GN 2021 - Political Law

G
O
L
D
E
N
N O TES
2021
POLI
TICAL LAW
POLITICAL LAW
2021 GOLDEN NOTES

FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS
MANILA
The UST GOLDEN NOTES is the annual student-edited bar review
material of the University of Santo Tomas, Faculty of Civil Law.
Communications regarding the Notes should be addressed to the
Academics Committee of the Team: Bar-Ops.
Address: Academics Committee

UST Bar Operations
Faculty of Civil Law
University of Santo Tomas
España, Manila 1008
Tel. No: (02) 731-4027

(02) 406-1611 loc. 8578
Academics Committee
Faculty of Civil Law
University of Santo Tomas
España, Manila 1008
All rights reserved by the Academics Committee of the Faculty of Civil Law of the
Pontifical and Royal University of Santo Tomas, the Catholic University of the
Philippines.
2021 Edition.
No portion of this material may be copied or reproduced in books, pamphlets, outlines

or notes, whether printed, mimeographed, typewritten, copied in different electronic
devises or in any other form, for distribution or sale, without a written permission.
A copy of this material without the corresponding code either proceeds from an illegal
source or is in possession of one who has no authority to dispose the same.
Released in the Philippines, 2021.

ACADEMIC YEAR 2020-2021
CIVIL LAW STUDENT COUNCIL
LYODYCHIE Q. CAMARAO PRESIDENT
MARIA FRANCES FAYE R. GUTIERREZ VICE PRESIDENT INTERNAL
STEPHEN FLOYD A. GOPEZ VICE PRESIDENT EXTERNAL
KRYSTAL GAYLE R. DIGAY SECRETARY
NATHAN RAPHAEL D.L. AGUSTIN TREASURER
GIAN JUSTIN E. VERONA PUBLIC RELATIONS OFFICER
IRIS ABIGAIL C. PORAQUE CHIEF-OF-STAFF
UST BAR-OPS
KRIZA NIÑA B. MALALUAN CHAIRPERSON
ELISHA ELAINE D. BAYOT VICE-CHAIRPERSON INTERNAL
JOSEPHINE GRACE W. ANG VICE CHAIRPERSON EXTERNAL
MARINETTE M. SOBREVILLA SECRETARY
SARAH ANGELA D. EVA HEAD, PUBLIC RELATIONS OFFICER
REBECCA JOY M. MALITAO HEAD, FINANCE COMMITTEE
JEDIDIAH R. PADUA HEAD, HOTEL ACCOMMODATIONS COMMITTEE
SABINA MARIA H. MABUTAS ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
JOEMARI MATHEW R. AGARIN HEAD, LOGISTICS COMMITTEE
JOHN FREDERICK A. NOJARA LOGISTICS COMMITTEE
KIER JOHN V. UY LOGISTICS COMMITTEE
CHRISTINE JOYCE P. ANDRES SENIOR MEMBER
ELOUISA ANN D.C. CARREON SENIOR MEMBER
NICOLE MARIE A. CORTES SENIOR MEMBER
PATRICIA MAE D. GUILLERMO SENIOR MEMBER
GLENN MATTHEW C. MANLAPID SENIOR MEMBER
CIARI T. MENDOZA SENIOR MEMBER
MARYLOU RENZI M. OLOTEO SENIOR MEMBER
LOUELLE JUDE B. QUE SENIOR MEMBER
JAMES ROSS L. TAN SENIOR MEMBER
ATTY. AL CONRAD B. ESPALDON

ADVISER
ACADEMICS COMMITTEE 2021
MARIA FRANCES FAYE R. GUTIERREZ SECRETARY GENERAL
NATHAN RAPHAEL D.L. AGUSTIN ASST. SECRETARY GENERAL
JOHN EDWARD F. FRONDA EXECUTIVE COMMITTEE
ANGEL ISAH M. ROMERO EXECUTIVE COMMITTEE
KIRBY ANNE C. RENIA EXECUTIVE COMMITTEE
KAREN ABBIE C. ASPIRAS EXECUTIVE COMMITTEE
JOSE CHRISTIAN ANTHONY I. PINZON EXECUTIVE COMMITTEE
MARIA FRANCES FAYE R. GUTIERREZ LAYOUT ARTIST
CIARI T. MENDOZA COVER DESIGN ARTIST
POLITICAL LAW COMMITTEE 2021

MARIA CRISANTA M. PALOMA
POLITICAL LAW COMMITTEE HEAD
FRANCINE BLAISE M. LOJA ASST. HEAD POLITICAL LAW

PEARL ANNE M. GUMAPOS ASST. HEAD CONSTITUTIONAL LAW
EVIENNE MARIE T. CORDERO ASST. HEAD LAW ON PUBLIC OFFICERS AND
ADMINISTRATIVE LAW
HAILORD N. LAVARIAS ASST. HEAD PUBLIC CORPORATIONS
MICHAEL GINO D. AZURIN ASST. HEAD PUBLIC INTERNATIONAL LAW
MEMBERS
PATRICIA INGRID M. SEE KATHERINE S. POLICARPIO
EDELITO E. MERCENE JR. BRYAN JAY L. SANTOS
POTENCIANO CLARITO C. CHAVEZ PIA AILA D. MARTINEZ
HANNAH JOY C. IBARRA EXEQUIEL S. BELLOSILLO
MARIA MARGARITA G. SANTIAGO RALPH REYNAN F. ACOSTA
JULIENNE CELINE G. OGAYON GERBIE DIANE D. DAYAO
ANGELIE S. COMELON SHARA MAE D. MACALINAO
JESSICA MAE T. JUNIO

ADVISER
ACADEMICS COMMITTEE 2020
AYA DOMINIQUE S. CAPARAS SECRETARY GENERAL
MARIA FRANCES FAYE R. GUTIERREZ ASST. SECRETARY GENERAL
RUTH MAE G. SANVICTORES EXECUTIVE COMMITTEE
NICOLE G. AMANTE EXECUTIVE COMMITTEE
JAYSON GABRIEL R. SORIANO EXECUTIVE COMMITTE
CARA ANGELA N. FLORES EXECUTIVE COMMITTEE
IANA CASSANDRA Y. ESMILE EXECUTIVE COMMITTEE
AYA DOMINIQUE S. CAPARAS LAYOUT ARTIST
CIARI T. MENDOZA COVER DESIGN ARTIST
POLITICAL LAW COMMITTEE

JOSE CHRISTIAN ANTHONY I. PINZON
POLITICAL LAW COMMITTEE HEAD
PATRICIA CLAIRE UMALI ASST. HEAD POLITICAL LAW

ISA FLORENTINO ASST. HEAD CONSTITUTIONAL LAW
KAREN ASPIRAS ASST. HEAD LAW ON PUBLIC OFFICERS AND
ADMINISTRATIVE LAW
MARIA CRISANTA M. PALOMA ASST. HEAD PUBLIC CORPORATIONS
WINONA KEELY E. BALUYOT ASST. HEAD PUBLIC INTERNATIONAL LAW
MEMBERS
SHARA MACALINAO BEATRICE FANGON
CLAREBETH RAMOS RALPH REYNAN ACOSTA
MA. ALYANNA DELOS SANTOS NICOLO B. BONGOLAN
CARMINA DIETA RIZANNE RAFAEL

ADVISER
FACULTY OF CIVIL LAW
ACADEMIC OFFICIALS
ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAÑO, O.P.

DEAN REGENT
ATTY. ARTHUR B. CAPILI

FACULTY SECRETARY
ATTY. ELGIN MICHAEL C. PEREZ

LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC
JUDGE PHILIP A. AGUINALDO

SWDB COORDINATOR
LENY G. GADIANA, R.G.C.

GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR
MENTORS AND INSPIRATION
Justice Amy Lazaro-Javier
Justice Oswaldo D. Agcaoili
Judge Charito M. Sawali
Atty. Carlo L. Cruz
Atty. Enrique V. Dela Cruz
Atty. Rene B. Gorospe
Atty. Victoria V. Loanzon
Atty. Rafaelito M. Garayblas
Atty. Anicia C. Marquez
Atty. Edwin R. Sandoval
Atty. Mauricio C. Ulep
For being our guideposts in understanding the intricate sphere of Political Law.
-Academics Committee 2021
DISCLAIMER
THE RISK OF USE OF THIS BAR

REVIEW MATERIAL SHALL BE
BORNE BY THE USER
TABLE OF CONTENTS
POLITICAL LAW
I. THE 1987 CONSTITUTION ............................................................................................................................................................... 1

A. NATURE AND CONCEPT OF A CONSTITUTION................................................................................................................................... 1
B. PARTS OF A CONSTITUTION ........................................................................................................................................................................ 1
C. AMENDMENTS AND REVISIONS ................................................................................................................................................................ 1
D. METHODS OF INTERPRETING THE CONSTITUTION....................................................................................................................... 3
II. BASIC CONCEPTS................................................................................................................................................................................ 3

A. DECLARATION OF PRINCIPLES AND STATE POLICIES .................................................................................................................. 3
B. SOVEREIGNTY ..................................................................................................................................................................................................... 8
C. STATE IMMUNITY.............................................................................................................................................................................................. 9
D. SEPARATION OF POWERS ..........................................................................................................................................................................13
E. CHECKS AND BALANCES ..............................................................................................................................................................................15
F. DELEGATION OF POWERS...........................................................................................................................................................................16
G. FUNDAMENTAL POWERS OF THE STATE...........................................................................................................................................17
1. POLICE POWER ........................................................................................................................................................................................17
2. EMINENT DOMAIN .................................................................................................................................................................................19
3. TAXATION ...................................................................................................................................................................................................23
III. NATIONAL TERRITORY................................................................................................................................................................ 29
IV. CITIZENSHIP ..................................................................................................................................................................................... 31

A. KINDS OF CITIZENSHIP, PURPOSE OF DISTINGUISHING CITIZENSHIP AND KINDS OF CITIZENSHIP ................31
B. WHO ARE CITIZENS........................................................................................................................................................................................32
C. WHO CAN BE CITIZENS.................................................................................................................................................................................32
D. MODES OF ACQUIRING CITIZENSHIP....................................................................................................................................................32
E. MODES OF LOSING AND RE-ACQUIRING PHILIPPINE CITIZENSHIP .....................................................................................33
F. DUAL CITIZENSHIP AND DUAL ALLEGIANCE....................................................................................................................................34
V. LEGISLATIVE DEPARTMENT ....................................................................................................................................................... 34

A. LEGISLATIVE POWER ...................................................................................................................................................................................34
1. SCOPE AND LIMITATIONS .................................................................................................................................................................35
2. PRINCIPLE OF NON-DELEGABILITY; EXCEPTIONS ...............................................................................................................35
B. CHAMBERS OF CONGRESS ..........................................................................................................................................................................36
1. SENATE AND HOUSE OF REPRESENTATIVES ..........................................................................................................................36
2. HOUSE OF REPRESENTATIVES ........................................................................................................................................................38
a. DISTRICT REPRESENTATIVES AND QUESTIONS OF APPORTIONMENT ................................................................38
b. PARTY-LIST SYSTEM (RA No. 7941) .........................................................................................................................................39
C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS ..................................................................................43
D. QUORUM AND VOTING MAJORITIES ....................................................................................................................................................45
E. DISCIPLINE OF MEMBERS ...........................................................................................................................................................................46
F. PROCESS OF LAW-MAKING ......................................................................................................................................................................47
G. ELECTORAL TRIBUNALS AND THE ........................................................................................................................................................49
COMMISSION ON APPOINTMENTS ..............................................................................................................................................................49
1. NATURE .......................................................................................................................................................................................................49
2. POWERS .......................................................................................................................................................................................................49
H. POWERS OF CONGRESS................................................................................................................................................................................53
1. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS ....................................................................................................53
2. NON-LEGISLATIVE .................................................................................................................................................................................56
a. INFORMING FUNCTION ...................................................................................................................................................................56
b. POWER OF IMPEACHMENT ...........................................................................................................................................................57
I. INITIATIVE AND REFERENDUM ................................................................................................................................................................58
VI. EXECUTIVE DEPARTMENT..........................................................................................................................................................59
A. QUALIFICATIONS, ELECTION, AND TERM OF THE PRESIDENT AND VICE-PRESIDENT.............................................59
B. PRIVILEGES, INHIBITIONS AND DISQUALIFICATIONS.................................................................................................................60
1. PRESIDENTIAL IMMUNITY ................................................................................................................................................................60
2. PRESIDENTIAL PRIVILEGE ...............................................................................................................................................................61
C. POWERS OF THE PRESIDENT ....................................................................................................................................................................64
1. GENERAL EXECUTIVE AND ADMINISTRATIVE POWERS ...................................................................................................64
2. POWER OF APPOINTMENT ................................................................................................................................................................64
a. IN GENERAL...........................................................................................................................................................................................64
b. LIMITATIONS ON THE EXERCISE / POWER OF APPOINTMENT ................................................................................65
c. TYPES OF APPOINTMENT...............................................................................................................................................................65
3. POWER OF CONTROL AND SUPERVISION ..................................................................................................................................67
a. DOCTRINE OF QUALIFIED POLITICAL AGENCY ..................................................................................................................68
b. EXECUTIVE DEPARTMENTS AND OFFICES ...........................................................................................................................68
c. LOCAL GOVERNMENT UNITS........................................................................................................................................................68
4. EMERGENCY POWERS ..........................................................................................................................................................................69
5. COMMANDER-IN-CHIEF POWERS ..................................................................................................................................................69
a. CALLING OUT POWERS ....................................................................................................................................................................69
b. DECLARATION OF MARTIAL LAW AND SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS; EXTENSION.............................................................................................................................................................................69
6. EXECUTIVE CLEMENCY .......................................................................................................................................................................72
a. NATURE AND LIMITATIONS .........................................................................................................................................................72
b. FORMS OF EXECUTIVE CLEMENCY ...........................................................................................................................................74
7. DIPLOMATIC POWER ............................................................................................................................................................................75
8. POWERS RELATIVE TO APPROPRATION MEASURES ..........................................................................................................76
9. DELEGATED POWERS ...........................................................................................................................................................................76
10. RESIDUAL POWERS.............................................................................................................................................................................76
11. VETO POWERS .......................................................................................................................................................................................77
D. RULES OF SUCCESSION ................................................................................................................................................................................77
VII. JUDICIAL DEPARTMENT.............................................................................................................................................................78

A. CONCEPTS ...........................................................................................................................................................................................................78
1. JUDICIAL POWER ....................................................................................................................................................................................78
2. JUDICIAL REVIEW ...................................................................................................................................................................................78
a. REQUISITES OF JUDICIAL REVIEW (ALEN) ...........................................................................................................................79
b. OPERATIVE FACT DOCTRINE .......................................................................................................................................................82
c. POLITICAL QUESTION DOCTRINE ..............................................................................................................................................82
B. JUDICIAL INDEPENDENCE AND AUTONOMY ....................................................................................................................................83
C. APPOINTMENTS TO THE JUDICIARY .....................................................................................................................................................84
1. QUALIFICATIONS OF MEMBERS OF THE JUDICIARY ............................................................................................................84
2. JUDICIAL AND BAR COUNCIL (JBC)................................................................................................................................................85
a. COMPOSITION OF THE JBC ............................................................................................................................................................85
b. POWERS OF THE JBC.........................................................................................................................................................................85
D. THE SUPREME COURT .................................................................................................................................................................................85
1. COMPOSITION OF THE SUPREME COURT ..................................................................................................................................85
2. POWERS AND FUNCTIONS OF THE SUPREME COURT ........................................................................................................86
VIII. CONSTITUTIONAL COMMISSIONS.........................................................................................................................................87

A. COMMON PROVISIONS..................................................................................................................................................................................87
B. INSTITUTIONAL INDEPENDENCE SAFEGUARDS ............................................................................................................................87
C. POWERS AND FUNCTIONS ..........................................................................................................................................................................88
D. COMPOSITION AND QUALIFICATIONS .................................................................................................................................................89
E. PROHIBITED OFFICES & INTERESTS .....................................................................................................................................................91
IX. BILL OF RIGHTS ...............................................................................................................................................................................91

A. CONCEPT OF BILL OF RIGHTS...................................................................................................................................................................91
1. PRIVACY AND AUTONOMY.................................................................................................................................................................91
2. RELATION TO HUMAN RIGHTS........................................................................................................................................................91
B. DUE PROCESS OF LAW ..................................................................................................................................................................................91
1. CONCEPT OF RIGHTS TO LIFE, LIBERTY, AND PROPERTY ................................................................................................91
2. KINDS OF DUE PROCESS......................................................................................................................................................................92
a. SUBSTANTIVE DUE PROCESS .......................................................................................................................................................92
b. PROCEDURAL DUE PROCESS ........................................................................................................................................................94
i. JUDICIAL DUE PROCESS ...............................................................................................................................................................95
c. LEVELS OF SCRUTINY .......................................................................................................................................................................96
C. EQUAL PROTECTION OF LAWS.................................................................................................................................................................97
1. CONCEPT OF EQUAL PROTECTION OF LAWS...........................................................................................................................97
2. REQUISITES FOR VALID CLASSIFICATION .................................................................................................................................97
3. LEVELS OF SCRUTINY (2015 BAR) ................................................................................................................................................98
D. RIGHT AGAINST UNREASONABLE..........................................................................................................................................................99
1. CONCEPT OF PRIVACY..........................................................................................................................................................................99
2. CONCEPT OF SEARCH ...........................................................................................................................................................................99
3. REQUISITES FOR A VALID WARRANT ..........................................................................................................................................99
4. WARRANTLESS SEARCHES (2000, 2009, 2015 BAR) ........................................................................................................ 102
5. WARRANTLESS ARRESTS AND DETENTION ......................................................................................................................... 105
6. EXCLUSIONARY RULE ........................................................................................................................................................................ 106
7. EFFECTS OF UNREASONABLE SEARCHES AND SEIZURES ............................................................................................. 106
8. EFFECTS OF ILLEGAL DETENTION ............................................................................................................................................. 106
E. PRIVACY OF COMMUNICATION AND CORRESPONDENCE ...................................................................................................... 107
1. CONCEPT OF COMMUNICATIONS, CORRESPONDENCE ................................................................................................... 107
2. INTRUSION, WHEN AND HOW ALLOWED............................................................................................................................... 107
3. EXCLUSIONARY RULE ....................................................................................................................................................................... 110
F. FREEDOM OF SPEECH AND EXPRESSION......................................................................................................................................... 110
1. CONCEPT OF FREEDOM OF SPEECH AND EXPRESSION .................................................................................................. 110
a. CONTINUUM OF THOUGHT, SPEECH, EXPRESSION, AND SPEECH ACTS ............................................................ 111
B. PURPOSES OF FREE SPEECH DOCTRINES........................................................................................................................................ 111
C. BALANCE BETWEEN UNBRIDLED EXPRESSION AND LIBERTY ........................................................................................... 111
2. TYPES OF REGULATION.................................................................................................................................................................... 113
a. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT ................................................................................................. 113
b. CONTENT-BASED AND CONTENT-NEUTRAL REGULATIONS ................................................................................... 115
c. INCITEMENT AND ADVOCACY .................................................................................................................................................. 116
d. SPECIFICITY OF REGULATION AND OVERBREADTH DOCTRINE ........................................................................... 116
e. SPEECH REGULATION IN RELATION TO ELECTION ...................................................................................................... 117
f. SPEECH REGULATION IN RELATION TO MEDIA .............................................................................................................. 118
3. JUDICIAL ANALYSIS, PRESUMPTIONS AND LEVELS AND TYPES OF SCRUTINY.................................................. 119
4. SPECIAL TOPICS IN FREE EXPRESSION CASES ..................................................................................................................... 119
a. HATE SPEECH .................................................................................................................................................................................... 119
b. DEFAMATION AND LIBEL ........................................................................................................................................................... 119
c. SEDITION AND SPEECH IN RELATION TO REBELLION ................................................................................................ 119
d. OBSCENITY / PORNOGRAPHY .................................................................................................................................................. 119
e. COMMERCIAL SPEECH .................................................................................................................................................................. 120
f. NATIONAL EMERGENCIES ........................................................................................................................................................... 121
g. SPEECH OF PUBLIC OFFICERS................................................................................................................................................... 121
5. COGNATE RIGHTS ................................................................................................................................................................................ 121
a. FREEDOM OF ASSEMBLY ............................................................................................................................................................. 121
b. FREEDOM OF ASSOCIATION ...................................................................................................................................................... 121
c. FREEDOM OF INFORMATION .................................................................................................................................................... 122
G. FREEDOM OF RELIGION ............................................................................................................................................................................ 124
1. BASIC PRINCIPLES............................................................................................................................................................................... 124
a. PURPOSE OF FREEDOM OF RELIGION .................................................................................................................................. 124
b. CONCEPT OF RELIGION ................................................................................................................................................................ 124
2. PRINCIPLE OF SEPARATION OF CHURCH AND STATE ..................................................................................................... 124
3. NON-ESTABLISHMENT CLAUSE ................................................................................................................................................... 125
4. FREE EXERCISE CLAUSE ................................................................................................................................................................... 126
H. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT................................................................................................................ 128
1. SCOPE AND LIMITATIONS ............................................................................................................................................................... 128
2. WATCH-LIST AND HOLD DEPARTURE ORDERS .................................................................................................................. 129
I. EMINENT DOMAIN ........................................................................................................................................................................................ 131
J. NON-IMPAIRMENT OF CONTRACTS..................................................................................................................................................... 131
K. ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS ....................................................................................... 132
I. RIGHT AGAINST SELF-INCRIMINATION............................................................................................................................................. 132
1. SCOPE AND COVERAGE ..................................................................................................................................................................... 133
2. APPLICATION ......................................................................................................................................................................................... 133
3. IMMUNITY STATUTES ....................................................................................................................................................................... 133
M. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION ................................................................................................. 133
1. AVAILABILITY........................................................................................................................................................................................ 134
2. REQUISITES FOR A PERSON TO BE PLACED UNDER CUSTODIAL INVESTIGATION .......................................... 135
3. WAIVER ..................................................................................................................................................................................................... 135
N. RIGHTS OF THE ACCUSED........................................................................................................................................................................ 136
1. CRIMINAL DUE PROCESS ................................................................................................................................................................. 136
2. BAIL............................................................................................................................................................................................................. 136
3. PRESUMPTION OF INNOCENCE .................................................................................................................................................... 137
4. RIGHT TO BE HEARD.......................................................................................................................................................................... 137
5. ASSISTANCE OF COUNSEL ............................................................................................................................................................... 137
6. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION ............................................................ 137
7. RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL ........................................................................................................ 138
8. RIGHT TO CONFRONTATION ......................................................................................................................................................... 138
9. COMPULSORY PROCESS.................................................................................................................................................................... 138
10. TRIALS IN ABSENTIA....................................................................................................................................................................... 138
O. RIGHT TO SPEEDY DISPOSITION OF CASES .................................................................................................................................... 138
P. RIGHTS AGAINST EXCESSIVE FINES AND CRUEL AND INHUMAN PUNISHMENTS .................................................... 140
Q. NON-IMPRISONMENT FOR DEBTS ...................................................................................................................................................... 140
R. RIGHT AGAINST DOUBLE JEOPARDY ................................................................................................................................................. 141
1. REQUISITES; SCOPE OF DOUBLE JEOPARDY ......................................................................................................................... 141
2. LIMITATIONS OF DOUBLE JEOPARDY....................................................................................................................................... 141
S. RIGHT AGAINST INVOLUNTARY SERVITUDE ................................................................................................................................. 143
T. EX POST FACTO LAW AND ........................................................................................................................................................................ 143
X. LAW ON PUBLIC OFFICERS ........................................................................................................................................................ 144

A. GENERAL PRINCIPLES ............................................................................................................................................................................... 144
B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE ...................................................................................................................... 146
C. MODES AND KINDS OF APPOINTMENT ............................................................................................................................................ 146
D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS ................................................................................................................ 149
E. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS ........................................................................................................... 150
F. POWERS AND DUTIES OF PUBLIC OFFICERS ................................................................................................................................. 153
G. RIGHTS OF PUBLIC OFFICERS ................................................................................................................................................................ 153
H. LIABILITIES OF PUBLIC OFFICERS ...................................................................................................................................................... 154
1. PREVENTIVE SUSPENSION AND BACK SALARIES............................................................................................................... 155
2. ILLEGAL DISMISSAL, REINSTATEMENT, AND BACK SALARIES ................................................................................... 156
I. IMMUNITY OF PUBLIC OFFICERS .......................................................................................................................................................... 159
J. DE FACTO AND DE JURE OFFICERS........................................................................................................................................................ 160
K. TERMINATION OF OFFICIAL RELATION .......................................................................................................................................... 161
L. CIVIL SERVICE ................................................................................................................................................................................................ 165
1. SCOPE ......................................................................................................................................................................................................... 165
2. APPOINTMENTS TO THE CIVIL SERVICE ................................................................................................................................. 166
3. PERSONNEL ACTIONS ....................................................................................................................................................................... 169
M. ACCOUNTABILITY OF PUBLIC OFFICERS ........................................................................................................................................ 169
1. TYPES OF ACCOUNTABILITY ......................................................................................................................................................... 169
a. ADMINISTRATIVE ACCOUNTABILITY OF PUBLIC OFFICERS .................................................................................... 170
b. CRIMINAL ACCOUNTABILITY OF PUBLIC OFFICERS ..................................................................................................... 172
2. THE OMBUDSMAN AND THE OFFICE OF THE SPECIAL PROSECUTOR .................................................................... 172
3. THE SANDIGANBAYAN...................................................................................................................................................................... 176
N. TERM LIMITS.................................................................................................................................................................................................. 179
XI. ADMINISTRATIVE LAW ............................................................................................................................................................. 180

A. GENERAL PRINCIPLES ............................................................................................................................................................................... 180
B. ADMINISTRATIVE AGENCIES ................................................................................................................................................................. 181
C. POWERS OF ADMINISTRATIVE AGENCIES ...................................................................................................................................... 183
1. RULE-MAKING POWER ..................................................................................................................................................................... 183
a. KINDS OF ADMINISTRATIVE RULES AND REGULATIONS .......................................................................................... 185
b. REQUISITES FOR VALIDITY ........................................................................................................................................................ 185
2. ADJUDICATORY POWER ................................................................................................................................................................... 186
a. ADMINISTRATIVE DUE PROCESS ............................................................................................................................................ 188
b. ADMINISTRATIVE APPEAL AND REVIEW ........................................................................................................................... 189
c. ADMINISTRATIVE RES JUDICATA............................................................................................................................................. 189
3. FACT-FINDING, INVESTIGATIVE, LICENSING AND RATE-FIXING POWERS.................................................................... 190
D. JUDICIAL REVIEW ........................................................................................................................................................................................ 191
1. DOCTRINE OF PRIMARY ADMINISTRATIVE JURISDICTION .......................................................................................... 193
2. DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES................................................................................... 194
3. DOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION ................................................................................................. 196
XII. ELECTION LAW ........................................................................................................................................................................... 196

A. SUFFRAGE ........................................................................................................................................................................................................ 196
1. QUALIFICATION AND DISQUALIFICATION OF VOTERS ................................................................................................... 197
2. REGISTRATION AND DEACTIVATION OF VOTERS.............................................................................................................. 198
3. INCLUSION AND EXCLUSION PROCEEDINGS......................................................................................................................... 200
4. LOCAL AND OVERSEAS ABSENTEE VOTING .......................................................................................................................... 200
5. DETAINEE VOTING.............................................................................................................................................................................. 201
B. POLITICAL PARTIES .................................................................................................................................................................................... 201
1. JURISDICTION OF COMELEC OVER POLITICAL PARTIES ................................................................................................ 201
2. REGISTRATION OF POLITICAL PARTIES.................................................................................................................................. 201
C. CANDIDACY...................................................................................................................................................................................................... 202
1. QUALIFICATIONS AND DISQUALIFICATIONS OF CANDIDATES ................................................................................... 202
2. FILING OF CERTIFICATES OF CANDIDACY ............................................................................................................................. 204
a. EFFECT OF FILING ........................................................................................................................................................................... 204
b. SUBSTITUTION AND WITHDRAWAL OF CANDIDATES ................................................................................................ 204
c. NUISANCE CANDIDATES .............................................................................................................................................................. 206
d. EFFECT OF DISQUALIFICATION OF CERTIFICATE OF CANDIDACY ....................................................................... 206
D. CAMPAIGN ....................................................................................................................................................................................................... 206
1. PREMATURE CAMPAIGNING.......................................................................................................................................................... 207
2. PROHIBITED CONTRIBUTIONS ..................................................................................................................................................... 207
3. LAWFUL AND PROHIBITED ELECTION PROPAGANDA .................................................................................................... 207
4. LIMITATIONS ON EXPENSES .......................................................................................................................................................... 208
5. STATEMENT OF CONTRIBUTIONS AND EXPENDITURES (SOCE) ............................................................................... 208
E. BOARD OF ELECTION INSPECTORS AND BOARD OF CANVASSERS.................................................................................... 208
1. COMPOSITION ....................................................................................................................................................................................... 208
F. REMEDIES AND JURISDICTION IN ELECTION LAW..................................................................................................................... 209
1. PETITION NOT TO GIVE DUE COURSE TO OR CANCEL A CERTIFICATE OF CANDIDACY................................ 209
2. PETITION FOR DISQUALIFICATION ........................................................................................................................................... 209
3. FAILURE OF ELECTION, CALL OF SPECIAL ELECTION...................................................................................................... 210
4. PRE-PROCLAMATION CONTROVERSY ...................................................................................................................................... 211
5. ELECTION PROTEST ........................................................................................................................................................................... 213
6. QUO WARRANTO ................................................................................................................................................................................... 214
XIII. LOCAL GOVERNMENTS ........................................................................................................................................................... 215
A. AUTONOMOUS REGIONS AND THEIR RELATION TO THE NATIONAL GOVERNMENT ............................................. 215
B. PUBLIC CORPORATIONS ........................................................................................................................................................................... 216
1. PUBLIC CORPORATIONS DISTINGUISHED FROM GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS
............................................................................................................................................................................................................................ 216
2. CLASSIFICATIONS OF PUBLIC CORPORATIONS ................................................................................................................... 217
a. QUASI-CORPORATIONS ................................................................................................................................................................ 217
b. MUNICIPAL CORPORATIONS ..................................................................................................................................................... 217
ii. ELEMENTS ...................................................................................................................................................................................... 217
ii. NATURE AND FUNCTIONS...................................................................................................................................................... 217
iii. REQUISITES FOR CREATION, CONVERSION, DIVISION, MERGER, OR DISSOLUTION ............................. 218
C. PRINCIPLE OF LOCAL AUTONOMY ...................................................................................................................................................... 219
D. POWERS OF LOCAL GOVERNMENT UNITS...................................................................................................................................... 221
1. GENERAL WELFARE CLAUSE ......................................................................................................................................................... 221
2. EMINENT DOMAIN .............................................................................................................................................................................. 226
3. TAXING POWER .................................................................................................................................................................................... 230
4. CLOSURE AND OPENING OF ROADS ........................................................................................................................................... 234
5. LEGISLATIVE POWER ........................................................................................................................................................................ 234
a. REQUISITES FOR VALID ORDINANCE ................................................................................................................................... 236
b. LOCAL INITIATIVE AND REFERENDUM............................................................................................................................... 238
6. ULTRA VIRES ACTS ............................................................................................................................................................................. 239
7. CORPORATE POWERS ....................................................................................................................................................................... 240
8. LIABILITY OF LGUs.............................................................................................................................................................................. 241
9. SETTLEMENT OF BOUNDARY DISPUTES................................................................................................................................. 243
10. LOCAL OFFICIALS .............................................................................................................................................................................. 245
a. VACANCIES AND SUCCESSION .................................................................................................................................................. 245
b. DISCIPLINE ........................................................................................................................................................................................ 247
i. ELECTIVE OFFICIALS .................................................................................................................................................................. 247
ii. APPOINTIVE OFFICIALS........................................................................................................................................................... 248
11. RECALL ................................................................................................................................................................................................... 249
12. TERM LIMITS....................................................................................................................................................................................... 251
XIV. NATIONAL ECONOMY AND PATRIMONY ......................................................................................................................... 252

A. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES ........................................................ 254
B. FRANCHISES, AUTHORITY, AND CERTIFICATES FOR PUBLIC UTILITIES ....................................................................... 255
C. ACQUISITION, OWNERSHIP AND TRANSFER OF PUBLIC AND PRIVATE LANDS ......................................................... 256
D. PRACTICE OF PROFESSIONS................................................................................................................................................................... 258
E. ORGANIZATION AND REGULATION OF CORPORATIONS, PRIVATE AND PUBLIC ....................................................... 259
F. MONOPOLIES, RESTRAINT OF TRADE, AND UNFAIR COMPETITION ................................................................................ 259
XV. SOCIAL JUSTICE AND HUMAN RIGHTS ............................................................................................................................... 260

A. CONCEPT OF SOCIAL JUSTICE ................................................................................................................................................................ 260
B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS ............................................................................................................................... 261
C. COMMISSION ON HUMAN RIGHTS ....................................................................................................................................................... 261
1. POWERS AND FUNCTIONS OF CHR............................................................................................................................................. 262
2. COMPOSITION AND QUALIFICATIONS OF MEMBERS OF THE CHR ........................................................................... 262
XVI. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE AND SPORTS ................................................................. 263
A. ACADEMIC FREEDOM................................................................................................................................................................................. 263
XVII. PUBLIC INTERNATIONAL LAW .......................................................................................................................................... 265

A. CONCEPTS ........................................................................................................................................................................................................ 265
B. RELATIONSHIP BETWEEN INTERNATIONAL AND NATIONAL LAW ................................................................................. 266
C. SOURCES OF INTERNATIONAL LAW .................................................................................................................................................. 268
1. ARTICLE 38, INTERNATIONAL COURT OF JUSTICE STATUTE ...................................................................................... 268
2. EFFECT OF UNITED NATIONS DECLARATIONS, SECURITY COUNCIL RESOLUTIONS ...................................... 271
3. EFFECTS OF ACTIONS OF ORGANS OF INTERNATIONAL ORGANIZATIONS CREATED BY TREATY ......... 271
D. SUBJECTS OF INTERNATIONAL LAW ................................................................................................................................................. 271
1. STATES ...................................................................................................................................................................................................... 272
2. INTERNATIONAL ORGANIZATIONS (IOs) ............................................................................................................................... 277
3. INDIVIDUALS.......................................................................................................................................................................................... 278
4. OTHER SUBJECTS OF INTERNATIONAL LAW........................................................................................................................ 279
E. JURISDICTION OF STATES ........................................................................................................................................................................ 279
1. BASIS OF JURISDICTION ................................................................................................................................................................... 279
a. TERRITORIALITY PRINCIPLE .................................................................................................................................................... 280
b. NATIONALITY PRINCIPLE AND STATELESSNESS........................................................................................................... 280
c. PROTECTIVE PRINCIPLE .............................................................................................................................................................. 280
d. UNIVERSALITY PRINCIPLE ......................................................................................................................................................... 280
e. PASSIVE PERSONALITY PRINCIPLE ....................................................................................................................................... 281
2. EXEMPTIONS FROM JURISDICTION............................................................................................................................................ 281
a. ACT OF STATE DOCTRINE ........................................................................................................................................................... 281
AND ITS OFFICERS ............................................................................................................................................................................... 281
F. DIPLOMATIC AND CONSULAR LAW .................................................................................................................................................... 282
G. NATIONALITY AND STATELESSNESS................................................................................................................................................. 287
H. GENERAL PRINCIPLES OF TREATY LAW ......................................................................................................................................... 288
I. DOCTRINE OF STATE RESPONSIBILITY ............................................................................................................................................. 294
J. REFUGEES .......................................................................................................................................................................................................... 296
K. TREATMENT OF ALIENS ........................................................................................................................................................................... 296
1. EXTRADITION ........................................................................................................................................................................................ 296
a. FUNDAMENTAL PRINCIPLES ..................................................................................................................................................... 297
b. PROCEDURE ....................................................................................................................................................................................... 297
c. DISTINGUISHED FROM DEPORTATION ................................................................................................................................ 297
L. INTERNATIONAL HUMAN RIGHTS LAW ........................................................................................................................................... 298
1. UNIVERSAL DECLARATION OF HUMAN RIGHTS ................................................................................................................. 299
2. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.............................................................................. 299
3. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ............................................... 301
M. INTERNATIONAL HUMANITARIAN LAW ........................................................................................................................................ 301
1. CATEGORIES OF ARMED CONFLICT ........................................................................................................................................... 303
a. INTERNATIONAL ARMED CONFLICT..................................................................................................................................... 303
b. INTERNAL OR NON-INTERNATIONAL ARMED CONFLICT ......................................................................................... 304
c. WAR OF NATIONAL LIBERATION ............................................................................................................................................ 304
2. CORE INTERNATIONAL OBLIGATIONS OF STATES UNDER THE IHL........................................................................ 309
3. PRINCIPLE OF INTERNATIONAL HUMANITARIAN LAW ................................................................................................. 310
a. TREATMENT OF CIVILIANS ........................................................................................................................................................ 310
b. PRISONERS OF WAR....................................................................................................................................................................... 310
4. LAW ON NEUTRALITY ....................................................................................................................................................................... 311
N. LAW OF THE SEA .......................................................................................................................................................................................... 312
1. BASELINES............................................................................................................................................................................................... 312
2. ARCHIPELAGIC STATES .................................................................................................................................................................... 313
a. STRAIGHT ARCHIPELAGIC BASELINES ................................................................................................................................ 313
b. ARCHIPELAGIC WATERS ............................................................................................................................................................. 314
c. ARCHIPELAGIC SEA LANES PASSAGE .................................................................................................................................... 315
d. REGIME OF ISLANDS ...................................................................................................................................................................... 315
3. INTERNAL WATERS............................................................................................................................................................................ 315
4. TERRITORIAL SEA ............................................................................................................................................................................... 315
5. CONTIGUOUS ZONE ............................................................................................................................................................................ 318
6. EXCLUSIVE ECONOMIC ZONE ........................................................................................................................................................ 319
7. CONTINENTAL SHELF ....................................................................................................................................................................... 320
8. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA .............................................................................................. 324
O. INTERNATIONAL ENVIRONMENTAL LAW .................................................................................................................................... 327
1. PRINCIPLE 21 OF THE STOCKHOLM DECLARATION......................................................................................................... 327
2. PRECAUTIONARY PRINCIPLE ........................................................................................................................................................ 328
Political Law
I. I. THE 1987 CONSTITUTION B. PARTS OF A CONSTITUTION
A. NATURE AND CONCEPT OF A CONSTITUTION 1. Liberty – provisions prescribing the fundamental

civil and political rights of citizens and the
Meaning of a Constitution limitations on the powers of government to enjoy
those rights.
Constitution is appropriately defined by Justice
Malcolm as “the written instrument enacted by direct 2. Government – provisions outlining the
action of the people by which the fundamental powers organization of the government, enumerating its
of the government are established, limited, and powers, laying down certain rules relative to its
defined, and by which those powers are distributed administration, and defining the electorate.
among the several departments for their safe and
useful exercise for the benefit of the body politic.” 3. Sovereignty – provisions on the mode or
(Cruz and Cruz, Constitutional Law 2015 Ed., p. 3) procedure in accordance with which formal
changes in the fundamental law may be brought
Doctrine of Constitutional Supremacy about. (Nachura, Outline Reviewer in Political
Law, 2014 Ed., p. 3)
Under this doctrine, if a law or contract violates any
norm of the Constitution, that law or contract, C. AMENDMENTS AND REVISIONS
whether promulgated by the legislative or by the
executive branch or entered into by private persons Amendment vs. Revision
for private purposes, is null and void and without any
force and effect. Since the Constitution is the BASIS AMENDMENT REVISION
fundamental, paramount, and supreme law of the An isolated or A revamp or
nation, it is deemed written in every statute and piecemeal rewriting of the
contract. (Manila Prince Hotel v. GSIS, G.R. No. change by whole instru-
122156, February 3, 1997) adding, deleting, ment, altering
Definition or reducing the substantial
Essential Qualities of the Written Constitution without altering entirety of the
(Bro-Bri-D) the basic Constitution.
principles
1. It must be Broad. It should provide for the entire involved.
governmental organization, cover all persons and
things within State territory, embody the past, Tests to determine whether a proposed change is
reflect the present, and anticipate the future. an amendment or a revision
2. It must be Brief, having the basic principles to be 1. Quantitative test – Is the proposed change so
implemented with legislative details more extensive in its provisions as to change directly
adjustable to change and easier to amend. the ‘substantial entirety’ of the Constitution by
the deletion or alteration of numerous existing
3. It must be Definite to avoid confusion and provisions?
divisiveness among the people.
2. Qualitative test – Will the change accomplish
XPN: Provisions deliberately worded in a such far reaching changes in the nature of our
vague manner, like the due process basic governmental plan as to amount to a
clause, as to make them more malleable revision? (Lambino v. Comelec, G.R. No. 174153,
to judicial interpretation in light of new October 25, 2006)
circumstances.

