizens (Sec 22, NIRC)
subject to final tax rates at preferential tax rates. § PH citizen who establishes to the
satisfaction of the CIR the fact of
CRITERIA IN IMPOSING PH INCOME TAX his physical presence abroad
CITIZENSHIP with a definite intention to reside
A citizen of the PH is subject to PH income tax. therein.
q On his worldwide income, if he resides in the § PH citizen who leaves the PH
Philippines; or during the taxable year to reside
abroad, either as an immigrant
q Only on his income from sources within the PH, or for employment on a
if he qualifies as a non-resident citizen.
permanent basis.
§ PH citizen who works and
RESIDENCE derives income from abroad and
A resident alien is liable to pay PH income tax only on his whose employment thereat
income from sources within the PH but is exempt from requires him to be physically
tax on his income from sources outside the PH. present abroad most of the time
during the taxable year. To be
SOURCE considered physically present
An alien is subject to PH income tax because he derives abroad most of the time during
income from sources within the PH. Thus, a non-resident the taxable year, a contract
alien or non-resident foreign corporation is liable to pay worker must have been outside
PH income tax on income from sources within the PH, the PH for not less than 183 days
such as dividend, interest, rent or royalty, despite the fact during such taxable year.
that he has not set foot in the PH. § PH citizens previously
considered as non-resident
TYPES OF PHILIPPINE INCOME TAX citizen and who arrives during
q Graduated income tax and fixed tax on gross the taxable year to reside
permanently in the PH- Treated
sales or receipts for individuals;
as NRC with respect to his
q Normal corporate income tax on corporations; income derived from sources
q Minimum corporate income tax on corporations; abroad until his arrival in the
q Special income tax on certain corporations; PH.
q Capital gain tax on sale or exchange of unlisted q Aliens
shares of stock of a domestic corporation o Resident Alien – an alien actually present
classified as capital assets; in the PH who is not a mere transient or
q Capital gain tax on sale or exchange of real sojourner is a resident for income tax
property located in the PH classified as a capital purposes.
asset; o Non-resident Alien
q Final withholding tax on certain passive § Engaged in trade or business in
investment income paid to residents; the PH – if the aggregate period
q Final withholding tax on income payments made of his stay in the PH is more than
to non-residents; 180 days during any calendar
year,

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 The Law Pertaining to the State and Its Relationship with Its Citizens
§ Not engaged in trade or business
in the PH – if the aggregate
period of his stay in the PH does
not exceed 180 days.
q Special Classes of Individuals – Minimum Wage
Earner
CORPORATIONS
q Domestic Corporations – a corporation created
and organized in the PH or under its laws.
q Foreign Corporations – a corporation which is
not domestic.
o Resident Foreign Corporations – foreign
corporations engaged in trade or
business within the PH;
o Non-resident Foreign Corporations – FC
not engaged in trade or business within
the PH.
ESTATES AND TRUSTS
Income tax imposed on individuals shall apply to income
of estates or of any kind of property held in trust.
XPN:
1. Employee’s Trust
2. Revocable Trusts
3. Income for Benefit of Grantor
Estate – refers to all the property, rights and obligations
of a person which are not extinguished by his death and
those which have accrued thereto since the opening of the
succession.
Trust – an arrangement created by will or an agreement
under which legal title to property is passed to another
for conservation or investment with income therefrom
and ultimately the corpus to be distributed in accordance
with the directions of the creator as expressed in the
governing instrument.
PARTNERSHIPS
q General Partnerships – a partnership which is not
a general professional partnership. Treated as a
corporation.
q General Professional Partnerships – a partnership
formed by persons for the sole purpose of
exercising their common profession, no part of
the income of which is derived from engaging in
any trade or business.
The partners themselves, not the partnership,
shall be liable for income tax in their separate and
individual capacities. Each partner shall report as
gross income his distributive share, actually or
constructively received, in the net income of the
partnership.
TAXABLE PERIOD
Taxable year means the calendar year, or the fiscal year
ending during such calendar year, upon the basis of
which the net income is computed.
AB
q Calendar year – an accounting period of 12
months ending on the last day of December.
q Fiscal year – an accounting period of 12 months
ending on the last day of any month other than
December/
q Short period – an accounting period which starts
after the first month of the tax year or ends before
the last month of the tax year instances whereby
short accounting period arises
o When corporation is newly organized
o When a corporation is dissolved
o When a corporation changes its
accounting period
o When the TP dies.
GR: taxable income shall be computed based on the TP’s
annual accounting period, which may be fiscal year or
calendar year
XPN: taxable income shall be computed based on the
basis of calendar year only:
1. if the TP’s annual accounting period is other than a
fiscal year;
2. if the TP has no annual accounting period;
3. if the TP does not keep books of accounts; or
4. if the TP’s is an individual
-______
*See Notes: Pre-week Atty Lock
VALUE ADDED TAX
Value-Added Tax is a form of sales tax. It is a tax on
consumption levied on the sale, barter, exchange or lease
of goods or properties and services in the Philippines and
on importation of goods into the Philippines.
It is an indirect tax, which may be shifted or passed on the
buyer, transferee or lessee of goods, properties or
services.
IMPACT (Statutory Burden)
The impact of tax in VAT is with the seller, who has the
burden under the law to pay the tax to the BIR.
INCIDENCE (Economic Burden)
The incidence of tax in VAT is with the buyer, where the
law allows the VAT due on the transaction to be shifted
to the customer/buyer/end-user.
Who are liable for VAT
• Any person or entity who, in the course of his
trade or business, sells, barters, exchanges, leases
goods or properties and renders services subject
to VAT, if the aggregate amount of actual gross
sales or receipts exceed Three Million Pesos
(Php3,000,000.00)
• A person required to register as VAT taxpayer
but failed to register
• Any person, whether or not made in the course of
his trade or business, who imports
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 The Law Pertaining to the State and Its Relationship with Its Citizens

In the course of trade of business – means the regular

conduct or pursuit of a commercial or an economic
activity, including transactions incidental thereto, by any
person regardless of whether or not the person engaged
therein is a non-stock, non-profit private organization, or
government entity
Carrying on business - means conducting, prosecuting
and continuing business by performing progressively all
the acts normally incident thereof;
May VAT paid on reimbursed expense be claimed as
input tax?
No. In the case of CIR v Sony, an advertising expense
duly covered by a VAT invoice is a legitimate business
expense. Moreover, since the advertising expense was
reimbursed by another, the former never incurred any
advertising expense. Hence, not entitled to a tax credit.
Destination Principle / Cross Border Doctrine

Doing business – conveys the idea of business being No VAT shall be imposed to form part of the cost of
done, not from time to time, but all the time. goods destined for consumption outside of the territorial
border of the taxing authority. Hence actual export of
VAT Rates goods and services from the Philippines to a foreign
• On sale of goods and properties – 12 percent of country must be free from VAT. Conversely, those
the gross selling price destined for use or consumption within the Philippines
• On sale of services and use or lease of properties shall be imposed with the 12% VAT.
– 12 % of gross receipts
Thus, exports are subject to 0% VAT rate, while local
• On importation of goods – 12 % based on the total
transactions are subject to 12% VAT.
value used by the Bureau of Customs in
determining tariff and customs duties, plus other
Vatable v. Zero Rated v. Exempt
duties and excise taxes.
• On export sales and other zero-rated sales – 0% of Vatable Zero Rated Exempt
value of goods/ services exported Rate 12% 0% 0%
Registration Required Required Non-VAT
Output v. Input
for VAT
Claim for Allowed Allowed Not
Output – the VAT collected by a VAT registered seller
input Allowed –
on the sale of goods or services from its customers;
VAT paid
forms part
Amount was collected by the VAT seller from its
of cost of
customers in behalf of the government. This amount
goods or
does not form part of the gross sales/gross income of the
services
seller. The amount is to be remitted to the government.
purchased.
Input – the VAT paid on the purchase of goods, services
or importation by a VAT registered seller is Note: While an exporter may be subject to zero-rate, if it
denominated at INPUT VAT. does not register for VAT, it will be treated as VAT
exempt. Its transactions will not be subject to VAT but it
The amount paid to the VAT supplier by a VAT is not qualified to claim for input taxes.
registered purchaser considered as prepaid tax since the
amount paid can be charged or applied against VATABLE TRANSACTIONS
OUTPUT TAX • Sale of GOODS or Properties
o All tangible and intangible objects which
Output Tax = Input Tax No amount payable / are capable of pecuniary estimation, and
excess credit shall include:
Output Tax exceeds Input Excess Output Tax § Real properties held primarily
Tax payable to BIR for sale to customers
Input Tax exceeds Output § Real properties held primarily
Tax for lease in the ordinary course
a. When input tax 1. File for refund of of trade or business
resulted from excess input tax § Right or privilege to use
zero rated or 2. Carry over the • Patent, copyright,
effectively zero excess input tax design or model, plan,
rated or to succeeding secret formula or
effectively zero quarter / period process, goodwill,
rated transactions trademark, trade brand
b. When input tax 1. Carry over the or other like property or
resulted from excess input tax right
VATable to succeeding • Motion picture films,
transactions quarter / period tapes and discs
(12%)
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 The Law Pertaining to the State and Its Relationship with Its Citizens