2021 GOLDEN NOTES
1
I. THE 1987 CONSTITUTION
PROCEDURE TO AMEND OR REVISE THE CONSTITUTION
BASIS CONSTITUENT CONSTITUTIONAL PEOPLE’S INITIATIVE

ASSEMBLY (ConAss) CONVENTION (ConCon)
How proposed By Congress, acting as 1. By Congress, upon a vote of By the people, upon a petition
Constituent Assembly 2/3 of ALL its members (to thru a plebiscite (at least 12%
upon a vote of ¾ of ALL call for a ConCon); OR of the TOTAL number of
its members (2014 2. By Congress, upon a registered voters, of which
Bar) majority vote of ALL its every legislative district must
members to submit to the be represented by 3% of the
Electorate the question of registered voters therein (1987
calling a ConCon (+Plebiscite) Constitution, Art. XVII, Sec. 2)
(1987 Constitution, Art. XVII, (+Full text of the proposed
Sec. 3) amendments attached in the
petition)
NOTE: Although the
law is silent on whether NOTE: Although the law is NOTE: No amendment shall be
the voting is done silent on whether the voting is authorized more than once
separately or jointly, done separately or jointly, the every five years thereafter.
the prevailing view is prevailing view is for separate
for separate voting as voting as the Congress is
the Congress is bicameral.
bicameral.
Coverage Amendment or Revision Amendment ONLY
Legal 1. Manner of Proposal; or Propositions can be declared
Questions 2. Manner of calling ConCon null and void for violation of
(Subject to - This is a case where Congress, acting as a ConAss, calls the Constitution.
Judicial for a ConCon but does not provide details for the calling of
Review) such ConCon, and Congress, in exercising its ordinary
legislative power, may supply such details.
Political Substance of the
Questions proposal.
Whether ConAss or ConCon should initiate the
amendment or revision.
Limits No amendment be authorized
oftener than once every 5
years (1987 Constitution, Art.
XVII, Sec. 2).

2021 GOLDEN NOTES 2
Political Law
Ratification 1. When it is expressly provided that a legislative
act is necessary to enforce a constitutional
Amendments or revisions to the Constitution by mandate; and
Constituent Assembly or Constitutional Convention 2. Provisions merely expressing general principles
shall be valid when ratified by a majority of the votes like:
cast in a plebiscite which shall be held not earlier than
a. Art. II: "Declaration of Principles and State
60 days nor later than 90 days after the approval of
Policies"
such amendment or revision.
b. Art. XIII: "Social Justice and Human Rights"
Amendments by People’s Initiative shall be valid c. Art. XIV: "Education Science and
when ratified by a majority of the votes cast in a Technology, Arts, Culture end Sports”
plebiscite which shall be held not earlier than 60 days (Manila Prince Hotel v. GSIS, G.R. 122156,
nor later than 90 days after the certification by the Feb. 3, 1997)
COMELEC of the sufficiency of the petition.
NOTE: Such provisions are not ready for
Requisites for a valid Ratification enforcement through the courts but are used by the
(Ple-Su-Re)
judiciary as aids or guides in the exercise of its
power of judicial review, and by the legislature in
1. Held in a Plebiscite conducted under the its enactment of laws. (Tondo Medical Employees
Election Law; Association v. CA, G.R. No. 167324, July 17, 2007)
2. Supervised by COMELEC; and
3. Only Registered voters take part. XPN to the XPN:
Doctrine of Proper Submission 1. Sec. 16, Art. II: Right to a balanced and
healthful ecology (Oposa v. Factoran, G.R. No.
Under this doctrine, there should be no piece-meal 101083, July 30, 1993)
submission to the people of proposed amendments to 2. Sec. 17, Art. III: Right to information (Manila
the Constitution. This is to enable them to make an Prince Hotel v. GSIS, G.R. No. 122156, Feb. 3,
intelligent appraisal thereof. (Tolentino v. COMELEC,
1997); and
G.R. No. L-34150, October 16, 1971) 3. Sec. 10, Art. XII: Filipino First Policy. (Manila
Prince Hotel v. GSIS, G.R. No. 122156, Feb. 3,
D. METHODS OF INTERPRETING THE 1997)
CONSTITUTION
NOTE: In case of doubt, the provisions of the
1. Verba legis – whenever possible, the words used Constitution should be construed as self-executing;
in the Constitution must be given their ordinary mandatory rather than directory and prospective
meaning. rather than retroactive. (Cruz and Cruz, Constitutional
2. Ratio legis et anima – where there is ambiguity, Law, p. 8)
the words of the Constitution must be
interpreted in accordance with the intent of the II. BASIC CONCEPTS
framers.
3. Ut magis valeat quam pereat – the Constitution
must be interpreted as a whole. A. DECLARATION OF PRINCIPLES AND STATE
POLICIES
Self-executing provision
Republican State (1996 BAR)
A provision which is complete by itself and becomes
operative without the aid of supplementary or The Philippines is a democratic and republican State.
enabling legislation. Sovereignty resides in the people and all government
authority emanates from them. (Sec. 1, Art. II, 1987
GR: All provisions of the Constitution are self- Constitution)
executory.
A state wherein all government authority emanates
Rationale: A contrary rule would give the legislature from the people and is exercised by representatives
discretion to determine when, or whether, they shall chosen by the people. (Dissenting Opinion of Justice
be effective. These provisions would be subordinated Puno, Tolentino v. COMELEC, G.R. No. 148334, January
to the will of the lawmaking body, which could make 21, 2004)
them entirely meaningless by simply refusing to pass
the needed implementing statute. (Manila Prince Hotel Manifestations of Republicanism (La-R-A-Bi-L-S)
v. GSIS, G.R. 122156, Feb. 3, 1997)
1. Ours is a government of Laws and not of men.
XPN: 2. Rule of Majority (Plurality in elections)
3. Accountability of public officials
4. Bill of Rights
5. Legislature cannot pass irrepealable laws
3
II. BASIC CONCEPTS
6. Separation of powers All existing treaties or international agreements
which have not been ratified shall not be renewed or
NOTE: The Philippines is not only a representative or extended without the concurrence of at least two-
republican state but also shares some aspects of thirds of all the Members of the Senate. (Sec. 4, Art.
direct democracy that accords to the citizens a greater XVIII, 1987 Constitution)
participation in the affairs of the government such as
people’s initiative and referendum, the right to After the expiration in 1991 of the Agreement
information on matters of public concern, etc. between the Republic of the Philippines and the
United States of America concerning military bases,
Constitutional Authoritarianism foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly
As understood and practiced in the Marcos regime concurred in by the Senate and, when the Congress so
under the 1973 Constitution, it is the assumption of requires, ratified by a majority of the votes cast by the
extraordinary powers by the President including people in a national referendum held for that purpose,
legislative and judicial and even constituent powers. and recognized as a treaty by the other contracting
State. (Sec. 25, Art. XVIII, 1987 Constitution)
Compatibility of constitutional authoritarianism
with a republican state Policies of the State on the following:
Constitutional authoritarianism is compatible with a 1. Working women – 1987 Constitution, Sec. 14, Art.
republican state if the Constitution upon which the XIII: "The State shall protect working women by
Executive bases his assumption of power is a providing safe and healthful working conditions,
legitimate expression of the people’s will and if the taking into account their maternal functions, and
Executive who assumes power received his office such facilities and opportunities that will
through a valid election by the people. enhance their welfare and enable them to realize
their full potential in the service of the nation."
State policy on war
2. Ecology – 1987 Constitution, Sec. 16, Art. II: “The
The State renounces war as an instrument of national State shall protect and advance the right of the
policy. (Sec. 2, Art. II, 1987 Constitution) people and their posterity to a balanced and
healthful ecology in accord with the rhythm and
NOTE: The Philippines does not renounce defensive harmony of nature."
war because it is duty bound to defend its citizens.
Under the Constitution, the prime duty of the Q: The residents of Taguig City brought a
government is to serve and protect the people. complaint before Laguna Lake Development
Authority (LLDA) about an open garbage dumpsite
Voting requirements to declare the existence of a in their city and sought its closure due to its
state of war harmful effects on health and the pollution it
brings to the lake. Upon investigation, LLDA
1. 2/3 vote of both Houses discovered that the Taguig City Government has
2. In joint session been maintaining the said dumpsite without an
3. Voting separately (Sec. 23, Art. VI, 1987 Environmental Compliance Certificate from the
Constitution) Environmental Management Bureau of the DENR,
and also found the water to have been directly
NOTE: Even though the legislature can declare an contaminated by the dumpsite operations. Then,
existence of war and enact measures to support it, the LLDA, under RA 4850, issued a “cease and desist”
actual power to engage in war is lodged, nonetheless, order against the City Government to completely
in the executive. stop the dumping of any form or kind of waste
matter to the dumpsite. Does the LLDA have the
Independent Foreign Policy and a nuclear-free power and authority to issue a “cease and desist”
Philippines order under RA 4850 enjoining the dumping of
garbage in Taguig City?
The State shall pursue an independent foreign policy.
In its relations with other states, the paramount A: YES. In the exercise, therefore, of its express
consideration shall be national sovereignty, territorial powers under its charter as a regulatory and quasi-
integrity, national interest, and the right to self- judicial body with respect to pollution cases in the
determination. (Sec. 7, Art. II, 1987 Constitution) Laguna Lake region, the authority of the LLDA to issue
a “cease and desist” order is implied and need not
The Philippines, consistent with the national interest, necessarily be express. Moreover, the immediate
adopts and pursues a policy of freedom from nuclear response to the demands of "the necessities of
weapons in its territory. (Sec. 8, Art. II, 1987 protecting vital public interests" gives vitality to the
Constitution) statement on ecology embodied in Art. II, Sec. 16 of
the Constitution which provides: The State shall
NOTE: This pertains to use of nuclear weapons and
protect and advance the right of the people to a
not nuclear source of energy.
balanced and healthful ecology in accord with the

2021 GOLDEN NOTES 4
Political Law
rhythm and harmony of nature. As a constitutionally Constitutional provision on transparency in
guaranteed right of every person, it carries the matters of public concern (2000 BAR)
correlative duty of non-impairment.
The 1987 Constitution provides for a policy of
Hence, the issuance of the cease and desist order by transparency in matters of public interest:
the LLDA is a proper exercise of its power and (D-I-R-Saln-A)
authority under its charter and in consonance with
the declared policy of the state to protect and 1. Policy of full public Disclosure of government
promote the right to health of the people and instill transactions. (1987 Constitution, Art. II, Sec. 28)
health consciousness among them. (Laguna Lake 2. Right to Information on matters of public
Development Authority v. CA, G.R. No. 110120, March concern. (1987 Constitution, Art. III, Sec. 7)
16, 1994) 3. Access to the Records and books of account of
the Congress. (1987 Constitution, Art. VI, Sec. 20)
3. The symbols of statehood – Flag of the Philippines. (2000 Bar)
(1987 Constitution, Art. XVI, Sec. 1) 4. Submission of Statement of Assets, Liabilities,
and Net worth (SALN). (1987 Constitution, Art.
Name of the country, National Anthem, and XI, Sec. 17)
National Seal. (1987 Constitution, Art. XVI, Sec. 2) 5. Access to information on foreign loans obtained
or guaranteed by the government. (1987
4. Cultural minorities – Recognition and Promotion Constitution, Art. XII, Sec. 21)
of Rights of Indigenous Cultural Communities.
(1987 Constitution, Art. II, Sec. 22) (1994, 1996 NOTE: These provisions on public disclosures are
BAR) intended to enhance the role of the citizenry in
governmental decision-making as well as in checking
Protection of Ancestral Lands of Indigenous abuse in government. (Valmonte v. Belmonte, G.R. No.
Communities. (1987 Constitution, Art. XII, Sec. 5) 74930, February 13, 1989)
Application of Principles of Agrarian Reform and Right of Parents to Rear their Children
Stewardship to Indigenous Communities and
Landless Farmers. (1987 Constitution, Art. XIII, The natural and primary right and duty of parents in
Sec. 6) the rearing of the youth for civic efficiency and the
development of moral character shall receive the
Preservation and Development of the Culture, support of the Government. (Sec. 12, Art. II, 1987
Traditions, and Institutions of Indigenous Constitution)
Communities. (1987 Constitution, Art. XIV, Sec. 17)
NOTE: The rearing of children (i.e., referred to as the
5. Science and technology – Priority to Education, "youth") for civic efficiency and the development of
Science and Technology, Arts, Culture, and their moral character are characterized not only as
Sports. (1987 Constitution, Art. II, Sec. 17) (1992, parental rights, but also as parental duties. This
1994 Bar) means that parents are not only given the privilege of
exercising their authority over their children; they are
Development of national talents consisting of equally obliged to exercise this authority
Filipino scientists, entrepreneurs, professionals, conscientiously. For indeed, it is during childhood that
managers, high-level technical manpower and minors are prepared for additional obligations to
skilled workers and craftsmen. (1987 society.
Constitution, Art. XII, Sec. 14)
"[T]he duty to prepare the child for these [obligations]
Mandate on educational institutions. [1987 must be read to include the inculcation of moral
Constitution, Art. XIV, Sec. 3] standards, religious beliefs, and elements of good
citizenship." "This affirmative process of teaching,
Priority to research and development, invention, guiding, and inspiring by precept and example is
innovation of science and technology. (1987 essential to the growth of young people into mature,
Constitution, Art. XIV, Sec. 10) socially responsible citizens." (SPARK, Et. al. vs.
Quezon City, GR No. 225442, August 08, 2017)
Incentives, tax deductions, and scholarships to
encourage private participation in programs of Q: Three cities in Metro Manila passed ordinances
basic and applied scientific research. (1987 that impose curfew on minors in their respective
Constitution, Art. XIV, Sec. 11) jurisdictions. Petitioners argue that the Curfew
Ordinances are unconstitutional because they
Encouragement of widest participation of private deprive parents of their natural and primary right
groups, local governments, and organizations in in rearing the youth without substantive due
the generation and utilization of science and process. Is the petitioners’ contention proper?
technology. (1987 Constitution, Art. XIV, Sec. 12)
A: NO. While parents have the primary role in child-
rearing, it should be stressed that "when actions
5
II. BASIC CONCEPTS
concerning the child have a relation to the public Constitutional provisions which ensure civilian
welfare or the well-being of the child, the State may supremacy
act to promote these legitimate interests. Thus, in
cases in which harm to the physical or mental health 1. By the installation of the President, the highest
of the child or to public safety, peace, order, or welfare civilian authority, as the commander-in-chief of
is demonstrated, these legitimate state interests may all the armed forces of the Philippines. (1987
override the parents' qualified right to control the Constitution, Art. VII, Sec. 18)
upbringing of their children.
2. Through the requirement that members of the
As our Constitution itself provides, the State is AFP swear to uphold and defend the
mandated to support parents in the exercise of these Constitution, which is the fundamental law of a
rights and duties. State authority is, therefore, not civil government. (1987 Constitution, Art. XVI,
exclusive of, but rather, complementary to parental Sec. 5, Par. 1)
supervision.
NOTE: By civilian supremacy, it is meant that civilian
It should be emphasized that the Curfew Ordinances authority is, at all times, supreme over the military.
apply only when the minors are not— whether (2003, 2006, 2009 BAR)
actually or constructively— accompanied by their
parents. This serves as an explicit recognition of the Mandatory rendition of military services to
State's deference to the primary nature of parental defend the State
authority and the importance of parents' role in child-
rearing. Parents are effectively given unfettered One cannot avoid compulsory military service by
authority over their children's conduct during curfew invoking one’s religious convictions or by saying that
hours when they are able to supervise them. Thus, in he has a sick father and several brothers and sisters to
all actuality, the only aspect of parenting that the support. Accordingly, the duty of government to
Curfew Ordinances affects is the parents' prerogative defend the State cannot be performed except through
to allow minors to remain in public places without an army. To leave the organization of an army to the
parental accompaniment during the curfew hours. will of the citizens would be to make this duty to the
(SPARK, Et. al. vs. Quezon City, GR No. 225442, August Government excusable should there be no sufficient
8, 2017) men who volunteer to enlist therein. The right of the
Government to require compulsory military service is
Incorporation Clause a consequence of its duty to defend the State and is
reciprocal with its duty to defend the life, liberty, and
The Philippines adopts the generally accepted property of the citizen. (People v. De Sosa, G.R. No. L-
principles of international law as part of the law of the 45892-93, July 13, 1938)
land. (1987 Constitution, Art. II, Sec. 2) (See discussion
under Public International Law) Separation of Church and State
Doctrine of Incorporation vs. Doctrine of Provisions of the Constitution that support the
Transformation principle of separation of Church and State:
DOCTRINE OF 1. Art. III, Sec. 5: “No law shall be made respecting

DOCTRINE OF
BASIS TRANS- an establishment of religion, or prohibiting the
INCORPORATION
FORMATION free exercise thereof. The free exercise and
Generally Rules of enjoyment of religious profession and worship,
accepted international law without discrimination or preference, shall
principles of are not per se forever be allowed. No religious test shall be
International Law binding upon the required for the exercise of civil or political
form part of the State but must rights.”
law of the land; no first be embodied
Definition legislative action in legislation 2. Art. VI, Sec. 5[2]: “The party-list representatives
is required to enacted by the shall constitute twenty per centum of the total
make them lawmaking body number of representatives including those
applicable in a and so under the party list. For three consecutive terms
country. transformed into after the ratification of this Constitution, one-
municipal law. half of the allocated to party-list representatives
shall be filled, as provided by law, by selection
or election from the labor, peasant, urban poor,
NOTE: The fact that the international law has been
indigenous cultural communities, women,
made part of the law of the land does not by any
youth, and such other sections as may be
means imply the primacy of international law over
provided by law, except the religious sector.
national law in the municipal sphere. (Philip Morris,
Inc. v. CA, G.R. No. 91332, July 16, 1993)
3. Art. IX-CI, Sec. 2[5]: “Register, after sufficient
publication, political parties, organizations, or
coalitions which, in addition to other

2021 GOLDEN NOTES 6
Political Law
requirements, must present their platform or of strict neutrality, or what Justice Carpio refers
program of government; and accredit citizens' to as the second theory of governmental
arms of the Commission on Elections. Religious neutrality.
denominations and sects shall not be registered.
Those which seek to achieve their goals through a. Strict Separationist – The establishment
violence or unlawful means, or refuse to uphold clause was meant to protect the State from
and adhere to this Constitution, or which are the church, and the State’s hostility towards
supported by any foreign government shall religion allows no interaction between the
likewise be refused registration. Financial two.
contributions from foreign governments and
their agencies to political parties, organizations, b. Strict Neutrality Approach – It is not hostility
coalitions, or candidates related to elections, towards religion, but a strict holding that
constitute interference in national affairs, and, religion may not be used as a basis for
when accepted, shall be an additional ground classification for purposes of governmental
for the cancellation of their registration with the action, whether the action confers rights or
Commission, in addition to other penalties that privileges or imposes duties or obligations.
may be prescribed by law.” Only secular criteria may be the basis of
government action. It does not permit; much
XPNs to the principle are the following provisions of less require accommodation of secular
the Constitution: programs to religious belief.
1. Art. VI, Sec. 28[3]: “Charitable institutions, 2. Benevolent Neutrality Approach (2016 BAR) –
churches and parsonages or convents The “wall of separation” is meant to protect the
appurtenant thereto, mosques, non-profit church from the State. It believes that with
cemeteries, and all lands, buildings, and respect to governmental actions, accommodation
improvements, actually, directly, and exclusively of religion may be allowed, not to promote the
used for religious, charitable, or educational government’s favored form of religion, but to
purposes shall be exempt from taxation.” allow individuals and groups to exercise their
religion without hindrance. (Estrada v. Escritor,
2. Art. VI, Sec. 29[2]: “No public money or property A.M. No. P-02-1651, June 22, 2006)
shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, NOTE: In the Philippine context, the Court
benefit, or support of any sect, church, categorically ruled that, “the Filipino people, in
denomination, sectarian institution, or system of adopting the Constitution, manifested their adherence
religion, or of any priest, preacher, minister, or to the benevolent neutrality approach that requires
other religious teacher, or dignitary as such, accommodations in interpreting the religion clauses.”
except when such priest, preacher, minister, or (Estrada v. Escritor, ibid.)
dignitary is assigned to the armed forces, or to
any penal institution, or government orphanage Kinds of accommodation that result from free
or leprosarium.” (1992, 1997 BAR) exercise claim
3. Art. XIV, Sec. 3[3]: “At the option expressed in 1. Mandatory – Those which are found to be
writing by the parents or guardians, religion constitutionally compelled, i.e. required by the
shall be allowed to be taught to their children or Free Exercise Clause;
wards in public elementary and high schools
within the regular class hours by instructors 2. Permissive – Those which are discretionary or
designated or approved by the religious legislative, i.e. not required by the Free Exercise
authorities of the religion to which the children Clause; and
or wards belong, without additional cost to the
Government.” 3. Prohibited – Those which are prohibited by the
religion clauses.
4. Art. XIV, Sec. 4[2]: “Educational institutions,
other than those established by religious groups NOTE: Based on the foregoing, and after holding that
and mission boards, shall be owned solely by the Philippine Constitution upholds the Benevolent
citizens of the Philippines or corporations or Neutrality Doctrine which allows for accommodation,
associations at least sixty per centum of the the Court laid down the rule that in dealing with cases
capital of which is owned by such citizens. The involving purely conduct based on religious belief, it
Congress may, however, require increased shall adopt the Strict-Compelling State interest test
Filipino equity participation in all educational because it is most in line with the benevolent
institutions.” neutrality-accommodation. (Estrada v Escritor, A.M. P-
02-1651, June 22, 2006)
Theories on the separation of church and state:
Difference between Mandatory accommodation,
1. Separation Standard - May take the form of either Permissive accommodation and Prohibited
(a) strict separation or (b) the tamer version accommodation
7
II. BASIC CONCEPTS
MANDATORY PERMISSIVE PROHIBITED attempt of the State to regulate or prohibit such right
ACCOMMODATION ACCOMODATION ACCOMMODATION would be an unconstitutional encroachment.
Basis and Action Taken
When Means that Results when The holding of Catholic masses at the basement of the
religious the state the Court finds QC Hall of Justice is merely a case of accommodation.
conscience may, but is no basis for a First, there is no law, ordinance or circular issued by
conflicts with not required mandatory any duly constitutive authorities expressly mandating
a government to, accommo- accommodation that judiciary employees attend the Catholic masses at
obligation or date , or it the basement.
prohibition, religious determines that
the govern- interests. the legislative Second, when judiciary employees attend the masses
ment accommodation to profess their faith, it is at their own initiative as
sometimes runs afoul of they are there on their own free will and volition,
may have to the without any coercion from the judges or
give way. This establishment administrative officers.
accommodatio or the free
-n occurs exercise clause. Third, no government funds are being spent because
when all three In this case, the the lightings and air-conditioning continue to be
conditions of Court finds that operational even if there are no religious rituals there.
the compelling establishment Fourth, the basement has neither been converted into
State interest concerns a Roman Catholic chapel nor has it been permanently
test are met. prevail over appropriated for the exclusive use of its faithful. Fifth,
potential the allowance of the masses has not prejudiced other
accommodation religions.
interests.
b) NO. The basement of the QC Hall of Justice is not
NOTE: The purpose of accommodations is to remove appropriated, applied or employed for the sole
a burden on, or facilitate the exercise of, a person’s or purpose of supporting the Roman Catholics.
institution’s religions.
The basement is also being used as a public waiting
Q: In his letters addressed to Chief Justice Puno, area for most of the day and a meeting place for
Valenciano reported that the basement of the Hall different employee organizations. The use of the area
of Justice of Quezon City had been converted into a for holding masses is limited to lunch break period
Roman Catholic Chapel, complete with offertory from twelve (12) o'clock to one (1) o'clock in the
table, images of Catholic religious icons, a canopy, afternoon. The masses run for just a little over thirty
an electric organ, and a projector. Valenciano (30) minutes. It is, therefore, clear that no undue
believed that such practice violated the religious bias is being committed when the subject
constitutional provision on the separation of basement is allowed to be temporarily used by the
Church and State and the constitutional Catholics to celebrate mass, as the same area can be
prohibition against the appropriation of public used by other groups of people and for other
money or property for the benefit of a sect, purposes. Thus, the basement of the QC Hall of Justice
church, denomination, or any other system of has remained to be a public property devoted for
religion. Valenciano also prayed that rules be public use because the holding of Catholic masses
promulgated by the Court to put a stop to the therein is a mere incidental consequence of its
holding of Catholic masses, or any other religious primary purpose.
rituals, at the QC Hall of Justice and in all other
halls of justice in the country. What the law prohibits the use of public money or
(a) Does the holding of masses at the QC Hall of property for the sole purpose of benefiting or
Justice violate the principle of separation of supporting any church. The prohibition contemplates
Church and State? a scenario where the appropriation is primarily
intended for the furtherance of a particular church. It
(b) Was there a violation against appropriation of does not inhibit the use of public property for
public money or property for the benefit of any religious purposes when the religious character of
sect, church, denomination, sectarian institution, such use is merely incidental to a temporary use
or system of religion? which is available indiscriminately to the public in
A: general. (Re: Letter of Tony Q. Valenciano, Holding of
Religious Rituals at the Hall of Justice Building in
a) NO. Allowing the citizens to practice their religion
Quezon City, A.M. No. 10-4-19-SC, March 7, 2017)
is not equivalent to a fusion of Church and State. The
State adopts a policy of accommodation as a
recognition that some governmental measures may B. SOVEREIGNTY
not be imposed on a certain portion of the population
for these measures are contrary to their religious Supreme and uncontrollable power inherent in a State
beliefs. As long as it can be shown that the exercise of by which the State is governed.
the right does not impair the public welfare, the

2021 GOLDEN NOTES 8
Political Law
Characteristics of Sovereignty States) from directly or indirectly intervening “in the
internal or external affairs of other States.” The Court
1. Permanent; went on to clarify, however, that for an intervention to
2. Exclusive; be prohibited, it must impinge on matters that are
3. Comprehensive; directly within a state’s sovereign rights. These
4. Absolute; include the choice of a political, economic, or social
5. Indivisible; and cultural system and the creation and formulation
6. Inalienable; and of foreign policy. An intervention is, therefore,
7. Imprescriptible. (Laurel v. Misa, G.R. No. L-409, “wrongful when it uses methods of coercion in regard
Jan. 30, 1947) to such choices, which must remain free ones”
unmarked by any evidence of coercion which would
Imperium vs. Dominium be evidence of a prohibited intervention.
BASIS IMPERIUM DOMINIUM

In Democratic Republic of the Congo v. Uganda, the
The State’s authority Capacity of the
ICJ\ affirmed that the Nicaragua Decision had “made
to govern as state to own or
it clear that the principle of non-intervention
embraced in the acquire
prohibits a State “to intervene, directly or indirectly,
concept of property. (Lee
with or without armed force, in support of the
sovereignty; includes Hong Hok v.
internal opposition within a State.”
passing laws David, G.R. No.
Definition governing a territory, L-30389, Dec.
C. STATE IMMUNITY
and Extent maintaining peace 27, 1972)
and order over it, and
defeating it against Doctrine of State Immunity
foreign invasion. (Lee
Hong Hok v. David, The State may not be sued without its consent. (1987
G.R. No. L-30389, Dec. Constitution, Art. XVI, Sec. 3)
27, 1972)
Basis of the Doctrine of State Immunity
NOTE: Sovereignty is deemed absolute, subject to
restrictions and limitations. 1. Indiscriminate suits against the State will impair
its dignity and supposed infallibility.
Doctrine of Auto Limitation
2. Per Justice Holmes, there can be no legal right
While sovereignty has traditionally been deemed against the authority which makes the law on
absolute and all-encompassing on the domestic level, which the right depends.
it is however subject to restrictions and limitations
voluntarily agreed to by the Philippines, expressly or 3. If it was otherwise, government service may be
impliedly as a member of the family of nations. severely obstructed and public safety endangered
because of the number of suits that the State has to
The sovereignty of a state therefore cannot in fact and defend against.
in reality be considered absolute. Certain restrictions
enter into the picture: (1) limitations imposed by the GR: All states are sovereign equals and cannot assert
very nature of membership in the family of nations jurisdiction over one another, consonant with the
and (2) limitations imposed by treaty public international law principle of par in parem non
stipulations. (Tañada v. Angara, G.R. No. 118295, May habet imperium. A contrary disposition would "unduly
2, 1997) vex the peace of nations." (Arigo v. Swift, G.R. No.
206510, September 16, 2014)
Principle of Non-Intervention
The head of State, who is deemed the personification
The United Nations has repeatedly clarified that states of the State, is inviolable, and thus, enjoys immunity
are strictly prohibited from intervening in the from suit. (JUSMAG Philippines v. NLRC, G.R. No.
domestic affairs of other states, most famously in 108813, Dec. 15, 1994)
Article 2.4 of the UN Charter, which prohibits the
threat or use of force against the territorial integrity Likewise, public officials may not be sued for acts
or political independence of another state. The non- done in the performance of their official functions or
intervention principle, however, is not simply within the scope of their authority. (DOH v. Phil.
restricted to situations involving use of force, acts of Pharmawealth, Inc., G.R. No. 182358, February 20,
aggression, or armed conflict. It has been further 2013)
clarified by the International Court of Justice to
include the concept that a state cannot intervene in a NOTE: The rule is that if the judgment against such
dictatorial way in the internal affairs of another state. officials will require the state itself to perform an
affirmative act to satisfy the same, the suit may be
Within the Nicaragua Decision, the ICJ declared that regarded as against the state itself although it has not
the principle precisely forbids all States (or groups of
9
II. BASIC CONCEPTS
been formally impleaded. (Garcia v. Chief of Staff, G.R. a. General law
No. L-20213, January 31, 1966) i. Act No. 3083 and CA 327 as amended by
Secs. 49-50, PD 1445 – Money claims
XPN: A State may be sued if it gives consent, whether arising from contracts which could
express or implied. serve as a basis of civil action between
private parties to be first filed with COA
Q: The USS Guardian of the US Navy ran aground before a suit may be filed in court. The
on an area near the Tubbataha Reefs, a marine COA must act upon the claim within 60
habitat of which entry and certain human days. Rejection of the claim authorizes
activities are prevented and afforded protection the claimant to elevate the matter to the
by Philippine laws and UNCLOS. Bishop Arigo of Supreme Court on certiorari.
Palawan filed a petition for the issuance of Writ of ii. Art. 2180, NCC – Tort committed by
Kalikasan and impleaded US officials in their special agent;
capacity as commanding officers of the US Navy. iii. Art. 2189, NCC – LGUs liable for injuries
He argues that there is a waiver of immunity from or death caused by defective condition
suit found in the Visiting Forces Agreement (VFA) of roads or public works under their
between the US and the Philippines, and invoke control (City of Manila v. Teotico, et al.,
federal statutes in the US under which agencies of G.R. No. L-23052, January 29, 1968);
the US have statutorily waived their immunity to iv. Sec. 22(2), RA 7160, LGC of 1991 – LGUs
any action. Is he correct? have power to sue and be sued; and
v. Sec. 24 of LGC – LGUs and their officials
A: NO. The VFA is an agreement which defines the are not exempt from liability for death
treatment of United States troops and personnel or injury or damage to property.
visiting the Philippines to promote “common security
interests” between the US and the Philippines in the NOTE: The express consent of the State to be sued
region. The invocation of US federal tort laws and must be embodied in a duly enacted statute and may
even common law is thus improper considering that it not be given by a mere counsel of the government.
is the VFA which governs disputes involving US (Republic v. Purisima, G.R. No. L-36084, Aug. 31, 1977)
military ships and crew navigating Philippine waters
in pursuance of the objectives of the agreement. Q: Kilusang Magbubukid ng Pilipinas (KMP)
However, the waiver of State immunity under the VFA members clashed with the anti-riot squad which
pertains only to criminal jurisdiction and applicable resulted to 13 deaths and several casualties.
only to US personnel under VFA and not to special Thereafter, President Corazon C. Aquino issued
civil actions such as the present petition for issuance AO 11 creating the Citizens’ Mendiola Commission
of a Writ of Kalikasan. The principle of State immunity to conduct the investigation about the incident.
therefore bars the exercise of jurisdiction by this The commission recommended compensating the
Court over the persons of the US Officials. (Arigo v. victims. The petitioners (Caylao group) together
Swift, G.R. No. 206510, September 16, 2014) with the military personnel involved in the
Mendiola incident instituted an action against the
Warships and other public vessels of another state Republic of the Philippines before the trial court.
operated for non-commercial purposes Respondent Judge Sandoval dismissed the
complaint on the ground of state immunity from
Immune from jurisdiction because they are the suit. Petitioners argued that the State has
“floating territory” of the flag State impliedly waived its immunity from suit with the
recommendation of the Commission to indemnify
GR: Crew members are immune from local the heirs and victims of the Mendiola incident by
jurisdiction when on shore duty. the government and by the public addresses made
by then President Aquino in the aftermath of the
XPN: When they violate local laws while on furlough killings. Is the argument meritorious?
or off duty. (Nachura, Outline Reviewer in Political
Law, p. 671) A: NO. The actions of President Aquino cannot be
deemed as a waiver of State immunity. Whatever acts
Remedy of a person who feels aggrieved by the or utterances that then President Aquino may have
acts of a foreign government done or said, the same are not tantamount to the State
having waived its immunity from suit. The President's
Under both Public International Law and act of joining the marchers, days after the incident,
Transnational Law, a person who feels aggrieved by does not mean that there was an admission by the
the acts of a foreign sovereign can ask his own State of any liability. Moreover, petitioners rely on
government to espouse his cause through diplomatic President Aquino's speech promising that the
channels. (Holy See v. Rosario, G.R. No. 101949, government would address the grievances of the
December 1, 1994) rallyists. By this alone, it cannot be inferred that the
State has admitted any liability, much less can it be
Forms of consent inferred that it has consented to the suit. (Republic v.
Sandoval, G.R. No. 84607, March 19, 1993)
1. Express consent

2021 GOLDEN NOTES 10
Political Law
b. Special law NOTE: In exercising the power of eminent
i. By virtue of PD 1620, the grant of domain, the State exercises a power jure imperii.
immunity to IRRI is clear and Yet, it has been held that where property has
unequivocal, and an express waiver by been taken without the payment of just
its Director General is the only way by compensation, the defense of immunity from
which it may relinquish or abandon this suit cannot be set up in an action for payment by
immunity. (Callado, v. IRRI, G.R. No. the owner. (Republic v. Sandiganbayan, G.R. No.
106483, May 22, 1995) 90478, November 21, 1991)
2. Implied consent Q: Do all contracts entered into by the government

a. When the State commences litigation, it operate as a waiver of its non-suability?
becomes vulnerable to counterclaim.
(Froilan v. Pan Oriental Shipping, G.R. No. L- A: NO. Distinction must still be made between one
6060, September 30, 1954) which is executed in the exercise of its sovereign
function and another which is done in its proprietary
Q: In a property dispute, the Attorney General of capacity. A State may be said to have descended to the
the United States and the defendant-intervenor level of an individual and can be deemed to have
Republic of the Philippines each filed an answer actually given its consent to be sued only when it
alleging by way of affirmative defense that the enters into business contracts. It does not apply
lower court had no jurisdiction over the claim where the contract relates to the exercise of its
since the action in that regard constituted a suit sovereign functions. (Department of Agriculture v.
against the United Sates to which it had not given NLRC G.R. No. 104269, Nov. 11, 1993)
its consent. Did the Republic of the Philippines by
its intervention waive its right of immunity from When suit is considered as suit against the State
suit?
1. The Republic is sued by name;
A: NO. The Republic of the Philippines did not waive 2. The suit is against an unincorporated
its immunity from suit. It intervened in the case government agency performing propriety
merely to unite with the defendant Attorney General functions; and
of the United States in resisting plaintiff’s claims, and 3. The suit is on its face against a government
for that reason asked no affirmative relief. This is not officer but the case is such that ultimate liability
a case where the state takes the initiative against a will belong to the government. (Republic v.
private party by filing a complaint in intervention, Sandoval, G.R. No. 84607, March 19, 1993)
thereby surrendering its privileged position and
coming down to the level of the defendant, but one Q: Spouses Sison sued the Philippine National
where the state, as one of the defendants, merely Railways for damages for the death of their son
resisted a claim against it precisely on the ground who fell from an overloaded train belonging to the
among others, of its privileged position, which PNR. The trial court dismissed the suit on the
exempts it from suit. (Lim v. Brownell, G.R. No. L-8587, ground that the charter of the PNR, as amended by
March 24, 1960) PD 741, has made the same a government
instrumentality, and thus immune from suit. Is the
b. When State enters into a business contract. dismissal proper?
(Municipality of San Fernando v. Firme, G.R.
No. L-52179, April 8, 1991) A: NO. The PNR is not immune from suit. It did not
remove itself from the operation of Arts. 1732 to 1766
Capacities of the State in entering into contracts of the Civil Code on common carriers. Not all
government entities, whether corporate or non-
1. In jure gestionis – By right of economic or corporate, are immune from suits. Immunity from suit
business relations; commercial, or proprietary is determined by the character of the objects for
acts. MAY BE SUED. (US v. Guinto, G.R. No. 76607, which the entity is organized. When the government
February 26, 1990) enters into a commercial business, it abandons its
sovereign capacity and is to be treated like any other
NOTE: The State may be said to have descended corporation. In this case, the State divested itself of its
to the level of an individual and can thus be sovereign capacity when it organized the PNR which
deemed to have tacitly given its consent to be is no different from its predecessors, the Manila
sued only when it enters into business Railroad Company. (Spouses Malong v. PNRC, G.R. No.
contracts. Consequently, the restrictive L-49930, August 7, 1985)
application of State immunity is proper only in
such case. (Restrictive Theory of State Unincorporated government agency performing
Immunity from suit) governmental function vs. one performing
proprietary functions
2. In jure imperii – By right of sovereign power and
in the exercise of sovereign functions. No UNINCORPORATED UNINCORPORATED
implied consent. (US v. Ruiz, G.R. No. L-35645, BASIS GOVERNMENT GOVERNMENT
May 22, 1985) AGENCY AGENCY
11
II. BASIC CONCEPTS
PERFORMING PERFORMING
GOVERNMENTAL PROPRIETARY The circum- The State A judgment
FUNCTIONS FUNCTIONS stance that can never against the
As a
a State is be held State
Immunity has not conse-
suable does liable if it is cannot be
been upheld in its quence
not necessa- not suable. automatical
Immunity has favor (Air of ano-
rily mean ly executed.
Definition been upheld in its Transportation ther
that it is
favor. Office v. Sps. liable.
David, G.R. No.
159402) NOTE: It is one thing to consent to being sued,
another to admit liability, thus the phrase, “waiver of
Q: Spouses David and Elisea Ramos discovered immunity by the State does not mean a concession
that a portion of their land in Baguio City was of its liability.”
being used as part of the runway and running
shoulder of the Loakan Airport being operated by “By consenting to be sued, a state simply waives its
Air Transportation Office (ATO). The Spouses immunity from suit. It does not thereby concede its
Ramos agreed to convey the affected portion by liability.” (Merritt v. Government of the Philippine
deed of sale to the ATO for consideration, which Islands, G.R. No. L-11154, March 21, 1916)
ATO failed to pay. In an action for collection of
money against ATO, the latter invoked And where “…liability is ascertained judicially, the
Proclamation No. 1358 whereby it reserved state is at liberty to determine for itself whether to
certain parcels of land, including the subject satisfy judgment or not.” (Municipality of Hagonoy,
portion herein, for the use of the Loakan Airport. Bulacan v. Dumdum, Jr., G.R. No. 168289; March 22,
They asserted that RTC did not have any 2010)
jurisdiction to entertain the action without the
State’s consent. The RTC and CA dismissed the Rule on the liabilities of the following:
petition. Can the ATO be sued without the State’s
consent? 1. Public officers– By their acts without or in excess
of jurisdiction: any injury caused by him is his
A: YES. An unincorporated government agency own personal liability and cannot be imputed to
without any separate juridical personality of its own the State.
enjoys immunity from suit because it is invested with
an inherent power of sovereignty. However, the need 2. Government agencies– Establish whether or not
to distinguish between an unincorporated the State, as principal which may ultimately be
government agency performing governmental held liable, has given its consent.
function and one performing proprietary functions 3. Government– Doctrine of State immunity is
has arisen. available.
The juridical character of ATO is an agency of the Instances when a public officer may be sued
government without performing a purely without the State’s consent
governmental or sovereign function but is instead
involved in the management and maintenance of the 1. To compel him to do an act required by law;
Loakan Airport, an activity that was not exclusive 2. To restrain him from enforcing an act claimed to
prerogative of the State in its sovereign capacity. be unconstitutional;
Hence, the ATO had no claim to the State immunity 3. To compel payment of damages from an already
from suit. The obligation of ATO to Spouses Ramos appropriated assurance fund or to refund tax
might be enforced against CAAP. (Air Transportation over-payments from a fund already available for
Office v. Sps. David, G.R. No. 159402, February 23, 2011) the purpose;
4. To secure a judgment that the officer impleaded
Suability vs. Liability vs. Execution may satisfy the judgment by himself without the
State having to do a positive act to assist him; or
BASIS SUABILITY LIABILITY EXECUTION 5. Where the government itself has violated its
own laws because the doctrine of State
Depends on Depends on Depends on
immunity cannot be used to perpetrate an
the consent the appli- the appro-
As to injustice.
of the State cable law priation of
basis to be sued and the funds by GR: The true test in determining whether a suit
established the against a public officer is a suit against the State is
facts Congress that, if a public officer or agency is sued and made
liable, the State will have to perform an affirmative
act of appropriating the needed amount to satisfy
the judgment. If the State will have to do so, then, it is
a suit against the State.

Political Law
XPNs: inalienable, the Republic, through the OSG,
appealed before the CA but moved four times to
1. The public official is charged in his official extend the period for filing its appellant’s brief. CA
capacity for acts that are unlawful and injurious dismissed the OSG’s appeal. The OSG filed its brief
to the rights of others. Public officials are not after moving to reconsider the CA’s denial of its
exempt, in their personal capacity, from liability appeal. However, CA stood its ground on its
arising from acts committed in bad faith; or original decision. Does the OSG’s failure to file the
Republic’s appeal brief bind the State?
2. The public official is clearly being sued not in his
official capacity but in his personal capacity, A: NO. As a matter of doctrine, illegal acts of
although the acts complained of may have been government agents do not bind the State, and the
committed while he occupied a public position. Government is never estopped from questioning the
(Lansang v. CA, G.R. No. 102667, February 23, acts of its officials, more so if they are erroneous, let
2000) alone irregular. This principle applies in land
registration cases. Certainly, the State will not be
Garnishment of government funds allowed to abdicate its authority over lands of the
public domain just because its agents and officers
GR: Whether the money is deposited by way of have been negligent in the performance of their
general or special deposit, they remain government duties. (Republic v. Sps. Benigno, G.R. No. 205492,
funds and are not subject to garnishment. March 11, 2015)
XPN: Where a law or ordinance has been enacted D. SEPARATION OF POWERS

appropriating a specific amount to pay a valid
government obligation, then the money can be Doctrine of Separation of Powers
garnished.
Legislation belongs to the Congress, implementation
NOTE: Funds belonging to government corporations, to the executive, and settlement of legal controversies
which can sue and be sued and are deposited with a and adjudication of rights to the judiciary. Each
bank, can be garnished. (PNB v. Pabalan, G.R. No. L- department has exclusive cognizance of and is
33112, June 15, 1978) supreme in matters falling within its own
constitutionally allocated sphere. Each is therefore
If the local legislative authority refuses to enact a law prevented from invading the domain of the others.
appropriating the money judgment rendered by the
court, the winning party may file a petition for Purposes of Separation of Powers
mandamus to compel the legislative authority to
enact a law. (Municipality of Makati v. CA, G.R. Nos. 1. Secure action;
89898-99, October 1, 1990) 2. Forestall over-action;
3. Prevent despotism; and
The government cannot be made to pay interest in 4. Obtain efficiency. (Nachura, Outline Reviewer in
money judgments against it, except in the Political Law, 2014 Ed., p. 73)
following instances:
Powers vested in the three branches of
1. Exercise of the power of eminent domain government
2. Erroneous collection of taxes
3. Where government agrees to pay interest EXECUTIVE LEGISLATIVE JUDICIARY
pursuant to law
Implementation Interpretation
Q: Keanu Lazzer filed an action directly in court Making of laws
of laws of laws
against the government seeking payment for a (Power of the
(Power of the (Power of
parcel of land which the national government purse)
sword) judicial review)
utilized for a road widening project. Can the
government invoke the doctrine of non-suitability
of the state? Plea bargaining in drug cases
A: NO. When the government expropriates property Plea bargaining operates as a means to implement an
for public use without paying just compensation, it existing right by regulating the judicial process for
cannot invoke its immunity from suit. Otherwise, the enforcing rights and duties recognized by substantive
right guaranteed in Sec. 9, Art. III of the 1987 law and for justly administering remedy and redress
Constitution that private property shall not be taken for a disregard or infraction of them. (Estipona v.
for public use without just compensation will be Lobrigo, G.R. No. 226679, August 15, 2017)
rendered nugatory. (Ministerio v. CFI, G.R. No. L-31635,
August 31, 1971) The power to promulgate rules of pleading, practice
and procedure is exclusive domain of the Judicial
Q: Sps. Benigno sought to register their lot. The department and no longer shared with the Executive
RTC granted their petition. Arguing that the lot is and Legislative departments. The adoption of the plea
13
II. BASIC CONCEPTS
bargaining framework in Drug Cases under Section 23 massacre even if he is under the Witness
of Republic Act No. 9165, or the Comprehensive Protection Program?
Dangerous Drugs Act of 2002 is unconstitutional for
the inclusion of the provision in the law encroaches A: NO. Consistent with the principle of separation of
on the exclusive constitutional power of the Supreme powers enshrined in the Constitution, the Court
Court. (Estipona v. Lobrigo, G.R. No. 226679, August 15, deems it a sound judicial policy not to interfere in the
2017) conduct of preliminary investigations, and to allow
the Executive Department, through the Department of
Exceptions of plea bargaining in drug cases Justice, exclusively to determine what constitutes
sufficient evidence to establish probable cause for the
1. Imposable penalty is life imprisonment or life prosecution of supposed offenders. By way of
imprisonment to death. exception, however, judicial review may be allowed
2. Sale, Trading, etc. of Dangerous Drugs involving where it is clearly established that the public
other kinds of dangerous drugs, except shabu and prosecutor committed grave abuse of discretion, that
is, when he has exercised his discretion “in an
marijuana. (Section 5 of Republic Act No. 9165, or
arbitrary, capricious, whimsical or despotic manner
the Comprehensive Dangerous Drugs Act of 2002) by reason of passion or personal hostility, patent and
gross enough as to amount to an evasion of a positive
Q: A group of losing litigants in a case decided by duty or virtual refusal to perform a duty enjoined by
the SC filed a complaint before the Ombudsman law.”
charging the Justices with knowingly and
deliberately rendering an unjust decision in utter Kenny Dalandag who admitted his participation in the
violation of the penal laws of the land. Can the commission of the Maguindanao massacre was no
Ombudsman validly take cognizance of the case? hindrance to his admission into the Witness
Protection Program as a state witness, for all that was
A: NO. Pursuant to the principle of separation of necessary was for him to appear not the most guilty.
powers, the correctness of the decisions of the SC as Accordingly, he could not anymore be charged for his
final arbiter of all justifiable disputes is conclusive participation in the Maguindanao massacre, as to
upon all other departments of the government; the which his admission operated as an acquittal, unless
Ombudsman has no power to review the decisions of he later on refuses or fails to testify in accordance
the SC by entertaining a complaint against the Justices with the sworn statement that became the basis for
of the SC for knowingly rendering an unjust decision. his discharge against those now charged for the
(In re: Laureta, G.R. No. L-68635, May 14, 1987) crimes. (Ampatuan, Jr., v. De Lima, G.R. No. 197291,
April 3, 2013)
Q: May the RTC or any court prohibit a committee
of the Senate like the Blue Ribbon Committee from Q: Pres. Benigno Aquino III signed E.O. No. 1
requiring a person to appear before it when it is establishing the Philippine Truth Commission, a
conducting investigation in aid of legislation? special body to investigate reported cases of graft
and corruption allegedly committed during the
A: NO. The RTC or any court may not do so because Arroyo administration. Is E.O. No. 1
that would be violative of the principle of separation constitutional?
of powers. The principle essentially means that
legislation belongs to Congress, execution to the A: NO. The President has no power to create a public
Executive and settlement of legal controversies to the office. It is not shared by Congress with the President,
Judiciary. Each is prevented from invading the domain until and unless Congress enacts legislation that
of the others. (Senate Blue Ribbon Committee v. delegates a part of the power to the President, or any
Majaducon, G.R. No. 136760, July 29, 2003) other officer or agency. It is already settled that the
President’s power of control can only mean the power
Q: The Panel of Prosecutors issued a joint of an officer to alter, modify, or set aside what a
resolution based on the affidavits of Kenny subordinate officer had done in the performance of
Dalandag, charging several individuals with his duties, and to substitute the judgment of the
multiple murder in relation to the Maguindanao former for that of the latter. As such, the creation by
massacre. Kenny Dalandag was then admitted to the President of a public office like the Truth
the Witness Protection Program of the DOJ. Commission, without either a provision of the
Petitioner Andal Ampatuan, Jr., one of the Constitution or a proper law enacted by Congress
principal suspects, wrote to respondent Secretary authorizing such creation, is not an act that the power
of Justice De Lima and Asst. Chief State Prosecutor of control includes. (Biraogo v. The Philippine Truth
Fadullon, requesting that Dalandag be included in Commission, G.R. No. 192935, 7 December 2010,
the information for murder considering he Bersamin, J. separate opinion)
already confessed his participation in the
massacre. Respondent refused. Petitioner Pork Barrel
Ampatuan then filed a petition for mandamus.
May the respondents be compelled by the writ of "PORK BARREL" is political parlance of American -
mandamus to charge Dalandag as an accused for English origin. Its usage may be traced to the
multiple murder in relation to the Maguindanao degrading ritual of rolling out a barrel stuffed with

Political Law
pork to a multitude of black slaves who would cast Verily, the primordial duty of the Court is merely to
their famished bodies into the porcine feast to apply the law in such a way that it shall not usurp
assuage their hunger with morsels coming from the legislative powers by judicial legislation and that in
generosity of their well-fed master. This practice was the course of such application or construction, it
later compared to the actions of American legislators should not make or supervise legislation, or under the
in trying to direct federal budgets in favor of their guise of interpretation, modify, revise, amend, distort,
districts. While in the Philippines it was referred as remodel, or rewrite the law, or give the law a
lump-sum, discretionary funds of Members of the construction which is repugnant to its terms.
Legislature. Succinctly put, the Court should shy away from
encroaching upon the primary function of a co-equal
Q: Amog was elected Congressman. Before the end branch of the Government; otherwise, this would lead
of her first year in office, she inflicted physical to an inexcusable breach of the doctrine of separation
injuries on a colleague, Camille Gonzales, in the of powers by means of judicial legislation. (Corpuz v.
course of a heated debate. Charges were filed in People, G.R. No. 180016, April 29, 2014)
court against her as well as in the House Ethics
Committee. Later, the HoR, dividing along party Principle of Blending of Powers
lines, voted to expel her. Claiming that her
expulsion was railroaded and tainted by bribery, Refers to an instance when powers are not confined
she filed a petition seeking a declaration by the SC exclusively within one department but are assigned to
that the House gravely abused its discretion and or shared by several departments.
violated the Constitution. She prayed that her
expulsion be annulled and that she should be Examples of the Blending of Powers
restored by the Speaker to her position as
Congressman. Is AviAmog’s petition before the 1. Power of appointment which can be exercised by
Supreme Court justiciable? each department and be rightfully exercised by
each department over its own administrative
A: NO. The petition is not justiciable because as stated personnel;
in Alejandrino v. Quezon, et al. (46 Phil. 83), the
Supreme Court held that it could not compel the 2. General Appropriations Law – President
Senate to reinstate a Senator who assaulted another prepares the budget which serves as the basis of
Senator and was suspended for disorderly behavior, the bill adopted by Congress;
because it could not compel a separate and co-equal
department to take any particular action. In Osmeña v. 3. Amnesty granted by the President requires the
Pendatun (109 Phil. 863), it was held that the Supreme concurrence of the majority of all the members of
Court could not interfere with the suspension of a the Congress; and
Congressman for disorderly behavior, because the
House of Representatives is the judge of what 4. Power of the COMELEC to deputize law-
constitutes disorderly behavior. The assault of a enforcement agencies and instrumentalities of
fellow Senator constitutes disorderly behavior. the government for the purpose of ensuring free,
However, under Sec. 1, Art. VIII of the 1987 orderly, honest, peaceful and credible elections in
Constitution, the Supreme Court may inquire whether accordance with the power granted to it by the
or not the decision to expel AviAmog is tainted with Constitution to enforce and administer all laws
grave abuse of discretion amounting to lack or excess and regulations relative the conduct of elections.
of jurisdiction. [Art. IX-C, Sec. 2(1)] (Concurring and Dissenting
Opinion of Justice Puno, Macalintal v. COMELEC,
Q: Joey Tribbiani was convicted of estafa. When G.R. No. 157013, July 10, 2003)
his case reached the Supreme Court, some Justices
proposed to alter the penalties provided for under E. CHECKS AND BALANCES
RPC on the basis of the ratio of P1.00 to P100.00,
believing that it is not fair to apply the range of Principle of Checks and Balances
penalties, which was based on the value of money
in 1932, to crimes committed at present. However, Allows one department to resist encroachments upon
other justices opposed the said proposal for it its prerogatives or to rectify mistakes or excesses
amounts to judicial legislation. Is the opposition committed by the other departments.
correct?
Executive check on the other two branches
A: YES. The opposition is correct because the Court
cannot modify the said range of penalties because that EXECUTIVE CHECK
would constitute judicial legislation. What the Legislative Judiciary
legislature's perceived failure in amending the - Through its power of pardon,
penalties provided for in the said crimes cannot be it may set aside the judgment
remedied through this Court's decisions, as that Through its
of the judiciary.
would be encroaching upon the power of another veto power
- Also by power of
branch of the government. appointment – power to
appoint members of the
15
II. BASIC CONCEPTS
Judiciary. A: YES.
Legislative check on the other two branches 1. It violated the principle of separation of
powers - Insofar as it has allowed legislators to
LEGISLATIVE CHECK wield, in varying gradations, non-oversight, post-
enactment authority in vital areas of budget
Executive Judiciary execution.
Override the veto of the Revoke or amend the
2. It violated the principle of non-delegability of
President decisions by either:
legislative power -insofar as it has conferred
- Enacting a new law
unto legislators the power of appropriation by
- Amending the old law,
giving them personal, discretionary funds from
giving it certain
which they are able to fund specific projects
definition and
which they themselves determine.
interpretation
different from the old.
3. Denied the President’s power to veto items -
Reject certain Impeachment of SC insofar as it has created a system of budgeting
appointments made by members wherein items are not textualized into the
the president appropriations bill, it has flouted the prescribed
Revoke the procedure of presentment.
proclamation of martial Define, prescribe,
law or suspension of the apportion jurisdiction of 4. Impaired public accountability - insofar as it
privilege of the writ of lower courts: has diluted the effectiveness of congressional
habeas corpus - Prescribe the oversight by giving legislators a stake in the
qualifications of lower affairs of budget execution, an aspect of
court judges governance which they may be called to monitor
- Impeachment and scrutinize.
- Determination of
salaries of judges. 5. Subverted genuine local autonomy - insofar as it
Impeachment has authorized legislators, who are national
Determine the salaries officers, to intervene in affairs of purely local
of the president or vice nature, despite the existence of capable local
president institutions.
Concur to or reject
treaties the president 6. Transgressed the principle of non-delegability
may enter into -insofar as it has conferred to the President the
power to appropriate funds intended by law for
energy-related purposes only to other purposes
Judicial check on the other two branches
he may deem fit as well as other public funds
under the broad classification of "priority
It may declare (through the SC as the final arbiter) the
infrastructure development projects." (Belgica v.
acts of both the legislature and executive as
Ochoa, G.R. No. 208566, Nov. 19, 2013)
unconstitutional or invalid so long as there is grave
abuse of discretion amounting to lack or excess of
F. DELEGATION OF POWERS
jurisdiction.
Principle of Non-Delegability
Test to determine whether a given power has
been validly exercised by a particular department:
GR: What has been delegated cannot be delegated.
GR.: Whether the power has been constitutionally
It is based upon the ethical principle that such
conferred upon the department claiming its exercise.
delegated power constitutes not only as a right, but
also as a duty to be performed by the delegate
XPN: Doctrine of Necessary Implication (2010
through the instrumentality of his own judgment and
BAR)
not through the intervening mind of another. A
further delegation of such power, unless permitted by
Exercise of the power may be justified in the absence
the sovereign power, would constitute a negation of
of an express conferment because the grant of express
this duty in violation of the trust reposed in the
power carried with it all other powers that may be
delegate. (Cruz and Cruz, supra at 160)
reasonably inferred from it.
XPNS:
Q: An appropriations law granting the legislators
lump-sum funds in which they have full discretion
1. Delegations to the People at large;
on what project it would fund and how much the
project would cost, was passed. Is such law
a. R.A. 6735 – The Initiative and Referendum
unconstitutional?
Act as authorized by the constitutional

Political Law
mandate for the creation of a system of Administrative Agencies and Subordinate
legislation by initiative and referendum Legislation
b. A plebiscite is required in the creation,
division, merger, abolition of province, city, Administrative agencies are clothed with rule-making
municipality, or barangay or the substantial powers. The only requirement is that the regulation
alteration of its boundary. must be germane to the objects and purposes of the
law. (People v. Jolliffe, 105 Phil. 677, 1959)
NOTE: These are more of reservations of power
by the people than delegations considering the Tests for Valid Delegation
fact that the people are repositories of all
governmental powers. 1. Completeness Test – The law must be complete in
itself, setting forth therein the policy to be executed,
2. Emergency powers of the President; carried out, or implemented by the delegate.
3. Tariff powers of the President;
4. Delegation to local governments; and 2. Sufficiency Standard Test – The law must fix a
5. Delegation to Administrative bodies of the power standard, the limits of which are sufficiently
of subordinate legislation. (Cruz and Cruz, supra at determinate or determinable, to which the delegate
162) must conform in the performance of his functions.
Emergency Powers NOTE: For subordinate legislation to be valid, the

Administrative Code of 1987 requires the filing of
For the delegation of emergency powers to the rules adopted by the administrative agencies with the
President to be valid, the following requisites must UP Law Center, in addition to compliance with
concur: completeness test and sufficient standard test.
(Quezon City PTCA Federation. Inc. v. DepEd, G.R. No.
1. It is done during war or national emergency 188720, February 23, 2016, J. LEONEN)
2. It must allow the President to exercise such
powers which are necessary and proper to carry G. FUNDAMENTAL POWERS OF THE STATE
out a declared national policy.
3. Such exercise must be for a limited period only.
The following are the fundamental/inherent powers
of the state:
NOTE: If the Congress does not expressly take
back the power by means of a Resolution, the
same shall cease upon its next Adjournment. 1. Police Power
2. Power of Eminent Domain
3. Power of Taxation
4. Such exercise must be subject to restrictions
prescribed by the Congress. [Sec. 23 (2), Art. VI,
1. POLICE POWER
1987 Constitution]
Police power is the power of the state to promote
Tariff Powers
public welfare by restraining and regulating the use of
liberty and property. It is the most pervasive, the least
The Congress may, by law, authorize the President to
limitable, and the most demanding of the three
fix within specified limits, and subject to such
fundamental powers of the State.
limitations and restrictions as it may impose, tariff
rates, import and export quotas, tonnage and
As an inherent attribute of sovereignty which virtually
wharfage dues, and other duties or imposts within the
extends to all public needs, police power grants a
framework of the national development program of
wide panoply of instruments through which the State,
the Government. [Sec. 28 (2), Art. VI, 1987
as parens patriae, gives effect to a host of its
Constitution)
regulatory powers. The power to “regulate” means the
power to protect, foster, promote, preserve, and
Local Governments
control, with due regard for the interests, first and
foremost, of the public, then of the utility of its
Pursuant to the State policy on local autonomy, the
patrons. (Gerochi v. Department of Energy, G. R.
fundamental powers of the State were delegated to
159796, July 17, 2007)
local governments, subject to restrictions imposed by
Congress. The general law in this regard is the Local
The state, in order to promote general welfare, may
Government Code (LGC).
interfere with personal liberty, with property, and
with business and occupations. Persons may be
The purpose for which the foregoing powers have
subjected to all kinds of restraint and burdens in
been delegated is to enable local authorities to attend
order to secure the general comfort, health and
to local concerns in an effective and meaningful
prosperity of the state and to this fundamental aim of
manner, instead of relying too much on the national
our Government, the rights of the individual are
government, whose attention would otherwise be
subordinated. (Ortigas and Co., Limited Partnership v.
diffuse over a multitude of local concerns. (Gorospe,
Feati Bank and Trust Co, G.R. No. L-24670, December
Political Law 2016 Ed., p. 189)
14, 1979)
17
II. BASIC CONCEPTS
Generally, police power extends to all the great public Q: Hotel and motel operators in Manila sought to
needs. Its particular aspects, however, are the declare Ordinance 4670 as unconstitutional for
following: being unreasonable, thus violative of the due
process clause. The Ordinance requires the clients
1. Public health; of hotels, motels and lodging house to fill out a
2. Public morals; prescribed form in a lobby, open to public view
3. Public safety; and and in the presence of the owner, manager or duly
4. Public welfare authorized representative of such hotel, motel or
lodging house. The same law provides that the
Requisites for a valid exercise of police power premises and facilities of such hotels, motels and
lodging houses would be open for inspection
1. Lawful subject – The interests of the public either by the City Mayor, or the Chief of Police, or
generally, as distinguished from those of a their duly authorized representatives. It increased
particular class, require the exercise of the police their annual license fees as well. Is the ordinance
power; and constitutional?
2. Lawful means – The means employed are A: YES. The mantle of protection associated with the
reasonably necessary for the accomplishment of due process guaranty does not cover the hotel and
the purpose and not unduly oppressive upon motel operators. This particular manifestation of a
individuals. (National Development Company and police power measure being specifically aimed to
New Agrix, Inc. v. Philippine Veterans Bank, 192 safeguard public morals is immune from such
SCRA 257, December 10, 1990) imputation of nullity resting purely on conjecture and
unsupported by anything of substance. To hold
Q: President Rodrigo Duterte issued Proclamation otherwise would be to unduly restrict and narrow the
No. 475 formally declaring a state of calamity in scope of police power which has been properly
Boracay and ordering its closure for six (6) characterized as the most essential, insistent and the
months. On account of this, Boracay residents least limitable of powers, extending as it does "to all
Mark Anthony Zabal and Thiting Jacosalem filed the great public needs."
the present petition alleging that they would
suffer grave and irreparable damage as their There is no question that the challenged ordinance
livelihood depends on the tourist activities was precisely enacted to minimize certain practices
therein. They attacked the order on the ground hurtful to public morals. The challenged ordinance
that it is an invalid exercise of legislative powers. then proposes to check the clandestine harboring of
Is the order invalid? transients and guests of these establishments by
requiring these transients and guests to fill up a
A: NO. That the assailed governmental measure in this registration form, prepared for the purpose, in a lobby
case is within the scope of police power cannot be open to public view at all times, and by introducing
disputed. Verily, the statutes from which the said several other amendatory provisions calculated to
measure draws authority and the constitutional shatter the privacy that characterizes the registration
provisions which serve as its framework are primarily of transients and guests. Moreover, the increase in the
concerned with the environment and health, safety, licensed fees was intended to discourage
and well-being of the people, the promotion and "establishments of the kind from operating for
securing of which are clearly legitimate objectives of purpose other than legal" and at the same time, to
governmental efforts and regulations. The only increase "the income of the city government."
question now is whether the temporary closure of (Ermita-Malate Hotel v. City Mayor of Manila, G.R. No.
Boracay as a tourist destination for six months L-24693, July 31, 1967)
reasonably necessary under the circumstances? The
answer is in the affirmative. Q: The City of Manila enacted Ordinance No. 7774
entitled, “An Ordinance Prohibiting Short-Time
Tourist arrivals in the island were clearly far more Admission, Short-Time Admission Rates, and
than Boracay could handle. Certainly, the closure of Wash-Up Rate Schemes in Hotels, Motels, Inns,
Boracay, albeit temporarily, gave the island its much Lodging Houses, Pension Houses, and Similar
needed breather, and likewise afforded the Establishments in the City of Manila.” The purpose
government the necessary leeway in its rehabilitation of the ordinance is to prohibit motel and inn
program. Note that apart from review, evaluation and operators from offering short-time admission, as
amendment of relevant policies, the bulk of the well as pro-rated or “wash-up” rates for
rehabilitation activities involved inspection, testing, abbreviated stays. Is the ordinance a valid
demolition, relocation, and construction. These works exercise of police power?
could not have easily been done with tourists present.
The rehabilitation works in the first place were not A: NO. A reasonable relation must exist between the
simple, superficial or mere cosmetic but rather quite purposes of the measure and the means employed for
complicated, major, and permanent in character as its accomplishment, for even under the guise of
they were intended to serve as long-term solutions to protecting the public interest, personal rights and
the problem. (Zabal v. Duterte, G.R. No. 238467, those pertaining to private property will not be
February 12, 2019) permitted to be arbitrarily invaded. It must also be

Political Law
evident that no other alternative for the 2. EMINENT DOMAIN
accomplishment of the purpose less intrusive of
private rights can work. In the present case, there is Power of eminent domain
less intrusive measures which can be employed such
as curbing out the prostitution and drug use through Eminent domain is the right or power of a sovereign
active police force. The ordinance has a lawful state to appropriate private property to particular
purpose but does not have the lawful means hence, uses to promote public welfare. It is an indispensable
unconstitutional. (White Light Corporation vs. City of attribute of sovereignty; a power grounded in the
Manila, G.R. No. 122846, January 20, 2009) primary duty of government to serve the common
need and advance the general welfare. The power of
Q: Are the rates to be charged by utilities like eminent domain is inseparable in sovereignty being
MERALCO subject to State regulation? essential to the existence of the State and inherent in
government. (NTC vs. Oroville Dev’t Corp., G.R. No.
A: YES. The regulation of rates to be charged by public 223366, August 1, 2017)
utilities is founded upon the police powers of the
State, and statutes prescribing rules for the control Conditions for the exercise of the Power of
and regulation of public utilities are a valid exercise Eminent Domain (T-U-C-O)
thereof. When private property is used for a public
purpose and is affected with public interest, it ceases 1. Taking of private property;
to be juris privati only and becomes subject to 2. For public Use;
regulation. The regulation is to promote the common 3. Just Compensation; and
good. As long as use of the property is continued, the 4. Observance of due process.
same is subject to public regulation. (Republic v.
Manila Electric Company, G.R. No. 141314, November NOTE: There must be a valid offer to buy the property
15, 2002) and refusal of said offer.
NOTE: Mall owners and operators cannot be validly Power of expropriation as exercised by Congress
compelled to provide free parking to their customers vs. Power of expropriation as exercised by
because requiring them to provide free parking space delegates
to their customers is beyond the scope of police
powers. It unreasonably restricts the right to use POWER OF POWER OF
property for business purposes and amounts to EXPROPRIATION EXPROPRIATION
confiscation of property. (OSG v. Ayala Land, Inc., 600 AS EXERCISED BY AS EXERCISED BY
SCRA 617, September 18, 2009) (2014 BAR) CONGRESS DELEGATES
Scope The power is It can only be
Requisites for the valid exercise of police power
pervasive and all- broad as the
by the delegate
encompassing; enabling law and
It can reach every the conferring
1. Express grant by law;
form of property authorities want it
2. Must not be contrary to law; and which may be to be.
3. GR: Within territorial limits of LGUs. needed by the State
for public use. In
XPN: When exercised to protect water supply. fact, it can reach
(Wilson v. City of Mountain Lake Terraces, 417 even private
P.2d 632, August 18, 1966) property already
dedicated to public
The courts cannot interfere with the exercise of use, or even
police power property already
devoted to religious
If the legislature decides to act, the choice of measures worship. (Barlin v.
or remedies lies within its exclusive discretion, as long Ramirez, 7 Phil. 41,
as the requisites for a valid exercise of police power November 24, 1906).
have been complied with. Ques- Political question Judicial question
tion of (The courts can
Q: Can MMDA exercise police power? ne- determine whether
cessity there is genuine
A: NO. The MMDA cannot exercise police powers necessity for its
since its powers are limited to the formulation, exercise, as well as
coordination, regulation, implementation, the value of the
preparation, management, monitoring, setting of property)
policies, installing a system, and administration.
Nothing in RA No. 7924 granted the MMDA police
Requisites for a valid taking
power, let alone legislative power (MMDA v.
Trackworks, G.R. No. 179554, December 16, 2009)
1. The expropriator must enter a private property;
19
II. BASIC CONCEPTS
2. Entry must be for more than a momentary Concept of Vicarious Benefit
period;
3. Entry must be under warrant or color of legal Abandons the traditional concept (number of actual
authority; beneficiaries determines public purpose). Public use
4. Property must be devoted to public use or now includes the broader notion of indirect public
otherwise informally appropriated or injuriously advantage, i.e. conversion of a slum area into a model
affected; and housing community, urban land reform and housing.
5. Utilization of property must be in such a way as There is a vicarious advantage to the society.
to oust the owner and deprive him of beneficial (Filstream International Incorporated v. CA, 284 SCRA
enjoyment of the property. (Republic v. De 716, January 23, 1998)
Castellvi, G.R. No. L-20620, August 15, 1974)
Q: The Republic, through the Office of the
Nature of property taken Solicitor-General, instituted a complaint for
expropriation of a piece of land in Taguig, alleging
GR: All private property capable of ownership, that the National Historical Institute declared said
including services, can be taken. land as a national historical landmark, because it
was the site of the birth of Felix Manalo, the
XPNs: (Mo-Cho) founder of Iglesia ni Cristo. The Republic filed an
action to expropriate the land. Petitioners argued
1. Money; and that the expropriation was not for a public
2. Choses in action - personal right not reduced in purpose. Is their argument correct?
possession but recoverable by a suit at law such
as right to receive, demand or recover debt, A: NO. Public use should not be restricted to the
demand or damages on a cause of action ex traditional uses. It has been held that places invested
contractu or for a tort or omission of duty. with unusual historical interest is a public use for
which the power of eminent domain may be
NOTE: A chose in action is a property right in authorized. The purpose in setting up the marker is
something intangible, or which is not in one’s essentially to recognize the distinctive contribution of
possession but enforceable through legal or court the late Felix Manalo to the culture of the Philippines,
action e.g. cash, a right of action in tort or breach rather than to commemorate his founding and
of contract, an entitlement to cash refund, checks, leadership of the Iglesia ni Cristo. The practical reality
money, salaries, insurance claims. that greater benefit may be derived by members of
the Iglesia ni Cristo than by most others could well be
Requisites before an LGU can exercise Eminent true but such a peculiar advantage still remains to be
Domain (O-Pu –JO) merely incidental and secondary in nature. Indeed,
that only a few would actually benefit from the
1. An Ordinance is enacted by the local legislative expropriation of property does not necessarily
council authorizing the local chief executive, in diminish the essence and character of public use.
behalf of the LGU, to exercise the power of (Manosca v. CA, supra.)
eminent domain or pursue expropriation
proceedings over a particular private property; Just Compensation
2. The power of eminent domain is exercised for It is the full and fair equivalent of the property taken
Public use, purpose or welfare, or for the benefit from the private owner (owner’s loss) by the
of the poor and the landless; expropriator. It is usually the fair market value (FMV)
of the property and must include consequential
3. There is payment of Just compensation; and damages (damages to the other interest of the owner
attributed to the expropriation) minus consequential
4. A valid and definite Offer has been previously benefits (increase in the value of other interests
made to the owner of the property sought to be attributed to new use of the former property).
expropriated, but said offer was not accepted.
(Municipality of Paranaque v. V.M. Realty Corp., JUST COMPENSATION = FMV + consequential
292 SCRA 678, July 20, 1998) DAMAGES – consequential BENEFITS
Expansive concept of “Public Use” NOTE: To be just, the compensation must be paid on
time. (2009 BAR)
Public use does not necessarily mean “use by the
public at large.” Whatever may be beneficially Fair Market Value
employed for the general welfare satisfies the
requirement. Moreover, that only few people benefit The price that may be agreed upon by parties who are
from the expropriation does not diminish its public- willing but are not compelled to enter into a contract
use character because the notion of public use now of sale. (City of Manila v. Estrada, G.R. No. 7749,
includes the broader notion of indirect public benefit September 9, 1913)
or advantage. (Manosca v. CA, G.R. 106440, January 29,
1996)

Political Law
Q: Lucy Grace Franco and Elma Gloria Franco were belatedly discovered that one of the underground
the registered owners of parcels of agricultural tunnels of NPC traversed their land. In that case,
land in Barangay Maquina, Dumangas, Iloilo, the Court adjudged that the value of the property
covered by Transfer Certificate of Title Nos. T- at the time the property owners initiated inverse
62209, T-62210, and T-51376. The Francos condemnation proceedings should be considered
voluntarily offered their land to the Department for purposes of just compensation for the
of Agrarian Reform for the Comprehensive following reasons, viz:
Agrarian Reform Program. The Francos were
initially offered 714,713.78 pesos for just Compensation that is reckoned on the
compensation, but it was later raised to market value prevailing at the time either
739,461.43 pesos upon review. The Francos when NPC entered or when it completed the
withdrew the compensation but was still tunnel, as NPC submits, would not be just,
dissatisfied with the amount. Hence, they filed for it would compound the gross unfairness
before the RTC a complaint for the determination already caused to the owners by NPC's
of just compensation. The court fixed the just entering without the intention of formally
compensation to 1,024,115.59 pesos, and ruled expropriating the land, and without the prior
that the Francos were entitled to an additional 5% knowledge and consent of the Heirs of
cash payment by way of incentive for voluntarily Macabangkit. NPC's entry denied elementary
offering their lots for sale. Is the Special Agrarian due process of law to the owners since then
Court’s valuation of just compensation using a until the owners commenced the inverse
variation of the basic general formula provided condemnation proceedings. The Court is
for by the DAR correct? more concerned with the necessity to
prevent NPC from unjustly profiting from its
A: NO. While the formula prescribed by the deliberate acts of denying due process of law
Department of Agrarian Reform requires due to the owners. As a measure of simple justice
consideration, the determination of just compensation and ordinary fairness to them, therefore,
shall still be subject to the final decision of the special reckoning just compensation on the value at
agrarian court. In its exercise of original jurisdiction, the time the owners commenced these
the special agrarian court may deviate from the inverse condemnation proceedings is
formulas if it can show that the value is not equivalent entirely warranted.
to the fair market value at the time of the taking.
However, any deviation to the basic formula made in
the exercise of judicial discretion must be supported 2. In National Power Corporation v. Spouses
by a reasoned explanation grounded on the evidence Saludares, 686 Phil. 967, respondents therein
on record. filed a complaint for the payment of just
compensation against NAPOCOR, averring that it
A computation by a court made in utter and blatant had entered and occupied their property by
disregard of the factors spelled out by law and by the erecting high-tension transmission lines and
implementing rules amounts to grave abuse of failed to reasonably compensate them for the
discretion. Here, the Special Agrarian Court’s intrusion. For its part, NAPOCOR countered that
computation of the just compensation resulted in a it had already paid just compensation for the
“double take up” of the market value per tax establishment of the transmission lines by virtue
declaration of the property. This method of valuation of its compliance with the final and executory
has already been considered in jurisprudence as a decision in National Power Corporation v.
departure from the mandate of law and basic Pereyras. In ruling that the reckoning value of just
administrative guidelines. (Land Bank of the compensation is that prevailing at the time of the
Philippines v. Lucy Grace, G.R. No. 203242, March 12, filing of the inverse condemnation proceedings,
2019, as penned by J. Leonen) the Court declared:
Period to determine just compensation To reiterate, NAPOCOR should have

instituted eminent domain proceedings
GR: Just compensation must be reckoned from the before it occupied respondent spouses'
time of taking or filing of the complaint, whichever property. Because it failed to comply with
came first. (NTC vs. Oroville Dev’t. Corp, G.R. No. this duty, respondent spouses were
223366, Aug. 1, 2017) constrained to file the instant Complaint for
just compensation before the trial court.
XPNs: From the 1970s until the present, they were
1. In NPC vs. Macabangkit Sangkay (G.R. No. deprived of just compensation, while
165828, August 24, 2011), NAPOCOR, in the NAPOCOR continuously burdened their
1970s, undertook the construction of several property with its transmission lines. This
underground tunnels to be used in diverting the Court cannot allow petitioner to profit from
water flow from the Agus River to the its failure to comply with the mandate of the
hydroelectric plants. On November 21, 1997, law. We therefore rule that, to adequately
respondents therein sued NAPOCOR for recovery compensate respondent spouses from the
of property and damages, alleging that they decades of burden on their property,
21
II. BASIC CONCEPTS
NAPOCOR should be made to pay the value Where the expropriator takes only part of a parcel of
of the property at the time of the filing of the land and the remainder, as a result of the
instant Complaint when respondent spouses expropriation, is placed in a better location (such as
made a judicial demand for just fronting a street where it used to be an interior lot),
compensation. the owner will enjoy consequential benefits which
should be deducted from the consequential damages.
NOTE: The rulings in Macabangkit (Cruz, Constitutional Law, 2015 ed., p. 155)
Sangkay and Saludares are more in consonance with
the rules of equity than with the Rules of Court, NOTE: If the consequential benefits exceed the
specifically Rule 67 on expropriation. consequential damages, these items should be
disregarded altogether as the basic value of the
Inverse condemnation has the objective to recover the property should be paid in every case. (Rule 67,
value of property taken in fact by the governmental Section 6, Rules of Court)
defendant, even though no formal exercise of the
power of eminent domain has been attempted by the Form of payment
taking agency. (NPC vs. Heirs of Makabangkit
Sangkay). GR: Compensation has to be paid in money.
XPN: In cases involving CARP, compensation may be

Consequential Damages
in bonds or stocks, for it has been held as a non-
Consist of injuries directly caused on the residue of traditional exercise of the power of eminent domain.
the private property taken by reason of expropriation. It is not an ordinary expropriation where only a
Where, for example, the expropriator takes only part specific property of relatively limited area is sought to
of a parcel of land, leaving the remainder with an odd be taken by the State from its owner for a specific and
shape or area as to be virtually unusable, the owner perhaps local purpose. It is rather a revolutionary
can claim consequential damages. (Cruz and Cruz, kind of expropriation. (Association of Small
Constitutional Law, 2015 Ed.) Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform, G.R. No. 78742, July 14, 1989)
Q: Spouses Salvador owns a land where a one- NOTE: The owner is entitled to the payment of
storey building is erected. The said land is subject interest from the time of taking until just
to expropriation wherein the DPWH shall compensation is actually paid to him. Taxes paid by
construct the NLEX extension exiting McArthur him from the time of the taking until the transfer of
Highway. DPWH paid the spouses amounting to title (which can only be done after actual payment of
P685,000 which was the fair market value of the just compensation), during which he did not enjoy any
land and building. RTC issued a Writ of Possession beneficial use of the property, are reimbursable by the
in favor of the Republic but decided to pay an expropriator.
additional amount corresponding to the capital
gains tax paid by the spouses. The Republic, Pursuant to Bangko Sentral ng Pilipinas Circular No.
represented by DPWH contested the decision of 799, series of 2013, from July 1, 2013 onwards and
the RTC adding the capital gains tax as until full payment, an interest rate of 6% per annum
consequential damages on the part of the Spouse should be used in computing the just compensation.
Salvador. Is the decision of the RTC correct? (Land Bank of the Philippines v. Hababag, G.R. No.
172352, September 16, 2015)
A: NO. Just compensation is defined as the full and fair
equivalent of the property sought to be expropriated. NOTE: The right to recover just compensation is
The measure is not the taker’s gain but the owner’s enshrined in no less than our Bill of Rights, which
loss. The compensation, to be just, must be fair not states in clear and categorical language that private
only to the owner but also to the taker. Consequential property shall not be taken for public use without just
damages are only awarded if as a result of the compensation. This constitutional mandate cannot be
expropriation, the remaining property of the owner defeated by statutory prescription. (NPC v. Sps.
suffers from an impairment or decrease in value. In Bernardo, G. R. No. 189127, April 25, 2012) (2014
this case, no evidence was submitted to prove any BAR)
impairment or decrease in value of the subject
property as a result of the expropriation. More Determination
significantly, given that the payment of capital gains
tax on the transfer· of the subject property has no Role of the Judiciary
effect on the increase or decrease in value of the
remaining property, it can hardly be considered as The final determination of just compensation is a
consequential damages that may be awarded to judicial function; that the jurisdiction of the Regional
respondents. (Republic v. Sps. Salvador, G.R. No. Trial Court, sitting as Special Agrarian Court, is
205428, June 7, 2017) original and exclusive, not appellate. (Land Bank vs.
Eugenio Dalauta, G.R. No. 190004, August 8, 2017).
Consequential Benefits
Effect of Delay