§ Radio, Television, satellite § Telephone and telegraph, radio

transmission and cable and television broadcasting and
television time all other franchise grantees
• Sale of goods or properties except
o Tax Base = Gross selling price (the total • Subject to Percentage
amount of money or its equivalent which Taxes
the purchase pays or is obligated to pay • Non-life insurance
to the seller; In consideration of the sale, companies
barter or exchange of the goods or • Surety, fidelity,
properties, excluding VAT; the excise indemnity and bonding
tax, if any, on such goods shall form part companies
of the gross selling price. § Similar services regardless of
• Document to support sale of goods – VAT invoice whether or not the performance
• Sale of Services thereof calls for the exercise or
o Performance of all kinds of services in the use of the physical or mental
Philippines for others for a fee, faculties
remuneration or consideration, § Supply of scientific, technical or
including those performed or rendered commercial knowledge or
by: information; Any assistance that
§ Construction and service is ancillary and subsidiary to and
contractors is furnished as a means of
§ Stock, real estate, commercial, enabling the application or
customs, and immigration enjoyment of any such property
brokers or right as mentioned in subpar
§ Lessors or property whether 2 or any knowledge or
personal or real information mentioned in
§ Warehousing services subpar 3.
§ Lessors or distributors of § Supply of services by a non-
cinematographic films resident person or his employee
§ Persons engaged in milling, in connection with the use of
processing, manufacturing or property or rights belonging to
repacking goods for others or the installation or operation of
§ Proprietors, operators or keepers any brand, machinery or other
of hotels, motels, rest houses, apparatus purchased from such
pension houses, inns, resorts non-resident person; Technical
§ Operators of restaurants, advice, assistance or services
refreshment parlors, cafes and rendered in connection with
other eating places, including technical management or
clubs and caterers administration of any scientific,
§ Dealers in securities, lending industrial or commercial
investors undertaking, venture, project or
scheme
§ Transportation contractors on
their transport of goods or § Lease or use of or the right or
cargoes, including persons who privilege to use
transport goods or cargoes for • Any copyright, patent,
hire and other domestic common design or model, plan,
carriers by LAND relative to secret formula or
their transport of goods or process, goodwill,
cargoes trademark, trade brand
§ Common carriers by air and sea or other like property or
relative to their transport of right
PASSENGERS, GOODS, or • Any industrial,
CARGOES from one place in the commercial or scientific
Philippines to another place in equipment
the Philippines • Motion picture films,
§ Sales of electricity by generation films, tapes and discs
companies, transmission by any • Radio, television,
entity and distribution satellite transmission
companies, including electric and cable television time
cooperatives • Lease of properties shall be subject to the tax
§ Services of franchise grantees of herein imposed irrespective of the place where
electric utilities. the contract of lease or licensing agreement was

AB Page 64 of 69
 The Law Pertaining to the State and Its Relationship with Its Citizens
executed if the property is leased or used in the
PH
o Tax Base = Gross receipt (the total
amount of money or its equivalent
representing the contract, price,
compensation, service fee, rental or
royalty, including the amount charged
for materials supplied with the services,
and deposits and advanced payments
actually constructively received during
the taxable quarter.)
o Document to support sale of services =
VAT Official receipts
o NOTE: Patent, copyright, etch both
appeared under goods and services, this
of it’s the product itself that is the subject
of sale, it will be treated as sale of goods
but if only the use thereof is involved, it
will be treated as sale of service.
GRAB DRIVERS, JEEPNEY DRIVERS AND
OPERATORS AND BUS DRIVERS are exempt from
VAT but are subject to Percentage Taxes.
May a VAT exempt entity opt to be registered for VAT?
Yes. A VAT exempt person may elect that pertaining to
VAT exemption not apply to its sales of goods,
properties or services; provided that an election made
under this shall be irrevocable for a period of 3 years
from the quarter the election was made.
Zero Rated Transactions
• On Sale of Goods
o Export Sales
§ Sale and actual shipment of
goods from PH to foreign
country
§ Paid for in acceptable foreign
currency
§ Accounted for in accordance
with the rules and regulations of
the BSP
o Sale and delivery of goods to registered
enterprises within a separated customs
territory under special laws, and
registered enterprises within TIEZA
zones
o Indirect export sales
§ Sale or raw materials or
packaging materials to a non-
resident buyer for delivery to a
resident local export-oriented
enterprise to be used in
manufacturing, processing,
packing or repacking in the PH
of said buyer’s goods and paid
for in acceptable foreign
currency
§ Sale of raw materials or
packaging materials toe export-
oriented enterprise whose
export sales exceed 70% of total
annual production
AB
§ BOI registered companies and
other special laws
o Sale of goods, supplies, equipment and
fuel to persons engaged in international
shipping or international air transport
operations
o Sales to persons or entities whose
exemption under special laws or
international agreements to which the
PH is a signatory effectively subjects
such sales to zero rate
• On Sale of Services
o Processing, manufacturing or repacking
goods for other persons doing business
outside the PH which goods are
subsequently exported
o Services other than in preceding
paragraph rendered to a person engaged
in business conducted outside the PH or
to a non-resident person not engaged in
business but who is outside the PH when
the services are performed.
o Services rendered to persons or entities
whose exemption under special laws or
international agreements to which the
PH is a signatory effectively subjects the
supply of such service to zero rate
o Services rendered to persons engaged in
international shipping or international
air transport operations including leases
of property for use thereof
o Services performed by subcontractors
and/or contractors in processing,
converting or manufacturing goods for
an enterprise whose export sales exceed
70% of total annual production
o Transport of passengers and cargo by
domestic AIR or SEA vessels from the PH
to foreign country
o Sale of power and fuel generated
through renewable sources of energy
such as but not limited to biomass, solar,
wind, hydropower, geothermal, ocean
energy and other emerging energy
sources using technologies such as fuel
cells and hydrogen fuels
o Services rendered to registered
enterprises with a separated customs
territory under special laws and those
registered enterprises within TIEZA
zones
Zero- Rated Effective Zero-Rated
Refers to export of goods Refers to indirect exports
and supply of services where the goods or
services are supplied to
local customers who
actually export their
goods to foreign
destinations
Primarily benefits the Benefits that local
exporters where its sales purchaser/exporter, since
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 The Law Pertaining to the State and Its Relationship with Its Citizens
are not made subject to no VAT will be shifted to
VAT while its input tax it by the local supplier.
on it VAT purchases are
allowed to be claimed for
refund
VAT on Importation
• The VAT due on the importation is levied,
assessed and collected from the importer/buyer,
before release of imported goods from customs
custody
• The VAT paid on importation is treated as INPUT
tax by the VAT registered importer which can be
applied as credit against its VAT liability
• The 12% VAT shall be applicable to all
importations withdrawn from customs territory,
regardless of whether the importer is VAT
registered or not
• The same also applies to technical importation of
goods sold by a person located in Special
Economic Zones to a customer located in a
customs territory.
Transfer of goods by tax exempt persons
In case of tax-free importation of goods into the PH, by
persons, entities or agencies exempt from tax.
• If such tax exempt articles are subsequently sold,
transferred or exchanged in the PH
• To non-exempt persons
• The purchaser, transferee, or recipients shall be
considered the importers thereof
• Who shall be liable for the taxes due on such
importation
Transaction Deemed Sale
• Transfer or consumption not in the course of
business, of goods or properties originally
intended for sale or for use in the course of
business:
o Donation of relief goods coming from
inventory of donor, like water, sardines,
etc of manufacturers/ distributors.
Retailers
o VAT exempt if donation is made to
exempt entities
• Distribution or transfer to
o Shareholders or investors as share in the
profits of the VAT registered person;
o Creditors in payment of debt
• Consignment of goods if actual sale is not made
within 60 days following the date goods were
consigned; consigned goods returned by