Political Law
GR: Non-payment by the government does not entitle conditions that should be complied with to enable the
private owners to recover possession of the property condemnation or to keep the property expropriated.
because expropriation is an in rem proceeding, not an
ordinary sale, but only entitle them to demand More particularly, with respect to the element of
payment of the fair market value of the property. public use, the expropriator should commit to use the
property pursuant to the purpose stated in the
XPNs: petition for expropriation filed, failing which, it should
file another petition for the new purpose. If not, it is
1. When there is deliberate refusal to pay just then incumbent upon the expropriator to return the
compensation; and said property to its private owner, if the latter desires
2. Government’s failure to pay compensation within to reacquire the same. Otherwise, the judgment of
5 years from the finality of the judgment in the expropriation suffers an intrinsic flaw, as it would
expropriation proceedings. This is in connection lack one indispensable element for the proper
with the principle that the government cannot exercise of the power of eminent domain, namely, the
keep the property and dishonor the judgment. particular public purpose for which the property will
(Republic v. Lim, G.R. No. 161656, June 29, 2005) be devoted. Accordingly, the private property owner
would be denied due process of law, and the judgment
Abandonment of intended use and right of would violate the property owner’s right to justice,
repurchase fairness, and equity. (MIAA and Air Transportation
Office v. Lozada, G.R. No. 176625, February 25, 2010)
Q: Several parcels of lands located in Lahug, Cebu
City were the subject of expropriation NOTE: In view of the discontinuance of the
proceedings filed by the Government for the proceedings and the eventual return of the property
expansion and improvement of the Lahug Airport. to the owners, there is no need to pay “just
The RTC rendered judgment in favor of the compensation” to them because their property would
Government and ordered the latter to pay the not be taken. However, instead of full market value of
landowners the fair market value of the land. The the property, the expropriator should compensate the
landowners received the payment. owners for the disturbance of their property rights from
the time of entry until the time of restoration of the
The other dissatisfied landowners possession by paying to them actual or other
appealed. Pending appeal, the Air Transportation compensatory damages.
Office (ATO), proposed a compromise settlement
whereby the owners of the lots affected by the The expropriator who has taken possession of the
expropriation proceedings would either not property subject of expropriation is obliged to pay
appeal or withdraw their respective appeals in reasonable compensation to the landowner for the
consideration of a commitment that the period of such possession although the proceedings
expropriated lots would be resold at the price had been discontinued on the ground that the public
they were expropriated in the event that the ATO purpose for the expropriation had meanwhile ceased.
would abandon the Lahug Airport, pursuant to an (Republic v. Heirs of Borbon, G.R. No. 165354, January
established policy involving similar 12, 2015)
cases. Because of this promise, the landowners did
not pursue their appeal. Thereafter, the lot was 3. TAXATION
transferred and registered in the name of the
Government. The projected improvement and It is the process by which the government, through its
expansion plan of the old Lahug Airport, however, legislative branch, imposes and collects revenues to
was not pursued. From the date of the institution defray the necessary expenses of the government, and
of the expropriation proceedings up to the to be able to carry out, in particular, any and all
present, the public purpose of the said projects that are supposed to be for the common
expropriation (expansion of the airport) was good. Simply put, taxation is the method by which
never actually initiated, realized, or these contributions are exacted.
implemented.
In other words, taxation is:
Thus, the landowners initiated a complaint for
the recovery of possession and reconveyance of 1. The inherent power of the sovereign
ownership of the lands based on the compromised exercised through legislature  
agreement they entered into with the ATO. Do the 2. To impose burdens  
former owners have the right to redeem the 3. Upon subjects and objects  
property? 4. Within its jurisdiction  
5. For the purpose of raising revenues  
A: YES. It is well settled that the taking of private 6. To carry out the legitimate objects of government
property by the Government’s power of eminent
domain is subject to two mandatory requirements: (1) Lifeblood Doctrine
that it is for a particular public purpose; and (2) that
just compensation be paid to the property owner. Taxes are the lifeblood of the government, for without
These requirements partake of the nature of implied taxes, the government can neither exist nor endure. A
23
II. BASIC CONCEPTS
principal attribute of sovereignty, the exercise of the rehabilitation and stabilization of a
taxing power derives its source from the very threatened industry which is affected
existence of the state whose social contract with its with public interest, like the oil industry
citizens obliges it to promote public interest and (Caltex Philippines, Inc. v. Commission
common good. The theory behind the exercise of the on Audit, et al., G.R. No. 92585, May 8,
power to tax emanates from necessity; without taxes, 1992). Taxation also has a regulatory
government cannot fulfill its mandate of promoting purpose as in the case of taxes levied on
the general welfare and well-being of the people. excises or privileges like those imposed
(National Power Corporation v. City of Cabanatuan, on tobacco and alcoholic products, or
G.R. No. 149110, April 9, 2003) amusement places like night clubs,
cabarets, cockpits, etc. (Aban, 2001).
Q: May the legislature enact laws to raise evenues
in the absence of constitutional provisions c. Reduction of social inequality – a
granting said body the power of tax? Explain. progressive system of taxation prevents
the undue concentration of wealth in
A: YES. The constitutional provisions relating to the the hands of few individuals.
power of taxation do not operate as grants of the Progressivity is based on the principle
power of taxation to the government, but instead that those who are able to pay more  
merely constitute a limitation upon a power which should shoulder the bigger portion of
would otherwise be practically without limit. the tax burden.
Moreover, it is inherent in nature, being an attribute
of sovereignty. There is, thus, no need for a d. Encourage economic growth – the
constitutional grant for the State to exercise this grant of incentives or exemptions
power. encourage investment thereby
stimulating economic activity.
Q: Is the grant of the power of taxation inherent
for both National and Local Government? e. Protectionism – Protective tariffs and
customs duties are imposed as taxes in
A: NO. It is inherent in the National Government but order to protect important sectors of
not in the Local Government Unit (LGU) since the the economy or local industries, as in
latter is merely a State’s agency to carry out in detail the case of foreign importations.
the objects of the government. The LGU can only
impose taxes when it is granted by the: Scope of legislative power in taxation
1. Constitution 1. The determination of: (ASK-MAPS)

e.g. LGU’s taxation power outside autonomous a. Amount or Rate of tax
region (Art. X, Sec. 5, 1987 Constitution) b. Subjects of taxation (persons, property,
occupation, excises or privileges to be
2. Legislation by Congress taxed, provided they are within the
e.g. LGU’s taxation power within the autonomous taxing jurisdiction)
region (Art. X, Sec. 20, 1987 Constitution) c. Kind of tax to be collected
d. Method of collection (not exclusive to
Purpose of Taxation the Congress)
e. Apportionment of the tax (whether the
1. Primary or revenue purpose – to raise funds or tax shall be of general application or
property to enable the State to promote the limited to a particular locality, or partly
general welfare and protection of the people. general and partly local)
f. Purposes for which taxes shall be
2. Secondary or non-revenue purposes levied, provided they are public
a. Promotion of general welfare – purposes
taxation may be used as an implement g. Situs of taxation
of police power to promote the general
welfare of the people. In the case of Lutz 2. The grant of tax exemptions and condonations.
v. Araneta (G.R. No. L-7859, December 3. The power to specify or provide for
22, 1955), the Supreme Court upheld administrative as well as judicial remedies
the validity of the Sugar Adjustment Act, (Philippines Petroleum Corporation v. Municipality
which imposed a tax on milled sugar of Pililla, G.R. No. 85318, June 3, 1991).
since the purpose of the law was to
strengthen an industry that is so Constitutional Limitations
undeniably vital to the economy – the
sugar industry (Aban, 2001). 1. Prohibition against imprisonment for non-
payment of poll tax
b. Regulation of activities/industries – 2. Uniformity and equality of taxation
Taxes may also be imposed for a 3. Progressive taxation
regulatory purpose as, for instance, in 4. Grant by Congress of Authority to the President

Political Law
to impose tariff rates taxes?
5. Prohibition against taxation of religious,
charitable, and educational entities. A: NO. The Constitution does not really prohibit the
6. Prohibition against taxation of non-stock and impostion of regressive taxes. What it simply provides
non-profit educational institutions is that Congress shall evolve a progressive system of
7. Majority vote of Congress for grant of tax taxation.
exemption
8. Prohibition on use of tax levied for special Meaning of “evolve” as used in the Constitution
purpose The constitutional provision has been interpreted to
9. President’s veto power on appropriation, mean simply that "direct taxes are to be preferred and
revenue, and tariff bills as much as possible, indirect taxes should be
10. Non-impairment of the jurisdiction of the minimized.” The mandate of Congress is not to
Supreme Court prescribe but to evolve a progressive tax system. This
11. Grant of power to LGUs to create its own source is a mere directive upon Congress, not a justiciable
of income right or a legally enforceable one. We cannot avoid
12. Origin of revenue and tariff bills regressive taxes but only minimize them (Tolentino
13. No appropriation or use of public money for et.al. v. Secretary of Finance, G.R. No. 115455, Oct. 30,
religious purposes 1995).
Prohibition against imprisonment for non- Q: Is VAT regressive?

payment of poll tax
A: YES. The principle of progressive taxation has no
Payment of taxes is an obligation based on law, and relation with the VAT system in as much as the VAT
not on contract. It is a duty imposed upon the paid by the consumer or business for every goods
individual by the mere fact of his membership in the bought or services enjoyed is the same regardless of
body politic and his enjoyment of the benefits income. In other words, the VAT paid eats the same
available from such membership. Except only in the portion of an income, whether big or small. The
case of poll (community) taxes, non-payment of a tax disparity lies in the income earned by a person or
may be the subject of criminal prosecution and profit margin marked by a business, such that the
punishment. The accused cannot invoke the higher the income or profit margin, the smaller the
prohibition against imprisonment for debt, as taxes portion of the income or profit that is eaten by VAT. A
are not considered debts. (Cruz, Constitutional Law, converse, the lower the income or profit margin, the
2015 ed., p. 181) bigger the part that the VAT eats away. At the end of
the day, it is really the lower income group or
Uniformity and equality of taxation businesses with low-profit margins that is always
hardest hit (ABAKADA Guro v. Ermita, G.R. No. 168056,
Uniformity in taxation means that all taxable articles September 1, 2005).
or kinds of property, of the same class, shall be taxed
at the same rate. It does not mean that lands, chattels, Grant by Congress of Authority to the President to
securities, incomes, occupations, franchises, impose tariff rates
privileges, necessities, and luxuries shall all be
assessed at the same rate. Different articles may be Basis: The Congress may, by law, authorize the
taxed at different amounts, provided the rate is President to fix within specified limits and subject to
uniform on the same class everywhere, with all such limitations and restrictions at it may impose,
people, and at all times. (De Villata v. Stanley, G.R. No. tariff rates, import and export quotas, tonnage and
L-8154, December 20, 1915) wharfage dues and other duties or imposts within the
framework of the national development program of
GR: The power to tax operates with the same force the Government (Art. VI, Sec. 28 [2]).
and effect in every place where the subject of it is
found. This is known as geographical uniformity. Flexible tariff clause
XPN: The rule on uniformity does not prohibit This clause provides the authority given to the
classification for purposes of taxation, provided the President to adjust tariff rates under Sec. 401 of the
requisites for valid classification are met. (Ormoc Tariff and Customs Code [now Sec. 1608 of R.A.
Sugar v. Treasurer of Ormoc, G.R. No. L-23794, 10863, known as Customs Modernization and Tariff
February 17, 1968) Act (CMTA) of 2016] (Garcia v. Executive Secretary,
G.R. No. 101273, July 3, 1992). This authority,
Progressive taxation however, is subject to limitations and restrictions
indicated within the law itself.
Taxation is progressive when tax rate increases as the
income of the taxpayer increases. It is based on the Prohibition against taxation of religious,
principle that those who are able to pay more should charitable, and educational entities
shoulder the bigger portion of the tax burden.
Basis: Charitable institutions, churches and
Q: Does the Constitution prohibit regressive parsonages or convents appurtenant thereto,
25
II. BASIC CONCEPTS
mosques, non-profit cemeteries, and all lands, applies to religious, charitable, and educational
buildings, and improvements, actually, directly, and institutions – while Article XIV applies solely to non-
exclusively used for religious, charitable, or stock, non-profit educational institutions.
educational purposes shall be exempt from taxation
(Art. IV, Sec. 28 [3]). Hence, in this case, we should apply its literal
interpretation – “solely” – in consonance with the
Meaning of “actual, direct and exclusive use of the principle of strictissimi juris. The word “exclusively”
property for religious, charitable and educational indicates that the provision is mandatory (J.
purposes” Dimaampao, 2015, citing McGee v. Republic, 94 Phil.
821).
It is the direct and immediate and actual application
of the property itself to the purposes for which the Majority vote of Congress for grant of tax
charitable institution is organized. It is not the use of exemption
the income from the real property that is
determinative of whether the property is used for tax- Basis: No law granting any tax exemption shall be
exempt purposes. passed without the concurrence of a majority of all
the members of Congress (Section 28 [4], Art. VI).
NOTE: In the case of Lung Center of the Philippines v.
City Assessor of Quezon City (433 SCRA 119), the The inherent power of the State to impose taxes
Court ruled that under the 1987 Constitution, for carries with it the power to grant tax exemptions.
"lands, buildings, and improvements" of the charitable
institution to be considered exempt, the same should Prohibition on use of tax levied for special
not only be "exclusively" used for charitable purposes; purpose
it is required that such property be used "actually"
and "directly" for such purposes. Basis: All money collected on any tax levied for a
special purpose shall be treated as a special fund and
"Exclusive" is defined as possessed and enjoyed to the paid out for such purpose only. If the purpose for
exclusion of others; debarred from participation or which a special fund was created has been fulfilled or
enjoyment; and "exclusively" is defined, "in a manner abandoned, the balance, if any, shall be transferred to
to exclude; as enjoying a privilege exclusively."If real the general funds of the government (Sec. 29[3], Art.
property is used for one or more commercial VI).
purposes, it is not exclusively used for the exempted
purposes but is subject to taxation. NOTE: In Gaston v. Republic Planters Bank, 158 SCRA
626, the Court ruled that the “stabilization fees”
The words "dominant use" or "principal use" cannot collected by the State (PHILSUCOM) for the promotion
be substituted for the words "used exclusively" of the sugar industry were in the nature of taxes and
without doing violence to the Constitution and the no implied trust was created for the benefit of sugar
law. industries. Thus, the revenues derived therefrom are
to be treated as a special fund to be administered for
In sum, the Court ruled that the portions of the land the purpose intended. No part thereof may be used for
leased to private entities as well as those parts of the the exclusive benefit of any private person or entity
hospital leased to private individuals are not exempt but for the benefit of the entire sugar industry. Once
from taxes. the purpose is achieved, the balance, if any remaining,
is to be transferred to the general funds of the
Prohibition against taxation of non-stock and non- government (Vitug, 2006).
profit educational institutions
President’s veto power on appropriation, revenue,
Basis: All revenues and assets of non-stock, non- and tariff bills
profit educational institutions used actually, directly,
and exclusively for educational purposes shall be Basis: The President shall have the power to veto any
exempt from taxes and duties. particular item or items in an appropriation, revenue
or tariff bill but the veto shall not affect the item or
Subject to conditions prescribed by law, all grants, items which he does not object (Art. VI, Sec. 27[2]).
endowments, donations, or contributions used
actually, directly, and exclusively for educational The item or items vetoed shall be returned to the
purposes shall be exempt from tax (Sec 4 (3] and [4], Lower House of Congress together with the objections
Art XIV). of the President. If after consideration 2/3 of all the
members of such House shall agree to pass the bill, it
Meaning of “actually, directly, and exclusively shall be sent, together with the objection, to the other
used” House by which it shall likewise be  considered, and
if approved by 2/3 of all the members of that House, it
The use of the term “actually, directly, and exclusively shall become a law. (J. Dimaampao, 2015)
used” referring to religious institutions cannot be
applied to non-stock, non-profit educational
institutions. The provision of Article VI, Section 28(3)

Political Law
Non-impairment of the jurisdiction of the authorizing increase of the public debt, bills of local
Supreme Court application, and private bills shall originate
exclusively in the House of Representatives, but the
Basis: The Supreme Court shall have the power to Senate may propose or concur with amendments. (Art
review, revise, reverse, modify or affirm on appeal on VI, Sec. 24)
certiorari as the laws or the Rules of Court may
provide, final judgments or orders of lower courts in What is required to originate in the House of
xxx all cases involving the legality of any tax, impost, Representatives is not the law but the revenue bill
assessment, or toll or any penalty imposed in relation which must “originate exclusively” in the lower house.
thereto (Art. VIII, Sec. 5[2][b]). The bill may undergo such extensive changes that the
result may be a rewriting of the whole. The Senate
NOTE: These jurisdictions are concurrent with the may not only concur with amendments but also
RTCs; thus, the petition should generally be filed with propose amendments. To deny the Senate's power not
the RTC following the hierarchy of courts. However, only to "concur with amendments" but also to
questions on tax laws are usually filed direct with the "propose amendments" would be to violate the
Supreme Court as these are impressed with coequality of legislative power of the two houses of
paramount public interest. It is also provided under Congress and in fact make the House superior to the
Art. VI, Sec. 30 of the Constitution that “no law shall be Senate. (Tolentino v. Secretary of Finance, G.R. No.
passed increasing the appellate jurisdiction of the 115873, Aug. 25, 1994)
Supreme Court without its advice and concurrence.”
No appropriation or use of public money for
The courts cannot inquire into the wisdom of a taxing religious purposes
act, EXCEPT when there is an allegation of violation of
constitutional limitations or restrictions. Basis: No public money or property shall be
appropriated, applied, paid or employed directly or
Grant of power to LGUs to create its own source of indirectly for the use, benefit or support of any sect,
income church, denomination, sectaraian institution, or
system of religion or of any priest, preacher, minister,
Basis: Each LGU shall have the power to create its or other religious teacher or dignitary as such EXCEPT
own sources of revenues and to levy taxes, fees and when such priest, preacher, minister or dignitary is
charges subject to such guidelines and limitations as assigned to the armed forces or to any penal
the Congress may provide, consistent with the basic institution or government orphanage or leprosarium
policy of local autonomy. Such taxes, fees, and charges (Art. VI, Sec. 29[2]).
shall accrue exclusively to the local governments (Art.
X, Sec. 5). This is in consonance with the inviolable principle of
separation of the Church and State.
NOTE: The Congress cannot abolish the local
government’s power to tax as it cannot abrogate what Double taxation
is expressly granted by the fundamental law. The only
authority conferred to Congress is to provide the It means taxing the same property twice when it
guidelines and limitations on the local government’s should be taxed only once; that is, “taxing the same
exercise of the power to tax. person twice by the same jurisdiction for the same
thing.” It is obnoxious when the taxpayer is taxed
Justification in the delegation of legislative taxing twice, when it should be but once. Otherwise
power to local governments described as “direct duplicate taxation,” the two taxes
must be imposed on the same subject matter, for the
Delegation of legislative taxing power to local same purpose, by the same taxing authority, within
governments is justified by the necessary implication the same jurisdiction, during the same taxing period;
that the power to create political corporations for and the taxes must be of the same kind or character.
purposes of local self-government carries with it the (City of Manila v. Coca-Cola Bottlers Philippines, G.R.
power to confer on such local government agencies No. 181845, August 4, 2009)
the authority to tax.
Tax treaties
Exception to non-delegation of legislative powers
In negotiating tax treaties, the underlying rationale
for reducing the tax rate is that the Philippines will
The general principle against the delegation of
give up a part of the tax in the expectation that the tax
legislative powers as a consequence of the principle of
given up for this particular investment is not taxed by
separation of powers is subject to one well-
the other country.
established exception: legislative powers may be
delegated to LGUs. Included in this grant of legislative
In order to eliminate double taxation, a tax treaty
power is the grant of local taxing power.
resorts to several methods. First, it sets out the
respective rights to tax of the state of source or situs
Origin of revenue and tariff bills
and of the state off residence with regard to certain
classes of income or capital. Second, whenever the
Basis: All appropriation, revenue or tariff bills, bills
27
II. BASIC CONCEPTS
state of source is given a full or limited right to tax The power to tax includes the power to destroy only if
together with the state of residence, the treaties make it is used as a valid implement of the police power in
it incumbent upon the state of residence to allow discouraging and in effect, ultimately prohibiting
relief in order to avoid double taxation. (Commissioner certain things or enterprises inimical to public
of Internal Revenue v. S.C Johnson & Son, Inc., G.R. No. welfare. But where the power to tax is used solely for
127105, June 25, 1999) the purpose of raising revenues, the modern view is
that it cannot be allowed to confiscate or destroy. If
Two tax laws or ordinances constitute Double this is sought to be done, the tax may be successfully
Taxation when they tax: (PAPS-JK) attacked as an inordinate and unconstitutional
exercise of the discretion that is usually vested
1. For the same Purpose; exclusively in the legislature in ascertaining the
2. By the same taxing Authority; amount of tax. (Roxas v. CTA, G.R. No. L-25043, April
3. For the same taxing Periods; 26, 1968)
4. On the same Subject matter;
5. Within the same taxing Jurisdiction; and Q: Can police power and taxation co-exist in one
6. Of the same Kind or character. (Swedish Match act of the government?
Philippines v. Treasurer of the City of Manila, G.R.
No. 181277, July 3, 2013) A: YES. Taxation is no longer envisioned as a measure
merely to raise revenue to support the existence of
Tax exemptions may either be the government. Taxes may be levied with a
regulatory purpose to provide a means for the
1. Constitutional; or rehabilitation and stabilization of a threatened
industry which is affected with public interest as to be
NOTE: Requisites for Constitutional exemption: within the police power of the state (Caltex
Actual, Direct and Exclusive Use by the Philippines, Inc. v. Commission on Audit, 208 SCRA
following: 726). Thus, the power of taxation may be exercised to
implement police power (Tiu v. Videogram Regulatory
a. Educational; Board, 151 SCRA 208).
b. charitable institutions; and
c. Religious organizations. [Sec. 28(3), Art. VI, Tax vs. License fee
1987 Constitution]
TAX LICENSE FEE
Levied in exercise of Imposed in the exercise of
2. Statutory. the taxing power. the police power of the state.
NOTE: It has to be passed by majority of all the The purpose of the License fees are imposed for
members of the Congress. [Sec. 28(4), Art. VI, tax is to generate regulatory purposes which
1987 Constitution] revenues. means that it must only be of
sufficient amount to include
Revocability of tax exemptions expenses in issuing a license,
cost of necessary inspection
1. Exemption is granted gratuitously – revocable; or police surveillance, etc.
and
2. Exemption is granted for valuable consideration Its primary purpose Regulation is the primary
(non-impairment of contracts) – irrevocable. is to generate purpose. The fact that
revenue, and incidental revenue is also
Construction of tax laws regulation is merely obtained does not make the
incidental. imposition a tax.
In case of doubt, tax statutes are to be construed
strictly against the Government and liberally in favor NOTE: Ordinarily, license fees are in the nature of the
of the taxpayer, for taxes, being burdens, are not to be exercise of police power because they are in the form
presumed beyond what the applicable statute of regulation by the State and considered as a manner
expressly and clearly declares. (CIR v. La Tondena, Inc. of paying off administration costs. However, if the
and CTA, 5 SCRA 665, July 31, 1962) license fee is higher than the cost of regulating, then it
becomes a form of taxation. (Ermita-Malate Hotel v.
Construction of laws granting tax exemptions City Mayor of Manila, G.R. No. L-24693, October 23,
1967)
It must be strictly construed against the taxpayer,
because the law frowns on exemption from taxation;
Q: Can taxes be subject to off-setting or
hence, an exempting provision should be compensation?
construed strictissimi juris. (Acting Commissioner of
Customs v. Manila Electric Company, G.R. No. L-23623, A: NO. Taxes cannot be subject to compensation for
June 30, 1977) the simple reason that the government and the
taxpayer are not creditors and debtors of each other.
Power to destroy There is a material distinction between a tax and debt.

Political Law
Debts are due to the Government in its corporate Also, if an attaché commits an offense within the
capacity, while taxes are due to the Government in its precincts of an embassy, his immunity from
sovereign capacity. It must be noted that a prosecution is not because he has not violated the
distinguishing feature of tax is that it is compulsory local law, but rather because the individual is exempt
rather than a matter of bargain. Hence, a tax does not from prosecution. If a person not so exempt, or whose
depend upon the consent of the taxpayer. (Philex immunity is waived, similarly commits a crime
Mining Corp. v. CIR, 294 SCRA 687, August 28, 1998) therein, the territorial sovereign, if it secures custody
of the offender, may subject him to prosecution. It is
III. NATIONAL TERRITORY not believed, therefore, that an ambassador himself
possesses the right to exercise jurisdiction, contrary
to the will of the State of his sojourn, even within his
Composition of the Philippine Territory embassy with respect to acts there committed. Nor is
there apparent at the present time any tendency on
The national territory comprises: the part of States to acquiesce in his exercise of it.
(William C. Reagan v. CIR, G.R. No. L-26379, December
1. The Philippine archipelago, with all the islands 27, 1969)
and waters embraced therein; and
2. All other territories over which the Philippines Archipelagic Doctrine
has sovereignty or jurisdiction, consisting of:
By the term “archipelagic doctrine of national
a. Its terrestrial, fluvial and aerial domains territory” is meant that the islands and waters of the
b. Including its territorial sea, the seabed, the Philippine Archipelago are unified in sovereignty,
subsoil, the insular shelves, and other together with “all the territories over which the
submarine areas. Philippines has sovereignty or jurisdiction.”
NOTE: The waters around, between, and The second sentence of Article I of the 1987
connecting the islands of the archipelago, Constitution, “The waters around, between, and
regardless of their breadth and dimensions, connecting the islands of the archipelago, regardless of
form part of the internal waters of the their breadth and dimensions, form part of the internal
Philippines. (Art. I, 1987 Constitution) waters of the Philippines”, is an affirmation of the
archipelagic doctrine. Under this doctrine, we connect
Q: William, a private American citizen and the outermost points of our archipelago with straight
frequent visitor to the Philippines, was inside the baselines and consider all the waters enclosed
U.S. Embassy when he got into a heated argument thereby as internal waters. The entire archipelago is
with a private Filipino citizen. Then, in front of regarded as one integrated unit instead of being
many shocked witnesses, he killed the person he fragmented into so many thousand islands. (Cruz and
was arguing with. The police came and brought Cruz, Philippine Political Law, p. 24)
him to the nearest police station. Upon reaching
the station, the police investigator, in halting Purposes of the Archipelagic Doctrine (TEN)
English, informed William of his Miranda rights,
and assigned him an independent local counsel. 1. Territorial Integrity
William protested his arrest. He argued that since 2. Economic reasons
the incident took place inside the U.S. Embassy,
3. National Security
Philippine courts have no jurisdiction because the
U.S. embassy grounds are not part of Philippine
territory; thus, technically, no crime under NOTE: The main purpose of the archipelagic doctrine
Philippine law was committed. Is William correct? is to protect the territorial interests of an archipelago,
(2009 BAR) its territorial integrity. Without it, there would be
“pockets of high seas” between some of our islands
A: NO. William is not correct. The premises occupied and islets, thus foreign vessels would be able to pass
by the United States Embassy do not constitute through these “pockets of seas” and would have no
territory of the United States but of the Philippines. jurisdiction over it.
Crimes committed within them are subject to the
territorial jurisdiction of the Philippines. Since Effect of RA 9522 “Archipelagic Baselines Law” on
William has no diplomatic immunity, the Philippines our sovereignty over our national territory
can prosecute him if it acquires custody over him.
(UPLC Suggested Answers) RA 9522 amends RA 3046, which defines the
baselines of the territorial sea of the Philippines. The
NOTE: Foreign embassies retain their status as native Kalayaan Island Group as constituted under PD 1596
soil. They are still subject to Philippine authority. Its and Bajo de Masinloc, also known as Scarborough
jurisdiction may be diminished, but it does not Shoal is determined as “Regime of Islands” under the
disappear. So, it is with the bases under lease to the Republic of the Philippines consistent with Art. 121 of
American armed forces by the military base’s the United Nations Convention on the Law of the Sea
agreement of 1947. They are not and cannot be which states:
considered as foreign territory.
29
III. NATIONAL TERRITORY
An island is a naturally formed area of land, Sea miles Philippines
surrounded by water, which is above water at high from
tide. baseline The Philippines may
exercises its sovereignty
Except as provided for in par. 3, the territorial sea, the within its territorial sea
contiguous zone, the exclusive economic zone and the
continental shelf of an island are determined in Contiguous Up to 24 The coastal State may
accordance with the provisions of this Convention zone (2019 nautical exercise the control
applicable to other land territory. BAR) miles necessary to:
from the
Rocks which cannot sustain human habitation or outer (a) prevent infringement
economic life of their own shall have no exclusive edge of of its customs, fiscal,
economic zone or continental shelf. territorial immigration or sanitary
sea laws and regulations
Spratlys Group of Islands (SGI) is not part of the within its territory or
Philippine Archipelago because it is too far to be territorial sea;
included within the archipelagic lines encircling the
internal waters of Philippine Archipelago. The SGI, (b) punish infringement
however, is part of the Philippine territory because it of the above laws and
was discovered by a Filipino seaman in the name of regulations committed
Tomas Cloma who later renounced his claim over it in within its territory or
favor of the Republic of the Philippines. Subsequently, territorial sea. (Art. 33 of
then Pres. Marcos issued a Presidential Decree UNCLOS)
constituting SGI as part of the Philippine territory and
sending some of our armed forces to protect said Exclusive Up to 200 The coastal State has:
island and maintain our sovereignty over it. Economic nautical
Zone miles (a) sovereign rights for
Q: A bill was introduced in the House of (2019 from the purpose of exploring
Representatives in order to implement faithfully BAR) baseline and exploiting,
the provisions of the United Nations Convention conserving and managing
on the Law of the Sea (UNCLOS) to which the the natural resources,
Philippines is a signatory. Congressman Pat Rio whether living or non-
Tek questioned the constitutionality of the bill on living, of the waters
the ground that the provisions of UNCLOS are superjacent to the seabed
violative of the provisions of the Constitution and of the seabed and its
defining the Philippine internal waters and subsoil, and with regard
territorial sea. Do you agree or not with the said to other activities for the
objection? Explain. (2015 BAR) economic exploitation
and exploration of the
A: The objection does not hold water. UNCLOS III has zone, such as the
nothing to do with the acquisition or loss of territory. production of energy
It is a multilateral treaty regulating, among others, from the water, currents
sea-use rights over maritime zones, exclusive and winds;
economic zone, and continental shelves that UNCLOS
III delimits. UNCLOS does not define the internal and (b) jurisdiction as
territorial waters of states but merely "prescribes the provided for in the
water-land ratio, length, and contour of baselines of relevant provisions of
archipelagic States like the Philippines. Whether this Convention with
referred to as Philippine internal waters or as regard to:
archipelagic waters under UNCLOS, the Philippines
exercises sovereignty over the body of water lying i. the
landward of the baselines, including the air space over establishment
it and the submarine areas underneath. (Magallona v. and use of
Ermita, G.R. No. 187167, August 16, 2011) artificial islands,
installations
Maritime Zones under UNCLOS and structures;
ii. marine
Q: What are the rights of the Philippines within scientific
the following areas: (a) Contiguous zone; and (b) research;
Exclusive economic zone? (2019 BAR) iii. the protection
and
MARITIME AREA RIGHTS OF THE preservation of
ZONE PHILIPPINES the marine
Territorial 12 It is included in the environment;
nautical national territory of the

Political Law
(c) other rights and resources within the sea areas falling within the
duties provided for in ‘nine-dash line.’ (The South China Sea Arbitration
this Convention. (Art. 56 or Philippines v. China, PCA Case No. 2013-19,
of UNCLOS) 2016)
High Seas Beyond No State may validly
NOTE: See extensive discussion under Law of the Sea,
200 purport to subject any
Public International Law
nautical part of the high seas to its
miles sovereignty. (Art. 89 of
UNCLOS) IV. CITIZENSHIP
The high seas are open to Citizenship pertains to a membership in a political

all States, whether community, which is personal and more or less
coastal or land-locked. permanent in character. It denotes possession within
(Art. 87 of UNCLOS) that particular political community of full civil and
political rights subject to special disqualifications.
Spratlys Group of Islands (SGI) and Scarborough Reciprocally, it imposes the duty of allegiance to the
Shoal as part of the National Territory political community. The core of citizenship is the
capacity to enjoy political rights, that is, the right to
The SGI and Scarborough Shoal fall under the 2nd participate in government principally through the
phrase of Art. II, i.e. “and all other territories over right to vote, the right to hold public office and the
which the Philippines has sovereignty or jurisdiction.” right to petition the government for redress of
It is part of our national territory because the grievance. (Republic vs. Karbasi, G.R. No. 210412, July
Philippines exercise sovereignty (through election of 29, 2015)
public officials) over the Spratly Group of Islands.
Moreover, under the Philippine Baselines Law of Citizenship vs. Nationality
2009 (RA 9522), the Spratly Islands and the
Scarborough Shoal are classified as islands under the CITIZENSHIP NATIONALITY
regime of the Republic of the Philippines. (Philippine A term denoting It has a broader
Baselines Law of 2009) membership of a citizen meaning, embracing all
in a political society, who owe allegiance to a
Philippines-China Arbitration Ruling of the which membership state, whether
Permanent Court of Arbitration implies, reciprocally, a democratic or not,
duty of allegiance on the without thereby
Main points: part of the member and becoming citizens.
1. China claims the South China Sea by virtue of its duty of protection on the Because they owe
historic rights within the “nine-dash line” part of the state allegiance to it, they are
2. The Tribunal concluded that the UNCLOS not regarded as aliens.
comprehensively allocates rights to maritime
areas and that protections for pre-existing rights
to resources were considered, but not adopted in A. KINDS OF CITIZENSHIP, PURPOSE OF
the UNCLOS. DISTINGUISHING CITIZENSHIP AND KINDS OF
3. To the extent China had historic rights to CITIZENSHIP
resources in the waters of the South China Sea,
such rights were extinguished to the extent they Kind of Citizenship
were incompatible with the exclusive economic
zones provided for in the UNCLOS. 1. Natural-born Citizens – Those who are citizens
4. Although Chinese navigators and fishermen, as of the Philippines from birth without having to
well as those of other States, had historically perform any act to acquire or perfect their
made use of the islands in the South China Sea, Philippine citizenship. (Sec. 2, Art. IV, 1987
there was no evidence that China had historically Constitution) (2019 BAR)
exercised exclusive control over the waters or
their resources. The following are natural-born Filipino citizens:
a. Prior to the UNCLOS, the waters of the South a. Those who are citizens of the Philippines
China Sea beyond the territorial sea were from birth without having to perform any
legally part of the high seas, in which vessels act to acquire or perfect their Philippine
from any State could freely navigate and fish. citizenship;
b. Historical navigation and fishing by China in b. Those who elect Philippine citizenship in
the waters of the South China Sea accordance with Par. 3, Sec. 1, Art. IV of the
represented the exercise of high seas 1987 Constitution shall be deemed natural-
freedoms, rather than a historic right, born citizens.
5. The Tribunal concluded that there was no legal 2. Naturalized Citizens – Those who have become
basis for China to claim historic rights to Filipino citizens through naturalization, generally
31
IV. CITIZENSHIP
under Commonwealth Act No. 473, otherwise petition for naturalization as Philippine citizen.
known as the Revised Naturalization Law, which (CA No. 473, Sec. 2)
repealed the former Naturalization Law (Act No.
2927), and by Republic Act No. 530. (Antonio NOTE: These qualifications must be possessed by him
Bengson III v. HRET, G.R. No. 142840, May 7, 2001) at the time he applies for naturalization and not
subsequently. (Ibid)
Government officials required to be natural-born
Filipino citizens Special Qualifications
1. President; The 10 years of continuous residence required above

2. Vice-President; shall be reduced to 5 years if petitioner has ANY of the
3. Members of Congress; following qualifications: (E-TOMB)
4. Justices of Supreme Court and lower collegiate
courts; 1. Honorably held office under the Government of
5. Ombudsman and his deputies; the Philippines or under that of any of the
6. Members of Constitutional Commissions; provinces, cities, municipalities, or political
7. Members of the Central Monetary Authority; subdivisions thereof;
8. Members of the Commission on Human Rights. 2. Established a new industry or introduced a useful
invention in the Philippines;
B. WHO ARE CITIZENS
3. Married to a Filipino woman;
The following are citizens of the Philippines: 4. Been engaged as a teacher in the Philippines in a
public or recognized school not established for
1. Those who are Filipino citizens at the time of the the exclusive instruction of children of persons of
adoption of the 1987 Constitution; a particular nationality or race, in any of the
2. Those whose fathers or mothers are citizens of branches of education or industry for a period of
the Philippines; not less than two years;
5. Born in the Philippines. (CA No. 473, Sec. 3)
3. Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon NOTE: Naturalization laws are strictly construed in
reaching the age of majority; and the government’s favor and against the applicant. The
4. Those who are naturalized in accordance with applicant carries the burden of proving his full
law. (Sec. 1, Art. IV, 1987 Constitution) compliance with the requirements of law. (Cruz,
Constitutional Law 2015 Ed., p. 810)
C. WHO CAN BE CITIZENS
Any person having the following qualifications D. MODES OF ACQUIRING CITIZENSHIP

may become a citizen of the Philippines by
naturalization: (21-10-GRAM) 1. By birth
1. Must not be less than 21 years of age on the day a. Jus Sanguinis – On the basis of blood
of the hearing of the petition; relationship.
2. Must have resided in the Philippines for a b. Jus Soli – On the basis of the place of birth.
continuous period of not less than 10 years;
3. Must be of good moral character and believes in 2. By naturalization – The legal act of adopting an
the principles underlying the Philippine alien and clothing him with the privilege of a
Constitution, and must have conducted himself in citizen.
a proper and irreproachable manner during the
entire period of his residence in the Philippines 3. By marriage – When a foreign woman marries a
in his relation with the constituted government Filipino husband, provided, she possesses all
as well as with the community in which he is qualifications and none of the disqualifications
living; for naturalization.
4. Must own real estate in the Philippines worth not
less than P5, 000, or must have some known Q: Spouses Ben and Liong were Chinese nationals
lucrative trade, profession, or lawful occupation; and had three children. While the children were
5. Must be able to speak and write English or still minors, the spouses were naturalized as
Spanish and any one of the principal Philippine Filipino Citizens pursuant to Letter of Instruction
languages; and 270 and Philippine Citizenship was conferred by
6. Must have enrolled his minor children of school virtue of Presidential Decree 923.
age, in any of the public schools or recognized
private schools where the Philippine history, a.) Will the naturalization extend to the minor
government and civics are taught or prescribed children of Spouses Ben and Liong?
as part of the school curriculum, during the entire
period of the residence in the Philippines
A: YES. The Court ruled that Letter of Instruction
required of him prior to the hearing of his
(LOI) 270 and Commonwealth Act (CA) 473 were in

Political Law
pateri materia, and absent any express repeal, the two 5. Cancellation of certificate of naturalization
laws must be read with one another. Although LOI (Denaturalization); or
270 does not expressly provide that the father’s 6. Having been declared by final judgment a
naturalization automatically extended to his wife and Deserter of the armed forces of the
children, Sec. 15 of CA 473 provides for the extension Philippines in times of war; or
of the naturalization of the father to his wife and 7. In case of a woman, upon her Marriage, to a
minor children as long as there is no disqualification foreigner if, by virtue of the laws in force in
and the wife sufficiently shows that she and her minor her husband’s country, she acquires his
children permanently resides in the Philippines at the nationality. (Cruz and Cruz, 2015 ed., p. 823)
time of the naturalization of the husband. Thus, it
must also apply to those who naturalize by virtue of Ways to reacquire citizenship
LOI 270. (Republic v Winston Brian Chia Lao, G.R.
No. 205218, August 28, 2020 as penned by J. 1. Naturalization;
LEONEN) 2. Repatriation; and
3. Direct act of Congress.
b.) Later on, Winston, Christopher and Jon filed
before the Manila Trial Court, a petition to change
Naturalization
the nationality of their parents as reflected in
their birth certificate. Will their petitions
prosper? An act of formally adopting a foreigner into the
political body of a nation by clothing him or her with
A: YES. Rule 108 of the Rules of Court allows both the the privileges of a citizen.
correction of clerical errors and substantial errors
reflected in the documents kept by the civil registry. Repatriation
The nationality of Ben and Liong in Winston,
Christopher and Jon’s birth certificates, indicating that The recovery of the original nationality. This means
they are Chinese, is no longer true after the that a naturalized Filipino who lost his citizenship will
naturalization of the former. Hence the nationality of be restored to his prior status as a naturalized Filipino
Ben and Liong in their children’s birth certificates citizen. On the other hand, if he was originally a
should be amended to indicate “Filipino.” (Republic v natural-born citizen before he lost his Philippine
Winston Brian Chia Lao, G.R. No. 205218, August citizenship, he will be restored to his former status as
28, 2020 as penned by J. LEONEN) a natural-born Filipino. (Bengson III vs. HRET and
Cruz, G.R. No. 142840, May 7, 2001)
E. MODES OF LOSING AND RE-ACQUIRING
PHILIPPINE CITIZENSHIP How repatriation is effected
Repatriation shall be effected by the following:

Philippine citizenship may be lost or reacquired in the
manner provided by law. (Sec. 3, Art. IV, 1987 1. Taking the necessary oath of allegiance to the
Constitution) Republic of the Philippines; and
2. Registration in the proper civil registry and in the
Grounds for Losing Philippine Citizenship
Bureau of Immigration.
(N-E-S-Re-Ca-De-M)
The Bureau of Immigration shall thereupon cancel the
1. Naturalization in a foreign country; pertinent alien certificate of registration and issue the
2. Express renunciation of citizenship certificate of identification as Filipino citizen to the
(expatriation); or repatriated citizen.
3. Subscribing to an oath of allegiance to the
constitution or laws of a foreign country upon RA 9225 “Citizenship Retention and Re-
attaining 21 years of age; or acquisition Act of 2003”
4. Rendering service to or accepting commission in
the armed forces of a foreign country unless: Reacquisition
a. The Philippines has a defensive and/or Natural-born citizens of the Philippines who have lost
offensive pact of alliance with the said their Filipino citizenship due to naturalization as
foreign country; or citizens of a foreign country are deemed to have re-
b. The said foreign country maintains armed acquired Philippine citizenship.
forces in the Philippine territory with its
consent provided that at the time of Retention
rendering said service, or acceptance of
said commission, and taking the oath of Natural-born citizens of the Philippines who, after the
allegiance incident thereto, states that he effectivity of RA 9225, become citizens of a foreign
does so only in connection with its service country shall retain their Philippine citizenship.
to said foreign country. (David vs. Agbay, G.R. No. 199113, March 18, 2015)
33
V. LEGISLATIVE DEPARTMENT
Running for Elective Posts; Oath of Allegiance and F. DUAL CITIZENSHIP AND DUAL ALLEGIANCE
Renunciation of Foreign Citizenship
Dual Citizenship vs. Dual Allegiance
R.A. 9225 requires Filipinos availing themselves of the
benefits under the said Act to: DUAL CITIZENSHIP DUAL ALLEGIANCE
INVOLUNTARY VOLUNTARY
1. Take their oath of allegiance to the Republic of It arises when, as a result This refers to the
the Philippines; AND of concurrent situation where a person
2. Explicitly renounce their foreign citizenship if application of the simultaneously owes, by
they wish to run for elective posts in the different laws of two or some positive act, loyalty
more States, a person is to two or more States.
Philippines.
simultaneously
considered a citizen of
The oath of allegiance is a general requirement for all both said states.
those who wish to run as candidates in Philippine
It is allowed considering It is prohibited by the
elections; while the renunciation of foreign citizenship
that their condition is Constitution because it is
is an additional requisite only for those who have
merely an unavoidable inimical to the national
retained or reacquired Philippine citizenship under
consequence of interest.
R.A. No. 9225 and who seek elective public posts,
conflicting laws of
considering their special circumstance of having more
different states.
than one citizenship. To qualify as a candidate in
Philippine elections, Filipinos must only have one
Q: Is dual citizenship allowed? If yes, can persons
citizenship, namely, Philippine citizenship. (Jacot vs.
with dual citizenship run for public office?
Dal, G.R. No. 179848, November 27, 2008)
A: YES. The concern of the Constitutional Commission
By renouncing foreign citizenship, one is deemed to
was not with dual citizens per se but with naturalized
be solely a Filipino citizen, regardless of the effect of
citizens who maintain their allegiance to their
such renunciation under the laws of the foreign
countries of origin even after their naturalization.
country.
Consequently, persons with mere dual citizenship are
Filing of a certificate of candidacy does not ipso not disqualified considering that their condition is the
facto amount to a renunciation of foreign unavoidable consequence of conflicting laws of
citizenship different states. Unlike those with dual allegiance,
who must, therefore, be subject to strict process with
RA 9225 requires the twin requirements of swearing respect to the termination of their status.
to an Oath of Allegiance and executing a Renunciation
of Foreign Citizenship. (Roseller De Guzman v. The fact that a person has dual citizenship does not
COMELEC, G.R. No. 180048, June 19, 2009) disqualify him from running for public office. (Cordora
v. COMELEC, G.R. No. 176947, February 19, 2009)
Effect of use of foreign passport; Maquiling Candidates with dual citizenship can run for public
doctrine office provided that upon the filing of their certificates
of candidacy, they elect Philippine citizenship to
Use of a foreign passport amounts to repudiation or terminate their status as persons with dual
recantation of the oath of renunciation. The citizenship. (Mercado vs. Manzano, G.R. No. 135083,
renunciation of foreign citizenship is not a hollow May 26, 1999)
oath that can simply be professed at any time, only to
be violated the next day. It requires an absolute and V. LEGISLATIVE DEPARTMENT
perpetual renunciation of the foreign citizenship and a
full divestment of all civil and political rights granted A. LEGISLATIVE POWER
by the foreign country which granted the citizenship.
(Maquiling v. COMELEC, G.R. No. 195649, April 16, Legislative power
2013)
The power or competence to propose, enact, ordain,
Strict adherence to Maquiling doctrine amend/alter, modify, abrogate or repeal laws. It is
vested in the Congress which shall consist of a Senate
Matters dealing with qualifications for public elective and a House of Representatives, except to the extent
office must be strictly complied with. The novelty of reserved to the people by the provision on initiative
the issue is not an excuse from strictly complying with and referendum.
the eligibility requirements to run for public office or
to simply allow a candidate to correct the deficiency Legislative powers of Congress
in his qualification by submitting another oath of
renunciation. It is with more reason that we should 1. General plenary power (Art. VI, Sec. 1)
similarly require strict compliance with the
2. Specific power of appropriation
qualifications to run for local elective office. (Arnado v.
COMELEC, G.R. No. 210164, August 18, 2015) 3. Taxation and expropriation
4. Legislative investigation

Political Law
5. Question hour 1. Only one subject, to be stated in the title of the
bill [1987 Constitution, Art. VI, Sec. 26(1)]
1. SCOPE AND LIMITATIONS
2. Three (3) readings on separate days; printed
The following may exercise legislative power copies of the bill in its final form to be
distributed to its members 3 days before its
1. Congress passage, except if the President certifies to its
2. Regional/Local Government Units immediate enactment to meet a public calamity
3. The People through initiative and referendum. or emergency; upon its last reading, no
(2002 BAR) amendment shall be allowed and the vote
thereon shall be taken immediately and the yeas
Doctrine of Shifting Majority and nays entered into the Journal [1987
Constitution, Art. VI, Sec. 2(2)]
For each House of Congress to pass a bill, only the
votes of the majority of those present in the session, 3. Appropriation bills, revenue bills, tariff bills,
there being a quorum, is required. bills authorizing the increase of public debt, bills
of local application and private bills shall
Limitations on the Legislative Powers of Congress originate exclusively in the House of
Representatives. (1987 Constitution, Art. VI, Sec.
The Constitution itself provides limitations on the 24)
exercise of legislative powers.
Classes of legislative power
1. Substantive: limitations on the content of laws.
2. Procedural: limitations on the manner of passing 1. Original: Possessed by the people in their
laws. sovereign capacity i.e. initiative and referendum.
3. Congress cannot pass irrepealable laws. 2. Delegated: Possessed by Congress and other
4. Congress, as a general rule, cannot delegate its legislative bodies by the Constitution.
legislative power. 3. Constituent: The power to amend or revise the
Constitution.
XPN: See Delegation of Legislative Powers. 4. Ordinary: The power to pass ordinary laws.
Substantive limitations 2. PRINCIPLE OF NON-DELEGABILITY;

EXCEPTIONS
1. Express:
GR: What has been delegated cannot be delegated.
a. Bill of Rights (1987 Constitution, Art. III)
b. On Appropriations [1987 Constitution, Art. It is based upon the ethical principle that such
VI, Secs. 25 and 29(1&2)] delegated power constitutes not only as a right, but
c. On Taxation (1987 Constitution, Art. VI, Secs. also as a duty to be performed by the delegate
28 and 29, par. 3) through the instrumentality of his own judgment and
d. On Constitutional appellate jurisdiction of SC not through the intervening mind of another. A
(1987 Constitution, Art. VI, Sec. 30) further delegation of such power, unless permitted by
e. No law granting a title of royalty or nobility the sovereign power, would constitute a negation of
shall be enacted (1987 Constitution, Art. VI, this duty in violation of the trust reposed in the
Sec. 31). delegate. (Cruz, supra at 160)
f. No specific funds shall be appropriated or
paid for use or benefit of any religion, sect, XPNS:
etc., except for priests, etc., assigned to AFP,
penal institutions, etc. (1987 Constitution, 1. Delegations to the People at large;
Art. VI, Sec. 29[2])
a. R.A. 6735 – The Initiative and Referendum Act
2. Implied: as authorized by the constitutional mandate
for the creation of a system of legislation by
a. Prohibition against irrepealable laws initiative and referendum.
b. Non-delegation of powers
b. A plebiscite is required in the creation,
XPNs to Non-Delegation Doctrine: division, merger, abolition of province, city,
i. Delegation to the President [1987 municipality, or barangay or the substantial
Constitution, Art. VI, Sec. 23(2) and Sec. alteration of its boundary.
28(2)]
ii. Delegation to the people (1987 NOTE: These are more of reservations of
Constitution, Art VI, Sec. 32) power by the people than delegations
considering the fact that the people are
Procedural limitations repositories of all governmental powers.
35
2. Emergency powers of the President; district in which he
3. Tariff powers of the President; shall be elected;
4. Delegation to local governments; and 5. Resident thereof for a
5. Delegation to Administrative bodies of the power period of not less than
of subordinate legislation. (Cruz and Cruz, supra at 1 year immediately
162) preceding the day of
the election. (Art. VI,
B. CHAMBERS OF CONGRESS Sec. 6)
Composition of Congress NOTE: Enumeration is

exclusive.
The Philippine Congress is bicameral in nature, Term of office
composed of: (2001 BAR)
6 years, which shall 3 years, which shall begin,
1. Senate
commence, unless unless otherwise provided
2. House of Representatives otherwise provided by by law, at noon on the 30th
a. District representatives law, at noon on the day of June next following
b. Party-list representatives 30th day of June next their election.
following their
1. SENATE AND HOUSE OF REPRESENTATIVES election. Term limit: Not more than 3
consecutive terms.
Composition, qualifications, and term of office of Term limit: Not more
members of Congress than 2 consecutive
terms.
HOUSE OF
SENATE Note: Senators have a
REPRESENTATIVES
Composition term of office of six
years on a staggered
24 Senators (elected Not more than 250 basis - each set of
at large by qualified members, unless otherwise twelve senators end
voters of the fixed by law. their term three years
Philippines as may be apart.
provided by law). NOTE: Congress itself may
by law increase the
In Imelda Romualdez-Marcos v. COMELEC, the Court
composition of the HoR
upheld the qualification of Mrs. Imelda Romualdez-
through the creation of new
Marcos (IRM) despite her own declaration in her
provinces, redistricting, and
certificate of candidacy that she had resided in the
attendant adjustments in
district for only seven (7) months, because of the
number of party-list
following:
representatives.
Qualifications 1. A minor follows the domicile of his parents;
(1993, 1999 BAR) Tacloban became IRM’s domicile of origin by
1. Natural-born 1. Natural-born citizen of operation of law when her father brought the
citizen of the the Philippines; family to Leyte;
Philippines; 2. At least 25 years of age
2. At least 35 years on the day of election 2. Domicile of origin is lost only when:
of age on the day a. there is actual removal or change of
of election; XPN: A youth sector domicile
3. Able to read and nominee must be at least b. a bona fide intention of abandoning the
write; twenty-five (25) but not former residence and establishing a new
4. A registered more than thirty (30) one
voter; years of age on the day c. acts which correspond with the purpose
5. Resident of the of the election. Once he
Philippines for attains the age of thirty 3. The wife does not automatically gain the
not less than 2 (30) during his term, he husband’s domicile because the term
years shall be allowed to “residence” in Civil Law does not mean the same
immediately continue in office until thing in Political Law; when IRM married
preceding the day the expiration of his Marcos in 1954, she kept he domicile of origin
of election. (Art. term. [RA No. 7941, Sec. 9 and merely gained a new home, not a domicilium
VI, Sec. 3) (2)] necessarium (necessary domicile);
3. Able to read and write;
NOTE: 4. Except the party-list NOTE: Domicile requires the fact of presence coupled
Enumeration is representatives, a with the intention to remain (animus manendi) or
exclusive. registered voter in the intention to return when absent (animus revertendi)

Political Law
4. Even assuming that she gained a new domicile continuity of his service for the full term for which he
after her marriage and acquired the right to was elected. (1987 Constitution, Art. VI, Secs. 4 and 7)
choose a new one only after her husband dies,
her acts following her return to the country Composition of the HoR (2002, 2007 BAR)
clearly indicates that she chose Tacloban, her
domicile of origin, as her domicile of choice. DISTRICT PARTY-LIST
(Imelda Romualdez-Marcos v. COMELEC, G.R. No. REPRESENTATIVE REPRESENTATIVE
119976, Sept. 18, 1995) As to who will vote
Disqualifications of members of Congress Elected by the Elected nationally (those
constituents of his garnering at least 2% of all
HOUSE OF respective district. votes cast for the party-list
SENATE system are entitled to 1
REPRESENTATIVES
No Senator shall serve seat, which is increased
for more than two (2) Shall not serve for more according to proportional
consecutive terms. than three (3) representation, but is in no
consecutive terms. way to exceed 3 seats per
Voluntary renunciation organization.)
Voluntary renunciation of
of the office for any the office for any length of Residency requirement
length of time shall not time shall not be
be considered as an Must be a resident of his No special residency
considered as an
interruption in the legislative district for at requirement.
interruption in the
continuity of his service least 1 year immediately
continuity of his service
for the full term for for the full term for which preceeding the election.
which he was elected he was elected (Art. VI, Sec. Name in the ballot
(Art. VI, Sec. 4). 7). (2001 BAR)
Elected personally, by Voted upon by party or
One who has been declared by competent authority as name. organization.
insane or incompetent
Effect of change in party affiliation
One who has been sentenced by final judgment for: during incumbency
(SIR-18-M)
a. Subversion; Does not lose seat Loses his seat; in which
b. Insurrection; case he will be substituted
c. Rebellion; by another qualified
d. Any offense for which he has been sentenced person in the party or
to a penalty of more than 18 months; or organization based on the
e. A crime involving Moral turpitude. list submitted to the
COMELEC.
XPN: When the offender has been given plenary or
pardon or granted amnesty. (BP 881, Sec. 12). As to vacancy
A special election may A substitution will be
Expulsion of members of Congress be held provided that made within the party,
the vacancy takes place based on the list
MEMBERS OF THE at least 1 year before submitted to the
SENATORS HOUSE OF the next election. COMELEC.
REPRESENTATIVES
Effect of defeat in the election
Expulsion by the Senate Expulsion by the House
with the concurrence of with the concurrence of A district A party-list
2/3 of all its members. 2/3 of all its members. representative is not representative cannot sit
(1987 Constitution, Art. (1987 Constitution, Art. prevented from if he ran and lost in the
VI, Sec. 16, par. 3) VI, Sec. 16, par. 3) running again as a previous election.
district representative
NOTE: The Congress cannot validly amend or if he lost in the previous
otherwise modify these qualification standards, as it election.
cannot disregard, evade, or weaken the force of a
Effect of change in party affiliation
constitutional mandate, or alter or enlarge the
within months prior to election
Constitution. (Social Justice Society v. DDB and PDEA,
G.R Nos. 157870, 158633, 161658, Nov. 3, 2008) A change in affiliation A change in affiliation
within months prior to within 6 months prior to
Rule on voluntary renunciation of office election does not election prohibits the
prevent a district party-list representative
Voluntary renunciation of office for any length of time representative from from listing as
shall not be considered as an interruption in the running under his new representative under his
new party or
37
party. organization. apportioned in accordance with the number of

inhabitants of each area and based on a uniform
2. HOUSE OF REPRESENTATIVES and progressive ratio.
a. DISTRICT REPRESENTATIVES AND 2. Uniform– Every representative of Congress shall

represent a territorial unit with more or less a
QUESTIONS OF APPORTIONMENT population of 250,000. All the other
representatives shall have the same or nearly
District representatives the same political constituency so much so that
their votes will constitute the popular majority.
Those who are elected from legislative districts
apportioned among the provinces, cities and the 3. Progressive – It must respond to the change in
Metropolitan Manila area. times. The number of House representatives
must not be so big as to be unwieldy (Let us say,
Apportionment of legislative districts there is a growth in population. The ratio may
then be increased. From 250,000 constituents/1
Legislative districts are apportioned in accordance representative it may be reapportioned to 300,
with the number of their respective inhabitants and 000 constituents/1 representative).
on the basis of a uniform and progressive ratio. (1987
Constitution, Art. VI, Sec. 5(1)) 4. Each city with a population of at least 250,000
or each province, irrespective of number of
Legislative apportionment is the determination of the inhabitants, shall at least have one
number of representatives which a State, country, or representative.
other subdivision may send to a legislative body. It is
the allocation of seats in a legislative body in GR: There must be proportional
proportion to the population; the drawing of voting representation according to the number of
district lines so as to equalize population and voting their constituents/inhabitants.
power. (Bagabuyo v. COMELEC, G.R. No. 176970, XPN: In one city-one representative/one
December 8, 2008) province-one representative rule.
Each city with a population of at least 250,000 shall 5. Legislative districts shall be reapportioned by
have at least one representative. Each province, Congress within 3 years after the return of each
irrespective of the number of inhabitants, shall have census. (Senator Aquino III v. COMELEC, G.R. No.
at least one representative. 189793, April 7, 2010)
While Sec. 5(3) of Art. VI requires a city to have a Manner of reapportionment

minimum population of 250,000 to be entitled to one
representative; it does not have to increase its Reapportionment is the realignment or change in
population by another 250,000 to be entitled to an legislative districts brought about by changes in
additional district. (Senator Aquino III v. COMELEC, population and mandated by the constitutional
G.R. No. 189793, April 7, 2010) requirement of equality of representation. (Bagabuyo
v. COMELEC, G.R. No. 176970, December 8, 2008)
NOTE: When one of the municipalities of a
congressional district is converted to a city large Reapportionment may be made through a special law.
enough to entitle it to one legislative district, the The Constitution did not preclude Congress from
incidental effect is the splitting of district into two. increasing its membership by passing a law, other
The incidental arising of a new district in this manner than a general reapportionment of the law. To hold
need not be preceded by a census. (Tobias v. Abalos, that reapportionment can only be made through a
G.R. No. L-114783, Dec. 8, 1994) general apportionment law, with a review of all the
legislative districts allotted to each local government
Essence of apportionment unit nationwide, would create an inequitable situation
where a new city or province created by Congress will
The underlying principle behind the rule for be denied legislative representation for an
apportionment is the concept of equality of indeterminate period of time. Thus, a law converting a
representation, which is a basic principle of municipality into a highly-urbanized city
republicanism. One man’s vote should carry as much automatically creates a new legislative district and,
weight as the vote of every other man. consequently, increases the membership of the HoR.
(Mariano, Jr. v. COMELEC, G.R. No. 118577, March 7,
NOTE: The question of the validity of an 1995)
apportionment law is a justiciable question. (Macia v.
Comelec, G.R. No. L-18684, Sept. 14, 1961) NOTE: The Constitution does not require a plebiscite
for the creation of a new legislative district by a
Conditions for apportionment legislative reapportionment. It is required only for the
creation of new local government units. (Bagabuyo v.
1. Elected from legislative districts which are

Political Law
COMELEC, 2008, G.R. No. 176970, December 8, 2008) (Aquino and Robredo v. COMELEC, G.R. No. 189793,
(2015 BAR) April 7, 2010)
Gerrymandering (2014 BAR) Q: Congress passed a law providing for the

apportionment of a new legislative district in CDO
Formation of one legislative district out of separate City. COMELEC subsequently issued a resolution
territories for the purpose of favoring a candidate or a implementing said law. Jovi now assails the
party. It is not allowed because the Constitution resolution, contending that rules for the conduct
provides that each district shall comprise, as far as of a plebiscite must first be laid down, as part of
practicable, contiguous, compact and adjacent the requirements under the Constitution.
territory. According to Jovi, the apportionment is a
conversion and division of CDO City, falling under
Q: Congress enacted a law creating the legislative Sec. 10 Art. X of the Constitution, which provides
district of Malolos based on a certification of the for the rule on creation, division, merger, and
demographic projection from NSO stating that by abolition of LGUs. Decide.
2010, Malolos is expected to reach the population
of 250,000, hence entitling it to one legislative A: There is no need for a plebiscite. CDO City
district. Is the law valid? politically remains a single unit and its administration
is not divided along territorial lines. Its territory
A: NO. Congress cannot establish a new legislative remains whole and intact. Thus, Sec. 10, Art. X of the
district based on a projected population of the Constitution does not come into play.
National Statistics Office (NSO) to meet the
population requirement of the Constitution in the No plebiscite is required for the apportionment or
reapportionment of legislative districts. reapportionment of legislative districts. A legislative
district is not a political subdivision through which
A city that has attained a population of 250,000 is functions of government are carried out. It can more
entitled to a legislative district only in the appropriately be described as a representative unit
“immediately following election.” In short, a city must that merely delineates the areas occupied by the
first attain the 250,000 population, and thereafter people who will choose a representative in their
such city shall have a district representative in the national affairs. A plebiscite is required only for the
immediately following election. There is no showing creation, division, merger, or abolition of local
in the present case that the City of Malolos has government units. (Bagabuyo v. COMELEC, G.R. No.
attained or will attain a population of 250,000, 176970, December 8, 2008)
whether actual or projected, before May 10, 2010
elections. Thus, the City of Malolos is not qualified to b. PARTY-LIST SYSTEM (RA No. 7941)
have a legislative district of its own under Sec. 5(3),
Art. VI of the 1987 Constitution and Sec 3 of the Party-list system
Ordinance appended to the 1987 Constitution.
(Aldaba v. COMELEC, G.R. No. 188078, January 25, Mechanism of proportional representation in the
2010) election of representatives to the HoR from national,
regional and sectoral parties or organizations or
Q: Congress enacted a law reapportioning the coalitions thereof registered with the COMELEC.
composition of the Province of Camarines Sur and
created legislative districts thereon. Frankie NOTE: Party-list representatives shall constitute 20%
challenged the law because it runs afoul to the of the total number of representatives in the HoR
constitutional requirement that there must be at including those under the party list. (1987
least a population of 250,000 to create a Constitution, Art. VI, Sec. 5, par. 2) (2007 BAR)
legislative district. COMELEC argued that the
mentioned requirement does not apply to Purpose of the party-list system
provinces. Is the 250,000 population standard an
indispensable requirement for the creation of a To make the marginalized and the underrepresented
legislative district in provinces? not merely passive recipients of the State’s
benevolence, but active participants in the
A: NO. Sec. 5(3), Art. VI of the 1987 Constitution mainstream of representative democracy. (Ang
which requires 250,000 minimum population apply Bagong Bayani v. COMELEC, G.R. No. 147589, June 26,
only for a city to be entitled to a representative but 2001)
not for a province.
To democratize political power by giving political
The provision draws a plain and clear distinction parties that cannot win in legislative district elections
between the entitlement of a city to a district, on one a chance to win seats in the HoR. (Atong Paglaum v.
hand, and the entitlement of a province to a district on COMELEC, G.R. 203766, April 2, 2013)
the other. For while a province is entitled to at least a
representative, with nothing mentioned about Different parties under the party-list system
population, a city must first meet a population
minimum of 250,000 in order to be similarly entitled.
39
No votes cast in favor of political party, organization National and Regional parties need not represent
or coalition shall be valid except for those registered the “marginalized and underrepresented” sectors
under the party-list system.
To require all national and regional parties under the
1. Political party – Refers to an organized group of party-list system to represent the “marginalized and
citizens advocating ideology or platform, underrepresented” is to deprive and exclude, by
principles and policies for the general conduct judicial fiat, ideology-based and cause-oriented
of government and which, as the most parties from the party-list system. To exclude them
immediate means of securing their adoption, from the party-list system is to prevent them from
regularly nominates and supports certain of its joining the parliamentary struggle, leaving as their
leaders and members as candidate in public only option armed struggle. To exclude them from the
office. party-list system is, apart from being obviously
2. National party – Its constituency is spread over senseless, patently contrary to the clear intent and
the geographical territory of at least a majority express wording of the 1987 Constitution and RA
of regions. 7941. (Atong Paglaum v. COMELEC, ibid.)
3. Regional party – Its constituency is spread over
the geographical territory of at least a majority NOTE: Major political parties cannot participate in the
of the cities and provinces comprising the party-list elections since they neither lack “well-
region. defined political constituencies” nor represent
“marginalized and underrepresented” sectors. (Atong
4. Sectoral party – Refers to an organized group of Paglaum v. COMELEC, ibid.)
citizens belonging to any of the following
sectors: labor, peasant, fisherfolk, urban poor,
However, the participation of major political parties
indigenous, cultural communities, elderly,
may be through their sectoral wings, a majority of
handicapped, women, youth, veterans, overseas whose members are “marginalized and
workers and professionals, whose principal
underrepresented” or lacking in “well-defined
advocacy pertains to the special interest and
political constituencies.” (Atong Paglaum v. COMELEC,
concerns of their sectors.
ibid.)
5. Sectoral Organization – Refers to a group of
citizens who share similar physical attributes or Nomination of party-list representatives
characteristics, employment, interest or
concerns. Each registered party, organization or coalition shall
6. Coalition – Refers to an aggregation of duly submit to the COMELEC not later than 45 days before
registered national, regional, sectoral parties or the election a list of names, not less than five (5), from
organizations for political and/or election which party-list representative shall be chosen in case
purposes. (R.A. No. 7941, Section 3) it obtains the required number of votes.
Composition of the party-list system Limitations
1. National parties or organizations 1. A person may be nominated in one (1) list only.
2. Regional parties or organizations; and 2. Only persons who have given their consent in
3. Sectoral parties or organizations. writing may be names in the list
3. The list shall not include:
National and regional parties or organizations are a. any candidate for any elective office; or
different from sectoral parties or organizations. b. a person who has lost his bid for elective
National and regional parties or organizations need office in the immediately preceding
not be organized along sectoral lines and need not election;
represent any sector.
4. No change shall be allowed after the list shall
The party-list system is not solely for the benefit have been submitted to the COMELEC.
of sectoral parties XPN: Change may be allowed in cases where:
a. nominees dies;
Sec. 5(1), Art. VI of the Constitution is crystal-clear b. withdraws in writing his nomination; or
that there shall be “a party-list system of registered c. becomes incapacitated
national, regional, and sectoral parties or
organizations,” had the framers of the 1987 NOTE: Incumbent sectoral representatives in the HoR
Constitution intended national and regional parties to who are nominated in the party-list system shall not
be at the same time sectoral, they would have stated be considered resigned.
“national and regional sectoral parties.” They did not,
precisely because it was never their intention to make Effect of Failure to Submit a List of Nominees
the party-list system exclusively sectoral. National
and regional parties are separate from sectoral Failure to submit the list of five (5) nominees before
parties and need not be organized along sectoral lines the election warrants the cancellation of the party’s
nor represent any particular sector. (Atong Paglaum v. registration. (Cocofed-Philippines Coconut Producers
COMELEC, G.R. No. 203766, April 2, 2013)

Political Law
Federation, Inc. v. COMELEC, G.R. No. 207026, Aug. 6, linked to a political party through a coalition.
2013) (2015 BAR)
Qualifications of a party-list nominee 4. Sectoral parties or organizations may either be

“marginalized and underrepresented” or
1. Natural- born citizen of the Philippines; lacking in “well-defined political
2. Registered voter; constituencies.” It is enough that their principal
3. Resident of the Philippines for at least 1 year advocacy pertains to the special interests and
immediately preceding the day of the election; concerns of their sector.
4. Able to read and write;
5. Bona fide member of the party or organization NOTE: Those “marginalized and
which he seeks to represent at least 90 days underrepresented” include labor, peasant,
preceding election day; and fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and
NOTE: In the case of sectoral parties, to be a bona overseas workers. (LUV-OF-HIP)
fide party-list nominee, one must either belong to
the sector represented, or have a track record of Those lacking in “well-defined political
advocacy for such sector. (Atong Paglaum v. constituencies” include professionals, the elderly,
COMELEC, ibid.) women, and the youth. (PEWY)
6. At least 25 years of age. (For youth sector 5. A majority of the members of sectoral parties or
nominees, at least 25 years and not more than 30 organizations that represent the “marginalized
years of age) and underrepresented” or those representing
parties or organizations that lack “well-defined
NOTE: Any youth representative who attains the political constituencies” must belong to the
age of 30 during his term shall be allowed to sector they respectively represent.
continue in office until the expiration of his term.
6. The nominees of SECTORAL parties or
Disclosure of Names of Party-List Nominees organizations that represent the “marginalized
and underrepresented” or that represent those
The COMELEC has a constitutional duty to disclose who lack “well-defined political constituencies,”
and release the names of the nominees of the party- either must belong to their respective sectors,
list groups, in accordance with Sec. 7, Art. III of the or must have a track record of advocacy for
1987 Constitution on the right of the people to their respective sectors.
information on matters of public concern as
complemented by the policy of full disclosure and 7. The nominees of NATIONAL and REGIONAL
transparency in Government. (Bantay RA 7941 v. parties or organizations must be bona-fide
COMELEC, G.R. No. 177271, G.R. No. 177314, May 4, members of their respective parties or
2007) organizations.
Guidelines in determining who may participate in 8. National, regional, and sectoral parties or
the party-list elections organizations shall not be disqualified if some of
their nominees are disqualified, provided that
1. Three different groups may participate: they have at least one nominee who remains
qualified. (Ibid.)
a. National;
b. Regional; and NOTE: It is the parties or organizations which are
c. Sectoral parties or organizations. voted for, not their candidates. However, it is the
party-list representatives who are seated or elected
2. National parties or organizations and regional into office, not their parties or organizations. (Abayon
parties or organizations do not need to v. HRET, G.R. No. 189466, Feb. 11, 2010)
organize along sectoral lines and do not need
to represent any "marginalized and Effect of the change in affiliation of any party-list
underrepresented" sector. representative
3. All political parties must register under the Any elected party-list representative who changes his
party-list system and do not field candidates in party-list group or sectoral affiliation during his term
legislative district elections. of office shall forfeit his seat. (Amores v. HRET, G.R. No.
189600, June 29, 2010)
A political party, whether major or not, that fields
candidates in legislative district elections can NOTE: If he changes his political party or sectoral
participate in party-list elections only through affiliation within 6 months before an election, he shall
its sectoral wing that must separately register not be eligible for nomination as party-list
under the party-list system. The sectoral wing is representative under his new party or organization.
by itself an independent sectoral party; it is (Amores v. HRET, Ibid.)
41
Vacancy in the seat reserved for party-list NOTE: In computing the additional seats, the
representatives guaranteed seats shall no longer be included because
they have already been allocated at one seat each to
It shall be automatically occupied by the next every two-percenter. Thus, the remaining available
representative from the list of nominees in the order seats for allocation as “additional seats” are the
submitted by the same party to the COMELEC and maximum seats reserved under the party-list system
such representative shall serve for the unexpired less the guaranteed seats. Fractional seats are
term. If the list is exhausted, the party, organization, disregarded in the absence of a provision in RA 7941
or coalition concerned shall submit additional allowing for a rounding off of fractional seats. (BANAT
nominees. v. COMELEC, Ibid.)
Formula mandated by the Constitution in 2% threshold as regards the allocation of

determining the number of party-list additional seats is not valid anymore
representatives
The Court struck down the 2% threshold only in
The number of seats available to party-list relation to the distribution of the additional seats as
representatives is based on the ratio of party-list found in the 2nd clause of Sec. 11(b) of RA 7941. The
representatives to the total number of 2% threshold presents an unwarranted obstacle to
representatives. Accordingly, we compute the number the full implementation of Sec. 5(2), Art. VI of the
of seats available to party-list representatives from Constitution and prevents the attainment of the
the number of legislative districts. “broadest possible representation of party, sectoral or
group interests in the House of Representatives.”
(BANAT v. COMELEC, Ibid.)
Number of seats NOTE: The 2% threshold is constitutional only insofar

available to party-list as the determination of the guaranteed seat is
representatives concerned.
( ) Refusal and/or Cancellation of Registration
Simpler formula: No. of seats available to legislative The COMELEC may, motu proprio or upon a verified
districts DIVIDED BY 4 complaint of any interested party, refuse or cancel,
after due notice and hearing, the registration of any
The above formula allows the corresponding increase national, regional or sectoral party, organization or
in the number of seats available for party-list coalition or any of the following grounds:
representatives whenever a legislative district is
created by law. 1. It is a religious sector denomination,
organization or association organized for
After prescribing the ratio of the number of party-list religious purposes;
representatives to the total number of 2. It advocates violence or unlawful means to seek
representatives, the Constitution left the manner of its goals;
allocating the seats available to party-list 3. It is a foreign party or organization;
representatives to the wisdom of the legislature. 4. It is receiving support from any foreign
(BANAT v. COMELEC, G.R. No. 179271, April 21, 2009) government, foreign political party, foundation,
organization, whether directly or through any of
Guidelines in the allocation of seats for party-list its officers or members, or indirectly through
representatives under Sec. 11 of RA 7941 (2014 third parties, for partisan election purposes;
BAR) 5. It violates or fails to comply with laws, rules or
regulations relating to elections
1. The parties, organizations, and coalitions shall 6. It declares untruthful statements in its petition;
be ranked from the highest to the lowest based 7. It has ceased to exist for at least one (1) year;
on the number of votes they garnered during 8. It fails to participate in the last two (2)
the elections. preceding elections;
2. The parties, organizations, and coalitions 9. It fails to obtain at least 2% of the votes cast
receiving at least 2% of the total votes cast for under the party-list system in the two (2)
the party-list system shall be entitled to one preceding elections for the constituency in
guaranteed seat each. which it has registered
3. Those garnering sufficient number of votes,
according to the ranking in paragraph 1, shall be The Banat Ruling
entitled to additional seats in proportion to
their total number of votes until all the Section 6(8) of RA 7941 provides for two separate
additional seats are allocated. grounds for delisting; these grounds cannot be mixed
4. Each party, organization, or coalition shall be or combined to support delisting.
entitled to not more than 3 seats.