consignee within the 60 day period are not
deemed sold
• Retirement from or cessation of business with
respect to inventories of taxable goods existing as
of such retirement or cessation
o Change of ownership
o Dissolution of partnership and creation
of new partnership
AB
• Tax base
o Output tax shall be based on market
value of the goods deemed sold at the
time of occurrence of transactions
o In case of retirement or cessation of
business, the tax base shall be the
acquisition cost or the current market
price of the goods or properties,
whichever is lower.
o In case of a sale where the gross selling
price is unreasonably lower than the fair
market value, the actual market value
shall be the tax base
DONOR’S TAX
Only nonresident alien donor and a nonresident foreign
corporation donor are subject to Donor’s Tax for
donations made covering properties situated in the
Philippines. All other donors are subject to Donor’s Tax
for donations made covering properties wherever
situated.
The tax rate has been reduced to 6% effective January 1,
2018. For Donor’s Tax, the first P250,000 of the donor’s
net gift is exempt from Donor’s Tax.
Rule on reciprocity applies, which exempts transmission
from donor’s tax, if the following conditions are present:
1. Donor is a nonresident alien or nonresident
foreign corporation
2. The subject property is intangible personal
property situated in the Philippines; and
3. The donor at the time of the donation was a
resident of a foreign country which at the time of
the donation did not impose a transfer tax of any
character, in respect of intangible property of
citizens of the PH not residing in that foreign
country; or if the laws of the foreign country of
which the donor was a resident at the time of
donation allows a similar exemption from
transfer tax of every character or description in
respect of intangible personal property owned by
citizens of the Philippines not residing in that
foreign country.
The valuation of the properties subject to Donor’s Tax is
the fair market value at the time of donation.
The deadline to pay the Donor’s Tax is 30 days from the
date the donation is made.
The following are exempt from Donor’s Tax:
1. Gifts made to or for the use of the National
Government or any entity created by any of its
agencies which is not conducted for profit, or to
any political subdivision of the said Government;
and
2. Gifts in favor of an educational and/or
charitable, religious, cultural or social welfare
corporation, institution, accredited
nongovernment organization, trust or
philanthropic organization or research
institutions or organization: Provided, however,
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 The Law Pertaining to the State and Its Relationship with Its Citizens
that more than 30 percent of said gifts shall be
used by such done for administrative purposes.
For the purpose of the exemption, a non-profit
educational and/or charitable corporation,
institution, accredited nongovernment
organization, trust or philanthropic organization
and/or research institution or organization’s is a
school, college or university and/or charitable
corporation, accredited nongovernment
organization, trust or philanthropic organization
and/or research institution or organization,
incorporated as a non-stock entity paying no
dividend, governed by trustees who receive no
compensation, and devoting all its income,
whether students fees or gifts, donation,
subsidies or other forms of philanthropy, to the
accomplishment and promotion of the purposes
enumerated in its Articles of Incorporation.
If a person sells property below its FMV, except for real
property subject to the 6% CGT, the difference between
the FMV and the selling price is considered a donation
subject to donor’s tax. The sale is considered a transfer for
less than an adequate and full consideration in money or
money’s worth.
However, even if the sale is made below its FMV the
transfer will be considered as made for an adequate and
full consideration in money or money’s worth if the sale
is (a) bona fide; (b) at arm’s length; and (c) free from any
donative intent. Thus, the transaction will not be subject
to donor’s tax.
Any contribution in cash or in kind to any candidate,
political party or coalition of parties for campaign
purposes, provided the same is duly reported to the
COMELEC, is exempt from Donor’s Tax.
Unutilized/excess campaign funds, that is, campaign
contributions net of the candidate’s campaign
expenditures, shall be considered as subject to income tax.
Corollary thereto, failure to submit statement of
expenditures to the COMELEC subjects the entire
contributions to income tax. Since, the candidate will be
precluded from claiming expenditures as deductions
from his campaign contributions.
Political contributions which are not utilized during the
campaign period is subject to Donor’s tax. Also, political
contributions made by a foreign corporation is subject to
Donor’s tax.
Renunciation by the surviving spouse of his/her share in
the conjugal partnership or absolute community after the
dissolution of marriage in favor of the heirs of the
deceased spouse or any other person is subject to Donor’s
Tax.
General Renunciation by an heir, including the surviving
spouse, of his/her share in the hereditary estate is not
subject to Donor’s Tax, unless specifically and
categorically done in favor of identified heir/s to the
exclusion or disadvantage of the other co-heirs in the
hereditary estate.
AB
REMEDIES
Importance: It is worthwhile to note that much in the
same way that tax remedies exist to enhance the
Government’s tax collection efforts, they too, come in as
safeguards against arbitrary action. While taxes are the
lifeblood of the Government and should be collected
without unnecessary hindrance, such collection must
nevertheless be made in accordance with law as any
arbitrariness will negate the very reason for Government
itself. (Marcos II v CA)
JURISDICTION OF COURTS
Jurisdiction of Courts over civil tax cases (for collection
of taxes)
Court of Tax Appeals
• Exclusive Original Jurisdiction on civil taxes
where the principal amount of taxes and fees
exclusive of charges and penalties claimed is
P1,000,000 and above
Regional Trial Court, Metropolitan Trial Court and
Municipal Trial Court
• Original jurisdiction on civil tax cases, if less than
P1,000,000 or where no specified amount is
claimed (injunction)
Jurisdiction of Courts over criminal tax cases
Court of Tax Appeals
• Exclusive Original jurisdiction over criminal
violations arising from the NIRC and laws
administered by the BIR where the principal
amount of taxes and fees exclusive of charges and
penalties claimed is P1,000,000 and above
Regional Trial Court, Metropolitan Trial Court and
Municipal Trial Court
• Original jurisdiction over criminal violations
under the NIRC, if less than P1,000,000 or where
no specified amount is claimed.
Principles in Criminal Actions
Assessment is not a pre-requisite in the filing of a
criminal action
• An assessment of a deficiency is not necessary to
a criminal prosecution for willful attempt to
defeat and evade the income tax. A crime is
complete when the violator has knowingly and
willfully filed a fraudulent return with intent to
evade and defeat the tax. The perpetration of the
crime is grounded upon knowledge on the part
of the taxpayer that he has made an inaccurate
return, and the government’s failure to discover
the error and promptly to assess has no
connections with commission of the crime.
The filing of a criminal action is not an implied
assessment by the CIR
• An assessment contains not only a computation
of tax liabilities, but also a demand for payment
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 The Law Pertaining to the State and Its Relationship with Its Citizens
within a prescribed period. It also signals the time
when penalties and interest begin to accrue
against the taxpayer. To enable the taxpayer to
determine his remedies thereon, due process
requires that it must be served on and received
by the taxpayer. Accordingly, an affidavit, which
was executed by revenue officers stating the tax
liabilities of a taxpayer and attached to a criminal
complaint for tax evasion, cannot be deemed an
assessment that can be questioned before the
Court of Tax Appeals.
Court of Tax Appeals
• Exclusive Appellate Jurisdiction
o Decisions of the Commissioner of
Internal Revenue involving:
§ Disputed assessments
§ Refunds of internal revenue
taxes, fees or other charges
§ Other matters arising under the
NIRC or law administered by
BIR
o Inaction by the Commissioner of Internal
Revenue involving”
§ Disputed assessments
§ Refunds of internal revenue
taxes, fees or other charges
§ Other matters arising under the
NIRC or law administered by
BIR
o Decisions orders or resolution of the RTC
in local tax cases originally decided or
resolved by them in the exercise of their
original or appellate jurisdiction
o Decisions of the Commissioner of
Customs involving:
§ Liability for customs duties, fees
or other money charges
§ Seizure, detention or release of
property affected, including
fines related thereto
§ Other matters arising under the
Customs Law or law
administered by BOC
o Decisions of the CBAA in the exercise of
its appellate jurisdiction
o Decisions of the Secretary of Finance on
customs cases elevated to him
automatically for review from decisions
of the Commissioner of Customs which
are adverse to the government under Sec
2315 of the Tariff and Customs Code
o Decisions of the Secretary of Trade and
Industry and Secretary of Agriculture
§ Involving dumping and
countervailing duties under Sec
301 and 302 of the TCC and RA
8800.
AB
PRESCRIPTION
Period of Limitation on Collection
1. If there is an assessment, the period shall be 5
years from the date of assessment.
2. In the absence of an assessment, and a return was
filed as long as it not false or fraudulent, the
period is 5 years form the date the tax is due.
Exceptions to the Prescriptive Periods (on Assessment
and Collection)
1. False or fraudulent return, omission to file a
return
2. If there is an agreement in writing to extend the
period to assess or to collect
Requisites of a Valid Waiver
1. The waiver must not be indefinite. The phrase
“but not after ____ 20__, must be filled up.
2. The waiver must be signed by the TP or his duly
authorized representative.
3. The waiver should be duly notarized.
4. The Cir or officer authorized by him must sign
the waiver indication that the BIR as accepted
and agreed to the waiver.
5. Both the execution by the TP and acceptance by
ICR be made before expiration of the period of
prescription.
6. A copy must be served to the taxpayer.
Suspension of the Prescriptive Periods to Assess or
Collect
1. For the period where the Commissioner or
prohibited from making the assessment or
beginning distraint or levy or a proceeding in
court and 60 days thereafter
2. When the TP requests for a reinvestigation which
is granted by the Commissioner. A request for
reconsideration will not suspend the prescriptive
period to collect.
3. When the taxpayer cannot be located in the
address given by him in the return filed upon
which a tax is being assessed or collected.
4. When warrant of distraint or levy is duly served
and no property could be located.
5. When the taxpayer is out of the PH.
Suspension of Prescription
To suspend the running of the prescriptive period to
collect on the ground of request for reinvestigation by the
taxpayer, two requisites must concur:
a. That the TP requests for reinvestigation, and
b. That the Commissioner grants such request.
If the request was ignored or denied, the same does not
stall the running of the prescriptive period.
Assessment
It is a formal notice to the taxpayer stating that the
amount thereon is due as a tax and containing a demand
for the payment thereof.
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 The Law Pertaining to the State and Its Relationship with Its Citizens