Political Law
The disqualification for failure to garner 2% party-list well as bills introduced in Congress, whether the same
votes in two preceding elections should now be is in session or not, and other acts performed by
understood, in light of the Banat ruling, to mean Congressmen, either in Congress or outside the
failure to qualify for a party-list seat in two preceding premises housing its offices, in the official discharge of
elections for the constituency in which it has their duties as members of Congress and of
registered. (PGB v. COMELEC, G.R. No. 190529, April 29, Congressional Committees duly authorized to perform
2010) its functions as such, at the time of the performance of
the acts in question. (Jimenez v. Cabangbang, G.R. No.
C. LEGISLATIVE PRIVILEGES, INHIBITIONS, L-15905, August 3, 1966)
AND DISQUALIFICATIONS
Q: The Senate Committee on Accountability of
Immunity from Arrest Public Officials and Investigation conducted an
investigation, in aid of legislation, regarding the
Grants the legislators the privilege from arrest while alleged P1.601 billion overpricing of the new 11-
Congress is “in session”, whether regular or special, storey Makati City Hall II Parking Building. During
with respect to offenses punishable by NOT more than media interviews in the Senate, particularly
6 years of imprisonment, (1987 Constitution, Art. VI, during gaps and breaks in the plenary hearings,
Sec. 11), whether or not he is attending the session. Sen. Trillanes expressed his opinion that Antonio
(People v. Jalosjos, G.R. Nos. 132875-76, February 3, Tiu appears to be a “front” or “nominee” or is
2000) acting as a “dummy” of the actual and beneficial
owner of the Hacienda Binay. As such, Tiu filed a
NOTE: Session covers the entire period from its initial complaint for damages against Sen. Trillanes.
convening until its final adjournment. Consequently, Sen. Trillanes asked for the
dismissal of the case claiming he enjoys
Purpose of Parliamentary Immunities parliamentary immunity. Is Sen. Trillanes correct?
A: NO. The remarks of Sen. Trillanes fall outside the
It is not for the benefit of the officials; rather, it is to
privilege of speech or debate under Sec. 11, Art. VI of
protect and support the rights of the people by
the 1987 Constitution. The statements were clearly
ensuring that their representatives are doing their
not part of any speech delivered in the Senate or any
jobs according to the dictates of their conscience and
of its committees. They were not also spoken during
to ensure the attendance of Congressman.
any debate. It cannot likewise be successfully
contended that they were made in the official
Legislative Privilege
discharge or performance of Sen. Trillanes’ duties as a
Senator, as the remarks were not part of or integral to
No member shall be questioned or held liable in any
the legislative process. To participate in or respond to
forum other than his respective Congressional body
media interviews is not an official function of any
for any debate or speech in Congress or in any
lawmaker; it is not demanded by his sworn duty nor is
committee thereof. (1987 Constitution, Art. VI, Sec. 11;
it a component of the process of enacting laws.
Pobre v. Sen. Santiago, A.C. No. 7399, August 25, 2009)
A lawmaker may well be able to discharge his duties
Limitations on Legislative Privilege and legislate without having to communicate with the
press. A lawmaker’s participation in media interviews
1. Protection is only against the forum other than is not a legislative act, but “political in nature,” outside
the Congress itself. Thus, for defamatory of the ambit of the immunity conferred under the
remarks, which are otherwise privileged, a Speech or Debate Clause in the 1987 Constitution. The
member may be sanctioned by either the Senate privilege arises not because of the statement made by
or the HoR, as the case may be. a lawmaker, but because it is uttered in furtherance of
2. The “speech or debate” must be made in legislation. (Sen. Antonio Trillanes vs. Hon. Evangeline
performance of their duties as members of Castillo-Marigomen, G.R. No. 223451, March 14, 2018)
Congress. Purpose of legislative privilege
Requirements for the privilege of speech and The purpose of the privilege is to ensure the effective
debate to operate discharge of functions of Congress. The privilege may
be abused but it is said that such is not so damaging or
1. Remarks or comments are made while in detrimental as compared to the denial or withdrawal
session; and of such privilege.
2. Must be made in connection with the discharge
of official duties The senator-lawyer’s privilege speech is not
actionable criminally nor could it be subject to a
Coverage of speech or debate disciplinary proceeding under the Rules of Court. The
Court, however, would be remiss in its duty if it let the
It includes utterances made by Congressmen in the Senator’s offensive and disrespectful language that
performance of their official functions, such as tended to degrade the institution pass-by. It is
speeches delivered, statements made, or votes cast in imperative on the Court’s part to re-instill in
the halls of Congress, while the same is in session, as
43
Senator/Atty. (Santiago) her duty to respect courts of Particular inhibitions attached to the respective
justice, especially this Tribunal, and remind her anew offices of Senators and Representatives
that parliamentary non-accountability thus granted to
members of Congress is not to protect them against 1. From “personally” appearing as counsel before
prosecutions for their own benefit, but to enable any court of justice or before the Electoral
them, as the people’s representatives, to perform the Tribunals, or quasi-judicial or other
functions of their office without fear of being made administrative bodies. (1987 Constitution, Art. VI,
responsible before the courts or other forums outside Sec. 14) (2004 BAR)
the congressional hall. It is intended to protect
members of congress against government pressure NOTE: Since the practice of law covers a wide
and intimidation aimed at influencing the decision- range of legislative activities (Cayetano v. Monsod,
making prerogatives of Congress and its members. G.R. No. 100113, Sept. 3, 1991) the Senator or
(Pobre v. Sen. Defensor-Santiago, A.C. No. 7399, August member of House of the Representatives is
25, 2009) allowed to engage in other aspects of the law
practice such as the giving of legal advice to
Congress “in recess” clients, negotiating contracts in behalf of clients
which necessitates legal knowledge, preparation
If the recess was called for in between a regular or of documents and similar others. (Pineda, Legal
special session, the Congress is still considered in Ethics, Page 34)
session. But if the recess was the 30-day compulsory
recess, Congress is not in session. (1987 Constitution, 2. Upon assumption of office, all members of the
Art. VI, Sec. 15) Senate and HoR must make a full disclosure of
their financial and business interests. They shall
Prohibitions attached to a legislator during his notify the House concerned of a potential conflict
term in interest that may arise from the filing of a
proposed legislation of which they are authors.
INCOMPATIBLE (1987 Constitution, Art. VI, Sec. 12) (2004, 2010
FORBIDDEN OFFICE BAR)
OFFICE
1st sentence of Sec. 13, 2nd sentence of
Art.VI Sec. 13, Art. VI Disqualifications attached to Senators and
Senator or any member of HoR Representatives and their applications
May not hold any Cannot be appointed to
other office or any office which have DISQUALIFICATION WHEN APPLICABLE
employment in the been created, or the Incompatible Office During his term
Government, during emoluments thereof
his term without increased during the If he does so, he forfeits
forfeiting his seat term for which he was his seat (1987
elected Constitution, Art. VI, Sec.
13)
NOTE: After such term, Forbidden Office If the office was created
and even if he is re- or the emoluments
elected, the thereof increased during
disqualification no longer the term for which he
applies and he may was elected (1987
therefore be appointed to Constitution, Art. VI, Sec.
the office 13)
Automatically forfeits Even if he is willing to Cannot personally During his term of office
seat upon the forfeit his seat, he may appear as counsel (1987 Constitution, Art.
member’s assumption not be appointed to said before any court of VI, Sec. 14)
of such other office office justice, electoral
tribunal, quasi-
XPN: holds other office Purpose: to prevent judicial and
in ex-officio capacity trafficking in public administrative
office. bodies. (2004 BAR)
More of an More of a Cannot be financially During his term of office
inhibition prohibition interested, directly or (1987 Constitution, Art.
indirectly, in any VI, Sec. 14)
Rule on increase in salaries of members of contract with or in
Congress any franchise, or
special privilege
Increase in the salaries shall take effect after the granted by the
expiration of the full term of all the members of the Government. (2004
Senate and the House of Representatives approving BAR)
such increase. (1987 Constitution, Art. VI, Sec. 10)

Political Law
Cannot intervene in When it is for his for in favor of the act for it
any matter before any pecuniary benefit or to be approved.
office of the Gov’t. where he may be called
(2004 BAR) upon to act on account of Instances when Congress is voting separately and
his office. (1987 voting jointly
Constitution, Art. VI, Sec.
14) SEPARATE JOINT
1. Choosing the 1. When revoking or
D. QUORUM AND VOTING MAJORITIES President in case of a extending the
tie (1987 Constitution, proclamation
Quorum Art. VII, Sec. 4). suspending the
2. Determining privilege of writ of
Such number which enables a body to transact its President’s inability to habeas corpus (1987
business and gives such body the power to pass a law discharge the powers Constitution, Art. VII,
or ordinance or any valid act that is binding. In our and duties of his office Sec. 18).
constitution, it is required that the quorum be a (1987 Constitution, 2. When revoking or
majority of each house. Art. VII, Sec. 11). extending the
3. Confirming declaration of
NOTE: In computing quorum, members who are nomination of Vice- martial law (1987
outside the country and, thus, outside of each House’s President (1987 Constitution, Art. VII,
jurisdiction are not included. The basis for Constitution, Art. VII, Sec. 18).
determining the existence of a quorum in the Senate Sec. 9).
shall be the total number of Senators who are within 4. Declaring the
the coercive jurisdiction of the Senate. (Avelino v. existence of a state of
Cuenco, G.R. No. L-2821, March 4, 1949) war in joint session
(1987 Constitution,
Effect if there is no quorum Art. VI, Sec. 23, Par. 1).
5. Proposing
Each House may adjourn from day to day and may Constitutional
compel the attendance of absent members in such amendments (1987
manner and under such penalties as each House may Constitution, Art. XVII,
provide. Sec. 1).
NOTE: The members of the Congress cannot compel Instances when Congress votes by majority
absent members to attend sessions if the reason of
absence is a legitimate one. The confinement of a INSTANCES WHEN NUMBER OF VOTES
Congressman charged with a non-bailable offense is CONGRESS VOTES REQUIRED
certainly authorized by law and has constitutional Elect the Senate Majority vote of all its
foundations. (People v. Jalosjos, G.R. No. 132875-76, President or House of respective members
February 3, 2000) Representatives (1987 Constitution, Art.
Speaker VI , Sec. 16, Par. 1)
Instances when the Constitution requires that the Commission on Majority vote of all the
yeas and nays of the Members be taken every time Appointments ruling members (1987
a House has to vote Constitution, Art. VI, Sec.
18)
1. Upon the last and third readings of a bill (1987 Passing a law granting Majority of all the
Constitution, Art. VI, Sec. 26, par. 2); any tax exemption members of Congress
(1987 Constitution, Art.
2. At the request of 1/5 of the members present
VI , Sec. 28, Par. 4)
(1987 Constitution, Art. VI, Sec. 16, par. 4); and
Instances when Congress votes other than
3. In repassing a bill over the veto of the President.
majority
(1987 Constitution, Art. VI, Sec. 27, par. 1)
Voting separately vs. voting jointly INSTANCES WHEN NUMBER OF VOTES

CONGRESS VOTES REQUIRED
SEPARATELY JOINTLY To suspend or expel a 2/3 of all its members
The required amount of The vote member in (1987 Constitution,
votes must be obtained in requirement is accordance with its Art. VI, Sec. 16, Par. 3)
each House. i.e. if 2/3 vote determined based on rules and
is required with the the total number of proceedings
Houses voting separately, the Members of the
2/3 of the Senators must Congress (Senators
vote for it AND 2/3 of the and Representatives
Reprsentatives must vote combined)
45
To enter the Yeas and 1/5 of the members Presidential elections (1987 Constitution, Art.
Nays in the Journal present VII, Sec. 4)
(1987 Constitution, Art. 7. During impeachment proceedings (1987
VI, Sec. 16, Par. 4) Constitution, Art. XI, Sec. 3, par. 4 and 6).
To declare the 2/3 of both houses in
existence of a state of joint session voting In a special session, the Congress may consider
war separately “general legislation or only such subjects as the
(1987 Constitution, Art. President may designate”. In a regular session, “the
VI, Sec. 23) power of the Congress is not circumscribed except by
limitations imposed by organic law.” (Cruz and Cruz,
Philippine Political Law, p. 241)
Non-intervention of courts in the implementation
of the internal rules of Congress Mandatory recess
As part of their inherent power, Congress can The 30-day period prescribed before the opening of
determine their own rules. Hence, the courts cannot the next regular session, excluding Saturdays,
intervene in the implementation of these rules insofar Sundays, and legal holidays. This is the minimum
as they affect the members of Congress. (Osmeña v. period of recess and may be lengthened by the
Pendatun G.R. No L-17144, October 28, 1960) Congress in its discretion. It may, however, be called
in special session at any time by the President. (1987
Elected officers of Congress Constitution, Art. VI, Sec. 15)
1. Senate President Rule on Adjournment

2. Speaker of the House
3. Such officers as deemed by each house to be Neither House during the sessions of the Congress
necessary shall, without the consent of the other, adjourn for
more than 3 days, nor to any other place than that in
Vote required in election of officers which the two Houses shall be sitting. (1987
Constitution, Art. VI, Sec. 16, par. 5)
Majority vote of all its respective members. (1987
Constitution, Art. VI, Sec. 16, par. 1) NOTE: The phrase “any other place” as here used
refers not to the building but to the political unit
Regular session of Congress where the two Houses may be sitting. Hence, if both
Houses are sitting in the same building in the City of
Congress convenes once every year on the 4th Monday Manila, either of them may sit in another building in
of July, unless otherwise provided for by law. It the same city without getting the consent of the other.
continues in session for as long as it sees fit, until 30 (Cruz and Cruz, Philippine Political Law, p. 250)
days before the opening of the next regular session,
excluding Saturdays, Sundays, and legal holidays. Adjournment sine die
(1987 Constitution, Art. VI, Sec. 15) (1996 BAR)
An interval between the session of one Congress and
Instances when there are special sessions that of another.
1. Due to vacancies in the offices of the President E. DISCIPLINE OF MEMBERS

and Vice President at 10 o’clock a.m. on the
third day after the vacancies (1987 Constitution,
Art. VII, Sec. 10) Disciplinary power of Congress
2. To decide on the disability of the President
Each house may punish its members for disorderly
because a majority of all the members of the
behavior and, with concurrence of 2/3 of all its
cabinet have “disputed” his assertion that he is
members, suspend, for not more than 60 days, or
able to discharge the powers and duties of his
expel a member. (1987 Constitution, Art. VI, Sec. 16,
office (1987 Constitution, Art. VII, Sec. 11)
par. 3) (1993, 2002 BAR)
3. To revoke or extend the Presidential
Proclamation of Martial Law or suspension of Determination of disorderly behavior
the privilege of the writ of habeas corpus (1987
Constitution, Art. VII, Sec. 18) The House of Representatives is the judge of what
4. Called by the President at any time when constitutes disorderly behavior. The courts will not
Congress is not in session (1987 Constitution, assume jurisdiction in any case which will amount to
Art. VI, Sec. 15) an interference by the judicial department with the
5. To declare the existence of a state of war in a legislature. (Osmeña v. Pendatun, G.R. No. L-17144,
joint session, by vote of 2/3 of both Houses October 28, 1960)
(1987 Constitution, Art. VI, Sec. 23, par. 1)
6. When the Congress acts as the Board of NOTE: Members of Congress may also be suspended
Canvassers for the Presidential and Vice- by the Sandiganbayan or by the Office of the

Political Law
Ombudsman. The suspension in the Constitution is 3. Failure of the President to veto the bill and to
different from the suspension prescribed in RA 3019 return it with his objections to the House where
(Anti-Graft and Corrupt Practices Act). The latter is it originated, within 30 days after the date of
not a penalty but a preliminary preventive measure receipt
and is not imposed upon the petitioner for 4. A bill calling a special election for President and
misbehavior as a member of Congress. (Santiago v. Vice-President under Sec. 10. Art. VII becomes a
Sandiganbayan, G.R. No. 128055, April 18, 2001) law upon its approval on the third reading and
final reading.
Preventive suspension is not a penalty (2015
BAR) One bill-one subject rule
A court-ordered preventive suspension is a Every bill passed by the Congress shall embrace only
preventive measure that is different and distinct from one subject. The subject shall be expressed in the title
the suspension ordered by the HoR for disorderly of the bill. This rule is mandatory.
behavior which is a penalty. Such House-imposed
sanction is intended to enforce discipline among its The purposes of such rule are:
members. (Paredes, Jr. v. Sandiganbayan, G.R. No.
118354, August 8, 1995) 1. To prevent hodgepodge or log-rolling
legislation;
NOTE: The suspension under the Anti-Graft Law is 2. To prevent surprise or fraud upon the
mandatory, imposed not as a penalty but as a legislature; and
precautionary measure to prevent the accused public 3. To fairly apprise the people of the subjects of
officer from frustrating his prosecution. It is incidental legislation. (Central Capiz v. Ramirez, G.R. No. L-
to the criminal proceedings before the court. 16197, March 12, 1920)
The House-imposed sanction on the other hand, is a Determination of the sufficiency of the title
penalty for disorderly behavior.
It suffices if the title should serve the purpose of the
Thus, the order of suspension in the Anti-Graft Law is constitutional demand that it informs the legislators,
distinct from the power of the Congress under the the persons interested in the subject of the bill, and
Constitution to discipline its own ranks. (De Venecia the public, of the nature, scope and consequences of
Jr., v. Sandiganbayan, G.R. No. 130240, February 5, the proposed law and its operation; thus, prevent
2002) surprise or fraud upon the legislators.
F. PROCESS OF LAW-MAKING Test: Whether or not it is misleading; either in

referring to or indicating one subject where another
Rules regarding the passage of bills or different one is really embraced in the act, or in
omitting any expression or indication of the real
1. No bill passed by either House shall become a subject or scope of the act. (Lidasan v. COMELEC, G.R.
law unless it has passed 3 readings on separate No. L-28089, Oct. 25, 1967)
days.
2. Printed copies of the bill in its final form should Number of readings before becoming a law (1996
be distributed to the Members 3 days before its BAR)
passage
3. Upon the last reading of a bill, no amendment NUMBER OF
thereto shall be allowed. WHAT IS DONE
READING
4. The vote on the bill shall be taken immediately
First Reading Only the title of the bill is read,
after the last reading of a bill.
then it is passed to the proper
5. The yeas and the nays shall be entered in the
committee for study
Journal.
Second The entire text is read, and
Reading debates and amendments are
XPN: The certification of the President, due to the
held.
necessity of its immediate enactment to meet a public
calamity or emergency, dispenses with the reading on Third Reading Only the title is read, and votes
separate days and the printing of the bill in the final are taken immediately thereafter.
form before its final approval. (Tolentino v. Secretary
of Finance, G.R. No. 115455, October 30, 1995) NOTE: Each bill must pass 3 readings each in both
Houses. In other words, there must be a total of 6
Instances when a bill becomes a law (1991, 1993, readings.
1996 BAR)
GR: Each reading shall be held on separate days and
1. Approved and signed by the President printed copies thereof in its final form shall be
2. Presidential veto overridden by 2/3 vote of all distributed to its Members, 3 days before its passage.
members of both Houses
47
XPN: If a bill is certified as urgent by the President as advance the intent of subsequent legislatures or the
to the necessity of its immediate enactment to meet a effect of subsequent legislation upon existing statutes.
public calamity or emergency, the 3 readings can be (Abas Kida v. Senate, ibid.)
held on the same day [1987 Constitution, Art. VI, Sec.
26(2)] The Bicameral Conference Committee
Reasons for the “three readings on separate days” In a bicameral system, bills are independently
rule processed by both Houses of Congress. It is not
unusual that the final version approved by one House
To prevent hasty and improvident legislation and differs from what has been approved by the other.
afford the legislators time to study and deliberate the
measures. The “conference committee,” consisting of members
nominated from both Houses, is an extra-
The two-fold purpose: constitutional creation of Congress whose function is
to propose to Congress ways of settling, reconciling or
1. To inform the legislators of the matters they threshing out conflicting provisions found in the
shall vote on; and Senate version and in the House version of a bill.
2. To give them notice that a measure is in (Opinion of J. Callejo, Sr., ABAKADA v. Ermita, G.R. No.
progress through enactment process. (Abas 168056, September 1, 2005)
Kida, v. Senate, G.R. No. 196271, October 18,
2011) Extent of the power of the Committee
Q: Is the supermajority vote requirement under The conferees are not limited to reconciling the
R.A. 9054, the second Organic Act of ARMM which differences in the bill but may introduce new
reset the regular elections for the ARMM regional provisions germane to the subject matter or may
officials to the second Monday of September 2001 report out an entirely new bill on the subject.
unconstitutional by giving it a character of an (Tolentino v. Sec. of Finance, G.R. No, 115455, August
irrepealable law? 25, 1994)
A: YES. The supermajority (2/3) voting requirement Scope of the powers of the Committee
required under Sec. 1, Art. XVII of RA 9054 (second
Organic Act of ARMM) must be struck down for giving 1. Adopt the bill entirely
said law the character of an irrepealable law by 2. Amend or Revise
requiring more than what the Constitution demands. 3. Reconcile the House and Senate Bills
4. Propose entirely new provisions not found in
Sec. 16(2), Art. VI of the Constitution provides that a
“majority of each House shall constitute a quorum to either the Senate or House bills
do business.” In other words, if majority of the
members of the House of Representatives or the Reconcile or harmonize disagreeing provisions
Senate are present, these bodies have the quorum
needed to conduct business and hold session. Within The changes introduced by the Bicameral Conference
a quorum, a vote of majority is generally sufficient to Committee are meant only to reconcile and harmonize
enact laws or approve acts. the disagreeing provisions for it does not inject any
idea or intent that is wholly foreign to the subject
In contrast, Sec. 1, Art. XVII of RA 9054 requires a vote embraced by the original provisions.
of no less than 2/3 of the Members of the House of
Representatives and of the Senate, voting separately, To reconcile or harmonize disagreeing provisions, the
in order to effectively amend RA 9054. Clearly, this Bicameral Conference Committee may then:
requirement is higher than what the Constitution
requires for the passage of bills and served to restrain 1. Adopt the specific provisions of either the House
the plenary powers of Congress to amend, revise or bill or Senate bill;
repeal the laws it had passed. 2. Decide that neither provisions in the House bill
or the provisions in the Senate bill would be
While a supermajority is not a total ban against carried into the final form of the bill; and/or
repeal, it is a limitation in excess of what the 3. Try to arrive at a compromise between the
Constitution requires on the passage of bills and is disagreeing provisions.
constitutionally obnoxious because it significantly
constricts the future legislators’ room for action and Thus, the changes made by the Bicameral Conference
flexibility. (Abas Kida v. Senate, G.R. No. 196271, Oct. Committee in the versions passed by the Senate and
18, 2011) House of the Representatives regarding the VAT Law
such as the inclusion of the stand-by authority of the
NOTE: Every legislative body may modify or abolish President, omission of the no pass-on provision
the acts passed by itself or its predecessors. This included in both Senate and House versions, inclusion
legislature cannot bind a future legislature to a of provisions on other kinds of taxes and VAT only
particular mode of repeal. It cannot declare in found in the Senate bill are valid. (Escudero v.

Political Law
Purisima, G.R. No. 168463, September 1, 2005; 2. When the reason he does not return the bill to
ABAKADA v. Ermita, GR 168056, September 1, 2005) the Congress is that Congress is not in session.
Rule on presentment Pocket veto is NOT applicable in the Philippines
Every bill passed by Congress must be presented to Inaction by the President for 30 days never produces
the President for approval or veto. In the absence of a veto even if Congress is in recess. The President
presentment to the President, no bill passed by must still act to veto the bill and communicate his veto
Congress can become a law. to Congress without need of returning the vetoed bill
with his veto message.
Rule on presidential veto
Rider
GR: If the President disapproves a bill enacted by
Congress, he should veto the entire bill. He is not A provision in a bill which does not relate to a
allowed to veto separate items of a bill. particular appropriation stated in the bill. Since it is
an invalid provision under Art. VI, Sec. 25[2], the
XPN: Item-veto is allowed in case of Appropriation, President may veto it as an item.
Revenue, and Tariff bills [1987 Constitution, Art. VI,
Sec. 27(2)]. (1991, 2010 BAR) Congressional override
XPNs to the XPN: If, after reconsideration, 2/3 of all members of such
House agree to pass the bill, it shall be sent to the
1. Doctrine of inappropriate provisions – A provision other House by which it shall likewise be
that is constitutionally inappropriate for an reconsidered and if approved by 2/3 of all members
appropriation bill may be singled out for veto of that House, it shall become a law without the need
even if it is not an appropriation or revenue item. of presidential approval.
(Gonzales v. Macaraig, G.R. No. 87636, Nov. 19,
1990) G. ELECTORAL TRIBUNALS AND THE
COMMISSION ON APPOINTMENTS
2. Executive impoundment – Refusal of the President
to spend funds already allocated by Congress for 1. NATURE
specific purpose. It is the failure to spend or
obligate budget authority of any type. (Philconsa Composition of the Electoral Tribunal (ET)
v. Enriquez, G.R. No. 113105, August 19, 1994)
1. 3 Supreme Court Justices designated by the
Appropriation Item or Line-item Chief Justice;
An indivisible sum of money dedicated to a stated 2. 6 members of the Senate or the House of
purpose. It is indivisible because the amount cannot Representatives, as the case may be, chosen on
be divided for any purpose other than the specific the basis of proportional representation from
purpose stated in the item. It is an item, which, in the political parties and from those registered
itself, is a specific appropriation of money, not some under the party-list system represented therein.
general provision of law, which happens to be put into (1987 Constitution, Art. VI, Sec. 17)
an appropriation bill.
NOTE: The senior Justice in the Electoral Tribunal
An item of appropriation must be an item shall be its Chairman.
characterized by singular correspondence – meaning
an allocation of a specified singular amount for a Composition of the Commission on Appointments
specified singular purpose, otherwise known as a
"line-item." (Araullo v. Aquino III, G.R. No. 209287, July 1. Senate President as ex-officio chairman
1, 2014) 2. 12 Senators
3. 12 members of the HoR (1987 Constitution, Art.
NOTE: For the President to exercise his item-veto VI, Sec. 18)
power, it is necessary that there exists a proper "item"
which may be the object of the veto. Consequently, to 2. POWERS
ensure that the President may be able to exercise said
power, the appropriations bill must contain "specific Jurisdiction of the ETs
appropriations of money" and not only "general
provisions" which provide for parameters of Each electoral tribunal shall be the sole judge of all
appropriation. (Araullo v. Aquino III, ibid.) contests relating to the election, returns, and
qualifications of their respective members (1987
Instances of pocket veto (2010 BAR) Constitution, Art. VI, Sec. 17). This includes
determining the validity or invalidity of a
1. When the President fails to act on a bill; and proclamation declaring a particular candidate as the
winner. Each ET is also vested with rule-making
49
power. (Lazatin v. HRET, G.R. No. L-84297, Dec. 8, abuse of discretion on the part of HRET. Is the
1988) opposition of Panote correct?
NOTE: It is independent of the Houses of Congress A: NO. The Constitution mandates that the HRET
and its decisions may be reviewed by the Supreme "shall be the sole judge of all contests relating to the
Court only upon showing of grave abuse of discretion. election, returns and qualifications" of its members.
By employing the word "sole", the Constitution is
Electoral contest emphatic that the jurisdiction of the HRET in the
adjudication of election contests involving its
Where a defeated candidate challenges the members is intended to be its own full, complete and
qualification and claims for himself the seat of the unimpaired. There can be no challenge, therefore, to
proclaimed winner. In the absence of an election such exclusive control absent any clear showing, as in
contest, ET is without jurisdiction. this case, of arbitrary and improvident use by the
Tribunal of its power that constitutes a denial of due
When the winning candidate is considered as process of law, or upon a demonstration of a very
member of the Senate or HoR clear unmitigated error, manifestly constituting such
grave abuse of discretion that there has to be a
Once he has: (POA) remedy therefor. (Liwayway Vinzons-Chato v. HRET, G.
R. No. 199149, January 22, 2013)
1. been Proclaimed
2. taken his Oath; and Q: Wigberto and Angelina and Alvin were
contenders for the position of Member of the
NOTE: The oath must be made: House of Representatives for the 4th District of
Quezon Province on the May 13, 2013 National
a. Before the Senate President or Speaker of Elections. Wigberto filed before the COMELEC two
the House, as the case may be; and separate petitions: to cancel Alvin’s CoC and to
b. In open session. (Reyes v. COMELEC, G.R. No. declare him as a nuisance candidate. The
207264, June 25, 2013) COMELEC cancelled Alvin’s CoC but did not declare
him to be a nuisance candidate. Despite the
3. Assumed office cancellation of Alvin’s CoC due to his material
misrepresentations therein, his name was not
NOTE: Once a winning candidate has been deleted from the ballot. Subsequently, Angelina
proclaimed, taken his oath, and assumed office as was proclaimed as the winning candidate. It
Member of the House of Representatives (or of the appears that Wigberto had filed with the
Senate), the COMELEC’s jurisdiction over the election COMELEC a Petition to Annul the Proclamation of
contest relating to his election, returns and Angelina and while such petition was pending,
qualifications ends, and the HRET’s (or SET’s) own Wigberto initiated the instant certiorari case
jurisdiction begins. (Vinzons-Chato v. COMELEC, G.R. against the COMELEC En Banc Resolution
No. 172131, April 2, 2007) declaring Alvin not a nuisance candidate. Is the
petition tenable?
By analogy with the cases of district representatives,
once the party or organization of the party-list A: NO. The petition must fail. Section 17, Article VI of
nominee becomes a member of the HoR, HRET has the 1987 Philippine Constitution provides that the
authority to pass upon election contests relating to his HRET is the sole judge of all contests relating to the
qualifications. (Abayon v. HRET, G.R. No. 189466, election, returns, and qualifications of its respective
February 11, 2010) members. Case law states that the proclamation of a
congressional candidate following the election divests
Q: Liwayway Vinzons-Chato renewed her bid in the COMELEC of jurisdiction over disputes relating to
the May 2010 elections as the representative of the election, returns, and qualifications of the
the 2nd Legislative District of Camarines Norte proclaimed representative in favor of the HRET.
but was eventually defeated by Elmer Panote. Considering that Angelina had already been
Aggrieved, Chato filed an electoral protest before proclaimed as Member of the House of
the HRET assailing the results in all the 160 Representatives for the 4th District of Quezon
clustered precincts in 4 municipalities. Chato Province on May 16, 2013, as she has in fact taken her
designated forty (40) pilot clustered precincts, in oath and assumed office past noon time of June 30,
which revision of ballots shall be conducted. After 2013, the Court is now without jurisdiction to resolve
the initial revisions of the designated clustered the case at bar. As they stand, the issues concerning
precincts, Chato moved for the revision of ballots the conduct of the canvass and the resulting
in all of the protested clustered precincts. The proclamation of Angelina as herein discussed are
motion was initially denied, but a resolution was matters which fall under the scope of the terms
eventually issued by the HRET directing the election and return and hence, properly fall under the
continuation of the revision of ballots in the HRET’s sole jurisdiction. (Wigberto Tañada, Jr. vs.
remaining seventy-five percent (75%) protested COMELEC, G.R. Nos. 207199-200, October 22, 2013)
clustered precincts, or a total of 120 precincts.
Such was opposed by Panote, ascribing grave

Political Law
Q: Gemma ran for Congresswoman of Muntinlupa Q: Ating Koop party-list expelled its first
in the May 2013 elections. However, before the nominee/representative Lico for refusing to
elections, the COMELEC cancelled her CoC after honor the term-sharing agreement. A petition was
hearing a complaint filed against her. Later, she filed with the COMELEC which sought his removal
was declared winner as Congresswoman of from being Ating Koop’s representative. COMELEC
Muntinlupa. The decision said she took her oath 2nd Division expelled Lico. COMELEC En Banc,
already and had not assumed her office as however, dismissed the petition on the ground
Congresswoman. Subsequently, COMELEC issued a that it had no jurisdiction to expel Lico from the
certificate of finality on its earlier resolution HoR, considering that his expulsion from Ating
cancelling Gemma’s COC. Gemma comes before the Koop affected his qualifications as member of the
Court arguing that COMELEC has lost jurisdiction House, and therefore it was the HRET that had
over the case and it is the HRET that has jurisdiction over the Petition. Notwithstanding,
jurisdiction as she is already declared a winner. Is COMELEC En Banc still affirmed the validity of
Gemma’s contention tenable? Lico’s expulsion from Ating Koop. Is COMELEC En
Banc’s decision correct?
A: NO. Gemma cannot be considered a Member of the
House of Representatives because, primarily, she has A: NO. While the COMELEC correctly dismissed the
not yet assumed office. The jurisdiction of the HRET Petition to expel petitioner Lico from the House of
begins only after the candidate is considered a Representatives for being beyond its jurisdiction, it
Member of the House of Representatives, as stated in nevertheless proceeded to rule upon the validity of
Art. VI, Sec. 17 of the 1987 Constitution. To be his expulsion from Ating Koop – a matter beyond its
considered a Member of the House of Representatives, purview. Without legal basis, however, is the action of
there must be a concurrence of the following the COMELEC in upholding the validity of the
requisites: (1) a valid proclamation, (2) a proper oath, expulsion of petitioner Lico from Ating Koop, despite
and (3) assumption of office. its own ruling that the HRET has jurisdiction over the
disqualification issue. These findings already touch
The term of office of a Member of the House of upon the qualification requiring a party-list nominee
Representatives begins only “at noon on the thirtieth to be a bona fide member of the party-list group
day of June next following their election.” Thus, until sought to be represented. The petition for Lico's
such time, the COMELEC retains jurisdiction. expulsion from the House of Representatives is
Consequently, before there is a valid or official taking anchored on his expulsion from Ating Koop, which
of the oath it must be made (1) before the Speaker of necessarily affects his title as member of Congress. A
the House of Representatives, and (2) in open session. party-list nominee must have been, among others, a
Here, although she made the oath before Speaker bona fide member of the party or organization for at
Belmonte, there is no indication that it was made least ninety (90) days preceding the day of the
during plenary or in open session and, thus, it remains election. Needless to say, bona fide membership in the
unclear whether the required oath of office was party-list group is a continuing qualification x xx.
indeed complied with. (Reyes v. COMELEC, G.R. No. Under Section 17, Article VI of the Constitution, the
207264, June 25, 2013) HRET is the sole judge of all contests when it comes to
qualifications of the members of the House of
Power of each House over its members in the Representatives. Consequently, the COMELEC failed to
absence of election contest recognize that the issue on the validity of petitioner
Lico's expulsion from Ating Koop is integral to the
The power of each House to expel its members or issue of his qualifications to sit in Congress.
even to defer their oath-taking until their
qualifications are determined may be exercised even Our ruling here must be distinguished from Regina
without an election contest. Ongsiako Reyes v. Commission on Elections. In Reyes,
the petitioner was proclaimed winner of the 13 May
Q: Imelda ran for HoR. A disqualification case was 2013 Elections, and took her oath of office before the
filed against her on account of her residence. The Speaker of the House of Representatives. However,
case was not resolved before the election. Imelda the Court ruled on her qualifications since she was not
won the election. However, she was not yet a member of the House of Representatives:
proclaimed. Imelda now questions the COMELEC’s petitioner Reyes had yet to assume office, the term of
jurisdiction over the case. Does the COMELEC have which would officially start at noon of 30 June 2013,
jurisdiction over the case? when she filed a Petition for Certiorari dated 7 June
2013 assailing the Resolutions ordering the
A: YES. The COMELEC retains jurisdiction. Since cancellation of her Certificate of Candidacy. In the
Imelda has not yet been proclaimed, she is not yet a present case, all three requirements of proclamation,
member of the HoR. HRET’s jurisdiction as the sole oath of office, and assumption of office were satisfied.
judge of all contests relating to elections, etc. of
members of Congress begins only after a candidate Moreover, in Reyes, the COMELEC En Banc Resolution
has become a member of the HoR. (Romualdez-Marcos disqualifying petitioner on grounds of lack of Filipino
v. COMELEC, G.R. No. 119976, September 18, 1995) citizenship and residency had become final and
executory when petitioner elevated it to this Court.
Therefore, there was no longer any pending case on
51
the qualifications of petitioner Reyes to speak of. NOTE: Under the doctrine of primary administrative
Here, the question of whether petitioner Lico remains jurisdiction, prior recourse to the House is necessary
a member of the House of Representatives in view of before the petitioners may bring the case to the
his expulsion from Ating Koop is a subsisting issue. Supreme Court. (Pimentel vs. House of Representative
Finally, in Reyes, We found the question of Electoral Tribunal, G.R. No. 141489, November 29,
jurisdiction of the HRET to be a non-issue, since the 2002)
recourse of the petitioner to the Court appeared to be
a mere attempt to prevent the COMELEC from COMMISSION ON APPOINTMENTS
implementing a final and executory judgment. In this
case, the question on the validity of petitioner Lico's Functions of the Commission on Appointments:
expulsion from Ating Koop is a genuine issue that falls
within the jurisdiction of the HRET, as it unmistakably The commission shall confirm or approve
affects his qualifications as party-list representative. nominations made by the President of certain public
(Lico v. COMELEC, G.R. No. 205505, September 29, officers named by the Constitution or by law (Section
2015) 16, Art. VII, 1987 Constitution)
Valid grounds or just causes for termination of Presidential appointments subject to

membership to the tribunal confirmation by the Commission (ExAm-CCO)
Members of the Electoral Tribunal enjoy the security 1. Heads of the Executive departments
of tenure. However, they may be terminated for a just XPN: Vice-President who is appointed to the
cause such as: post
1. Expiration of Congressional term of office 2. Ambassadors, other public ministers, or consuls

2. Death or permanent disability 3. Officers of the AFP from the rank of Colonel or
3. Resignation from the political party he naval Captain
represents in the tribunal 4. Other officers whose appointments are vested
4. Formal affiliation with another political party in him by the Constitution
5. Removal from office for other valid reasons.
(Bondoc v. Pineda, G.R. No. 97710, September 26, a. Chairman and members of 3 Constitutional
1991) Commissions
b. Regular members of the Judicial and Bar
NOTE: Unlike the Commission on Appointments, the Council
ET shall meet in accordance with their rules, c. Members of the Regional Consultative
regardless of whether Congress is in session or not. Council
Q: Can the Senators-members of the Senate NOTE: The enumeration is exclusive.

Electoral Tribunal be disqualified because an
election contest is filed against them? Composition of the Commission on Appointments
(CA)
A: NO. The Supreme Court held that it cannot order
the disqualification of the Senators-members of the 1. Senate President as ex-officio chairman
Electoral Tribunal simply because they were 2. 12 Senators
themselves respondents in the electoral protest, 3. 12 members of the HoR (1987 Constitution, Art.
considering the specific mandate of the Constitution VI, Sec. 18)
and inasmuch as all the elected Senators were actually
named as respondents. (Abbas v. SET, G.R. No. 83767, Guidelines in the meetings of the CA
October 22, 1988)
1. The Commission shall meet only while Congress
ET decisions are not appealable is in session, at the call of its Chairman or a
majority of all its members.
Art. VI, Sec. 17 provides that the SET/HRET is the sole 2. Since the Commission is also an independent
judge of all contests. Hence, from its decision, there is constitutional body, its rules of procedure are
no appeal. Appeal is not a constitutional right but also outside the scope of congressional powers
merely a statutory right. as well as that of the judiciary. (Bondoc v.
Pineda, G.R. No. 97710, September 26, 1991)
Remedy from an adverse decision of the ET
Appointments made by the President while the
A special civil action for certiorari under Rule 65 of Congress is not in session
the Rules of Court may be filed. This is based on grave
abuse of discretion amounting to lack or excess of Ad interim appointments are those made by the
jurisdiction. This shall be filed before the Supreme president while the congress is NOT in session. It shall
Court. be terminated by the disapproval of the appointment
by the CA or the adjournment of the Congress without
the CA acting on the appointment.

Political Law
NOTE: The ET and the CA shall be constituted within public on notice. Publication of said rules in the
30 days after the Senate and the HoR shall have been internet cannot be considered as compliance
organized with the election of the Senate President with this constitutional requirement.
and the Speaker of the House.
3. The investigation must be in aid of legislation.
H. POWERS OF CONGRESS
4. Congress may not summon the President as
The congress exercises legislative and non-legislative witness or investigate the latter in view of the
powers. Congress has the power to pass, enact, doctrine of separation of powers except in
amend, and repeal laws under its general plenary impeachment cases.
power. It also has the power to determine the budget
appropriation and to exercise the inherent powers of NOTE: It is the President’s prerogative, whether to
the State such as taxation and expropriation. Likewise, divulge or not the information, which he deems
the Congress has the power to conduct inquiries in aid confidential or prudent in the public interest.
of legislation and question hour.
5. Congress may no longer punish the witness in
1. LEGISLATIVE INQUIRIES contempt after its final adjournment. The basis
AND OVERSIGHT FUNCTIONS of the power to impose such penalty is the right
to self-preservation. And such right is
Legislative Inquiries/Inquiries In Aid Of enforceable only during the existence of the
Legislation legislature. (Lopez v. Delos Reyes, G.R. No. L-
34361, Nov. 5, 1930)
The Senate or the House of Representatives or any of
its respective committees may conduct inquiries in 6. Congress may no longer inquire into the same
aid of legislation in accordance with its duly published justiciable controversy already before the court.
rules of procedure. The rights of persons appearing in, (Bengzon v. Senate Blue Ribbon Committee, G.R.
or affected by, such inquiries shall be respected. (1987 No. 89914, November 20, 1991)
Constitution, Art. VI, Sec. 21)
Q: Senator Miriam Defensor Santiago introduced
Matters that can be the subject of inquiries in aid Proposed Senate Resolution (PSR) No. 455
of legislation directing the conduct of an inquiry, in aid of
legislation, on the anomalous losses incurred by
Indefinite. The field of legislation is very wide, and POTC, PHILCOMSAT and PHC and the
because of such, the field of inquiry is also very broad mismanagement committed by their respective
and may cover administrative, social, economic, board of directors. Can the persons involved in the
political problem (inquiries), discipline of members, legislative inquiry question the haste with which
etc. Suffice it to say that it is “intrinsic” in and co- the Senate approved their Committee Report? Can
extensive with legislative power. (Arnault v. Nazareno, said persons invoke their basic right to counsel?
G.R. No. L-3820, July 18, 1950)
A: NO. The Senate or the House of Representatives or
NOTE: If the stated purpose of the investigation is to any of its respective committees may conduct
determine the existence of violations of the law, the inquiries in aid of legislation in accordance with its
investigation is no longer “in aid of legislation” but “in duly published rules of procedure. The wide latitude
aid of prosecution.” This violates the principle of given to Congress with respect to these legislative
separation of powers and is beyond the scope of inquiries has long been settled, otherwise, Article VI,
Congressional powers. Section 21 would be rendered pointless. The right to
be assisted by counsel can only be invoked by a
Limitations on legislative investigation person under custodial investigation suspected for
the commission of a crime, and therefore attaches
1. The persons appearing in or affected by such only during such custodial investigation. (Philcomsat
legislative inquiries shall be respected. Holdings Corp. vs. Senate, G.R. No. 180308, June 19,
2012)
2. The Rules of procedures to be followed in such
inquiries shall be published for the guidance of Q: Sen. Rodolfo Diaz accused the Vice Chairman of
those who will be summoned. This must be the Standard Chartered Bank (SCB) of violating
strictly followed so that the inquiries are the Securities Regulation Code for selling
confined only to the legislative purpose and to unregistered foreign securities. This has led the
avoid abuses. Senate to conduct investigation in aid of
legislation. SCB refused to attend the investigation
NOTE: It is incumbent upon the Senate, HOR, or proceedings claiming criminal and civil cases
any of its respective committee to publish the involving the same issues were pending in courts.
rules for its legislative inquiries in each Decide.
Congress or otherwise make the published rules
clearly state that the same shall be effective in A: The mere filing of a criminal or administrative
subsequent Congresses or until they are complaint before a court or a quasi-judicial body
amended or repealed to sufficiently put the
53
should not automatically bar the conduct of legislative expel the same, it is not an exclusion of power to hold
investigation. Otherwise, it would be extremely easy other persons in contempt.
to subvert any intended inquiry by Congress through
the convenient ploy of instituting a criminal or an Q: In the exercise of its power to investigate in aid
administrative complaint. Thus, the Vice Chairman of of legislation, can Congress cite a person in
SCB is not correct in refusing to attend the contempt and detain him indefinitely?
investigation proceeding on the ground that criminal
and civil cases involving the same issues are pending A: NO. The Court finds that the period of
in courts. (Standard Chartered Bank v. Senate, G.R. No. imprisonment under the inherent power of contempt
167173, December 27, 2007) by the Senate during inquiries in aid of legislation
should only last until the termination of the legislative
Distinction between Standard Chartered Bank v. inquiry under which the said power is invoked or
Senate and Bengzon v. Senate Blue Ribbon when Congress adjourns sine die. If Congress decides
Committee to extend the period of imprisonment for the
contempt committed by a witness beyond the
It is true that in Bengzon, the Court declared that the duration of the legislative inquiry or after it has
issue to be investigated was one over which already adjourned, then it may file a criminal case
jurisdiction had already been acquired by the under the existing statute or enact a new law to
Sandiganbayan, and to allow the Senate Blue Ribbon increase the definite period of imprisonment.
Committee to investigate the matter would create the
possibility of conflicting judgments; and that the Further, the Court rules that the legislative
inquiry into the same justiciable controversy would inquiry of the Senate terminates on two instances:
be an encroachment on the exclusive domain of
judicial jurisdiction that had set in much earlier. First, upon the approval or disapproval of the
Committee Report. Evidently, the Committee Report is
There are a number of cases already pending in the culmination of the legislative inquiry. Its approval
various courts and administrative bodies involving or disapproval signifies the end of such legislative
Standard Chartered Bank, relative to the alleged sale inquiry and it is now up to the Senate whether or not
of unregistered foreign securities. There is a to act upon the said Committee Report in the
resemblance between this case and Bengzon. succeeding order of business. At that point, the power
However, the similarity ends there. of contempt simultaneously ceases and the detained
witness should be released. As the legislative inquiry
Central to the Court’s ruling in Bengzon – that the ends, the basis for the detention of the recalcitrant
Senate Blue Ribbon Committee was without any witness likewise ends.
constitutional mooring to conduct the legislative
investigation – was the Court’s determination that the Second, the legislative inquiry of the Senate also
intended inquiry was not in aid of legislation. The terminates upon the expiration of one (1) Congress.
Court found that the speech of Senator Enrile, which As stated in Neri, all pending matters and proceedings,
sought such investigation, contained no suggestion of such as unpassed bills and even legislative
any contemplated legislation; it merely called upon investigations, of the Senate are considered
the Senate to look into possible violations of Sec. 5, RA terminated upon the expiration of that Congress and
No. 3019. Thus, the Court held that the requested it is merely optional on the Senate of the succeeding
probe failed to comply with a fundamental Congress to take up such unfinished matters, not in
requirement of Sec. 21, Art. VI. the same status, but as if presented for the first time.
Again, while the Senate is a continuing institution, its
Unfortunately for SCB, this distinguishing factual proceedings are terminated upon the expiration of
milieu in Bengzon does not obtain in the instant case. that Congress at the final adjournment of its last
The unmistakable objective of the investigation, as set session. Hence, as the legislative inquiry ends upon
forth in the said resolution, exposes the error in SCB’s that expiration, the imprisonment of the detained
allegation that the inquiry, as initiated in a privilege witnesses likewise ends. (Balag vs. Senate, G.R. No.
speech by the very same Senator Enrile, was simply 234608, July 03, 2018)
“to denounce the illegal practice committed by a
foreign bank in selling unregistered foreign Q: Can Congress issue a subpoena to compel
securities.” This fallacy is made more glaring when attendance of Justices of the Court of Appeals in its
we consider that, at the conclusion of his privilege investigation in-aid of legislation, and cite them in
speech, Senator urged the Senate “to immediately contempt should they refuse to appear?
conduct an inquiry, in aid of legislation, so as to
prevent the occurrence of a similar fraudulent A: NO. Congressional powers cannot be used to
activity in the future.” (Standard Chartered Bank v. deprive the Supreme Court of its Constitutional duty
Senate, G.R. No. 167173, December 27, 2007) to supervise judges of lower courts in the
performance of their official duties. The fact remains
Contempt powers of Congress that the CA Justices are non-impeachable officers. As
such, authority over them primarily belongs to the
Even if the Constitution only provides that Congress Supreme Court and to no other. The principle of
may punish its members for disorderly behavior or separation of powers also serves as one of the basic

Political Law
postulates for exempting the Justices, officials and 1. Monitor bureaucratic compliance with program
employees of the Judiciary and for excluding the objectives;
Judiciary's privileged and confidential documents and 2. Determine whether agencies are properly
information from any compulsory processes which administered;
very well includes the Congress' power of inquiry in 3. Eliminate executive waste and dishonesty;
aid of legislation. Such exemption has been 4. Prevent executive usurpation of legislative
jurisprudentially referred to as judicial privilege as authority; and
implied from the exercise of judicial power expressly 5. Assess executive conformity with the
vested in one Supreme Court and lower courts congressional perception of public interest.
created by law. [Agcaoli v. Farinas, GR No. 232395, July (Opinion of J. Puno, Macalintal v. COMELEC, Ibid)
3, 2017]
Bases of oversight power of Congress: 3 Is
Legislative contempt vis-à-vis pardoning power of (Intrinsic, Integral, Inherent)
the President
1. Intrinsic in the grant of legislative power itself;
Legislative contempt is a limitation on the President’s 2. Integral to the system of checks and balances;
power to pardon by virtue of the doctrine of and
separation of powers. 3. Inherent in a democratic system of government.
Question Hour Categories of Congressional Oversight Functions
Where the heads of departments may, upon their own 1. Scrutiny — to determine economy and efficiency
initiative, with the consent of the President, or upon of the operation of government activities.
the request of either House, as the rules of each House
shall provide, appear before and be heard by such a. Congress may request information and
House on any matter pertaining to their departments. report from the other branches of
Written questions shall be submitted to the President government and give recommendations
of the Senate or the Speaker of the HoR at least 3 days or pass resolutions for consideration of
before their scheduled appearance. Interpellations the agency involved through:
shall not be limited to written questions, but it may
cover matters related thereto. When the security of i. Power of appropriation and
the State or the public interest so requires and the budget hearing (1987
President so states in writing, the appearance shall be Constitution, Art. VII, Sec. 22)
conducted in executive session. (1987 Constitution, ii. Question Hour (1987
Art. VI, Sec. 22) Constitution, Art. VI, Sec. 22)
iii. Power of Confirmation (1987
Question hour vs. Legislative investigation Constitution, Art. VI, Sec. 18)
LEGISLATIVE But legislative scrutiny does not end in budget

QUESTION HOUR
INVESTIGATION hearings. Congress can ask the heads of
(SEC. 22, ART. VI)
(SEC. 21, ART. VI) departments to appear before and be heard by
either the House on any matter pertaining to
As to persons who may appear their department.
Only a department head Any person Likewise, Congress exercises legislative scrutiny
thru its power of confirmation to find out
As to who conducts the investigation whether the nominee possesses the necessary
qualifications, integrity and probity required of
Entire body Committees/Entire Body all public servants.
As to subject matter 2. Congressional Investigation — Involves a more
intense digging of facts through inquiries in aid
Matters related to the Any matter for the of legislation under Sec. 21, Art. VI.
department only purpose of legislation
3. Legislative Supervision — most encompassing
Oversight power of Congress form; connotes a continuing and informed
awareness on the part of congressional
Embraces all activities undertaken by Congress to committee regarding executive operations in a
enhance its understanding of and influence over the given administrative area. It allows Congress to
implementation of legislation it has enacted. It scrutinize the exercise of delegated law-making
concerns post-enactment measures undertaken by authority, and permits Congress to retain part of
Congress. (Opinion of J. Puno, Macalintal v. COMELEC, that delegated authority through:
G.R. No. 157013, July 10, 2003)
Legislative veto – Congress retains a “right” or
Scope of the power of oversight “power” to approve or disapprove any regulation
55
enacted by administrative body before it takes effect. publication of the Rules of the Senate Committee
It is in the form of an inward-turning delegation of the Whole required for their effectivity?
designed to attach a congressional leash to an agency
to which Congress has by law initially delegated broad A: YES. The Rules must be published before the Rules
powers. (ABAKADA Guro Party-list v. Purisima, G.R. No. can take effect. Thus, even if publication is not
166715, Aug. 14, 2008) required under the Constitution, publication of the
Rules of the Senate Committee of the Whole is
Legislative veto violates the doctrine of separation required because the Rules expressly mandate their
of powers, thus, unconstitutional publication. To comply with due process
requirements, the Senate must follow its own internal
In exercising discretion to approve or disapprove the rules if the rights of its own members are affected.
IRR based on a determination of whether or not it (Pimentel v. Senate Committee of the Whole, ibid.)
conformed to the law, Congress arrogated judicial
power unto itself, a power exclusively vested in the Senate is no longer a continuing legislative body
Supreme Court by the Constitution. Thus, violating the
doctrine of separation of powers. The present Senate under the 1987 Constitution is no
longer a continuing legislative body. It has 24
From the moment the law becomes effective, any members, 12 of whom are elected every 3 years for a
provision of law that empowers Congress or any of its term of 6 years each. Thus, the term of 12 Senators
members to play any role in the implementation or expires every 3 years, leaving less than a majority of
enforcement of the law violates the principle of Senators to continue into the next Congress since the
separation of powers and is thus unconstitutional. Rules of Procedure must be republished by the Senate
(ABAKADA Guro Party-list v. Purisima, Ibid.) after every expiry of the term of the 12 Senators.
(Garcillano v. HoR Committee on Public Information,
Senate is not allowed to continue the conduct of G.R. No. 170338, December 23, 2008)
legislative inquiry without a duly published rules
of procedure Senate as an INSTITUTION is continuing (2014
BAR)
The phrase “duly published rules of procedure”
requires the Senate of every Congress to publish its There is no debate that the Senate as an institution is
rules of procedure governing inquiries in aid of "continuing", as it is not dissolved as an entity with
legislation because every Senate is distinct from the each national election or change in the composition of
one before it or after it. (Garcillano v. HoR Committee its members. However, in the conduct of its day-to-
on Public Information, G.R. No. 170338, December 23, day business the Senate of each Congress acts
2008) separately and independently of the Senate of the
Congress before it.
Invalidity of Publication in the Internet
Undeniably, all pending matters and proceedings, i.e.
The Electronic Commerce Act of 2009 merely unpassed bills and even legislative investigations, of
recognizes the admissibility in evidence of electronic the Senate of a particular Congress are considered
data messages and/or documents. It does not make terminated upon the expiration of that Congress and it
the internet a medium for publishing laws, rules and is merely optional on the Senate of the succeeding
regulations. (Garcillano v. HoR Committee on Public Congress to take up such unfinished matters, not in
Information, ibid.) the same status, but as if presented for the first
time. The logic and practicality of such a rule is
Publication of the internal rules of Congress readily apparent considering that the Senate of the
succeeding Congress (which will typically have a
The Constitution does not require publication of the different composition as that of the previous
internal rules of the House or Senate. Since rules of Congress) should not be bound by the acts and
the House or Senate affect only their members, such deliberations of the Senate of which they had no part.
rules need not be published, unless such rules (Neri v. Senate Committee, GR. No. 180643, September
expressly provide for their publication before the 4, 2008)
rules can take effect. (Pimentel v. Senate Committee of
the Whole, G.R. No. 187714, March 8, 2011) 2. NON-LEGISLATIVE
Q: During a hearing of the Senate Committee of the a. INFORMING FUNCTION

Whole, some proposed amendments to the Rules
of the Ethics Committee that would constitute the The informing function of the legislature includes its
Rules of the Senate Committee of the Whole were function to conduct legislative inquiries and
adopted. Senator Chi raised as an issue the need to investigation and its oversight power.
publish the proposed amended Rules of the Senate
Committee of the Whole, as directed by the The power of Congress does not end with the finished
amended Rules itself. However, the Senate task of legislation. Associated with its principal power
Committee of the Whole proceeded without to legislate is the auxiliary power to ensure that the
publication of the amended Rules. Is the laws it enacts are faithfully executed.

Political Law
The power of oversight has been held to be intrinsic in 10. Power of internal organization (1987
the grant of legislative power itself and integral to the Constitution, Art. VI, Sec. 16)
checks and balances inherent in a democratic system
of government. Woodrow Wilson emphasized that a. Election of officers
“Even more important than legislation is the b. Promulgate internal rules
instruction and guidance in political affairs which the c. Disciplinary powers
people might receive from a body which kept all
national concerns suffused in a broad daylight of b. POWER OF IMPEACHMENT
discussion.” (Opinion of J. Puno, Macalintal v.
COMELEC, G.R. No. 157013, July 10, 2003)
Impeachable Officers (2019 BAR)
Other non-legislative powers
1. President,
2. Vice-President,
1. Power to declare the existence of state of war
3. Members of the Supreme Court,
(1987 Constitution, Art. VI, Sec. 23, Par. 1)
4. Members of the Constitutional Commissions, and
5. the Ombudsman
NOTE: Under Art. VI, Sec. 23(2), Congress may
grant the President emergency powers subject to
Steps in the impeachment process (2012, 2019
the following conditions: (WaLiReN)
BAR)
a. There is a War or other national
Constitution provides that the House of
emergency;
Representatives shall have the exclusive power to
b. The grant of emergency powers must be
initiate all cases of impeachment. (1987 Constitution,
for a Limited period;
Art XI, Sec. 3 (1))
c. The grant of emergency powers is
subject to such Restrictions as Congress
1. Initiating impeachment cases
may prescribe; and
d. The emergency powers must be
exercised to carry out a National policy a. Verified complaint filed by any member
declared by Congress. of the House of Representatives or any
citizen upon resolution of endorsement
2. Power to act as Board of Canvassers in election by any member thereof;
of President (1987 Constitution, Art. VII, Sec. 10)
NOTE: If the verified complaint is filed
3. Power to call a special election for President and by at least 1/3 of all its members of the
Vice-President (1987 Constitution, Art. VII, Sec. House of Representatives, the same
10) shall constitute the Articles of
Impeachment, and trial by the Senate
4. Power to judge President’s physical fitness to shall forthwith proceed. [1987
discharge the functions of the Presidency (1987 Constitution, Art. XI, Sec. 3 (4)]
Constitution, Art. VII, Sec. 11)
b. Inclusion in the order of business
5. Power to revoke or extend suspension of the within 10 session days;
privilege of the writ of habeas corpus or c. Referred to the proper committee
declaration of martial law (1987 Constitution, within 3 session days from its inclusion;
Art. VII, Sec. 18) d. The committee, after hearing, and by
majority vote of all its members, shall
6. Power to concur in Presidential amnesties. submit its report to the House of
Concurrence of majority of all the members of Representatives together with the
Congress (1987 Constitution, Art. VII, Sec. 19) corresponding resolution;
e. Placing on calendar the Committee
7. Power to concur in treaties or international resolution within 10 days from
agreements; concurrence of at least 2/3 of all submission;
the members of the Senate (1987 Constitution, f. Discussion on the floor of the report;
Art. VII, Sec. 21) and
g. A vote of at least 1/3 of all the members
8. Power to confirm certain appointments/ of the House of Representatives shall be
nominations made by the President (1987 necessary either to affirm a favorable
Constitution, Art. VII, Secs. 9 and 16) resolution with the Articles of
Impeachment of the committee or
9. Power relative to natural resources. (1987 override its contrary resolution. [(1987
Constitution, Art. XII, Sec. 2) Constitution, Art. XI, Sec. 3 (2-3)]
2. Impeachment Proceedings
57
a. The Senators take an oath or affirmation; proceeding is initiated or begins when a verified
and complaint is filed and referred to the Committee
on Justice for action. (Francisco v. House of
NOTE: When the President of the Representatives, et. al., G.R. No. 160261, November
Philippines shall be impeached, the Chief 10, 2003)
Justice of the Supreme Court shall preside,
otherwise the Senate President shall preside The power to impeach is essentially a non-
in all other cases of impeachment. (Senate legislative prerogative and can be exercised by
Resolution No. 890) Congress only within the limits of the authority
conferred upon it by the Constitution (Francisco
b. A decision of conviction must be concurred v. House of Representatives, ibid). It is, by its
nature, a sui generis politico-legal process.
in by at least 2/3 of all the members of
(Gonzales III v. Office of the President, G.R. No.
Senate. 196231, January 28, 2014)
NOTE: The power to impeach is essentially a non- NOTE: The limitation refers to the element of time,
legislative prerogative and can be exercised by and not the number of complaints. The impeachable
Congress only within the limits of the authority officer should defend himself in only one
conferred upon it by the Constitution. (Gutierrez v. impeachment proceeding, so that he will not be
House of Representatives Committee on Justice, G.R. No. precluded from performing his official functions and
193459, February 15, 2011) duties. Similarly, Congress should run only one
impeachment proceeding so as not to leave it with
The Senate has the sole power to try and decide all little time to attend to its main work of law-making.
cases of impeachment [1987 Constitution, Art. XI, Sec. (Gutierrez v. The House of Representatives Committee
3(6)]. Hence, judgment in an impeachment on Justice, ibid.)
proceeding is normally not subject to judicial review.
Purpose of the one-year bar rule
XPN: Courts may annul the proceedings if there is a
showing of a grave abuse of discretion or non- 1. To prevent undue or too frequent harassment;
compliance with the procedural requirements of the and
Constitution. 2. To allow the legislature to do its principal task of
legislation. (Francisco v. House of Representatives
Power of the HoR to determine the sufficiency of supra.)
form and substance of an impeachment complaint
NOTE: Congress may look into separate complaints
It is an exponent of the express constitutional grant of against an impeachable officer and consider the
rulemaking powers of the HoR. In the discharge of inclusion of matters raised therein, in the adoption of
that power and in the exercise of its discretion, the the Articles of Impeachment. (Francisco v. House of
House has formulated determinable standards as to Representatives, et. al., supra)
form and substance of an impeachment complaint.
Furthermore the impeachment rules are clear in I. INITIATIVE AND REFERENDUM
echoing the constitutional requirements in providing
that there must be a “verified complaint or resolution” Initiative
and that the substance requirement is met if there is
“a recital of facts constituting the offense charged and It is the power of the people to propose amendments
determinative of the jurisdiction of the committee.” to the Constitution or to propose and enact legislation
(Gutierrez v. House of Representatives Committee on through an election called for the purpose.
Justice, ibid.)
Kinds of Initiative under the Initiative and
Limitations imposed by the Constitution upon the Referendum Act (RA 6735):
initiation of impeachment proceedings: E1
(exclusive power, 1-year bar rule) CoStaLoc (Constitution, Statute, Local Legislation)
1. The House of Representatives shall have the 1. Initiative on the Constitution –Refers to a petition
exclusive power to initiate all cases of proposing amendments to the Constitution.
impeachment; and 2. Initiative on statutes – Refers to a petition to
2. Not more than one impeachment proceeding enact a national legislation.
shall be initiated against the same official within 3. Initiative on local legislation – Refers to a petition
a period of one year (One-year bar rule). proposing to enact a regional, provincial,
municipal, city, or barangay law, resolution or
NOTE: An impeachment case is the legal ordinance[RA 6735, Sec. 3 (a)].
controversy that must be decided by the Senate
while an impeachment proceeding is one that is NOTE: Sec. 3 (b) of RA 6735 provides for:
initiated in the House of Representatives. For
purposes of applying the one-year bar rule, the

Political Law
a. Indirect Initiative – Exercise of initiative by the NOTE: The following are the limitations on initiative
people through a proposition sent to Congress or or referendum:
the local legislative body for action.
b. Direct Initiative – The people themselves filed the 1. No petition embracing more than one (1) subject
petition with the COMELEC and not with shall be submitted to the electorate.
Congress. 2. Statutes involving emergency measures, the
enactment of which are specifically vested in
RA 6735 is INADEQUATE in covering the system of Congress by the Constitution, cannot be subject
initiative on amendments to the Constitution (2014 to referendum until 90 days after their effectivity.
BAR) (RA 6735, Sec. 10).
Under the said law, initiative on the Constitution is

confined only to proposals to amend. The people are VI. EXECUTIVE DEPARTMENT
not accorded the power to "directly propose, enact,
approve, or reject, in whole or in part, the The President is both the head of State and head of
Constitution" through the system of initiative. They government; hence, executive power is exclusively
can only do so with respect to "laws, ordinances, or vested on him. (1987 Constitution, Art. VII, Sec. 1)
resolutions." Secondly, the Act does not provide for
the contents of a petition for initiative on the A. QUALIFICATIONS, ELECTION, AND TERM OF THE
Constitution. The use of the clause "proposed laws PRESIDENT AND VICE-PRESIDENT
sought to be enacted, approved or rejected, amended
or repealed" denotes that RA 6735 excludes initiative Qualifications of the President and the Vice-
on the amendments of the Constitution. President (VP)
Also, while the law provides subtitles for National 1. Natural-born citizen of the Philippines;
Initiative and Referendum and for Local Initiative and 2. A registered voter;
Referendum, no subtitle is provided for initiative on 3. Able to read and write;
the Constitution. This means that the main thrust of 4. At least forty years of age on the day of the
the law is initiative and referendum on national and election; and
local laws. If RA 6735 were intended to fully provide 5. A resident of the Philippines for at least ten
for the implementation of the initiative on years immediately preceding such election.
amendments to the Constitution, it could have (1987 Constitution, Art. VII, Sec. 2).
provided for a subtitle, considering that in the order
of things, the primacy of interest, or hierarchy of NOTE: The enumeration is exclusive
values, the right of the people to directly propose
amendments to the Constitution is far more important Election of the President and Vice-President
than the initiative on national and local laws.
(Defensor-Santiago v. COMELEC G.R. No. 127325, The President and the Vice-President shall be elected
March 19, 1997). by direct vote of the people (1987 Constitution, Art.
VII, Sec. 4).
Referendum
Term of office of the President
It is the power of the electorate to approve or reject
legislation through an election called for that purpose. 1. The President a shall have a term of 6 years
which shall begin at noon on the 30th day of June
Kinds of Referendum next following the day of the election and shall
end at noon of the same date, 6 years thereafter.
1. Referendum on Statutes - Refers to a petition to 2. The President shall not be eligible for any re-
approve or reject a law, or part thereof, passed by election.
Congress. 3. No person who has succeeded as President and
2. Referendum on Local Law – Refers to a petition to has served as such for more than four years
approve or reject a law, resolution or ordinance shall be qualified for election to the same office
enacted by regional assemblies and local at any time. (1987 Constitution, Art. VII, Sec. 4)
legislative bodies.
Term of office of the Vice-President (VP)
Initiative vs. Referendum (2000 Bar)
1. The Vice President shall have a term of 6 years
BASIS INITIATIVE REFERENDUM
which shall begin at noon on the 30th day of June
1. Propose next following the day of the election and shall
amendments to Approve or end at noon of the same date, 6 years thereafter.
Extent the Constitution; reject 2. The Vice-President cannot serve for more than 2
2. Propose and legislation successive terms.
enact legislation.
59
VI. EXECUTIVE DEPARTMENT
NOTE: The Vice-President may be removed from 4. There is nothing in our laws that would prevent
office in the same manner as the President. (1987 the President from waiving the privilege. He
Constitution, Art. VII, Sec. 3.) may shed the protection afforded by the
privilege. (Soliven v. Makasiar, ibid.)
B. PRIVILEGES, INHIBITIONS AND 5. Heads of departments cannot invoke the
DISQUALIFICATIONS President’s immunity. (Gloria v. CA, G.R. No.
119903, August 15, 2000)
Privileges of the President and Vice-President
B. Rule on immunity after tenure:
PRESIDENT VICE-PRESIDENT
1. Official residence; 1. Salary is determined Once out of office, even before the end of the 6-
2. Salary is determined by law and shall not year term, immunity for non-official acts is lost.
Immunity cannot be claimed to shield a non-
by law and shall not to be decreased
sitting President from prosecution for alleged
to be decreased during his tenure. criminal acts done while sitting in office. (Estrada
during his tenure. (1987 Constitution, v. Desierto, G.R. Nos. 146710-15, March 2, 2001)
(1987 Constitution, Art. VII, Sec. 6)
Art. VII, Sec. 6) 2. If appointed to a When a non-sitting President is not immune from
3. Immunity from suit Cabinet post, no need suit for acts committed during his tenure
for official acts. for Commission on
A non-sitting President does not enjoy immunity from
Appointments’ suit, even though the acts were done during her
confirmation. (1987 tenure. The intent of the framers of the Constitution is
Constitution, Art. VII, clear that the immunity of the president from suit is
Sec. 3) concurrent only with his tenure and not his
term. (Rodriguez v. GMA, G.R. Nos. 191805 & 193160,
Reason for prohibition against the change of their November 15, 2011)
salary
When a former President cannot be impleaded
It is meant to prevent the legislature from “weakening
their fortitude by appealing to their avarice or Impleading the former President as an unwilling co-
corrupting their integrity by operating on the petitioner, for an act she made in the performance of
necessities. the functions of her office, is contrary to the public
policy against embroiling the President in suits, “to
1. PRESIDENTIAL IMMUNITY assure the exercise of Presidential duties and
functions free from any hindrance or distraction,
Doctrine of Executive Immunity considering that being the Chief Executive of the
Government is a job that, aside from requiring all of
The President is immune from suit or from being the office holder’s time, also demands undivided
brought to court during the period of his incumbency attention. (Resident Marine Mammals v. Reyes, G.R. No.
and tenure. 180771, April 21, 2015)
Reason: Assures that the President is free to exercise Purpose of presidential immunity:
his Presidential duties and responsibilities without
any hindrance or distraction. 1. Separation of powers – viewed as demanding
the executive’s independence from the judiciary,
GR: The privilege of immunity can only be invoked by so that the President should not be subject to
the President by virtue of the office, not by any other the judiciary’s whim. (Almonte, v. Vasquez, G.R.
person on behalf of the President. No. 95367, May 23, 1995)
Rules on Executive Immunity 2. Public convenience – The grant is to assure the

exercise of presidential duties and functions
A. Rules on immunity during tenure: free from any hindrance or distraction,
considering that the presidency is a job that,
aside from requiring all of the office-holders’
1. The President is immune from suit during his time, demands undivided attention. (Soliven v.
tenure. (In re: Bermudez, G.R. No. 76180, October Makasiar, G.R. No. 82585, Nov. 14, 1988)
24, 1986)
2. An impeachment complaint may be filed against NOTE: The immunity of the President from suit is
him during his tenure. (1987 Constitution, Art. personal to the President. It may be invoked only by
XI) the President and not by any other person. Such
3. The President may not be prevented from privilege pertains to the President by the virtue of the
instituting suit. (Soliven v. Makasiar, G.R. No. office and may be invoked only by the holder of that
82585, November 14, 1988) office; and not by any other person in his behalf.
(Soliven v. Makasiar, ibid.)

Political Law
Q: Sen. de Lima delivered a privilege speech on the 1. The existence of a superior-subordinate
floor of the Senate calling a stop to the alleged relationship between the accused as superior
extrajudicial killings committed in the course of and the perpetrator of the crime as his
the crackdown on drugs, and urging her subordinate;
colleagues in the Senate to conduct investigations 2. The superior knew or had reason to know that
of the alleged victims. the crime was about to be or had been
committed;
In response, President Duterte issued a number of 3. The superior failed to take the necessary and
public statements against Sen. De Lima, including reasonable measures to prevent the criminal
denunciations of her corruption and immorality. acts or punish the perpetrators thereof.
The statements prompted her to initiate a petition (Rodriguez v. GMA, G.R. Nos. 191805 & 193160,
for the issuance of a writ of habeas data against November 15, 2011)
President Duterte. May the incumbent President
be haled to court even for the limited purpose Application of the doctrine of command
under the Rules on the Writ of Habeas Data? responsibility in amparo proceedings
A: NO. Sen. De Lima argues that the rationale for It should, at most, be only to determine the author
Presidential immunity does not apply in her case who, at the first instance, is accountable for, and has
because the proceedings for the writ of habeas the duty to address, the disappearance and
data do not involve the determination of harassments complained of, so as to enable the Court
administrative, civil, or criminal liabilities. Again, we to devise remedial measures that may be appropriate
remind that immunity does not hinge on the nature of under the premises to protect rights covered by the
the suit. In short, presidential immunity is not writ of amparo. (Rubrico v. GMA, G.R. No. 183871,
intended to immunize the President from liability or February 18, 2010)
accountability.
President may be held liable for extrajudicial
The rationale for the grant of immunity from suit is to killings and enforced disappearances as
assure the exercise of Presidential duties and Commander-in-Chief
functions free from any hindrance of distraction,
considering that being the Chief Executive of the The President may be held accountable under the
Government is a job that, aside from requiring all of principle of command responsibility. Being the
the office-holder's time, also demands undivided commander-in-chief of all armed forces, he
attention necessarily possesses control over the military that
qualifies him as a superior within the purview of the
Further, a suit will degrade the dignity of the high command responsibility doctrine.
office of the President, the Head of State, if he can be
dragged into court litigations while serving as such. On the issue of knowledge, it must be pointed out that
Furthermore, it is important that he be freed from any although international tribunals apply a strict
form of harassment, hindrance or distraction to standard of knowledge, i.e. actual knowledge, the
enable him to fully attend to the performance of his same may nonetheless be established through
official duties and functions. Unlike the legislative and circumstantial evidence. In the Philippines, a more
judicial branch, only one constitutes the executive liberal view is adopted and superiors may be
branch and anything which impairs his usefulness in charged with constructive knowledge.
the discharge of the many great and important duties
imposed upon him by the Constitution necessarily Knowledge of the commission of irregularities,
impairs the operation of the Government. However, crimes or offenses is presumed when:
this does not mean that the President is not
accountable to anyone. Like any other official, he 1. The acts are widespread within the government
remains accountable to the people but he may be official’s area of jurisdiction;
removed from office only in the mode provided by law 2. The acts have been repeatedly or regularly
and that is by impeachment. (De Lima vs. Duterte, G.R. committed within his area of responsibility; or
No. 227635, October 15, 2019) 3. Members of his immediate staff or office
personnel are involved.
Principle of command responsibility As to the issue of failure to prevent or punish, it is
important to note that as the commander-in-chief of
It is “an omission mode of individual criminal the armed forces, the President has the power to
liability,” whereby the superior is made responsible effectively command, control and discipline the
for crimes committed by his subordinates for failing military. (Rodriguez v. GMA, G.R. Nos. 191805 &
to prevent or punish the perpetrators (as opposed to 193160, Nov. 15, 2011)
crimes he ordered). (Rubrico v. GMA, G.R. No. 183871,
February 18, 2010) 2. PRESIDENTIAL PRIVILEGE
Elements of command responsibility It is the power of the President and high-level
executive branch officers to withhold certain types of
61
information from Congress, the courts, and ultimately Reason: Without this specificity, it is impossible for a
the public. (2009, 2010, and 2015 BAR) court to analyze the claim short of disclosure of the
very thing sought to be protected.
Invocation of the privilege
NOTE: Congress, however, must not require the
It must be invoked in relation to specific categories of Executive to state the reasons for the claim with such
information and not to categories of persons. particularity as to compel disclosure of the
information, which the privilege is meant to protect
NOTE: A claim of the executive privilege may be valid (Senate v. Ermita, ibid.).
or not depending on the ground invoked to justify it
and the context in which it is made. Noticeably absent Scope of executive privilege
is any recognition that executive officials are exempt
from the duty to disclose information by the mere fact 1. Conversations and correspondences to enable
of being executive officials. (Senate v. Ermita, G.R. No. the President and those who assist him to freely
169777, April 20, 2006) “explore alternatives in the process of shaping
policies and making decisions and to do so in a
Consequently, in case where the privilege is invoked way many would be unwilling to express except
through executive orders (EOs) prohibiting executive privately.”
officials from participating in legislative inquiries, the 2. It likewise covers military, diplomatic and other
Court held that “to the extent that investigations in aid national security matters which, in the interest of
of legislation are generally conducted in public, any national security, should not be divulged.
executive issuance tending to unduly limit disclosures 3. It includes information between inter-
of information in such investigations necessarily government agencies prior to the conclusion of
deprives the people of information which, being treaties and executive agreements, discussions in
presumed to be in aid of legislation, is presumed to be closed-door Cabinet meetings, and matters
a matter of public concern.” (Senate v. Ermita, ibid.) affecting national security and public order.
Persons who can invoke executive privilege Limitation of executive privilege
1. President- Being an extraordinary power, the Claim of executive privilege is subject to balancing
privilege must be wielded only by the highest against other interest. Simply put, confidentiality in
official in the executive department. Thus, the executive privilege is not absolutely protected by the
President may not authorize her subordinates Constitution. Neither the doctrine of separation of
to exercise such power. powers nor the need for confidentiality of high-level
communications can sustain an absolute, unqualified
2. Executive Secretary, upon proper authorization Presidential privilege of immunity from judicial
from the President- must state that the authority process under all circumstances (Neri v. Senate, G.R.
is “By order of the President,” which means he No. 180643, March 25, 2008).
personally consulted with the President.
Kinds of Executive Privilege
Requirement if an official is summoned by
Congress on a matter which in his own judgment 1. Informer’s Privilege– privilege of the
might be covered by executive privilege government not to disclose the identity of a
person or persons who furnish information on
He must be afforded reasonable time to inform the violations of law to offices charged with the
President or the Executive Secretary of the possible enforcement of that law.
need for invoking the privilege, in order to provide
the same with fair opportunity to consider whether NOTE: The suspect involved need not be so
the matter indeed calls for a claim of executive notorious as to be a threat to national security
privilege. If, after the lapse of that reasonable time, for the privilege to apply in any given instance.
neither the President nor the Executive Secretary Otherwise, the privilege would be inapplicable
invokes the privilege, Congress is no longer bound to in all but the most high-profile cases, in which
respect the failure of the official to appear before case not only would this be contrary to long-
Congress and may then opt to avail of the necessary standing practice, it would also be highly
legal means to compel his appearance. (Senate v. prejudicial to law enforcement efforts in
Ermita, ibid.). general.
Requirements in invoking the privilege 2. State Secret Privilege - Information is of such

nature that its disclosure would subvert crucial
1. There must be a formal claim of the privilege; military or diplomatic objectives.
and 3. Generic Privilege - Internal deliberations
2. The claim has specific designation and involving the process of governmental decisions
description of the documents within its scope and policies
and with the precise and certain reasons for 4. Presidential Communications Privilege –
preserving their confidentiality. decision-making of the President.

Political Law
5. Deliberative Process Privilege – decision- test is that an advisor must be in “operational
making of executive officials (advisory opinions, proximity” with the President.
recommendations). (In Re: Sealed Case No. 96-
3124, June 17, 1997). 3. The presidential communications privilege
6. Diplomatic negotiations privilege remains a qualified privilege that may be
overcome by a showing of adequate need, such
Test to determine the validity of a claim of that the information sought “likely contains
privilege important evidence” and by the unavailability of
the information elsewhere by an appropriate
Whether the requested information falls within one of investigating authority.
the traditional privileges and whether that privilege
should be honored in a given procedural setting. Presumed privilege status of presidential
communications
Presidential communications privilege vs.
Deliberative process privilege The presumption is based on the President’s
generalized interest in confidentiality. It can be
BASIS PRESIDENTIAL DELIBERATIVE overcome only by mere showing of public need by the
COMMUNICATIONS PROCESS branch seeking access to conversations.
PRIVILEGE PRIVILEGE
Scope of Pertains to Includes Matters involving diplomatic negotiations are covered
the communication advisory by executive privilege. However, such privilege is
privilege s, documents or opinions, only presumptive. Recognizing a type of information
other materials recommen as privileged does not mean that it will be considered
that reflect dations and privileged in all instances. Only after a consideration
presidential deliberatio of the context in which the claim is made may it be
decision- ns determined if there is a public interest that calls for
making and comprising the disclosure of the desired information, strong
deliberations part of a enough to overcome its traditionally privileged status.
that the process by (AKBAYAN v. Aquino, G.R. No. 170516, July 16, 2008).
President which
believes should governmen Prohibitions attached to the President, Vice-
remain tal President, Cabinet Members, and their deputies or
confidential decisions assistants, unless otherwise provided in the
and Constitution (1996, 1998, 2002, 2004 BAR)
policies are
formulated 1. Shall not receive any other emolument from the
government or any other source (1987
Constitution, Art. VII, Sec. 6).
To Applies to Applies to
whom decision- decision- NOTE: Emolument refers to any compensation
applicab making of the making of received for services rendered or from
le President executive possession of an office.
officials
Foundati Rooted in the Rooted in 2. Shall not hold any other office or employment
on constitutional common during their tenure unless:
principle of law
separation of privileges a. Otherwise provided in the Constitution (e.g.
powers and the VP can be appointed as a Cabinet Member
President’s without the need of confirmation by
unique Commission on Appointments; Sec. of Justice
constitutional sits in the Judicial and Bar Council)
role.
b. The positions are ex-officio and they do not
Presidential Communications Privilege receive any salary or other emoluments
therefore (e.g. Sec. of Finance as head of the
Elements: Monetary Board)
1. The protected communication must relate to a 3. Shall not practice, directly or indirectly, any other
“quintessential and non-delegable presidential profession during their tenure
power.”
4. Shall not participate in any business
2. The communication must be authored or
“solicited and received” by a close advisor of the 5. Shall not be financially interested in any contract
President or the President himself. The judicial with, or in any franchise, or special privilege
granted by the Government, including GOCCs
63
6. Shall avoid conflict of interest in conduct of office Power of administrative reorganization
7. Shall avoid nepotism. (1987 Constitution, Art. VII, The President has the power to reorganize the offices
Sec. 13). and agencies in the executive department in line with
his constitutionally granted power of control over
C. POWERS OF THE PRESIDENT executive offices and by virtue of a previous
delegation of the legislative power to reorganize
1. GENERAL EXECUTIVE AND executive offices under existing statutes. (Banda v.
ADMINISTRATIVE POWERS Ermita, G.R. No. 166620, April 20, 2010).
General Executive Power 2. POWER OF APPOINTMENT
This is the power vested in the President of the a. IN GENERAL

Philippines. (1987 Constitution, Art. VII, Sec. 1).
The selection of an individual who is to exercise the
Faithful Execution Clause or “Take-Care” Clause functions of a given office. It may be made verbally but
it is usually done in writing through what is called the
The power to take care that the laws be faithfully commission.
executed. (Constitution, Art. VII, Sec. 17)
NOTE: The appointing power of the President is
The law he is supposed to enforce includes the executive in nature. While Congress and the
Constitution, statutes, judicial decisions, Constitution in certain cases may prescribe the
administrative rules and regulations and municipal qualifications for particular offices, the determination
ordinances, as well as treaties entered into by the of who among those who are qualified will be
government. appointed is the President’s prerogative. (Pimentel v.
Ermita, G.R. No. 164978, October 13, 2005).
Specific powers of the President
Elements in making a valid, complete, and
1. Appointing power (1987 Constitution, Art. VII, effective Presidential appointment: (A-T-V-A)
Sec. 16)
2. Power of control over all executive 1. Authority to appoint and evidence of the
departments, bureaus and offices (1987 exercise of the authority;
Constitution, Art. VII, Sec. 17) 2. Transmittal of the appointment paper signed by
3. Commander-in-Chief powers (calling-out the President and evidence of the transmittal;
power, power to place the Philippines under 3. A Vacant position at the time of appointment;
martial law, and power to suspend the privilege 4. Receipt of the appointment paper and
of the writ of habeas corpus) (1987 Constitution, Acceptance of the appointment by the appointee
Art. VII, Sec. 18) who possesses all the qualifications and none of
4. Pardoning power (1987 Constitution, Art. VII, the disqualifications
Sec. 19)
5. Borrowing power (1987 Constitution, Art. VII, NOTE: The possession of the original appointment
Sec. 20) paper is not indispensable to authorize an appointee
6. Diplomatic/Treaty-making power (1987 to assume office. If it were indispensable, then a loss
Constitution, Art. VII, Sec. 21) of the original appointment paper, which could be
7. Budgetary power (1987 Constitution, Art. VII, brought about by negligence, accident, fraud, fire or
Sec. 22) theft, corresponds to a loss of the office. However, in
8. Informing power (1987 Constitution, Art. VII, case of loss of the original appointment paper, the
Sec. 23) appointment must be evidenced by a certified true
9. Veto power (1987 Constitution, Art. VI, Sec. 27) copy issued by the proper office, in this case the
10. Power of general supervision over local Malacañang Records Office.
governments (1987 Constitution, Art. X, Sec. 4)
11. Power to call special session (1987 Constitution, NOTE: At any time, before all four steps have been
Art. VI, Sec. 15) complied with, the President can withdraw the
nomination and appointment. (Lacson v. Romero, G.R.
Administrative Powers No. L-3081, October 14, 1949).
Power concerned with the work of applying policies Non-justiciability of appointments

and enforcing orders as determined by proper
governmental organs. It enables the President to fix a Appointment is a political question. So long as the
uniform standard of administrative efficiency and appointee satisfies the minimum requirements
check the official conduct of his agents. To this end, prescribed by law for the position, the appointment
he can issue administrative orders, rules and may not be subject to judicial review.
regulations. (Ople v. Torres, G.R. No. 127685, July 23,
1998). Designation

Political Law
The imposition of additional duties on a person functions of her position. Does the designation of
already in the public service. It is considered only as Kimberly as the Acting Secretary of Justice,
an acting or temporary appointment, which does not concurrently with his position as Acting Solicitor
confer security of tenure on the person named. General, violate the constitutional prohibition
(Binamira v. Garrucho, G.R. No. 92008, July 30, 1990). against dual or multiple offices for the Members of
the Cabinet and their deputies and assistants?
NOTE: The President has the power to temporarily
designate an officer already in the government service A: YES. There is violation of the Constitution in case
or any other competent person to perform the an Acting Secretary of Justice is designated as Acting
functions of an office in the executive branch. Solicitor General because while all other appointive
Temporary designation cannot exceed one year. officials in the civil service are allowed to hold other
office or employment in the government during their
b. LIMITATIONS ON THE EXERCISE / POWER OF tenure when such is allowed by law or by the primary
APPOINTMENT functions of their positions, members of the Cabinet,
their deputies and assistants may do so only when
1. The spouse and relatives by consanguinity or expressly authorized by the Constitution itself. In
affinity within the 4th civil degree of the President other words, Sec. 7, Art. IX-B is meant to lay down the
shall not, during his tenure, be appointed as: general rule applicable to all elective and appointive
public officials and employees, while Sec. 13, Art. VII is
a. Members of the Constitutional meant to be the exception applicable only to the
Commissions; President, the Vice-President, and Members of the
b. Office of the Ombudsman; Cabinet, their deputies and assistants.
c. Secretaries;
d. Undersecretaries; The phrase "unless otherwise provided in this
e. Chairmen or heads of bureaus or offices, Constitution" must be given a literal interpretation to
including GOCCs and their subsidiaries. refer only to those instances cited in the Constitution
(1987 Constitution, Art. VII, Sec. 13). itself, to wit:
NOTE: If the spouse, etc., was already in any of the a. The Vice-President being appointed as a member
above offices at the time before his/her spouse of the Cabinet under Sec. 3, par. (2), Art. VII; or
became President, he/she may continue in office. acting as President in those instances provided
What is prohibited is appointment and under Sec. 7, pars. (2) and (3), Art. VII; and
reappointment, not continuation in office. They can
also be appointed to the judiciary and as ambassadors b. The Secretary of Justice being ex-officio member
and consuls. of the Judicial and Bar Council by virtue of Sect. 8
(1), Art. VIII. (Funa v. Agra, G.R. No. 191644,
2. Midnight Appointments February 19, 2013).
GR: Two months immediately before the next Sec. 13, Art. VII undoubtedly covers the Acting
presidential elections and up to the end of his term, a Secretary of Justice as being concurrently designated
President or Acting President shall not make as Acting Solicitor General; therefore, he could not
appointments. validly hold any other office or employment during
his tenure as the Acting Solicitor General, because the
XPN: Temporary appointments to executive positions Constitution has not otherwise so provided.
when continued vacancies therein will prejudice
public service or endanger public safety. (1987 c. TYPES OF APPOINTMENT
Constitution, Art. VII, Sec. 15)
Kinds of Presidential appointments
Q: The President appointed Kimberly as the Acting
Secretary of Justice. After a couple of days, the 1. Appointments made by an Acting President;
President designated her as the Acting Solicitor
General in a concurrent capacity. Julie contested Appointments extended by an Acting President shall
the appointment of Kimberly on the ground that remain effective, unless revoked by the elected
the appointment violated Sec. 13, Art. VII of the President, within 90 days from his assumption or re-
Constitution which expressly prohibits the assumption of office. (1987 Constitution, Art. VII, Sec.
President, Vice-President, the Members of the 15)
Cabinet, and their deputies or assistants from
holding any other office or employment during 2. Midnight Appointment;
their tenure unless otherwise provided in the
Constitution. On the other hand, Kimberly claims GR: Midnight Appointments are prohibited
that according to Sec. 7, par. (2), Art. IX-B of the
Constitution, her appointment to such positions is The purpose of the prohibition on midnight
outside the coverage of the prohibition under Sec. appointments is to prevent a President, whose term is
13 of Art. VII as it falls into one of the exceptions about to end, from preempting his successor by
as being allowed by law or by the primary appointing his own people to sensitive positions.
65
(Velicaria-Garafil v. Office of the President, G.R. No. Appointing procedure for those that need
203372, June 16, 2015) Commission’s confirmation
XPN: It does not apply to appointments to the 1. Nomination by the President

judiciary under Sec. 15, Art. VII of the Constitution. 2. Confirmation by the CA
3. Issuance of commission
3. Regular Presidential Appointments, with or
4. Acceptance by the appointee
without the confirmation by the CA;
Appointments where confirmation of the
Appointments made solely by the President Commission on Appointments is NOT required:
1. Those vested by the Constitution on the 1. All other officers of the Government whose
President alone; appointments are not otherwise provided for by
2. Those whose appointments are not otherwise law
provided by law; 2. Those whom the President may be authorized by
3. Those whom he may be authorized by law to law to appoint
appoint; and 3. Officers lower in rank whose appointments the
4. Those other officers lower in rank whose Congress may by law vest in the President alone.
appointment is vested by law in the President (Manalo v. Sistoza, 312 SCRA 239, August 11, 1999,
alone (1987 Constitution, Art. VII, Sec. 16). En Banc).
Presidential appointments that need prior Procedure for those that do not need the
recommendation or nomination by the Judicial Commission’s confirmation
and Bar Council
1. Appointment
1. Members of the Supreme Court and all lower
2. Acceptance
courts.
2. Ombudsman and his 5 deputies (1987 4. Ad-interim Appointments.
Constitution, Art. VIII, Sec. 9).
Power of the President to make appointments during
Appointments where confirmation of the the recess of Congress, but such appointments shall
Commission on Appointments is required (HA2O) be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the
1. Heads of executive departments (Cabinet Congress (Matibag v. Benipayo, G.R. No. 149036, April
Secretaries) 2, 2002).
XPN: Vice-president may be appointed as a Appointments made by the President while the
member of the Cabinet and such appointment Congress is not in session
requires no confirmation. [1987 Constitution,
Art. VII, Sec. 3(2)]. Ad interim appointments are those made by the
president while the congress is NOT in session. It shall
2. Ambassadors, other public ministers and be terminated by the disapproval of the appointment
consuls– Those connected with the diplomatic by the CA or the adjournment of the Congress without
and consular services of the country. the CA acting on the appointment.
3. Officers of AFP from the rank of colonel or naval
captain NOTE: The ET and the CA shall be constituted within
30 days after the Senate and the HoR shall have been
NOTE: PNP of equivalent ranks and the organized with the election of the Senate President
Philippine Coast Guard is not included. and the Speaker of the House.
4. Other officers of the government whose Purpose of ad interim appointment

appointments are vested in the President in the
Ad interim appointments are intended to prevent a
Constitution (1987 Constitution, Art. VII, Sec. 16), hiatus in the discharge of official duties. Obviously, the
such as: public office would be immobilized to the prejudice of
the people if the President had to wait for Congress
a. Chairmen and members of the CSC, and the Commission of Appointments to reconvene
COMELEC and COA [1987 Constitution, before he could fill a vacancy occurring during the
Art. IX-B, C, D, Sec. 1(2)] recess (Guevara v. Inocentes, G.R. No. L-25577, March
b. Regular members of the JBC [1987 15, 1966).
Constitution, Art. VIII, Sec. 8(2)]
Nature of ad interim appointment
NOTE: The enumeration is exclusive.