It contains: A protest must be filed within thirty (30) days from

1. Computation of tax liabilities receipt of the final assessment notice.
2. A demand for payment within a prescribed
period
A protest may come in two (2) forms:
An affidavit, executed by revenue officers stating the tax
liabilities of a taxpayer and attached to a criminal
complaint for tax evasion, cannot be deemed an a. Request for Reinvestigation – where the
taxpayer would introduce newly discovered
assessment that can be questioned before the CTA.
evidence;
b. Request for Reconsideration – where the
Requisites of a valid assessment
taxpayer would invoke misappreciation of
1. It must be made within the prescriptive period to facts, misapplication of law or both.
assess
2. There must be a preliminary assessment
previously issued except those instances allowed
by law A protest filed out of time will make the assessment final,
3. The TP must be informed in writing about the executory and demandable. The late protest will not
facts and the law on which the assessment is suspend the prescriptive period to collect.
based.
4. It must be served upon TP or any of his *END*
authorized representatives.

When a Preliminary Assessment not required

1. Assessment is a result of mathematical error in
computation appearing on the face of the return
2. Excess taxes per return was opted to be refunded but
found to have been carried over
3. Under remittance of taxes withheld
4. Nonpayment of excise taxes one excisable articles
found in the possession of the taxpayer
5. Goods imported by a tax-exempt person but found in
the possession of a taxable person.

Period of Limitation on Assessment

• Within three (3) years after the deadline for filing of
the return. Where the return is filed beyond the
deadline, the three year period shall be counted from
the day the return was filed. (Sec 203)
• If no return is filed or a return was filed but said
return is false or fraudulent, assessment shall be
made within ten years from discovery of the omission
to file or discovery of the falsity or fraud. (Sec 203)

When is an assessment deemed made?

It is the date when the demand letter or notice of
assessment is released, mailed or sent to the taxpayer that
constitutes an actual assessment

REMEDIES AGAINST AN ASSESSMENT

• Remedy before payment – this comes in the form of
administrative protest (Sec 228). Only a FAN can be
the subject of a PROTEST.
• Remedy after payment – Claim for refund or
erroneously paid taxes pursuant to Sec 204 and Sec
229 of the NIRC.
• Payment under Protest – This is not required under
the NIRC. A taxpayer must always choose between
the two options of PROTEST or REFUND.

PROTESTING AN ASSESSMENT

AB Page 69 of 69