Political Law
Ad interim appointments are permanent Congress is in session. Since a department secretary is
appointments. It is permanent because it takes effect the alter ego of the President, the acting appointee to
immediately and can no longer be withdrawn by the the office must necessarily have the President’s
President once the appointee qualified into office. The confidence (Pimentel v. Ermita, G.R. No. 164978,
fact that it is subject to confirmation by the CA does October 13, 2005).
not alter its permanent character. (2019 BAR)
NOTE: Acting appointments cannot exceed one
Ad interim appointment vs. Appointment in an year. [EO 292, Book III, Title I, Chapter 5, Sec. 17 (3)]
Acting Capacity
POWER OF REMOVAL
APPOINTMENT
AD INTERIM
BASIS IN AN ACTING Power of Removal
APPOINTMENT
CAPACITY
Made at any time GR: From the express power of appointment, the
Made during the there is vacancy, President derives the implied power of removal.
When made recess of i.e., whether
Congress Congress is in XPN: Not all officials appointed by the President are
session or not also removable by him since the Constitution
Requires Does not require prescribes certain methods for the separation from
As to confirmation of confirmation of the public service of such officers e.g. impeachment
confirmation the Commission the Commission
of the NOTE: The President is without any power to remove
Commission elected local officials since the power is exclusively
provided in the last paragraph of Section 60 of the
Permanent in Temporary in
Nature Local Government Code.
nature nature
Appointee Appointee does Source of the President’s Power of Removal:
As to enjoys security not enjoy
security of of tenure security of 1. It is implied from his power to appoint.
tenure tenure 2. It is implied from the constitutional provision
vesting the executive power in the President.
Permanent Appointment vs. Temporary 3. It may be implied from his function to take care
Appointment that laws be properly executed; for without it, his
orders for law enforcement might not be
PERMANENT TEMPORARY effectively carried out.
BASIS 4. It may be implied from the President’s control
APPOINTMENT APPOINTMENT
Extended to Given to over the administrative departments, bureaus, and
persons persons offices of the government. Without the power to
As to remove, it would not be always possible for the
possessing the without
persons President to exercise his power of control.
requisite such
appointed
eligibility eligibility;
3. POWER OF CONTROL AND SUPERVISION
Not revocable at Revocable at
will will without The President shall have control of all executive
the necessity of departments, bureaus and offices. (1987 Constitution,
just cause or a Art. VII, Sec. 17)
As to acts valid
investigation; Power of Control
of the
appointee appointing
power has full The power of an officer to alter or modify or nullify or
discretion to to set aside what a subordinate has done in the
change performance of his duties and to substitute one’s own
judgment for that of a subordinate.
(See further discussion under Law on Public Officers)
Such "executive control" is not absolute. The
definition of the structure of the executive branch of
President may appoint Acting Secretaries without
the consent of the Commission while the Congress government, and the corresponding degrees of
administrative control and supervision is not the
is in session
exclusive preserve of the executive. It may be
effectively limited by the Constitution, by law, or by
Congress, through a law, cannot impose on the
President the obligation to appoint automatically the judicial decisions. (Moran v. Office of the President, G.R.
No. 192957, Sept. 29, 2014).
undersecretary as her temporary alter ego. An alter
ego, whether temporary or permanent, holds a
position of great trust and confidence. The office of a
department secretary may become vacant while
67
NOTE: The President’s power over GOCCs comes from NOTE: As a rule, an aggrieved party need not appeal
statute, not from the Constitution, hence, it may be to the Office of the President the decision of a cabinet
taken away by statute. secretary and may file a petition for certiorari directly
with the court assailing the act of the said secretary.
NOTE: Such control is exercisable by the President His acts are presumed to be of the President’s unless
only over the acts of his subordinates and not disapproved or reprobated by him. (Manubay v.
necessarily over the subordinate himself. (Ang-Angco Garilao, G.R. No. 140717, April 16, 2009).
v. Castillo, G.R. No.L-17169, November 30, 1963)
b. EXECUTIVE DEPARTMENTS AND OFFICES
a. DOCTRINE OF QUALIFIED POLITICAL AGENCY
Department Heads may exercise power of control
“Doctrine of Qualified Political Agency” or “Alter in behalf of the President including the power to
Ego Principle” (2014, 2015 BAR) reverse the judgment of an inferior officer.
The acts of the secretaries of the Executive For instance, the Sec. of Justice may reverse the
departments performed and promulgated in the judgment of a prosecutor and direct him to withdraw
regular course of business are presumptively the acts information already filed. One, who disagrees,
of the Chief Executive (Villena v. Sec. of the Interior, however, may appeal to the Office of the President in
G.R. No. L-46570, April 21, 1939). order to exhaust administrative remedies prior filing to
the court.
XPNs to the Alter Ego doctrine
Also, the Executive Secretary when acting “by
1. If the acts are disapproved or reprobated by the authority of the President” may reverse the decision
President; of another department secretary. (Lacson-Magallanes
2. If the President is required to act in person by v. Paño, G.R. No. L-27811, November 17, 1967).
law or by the Constitution. e.g. executive
clemency c. LOCAL GOVERNMENT UNITS
NOTE: It would appear though that doctrine of Power of General Supervision

qualified political agency would not be applicable to
acts of cabinet secretaries done in their capacity as ex- The power of a superior officer to ensure that the laws
officio board directors of a GOCC of which they are faithfully executed by subordinates.
become a member not by appointment of the
President but by authority of law (See: Trade and The power of the President over LGUs is only of
Investment Development Corporation of the Philippines general supervision. Thus, he can only interfere in the
v. Manalang-Demigillo, G.R. Nos. 168613 & 185571). affairs and activities of a LGU if he finds that the latter
acted contrary to law.
Essence of the Alter Ego doctrine
The President or any of his alter egos cannot interfere
Since the President is a busy man, he is not expected in local affairs as long as the concerned LGU acts
to exercise the totality of his power of control all the within the parameters of the law and the Constitution.
time. He is not expected to exercise all his powers in Any directive, therefore, by the President or any of his
person. He is expected to delegate some of them to alter egos seeking to alter the wisdom of a law-
men of his confidence, particularly to members of his conforming judgment on local affairs of a LGU is a
Cabinet. patent nullity, because it violates the principle of local
autonomy, as well as the doctrine of separation of
NOTE: Applying this doctrine, the power of the powers of the executive and the legislative
President to reorganize the National Government may departments in governing municipal corporations
be validly delegated to his Cabinet Members (Dadole v. COA, G.R. No. 125350, December 3, 2002).
exercising control over a particular executive
department (DENR v. DENR Region XII Employees, G.R. Control vs. Supervision
No. 149724, August 19, 2003).
BASIS CONTROL SUPERVISION
The doctrine of qualified political agency declares The supervisor or
that, save in matters on which the Constitution or the superintendent
circumstances require the President to act personally, An officer in
merely sees to it
executive and administrative functions are exercised control lays
that the rules are
through executive departments headed by cabinet Nature down the rules
followed, but he
secretaries, whose acts are presumptively the acts of in the doing of
himself does not
the President unless disapproved by the latter. There an act.
lay down such
can be no question that the act of the secretary is the rules.
act of the President, unless repudiated by the latter.
(Hontiveros-Baraquel v. Toll Regulatory Board, G.R. No. As to If the rules are The supervisor
181293, February 23, 2015). discretion not followed, does not have the
of the offi- the officer in discretion to

Political Law
cer control may, in modify or replace maintain law and order. It gives no new power to her,
his discretion, them. If the rules nor to the police. Certainly, it does not authorize
order the act are not observed, warrantless arrests or control of media. (David v. GMA,
undone or re- he may order the Ibid.). (2015 BAR)
done by his work done or re-
subordinate or done but only to 5. COMMANDER-IN-CHIEF POWERS
he may even conform to the
decide to do it prescribed rules. Scope of the President’s Commander-in-Chief
himself. (Drilon v. Lim, Powers
G.R. No. 112497,
Aug. 4, 1994) Absolute authority over the persons and actions of the
members of the armed forces. (Gudani v. Senga, G.R.
NOTE: The power of supervision does not include the No. 170165, Aug. 15, 2006).
power of control; but the power of control necessarily
includes the power of supervision. The President as Commander-in-Chief can prevent the
Army General from appearing in a legislative
4. EMERGENCY POWERS investigation and, if disobeyed, can subject him to
court martial. (Gudani v. Senga, G.R. No. 170165,
In times of war or other national emergency, the August 15, 2006).
Congress may by law authorize the President, for a
limited period and subject to such restrictions as it a. CALLING OUT POWERS
may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless Call the armed forces to prevent or suppress lawless
sooner withdrawn by resolution of the Congress, such violence, invasion, or rebellion. The only criterion for
powers shall cease upon its next adjournment. the exercise of this power is that whenever it becomes
[Constitution, Art. VI, Sec. 23 (2)]. necessary.
Conditions for the vesture of emergency powers in The Constitution does not require the President to
the President: declare a state of rebellion to exercise her calling out
power. Sec. 18, Art. VII grants the President, as
1. There must be war or national emergency; Commander-in-Chief a “sequence” of “graduated
2. The delegation must be for a limited period powers.” (Sanlakas v. Exec. Sec., G.R. No. 159085,
only; February 3, 2004). (2015 BAR)
3. The delegation must be subject to such
restrictions as the Congress may prescribe; and Calling out power does not need Congressional
4. The emergency powers must be exercised to authority
carry out a national policy declared by Congress.
There is no need for congressional authority to
NOTE: Conferment of emergency powers on the exercise the calling out power of the President since
President is not mandatory on the Congress. calling out of the armed forces to prevent or suppress
lawless violence is a power that the Constitution
In times of national emergency, when the public directly vests in the President. As in the case where
interest so requires, the State may, during the the President did not proclaim a national emergency
emergency and under reasonable terms prescribed by but only a state of emergency in 3 places in Mindanao
it, temporarily take over or direct the operation of any and she did not act pursuant to any law enacted by
privately-owned public utility or business affected Congress that authorized her to exercise
with public interest. (Constitution, Art. VII, Sec. 17) extraordinary powers. (Ampatuan v. Hon. Puno, G.R.
No. 190259, June 7, 2011)
While the President alone can declare a state of
national emergency, he may not invoke his provision b. DECLARATION OF MARTIAL LAW AND
to authorize him during the emergency “to SUSPENSION OF THE PRIVILEGE OF THE WRIT OF
temporarily take over or direct the operation of any HABEAS CORPUS; EXTENSION
privately owned utility or business affected with
public interest without authority from Congress...
NOTE: What is permitted to be suspended by the
without legislation, he has no power to take over
President is not the writ itself but its privilege.
privately-owned public utility or business affected
with public interest. In short, the President has no
absolute authority to exercise all the powers of the WRIT OF HABEAS PRIVILEGE OF THE
State under Section 17, Article XII in the absence of an CORPUS WRIT
emergency powers act passed by Congress.” (David v. An order from the court That portion of the
GMA, G.R. No. 171409, May 3, 2006). commanding a detaining writ requiring the
officer to inform the detaining officer to
NOTE: The declaration of a state of emergency is court if he has the person show cause why he
merely a description of a situation which authorizes in custody, and what his should not be tested.
her to call out the Armed Forces to help the police basis is in detaining that
69
person. Guidelines in the declaration of martial law

(IR-PS-60-48-jointly-30)
Requisites for the suspension of the privilege of 1. There must be an Invasion or Rebellion, and
the writ of habeas corpus 2. Public Safety requires the proclamation of
martial law all over the Philippines or any part
1. There must be an invasion or rebellion; and thereof.
2. Public safety requires the suspension 3. Duration: Not more than 60 days following
which it shall be automatically lifted unless
NOTE: The invasion and rebellion must be actual and extended by Congress.
not merely imminent.
4. Duty of the President to report to Congress:
within 48 hours personally or in writing.
Limitations on the suspension of the privilege of
writ of habeas corpus 5. Authority of Congress to affirm or revoke or allow
the lapse or extend the effectivity of
1. Applies only to persons judicially charged for proclamation: by majority vote of all its
rebellion or offenses inherent in or directly members voting jointly.
connected with invasion; and 6. Judicial Review application: The present
2. Anyone arrested or detained during suspension constitution recognizes the authority of citizens
must be charged within 3 days. Otherwise, he to question the factual basis for the declaration
should be released. of martial law, vesting the SC with the authority
to decide on the case within 30 days of its filing.
Role of the Supreme Court in reviewing the factual
bases of the promulgation of the suspension of the NOTE: Once revoked by Congress, the President
privilege of the writ of habeas corpus cannot set aside the revocation.
Although the Constitution reserves to the Supreme Limitations on the declaration of martial law
Court the power to review the sufficiency of the
factual basis of the proclamation or suspension in a 1. It does not suspend the operation of the
proper suit, it is implicit that the Court must allow Constitution;
Congress to exercise its own review powers, which is 2. It does not supplant the functioning of the civil
automatic rather than initiated. Only when Congress courts or legislative assemblies;
defaults in its express duty to defend the Constitution 3. It does not authorize conferment of jurisdiction
through such review should the Supreme Court step over civilians where civil courts are able to
in as its final rampart. The constitutional validity of function;
the President’s proclamation of martial law or
suspension of the writ of habeas corpus is first a NOTE: Civilians cannot be tried by military
political question in the hands of Congress before it courts if the civil courts are open and
becomes a justiciable one in the hands of the Court. functioning. (Open Court Doctrine) (Olaguer v.
(Fortun v. GMA, G.R. No. 190293, March 20, 2012) Military Commission No. 34, G.R. No. L-54558,
May 22, 1987).
President may proclaim Martial Law over the
entire Philippines or any part thereof. 4. It does not automatically suspend the privilege
of the writ of habeas corpus (1987 Constitution,
Nature of martial law Art. VII, Sec. 18 (2)].
5. The right to bail shall not be impaired even
Martial law is a joint power of the President and the when the privilege of the writ of habeas corpus
Congress. Thus: (60-48-24-jointly) is suspended. (1987 Constitution, Art. III, Sec. 13)
1. The President’s proclamation or suspension is NOTE: When martial law is declared, no new powers
temporary, good for only 60 days; are given to the President; no extension of arbitrary
2. He must, within 48 hours of the proclamation authority is recognized; no civil rights of individuals
or suspension, report on the reason for his are suspended. The relation of the citizens to their
action in person or in writing to Congress; State is unchanged. The Supreme Court cannot rule
3. Both houses of Congress, if not in session must upon the correctness of the President’s actions but
jointly convene within 24 hours of the only upon its arbitrariness.
proclamation or suspension for the purpose of
reviewing its validity; and Ways to lift the proclamation of martial law
4. The Congress, voting jointly, may revoke or
affirm the President’s proclamation or 1. Lifting by the President himself
suspension, allow their limited effectivity to 2. Revocation by Congress
lapse, or extend the same if Congress deems
3. Nullification by the SC
warranted.
4. By operation of law after 60 days

Political Law
Q: In light of recent attacks in Marawi City by the Constitution, the Congress is only required to vote
Maute group and other terrorist organizations, jointly to revoke the President's proclamation of
President Duterte declared a state of martial law martial law and/or suspension of the privilege of the
and suspended the privilege of the writ of habeas writ of habeas corpus. If Congress does not want to
corpus in the whole of Mindanao, invoking as revoke or lift the declaration of martial law, then there
factual basis a written report pointing out that for is no need for them to meet in joint session. It is
decades, Mindanao has been plagued with worthy to stress that the provision does not actually
rebellion and lawless violence which only refer to a "joint session.” The requirement of voting
escalated and worsened with the passing of time jointly explicitly applies only to the situation when the
and the strategic location of Marawi City and its Congress revokes the President's proclamation of
crucial role in Mindanao and the Philippines as a martial law. (Padilla v. Congress, G.R. No. 231671, July
whole. Is the factual basis for the proclamation 25, 2017)
enough, and therefore constitutional?
Role of the Supreme Court in inquiring into the
A: YES. The President deduced from the facts factual bases of the President’s declaration
available to him that there was an armed public Martial Law
uprising, the culpable purpose of which was to
remove from the allegiance to the Philippine The power of the Court to review the sufficiency of the
Government a portion of its territory and to deprive factual basis under Sec. 18, Art VII of the Constitution
the Chief Executive of any of his powers and is independent of the actions taken by Congress. The
prerogative, leading the President to believe that Court can simultaneously exercise its power of review
there was probable cause that the crime of rebellion with, and independently from the power to revoke by
was and is being committed and that public safety Congress. Corollary, any perceived inaction or default
requires the imposition of martial law and suspension on the part of Congress does not deprive or deny the
of the privilege of the writ of habeas corpus. Court its power to review.
Section 18, Article VII of the Constitution itself sets JUDICIAL POWER TO CONGRESSIONAL
the parameters for determining the sufficiency of the REVIEW POWER TO REVOKE
factual basis for the declaration of martial law and/or Court may strike down Congress may revoke the
the suspension of the privilege of the writ of habeas the presidential proclamation/suspension,
corpus, namely (1) actual invasion or rebellion, and proclamation in an which revocation shall not
(2) public safety requires the exercise of such power. appropriate proceeding be set aside by the
Without the concurrence of the two conditions, the filed by any citizen on President.
President's declaration of martial law and/or the ground of lack of
suspension of the privilege of the writ of habeas sufficient factual basis.
corpus must be struck down. Court considers only the May take into
information and data consideration not only
A review of the aforesaid facts similarly leads the available to the data available prior to, but
Court to conclude that the President, in issuing President prior to or at likewise events
Proclamation No. 216, had sufficient factual bases the time of the supervening the
tending to show that actual rebellion exists. The declaration; it is not declaration.
President's conclusion, that there was an armed allowed to undertake an
public uprising, the culpable purpose of which was the independent
removal from the allegiance of the Philippine investigation beyond the
Government a portion of its territory and the pleadings.
deprivation of the President from performing his Does not look into the Could probe deeper and
powers and prerogatives, was reached after a tactical absolute correctness of further; it can delve into
consideration of the facts. In fine, the President the factual basis. the accuracy of the facts
satisfactorily discharged his burden of proof. After all, presented before it.
what the President needs to satisfy is only the Review power is passive Review mechanism is
standard of probable cause for a valid declaration of – only initiated by the automatic in the sense
martial law and suspension of the privilege of the writ filing of a petition “in an that it may be activated by
of habeas corpus. (Lagman v. Medialdea, G.R. No. appropriate proceeding” Congress itself at any time
231658, July 4, 2017). by a citizen. after the proclamation of
suspension was made.
Q: Does Congress have the mandatory duty to
convene and meet in joint session upon the Power of Judicial Review vis-à-vis Military Powers
President's proclamation of martial law or the of the President
suspension of the privilege of the writ of habeas
corpus? The power of judicial review does NOT extend to
calibrating the President’s decision pertaining to
A: NO. Congress is not constitutionally mandated to which extraordinary power to avail given a set of facts
convene in joint session except to vote jointly to or conditions.
revoke the President's declaration or suspension. By
the language of Article VII, Section 18 of the 1987 BASIS CALLING SUSPEN- MARTIAL
71
OUT SION OF LAW territorial coverage or application of ML or the

THE suspension of the privilege of the writ of HC. There is
PRIVILEGE no constitutional edict that ML should be confined
Charac- Most Involve Involve only in the particular place where the armed public
ter benign and curtailment curtailment uprising actually transpired. The President’s duty to
involves and and maintain peace and public safety is not limited only to
ordinary suppress- suppre- the place where there is actual rebellion; it extends to
police ion of civil ssion of other areas where the present hostilities are in danger
action rights and civil rights of spilling over.
individual and
freedom individual Limitations on the Military Powers:
freedom
1. He may call out the armed forces when it
When Whenever Only when Only when becomes necessary to prevent or suppress
may the it becomes there is there is lawless violence, invasion or rebellion only.
Presiden necessary actual actual 2. The grounds for the suspension of the privilege
t resort to prevent invasion, invasion, of the writ of habeas corpus and the
to this or rebellion, rebellion, proclamation of martial law are now limited
power? suppress and public and public only to invasion or rebellion, when the public
lawless safety safety safety requires it.
violence, requires it. requires it. 3. The duration of such suspension or
invasion, proclamation shall not exceed 60 days, following
or which it shall be automatically lifted.
rebellion. 4. Within 48 hours after such suspension or
proclamation, the President shall personally or
Limi- President 1. Time 1. Time in writing report his action to the Congress. If
tation must act limit of 60 limit of 60 not in session, Congress must convene within 24
within days; days; hours without need of a call.
permissi- 5. The Congress may then, by a majority vote of all
ble 2. Review 2. Review its members voting jointly, revoke his action.
constitutio and and 6. The revocation may not be set aside by the
-nal possible possible President.
bounda- revocation revoca-tion 7. By the same vote and in the same manner, the
ries or in a by by Congress may, upon initiative of the President,
manner Congress; Congress; extend his suspension or proclamation for a
not Review and Review and period to be determined by the Congress if the
constitutin possible possible invasion or rebellion shall continue and the
g grave nullifica- nullifica- public safety requires the extension.
abuse of tion by the tion by the 8. The action of the President and the Congress
discretion. SC SC shall be subject to review by the Supreme Court
which shall have the authority to determine the
But sufficiency of the factual basis of such action.
generally, This matter is no longer considered a political
president question and may be raised in an appropriate
has full proceeding by any citizen. Moreover, the
discretion Supreme Court must decide the challenge
within 30 days from the time it is filed.
Subject Actual use YES. YES.
to to which Limited to Limited to 6. EXECUTIVE CLEMENCY
judicial President the the
review? puts the determina- determina- An act of grace, which exempts the individual on
armed tion of tion of whom it is bestowed from punishment, which the law
forced whether whether inflicts for a crime he has committed. As a
NOT the the consequence, pardon granted after conviction frees
subject to President President the individual from all the penalties and legal
judicial had had disabilities and restores him to all his civil rights. But
review sufficient sufficient unless expressly grounded on the person’s innocence
factual factual (which is rare), it cannot bring back lost reputation
basis. basis. for honesty, integrity and fair dealing. (Monsanto v.
Factoran, G.R. No. 78239, Feb. 9, 1989)
Territorial Coverage of ML or the Suspension of
the Privilege of the Writ of HC a. NATURE AND LIMITATIONS
The 1987 Constitution grants to the President, as Purpose of pardon

Commander-in-Chief, the discretion to determine the

Political Law
To relieve the harshness of the law or correcting b. Partial pardon– Does not extinguish all the
mistakes in the administration of justice. The power penalties; partially extinguishes criminal liability
of executive clemency is a non-delegable power and [See: RPC, Art. 94(1)].
must be exercised by the President personally.
NOTE: A judicial pronouncement that a convict who
NOTE: As an executive function, the grant of clemency was granted a pardon subject to the condition that he
is discretionary, and may not be controlled by the should not again violate any penal law is not
legislature as to limit the effects of the President’s necessary before he can be declared to have violated
pardon, or to exclude from its scope any class of the condition of her pardon (Torres v. Gonzales, G.R.
offenders. Also, the Courts may not inquire into the No. L-76872, July 23, 1987).
wisdom or reasonableness of any pardon granted by
the President or have it reversed, save only when it Effects of the grant of pardon
contravenes its limitations. It includes cases involving
both criminal and administrative cases. 1. Frees the individual from all the penalties and
legal disabilities imposed upon him by the
Limitations on the President’s Pardoning Powers sentence, and
(CAN-F, CANNOT-CLIEP) (2015 BAR)
NOTE: RPC, Article 36. Pardon; its effect: A
1. Can be granted only after conviction by Final pardon shall in no case exempt the culprit from
judgment the payment of the civil indemnity
XPN: Amnesty
2. Cannot be granted in cases of civil or legislative 2. Restores to him all his civil and political rights.
Contempt.
3. Cannot absolve convict of Civil Liability. NOTE: A pardon does not automatically restore
the right to hold public office, or the right of
4. Cannot be granted in cases of Impeachment. suffrage. Such rights must be expressly restored
(1987 Constitution, Art. VII, Sec. 19) by the terms of the pardon. (Art. 36, RPC)
5. Cannot be granted for violations of election
laws without favorable recommendations of the Options of the convict when granted pardon
COMELEC.
Ratio: The COMELEC is an independent body. 1. Conditional Pardon– The offender has the right
to reject it since he may feel that the condition
6. Cannot restore Public offices forfeited. imposed is more onerous than the penalty
sought to be remitted.
Kinds of pardon
2. Absolute Pardon– The offender has no option
As to presence of condition: at all and must accept it whether he likes it or
not.
a. Absolute pardon– One extended without any
conditions; totally extinguishes criminal liability NOTE: In this sense, an absolute pardon is similar to
(See: RPC, Art. 89[4]). commutation, which is also not subject to acceptance
b. Conditional pardon – One under which the by the offender.
convict is required to comply with certain
requirements. Pardon does not ipso facto restore former office
and his rights and privileges
Q: Mateo was convicted of Homicide but was later
on granted conditional pardon by the president. Pardon does not ipso facto restore a convicted felon
When Mateo was filling up his personal data sheet neither to his former public office nor to his rights and
for employment in public office, he did not privileges, which were necessarily relinquished or
disclose the existence of a prior criminal forfeited by reason of the conviction although such
conviction for homicide. Can Mateo be employed pardon undoubtedly restores his eligibility to that
as a public employee? office (Monsanto v. Factoran, G.R. No. 78239, February
9, 1989).
A: NO. The pardon granted to Mateo is one of
Conditional Pardon, the pardon did not expressly The pardoning power of the President cannot be
remit the accessory penalty of Homicide which is limited by legislative action. It is a presidential
perpetual absolute disqualification from holding prerogative, which may not be interfered with by
public office or employment (Mateo v. Executive Congress or the Court, except when it exceeds the
Secretary, G.R. No. 177875, Aug 8, 2016). limits provided by the Constitution. Articles 36 and 41
of the RPC should thus be construed in a way that will
As to effect: give full effect to the executive clemency instead of
indulging in an overly strict interpretation that may
a. Plenary pardon– Extinguishes all the penalties serve to impair or diminish the import of the pardon
imposed upon the offender, including accessory which emanated from the Office of the President, and
disabilities
73
duly signed by the Chief Executive herself. (Risos-Vidal penitent qualified offender, who does not possess the
v. Estrada, G.R. No. 206666, January 21, 2015) disqualifications under P.D. No. 968, as amended.
Likewise, the Probation Law is not a penal law for it to
b. FORMS OF EXECUTIVE CLEMENCY be liberally construed to favor the accused. (Maruhom
v. People, G.R. No. 206513, October 20, 2015)
1. Reprieve
Probation vs. Pardon
The postponement of sentence to a date certain or
stay of execution. BASIS PROBATION PARDON
Judicial in nature Executive in
NOTE: It may be ordered to enable the government to Nature nature
secure additional evidence to ascertain the guilt of the May be granted Requires
convict or, in the case of the execution of the death When after actual conviction by final
sentence upon a pregnant woman, to prevent the applica service of judgment
killing of her unborn child. ble sentence
2. Commutation
5. Parole
The reduction or mitigation of the penalty, from death
penalty to life imprisonment, remittances and fines. The suspension of the sentence of a convict granted
Commutation is a pardon in form but not in by a Parole Board after serving the minimum term of
substance, because it does not affect his guilt; it the indeterminate sentence penalty, without granting
merely reduces the penalty for reasons of public a pardon, prescribing the terms upon which the
interest rather than for the sole benefit of the sentence shall be suspended.
offender.
Parole vs. Pardon
NOTE: Commutation does not have to be in any
particular form. Thus, the fact that a convict was BASIS PAROLE PARDON
released after 6 years and placed under house arrest,
which is not a penalty, already leads to the conclusion Release of a Release of convict
that the penalty has been shortened. convict from from conviction
imprisonment
Judicial power to pass upon the validity of the Effect and is not a
actions of the President in granting executive restoration of
clemency his liberty
What it is deciding is whether or not the President has
the power to commute the penalty of the said clerk of In custody of Sentence is
court. As stated in Daza v. Singson (G.R. No. 86344, the law but no condoned, subject to
December 21, 1989), it is within the scope of judicial longer under reinstatement in case
power to pass upon the validity of the actions of Nature confinement of violation of the
the other departments of the Government. condition that may
have been attached to
3. Remission of fines and forfeitures the pardon
Merely prevents the collection of fines or the 6. Amnesty

confiscation of forfeited property. It cannot have the
effect of returning property which has been vested in The grant of general pardon to a class of political
third parties or money already in the public treasury. offenders either after conviction or even before the
charges is filed. It is the form of executive clemency
NOTE: The power of the President to remit fines and which under the Constitution may be granted by the
forfeitures may not be limited by any act of Congress. President only with the concurrence of the legislature.
But a statute may validly authorize other officers,
such as department heads or bureau chiefs, to remit Requisites of amnesty
administrative fines and forfeitures.
1. Concurrence of a majority of all the members of
4. Probation Congress (1987 Constitution, Art. VII, Sec. 19);
and
A disposition under which a defendant after 2. A previous admission of guilt (Vera v. People,
conviction and sentence is released subject to G.R. No. L-18184, January 31, 1963).
conditions imposed by the court and to the
supervision of a probation officer. Effects of the grant of amnesty
NOTE: It is not a right granted to a convicted offender; The total extinguishment of the criminal liability and
it is a special privilege granted by the State to a of the penalty and all its effects. Amnesty reaches back

Political Law
to the past and erases whatever shade of guilt there NOTE:
was. In the eyes of the law, a person granted amnesty
is considered a new-born child. (People v. Patriarca, EXECUTIVE CLEMENCY REQUIREMENT
G.R. No. 135457, September 29, 2000) Pardons
NOTE: However, amnesty does not excuse the Reprieves
Conviction by final
accused from paying the civil indemnity. It subsists Commutations judgment
notwithstanding service of sentence, or for any reason
the sentence is not served by pardon, amnesty or Remission of Fines
commutation of sentence. (Monsanto v. Factoran, G.R. and Forfeitures
No. 78239, February 9, 1989) Concurrence of Congress
Amnesty
Amnesty vs. Pardon
7. DIPLOMATIC POWER
BASIS AMNESTY PARDON
Addressed to Addressed to Sources of the President’s diplomatic powers
Nature of
Political Ordinary offenses
the offense 1. The Constitution
offenses
Granted to a Granted to 2. The status of sovereignty and independence
As to class of individuals
whom persons Scope of the foreign relations powers of the
grante President (N-ARC-DP-Reco)
d
Requires Does not require 1. Negotiate treaties and other international
As to concurrence of concurrence of
concur agreements. However, such treaty or
majority of all Congress international agreement requires the
rence members of
of concurrence of the Senate, (Art. VII, Sec. 21)
Congress which may opt to do the following:
Congre
ss
a. Approve with 2/3 majority;
Public act Private act which
b. Disapprove outright; or
Nature which the must be pleaded
c. Approve conditionally, with suggested
of the court may take and proved
amendments which if re-negotiated and the
act judicial notice
Senate’s suggestions are incorporated, the
of
treaty will go into effect without need of
Looks Looks forward further Senate approval.
backward and and relieves the
puts to oblivion offender of the NOTE: Executive agreements, however, do not
the offense consequence of require legislative concurrence. (Bayan Muna v.
As to itself. the offense Romulo, G.R. No. 159618, February 1, 2011) (2015
perspe (Stands before (Abolishes / BAR)
ctive the law as if Forgives the
there is no offense) An executive agreement is a “treaty” within the
offense meaning of that word in international law and
committed) constitutes enforceable domestic law (Nicolas v.
May be Only granted Romulo, G.R. No. 175888, February 11, 2009).
When granted before after conviction
grante or after by final judgment Requisites of Executive Agreement (under
d conviction Vienna Convention):
As to Need not Must be accepted a. The agreement must be between states;

accept be b. It must be written; and
ance accepted c. It must be governed by international law
(China National Machinery and Equipment
NOTE: The right to the benefits of amnesty, once Corporation v. Sta. Maria, G.R. No. 185572,
established by the evidence presented either by the February 7, 2012).
complainant or prosecution, or by the defense, cannot
be waived, because it is of public interest that a Hence, it is within the authority of the President
person who is regarded by the Amnesty Proclamation to refuse to submit a treaty to the Senate or,
which has the force of a law, not only as innocent, for having secured its consent for its ratification,
he stands in the eyes of the law as if he had never refuse to ratify it. Although the refusal of a state
committed any punishable offense. (Barrioquinto v. to ratify a treaty which has been signed in its
Fernandez, G.R. No. L-1278, January 21, 1949) behalf is a serious step that should not be taken
lightly, such decision is within the competence of
75
the President alone. (Pimentel v. Exec. Sec., G.R. NOTE: Congress may not increase the appropriations
No. 158088, July 6, 2005) recommended by the President for the operation of
the Government as specified in the budget. [1987
2. Appoint ambassadors, other public ministers, Constitution, Art. VI, Sec. 25 (1)].
and consuls.
3. Receive ambassadors and other public ministers 9. DELEGATED POWERS
accredited to the Philippines.
4. Contract and guarantee foreign loans on behalf of Congress can delegate the following powers to the
RP (1987 Constitution, Art. VII, Sec. 20). (1994, President:
1999 BAR)
1. Tariff Powers
5. Deport aliens –
The Congress may by law authorize the President to
a. This power is vested in the President by fix within specified limits, and subject to such
virtue of his office, subject only to limitations and restrictions as it may impose, tariff
restrictions as may be provided by rates, import and export quotas, tonnage and
legislation as regards to the grounds for wharfage dues, and other duties or imposts, within
deportation (Revised Administrative Code, the framework of the national development program
Sec. 69). of the Government. [1987 Constitution, Art. VI, Sec. 28
b. In the absence of any legislative restriction (2)]
to authority, the President may still exercise
this power. Reason: The necessity, not to say expediency, of
giving the chief executive the authority to act
c. The power to deport aliens is limited by the immediately on certain matters affecting the national
requirements of due process, which entitles economy lest delay result in hardship to the people.
the alien to a full and fair hearing.
2. Emergency Powers
NOTE: Summary deportation shall be
observed in cases where the charge against
In times of war or other national emergency, the
the alien is overstaying or expiration of his
Congress may, by law, authorize the President, for a
passport. (Board of Commissioners v. Jong
limited period and subject to such restrictions as it
Keun Park, G.R. No. 159835, January 21,
may prescribe, to exercise powers necessary and
2010)
proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such
d. An alien has the right to apply for bail
powers shall cease upon the next adjournment
provided certain standard for the grant is
thereof. [1987 Constitution, Art. VI, Sec. 23 (2)]
necessarily met (Government of Hong Kong v.
Olalia, G.R. No. 153675, April 19, 2007).
Reason: There may be occasions wherein the
President would be in a better position to respond in
NOTE: The adjudication of facts upon which
a timely manner to emergencies and fast changing
the deportation is predicated devolved on
developments that are critical to the welfare, safety,
the President whose decision is final and
or security of the nation. Subject to restrictions
executory (Tan Tong v. Deportation Board,
prescribed by Congress.
G.R. No. L-7680, April 30, 1955).
10. RESIDUAL POWERS
6. Decide that a diplomatic officer who has become
Persona non grata be recalled. Those “unstated powers” of the President which are
implicit in and correlative to the paramount duty
7. Recognize governments and withdraw residing in that office to safeguard and protect general
recognition. welfare. (E.O. No. 292 – Administrative Code of 1987)
8. POWERS RELATIVE TO APPROPRATION GR: Exists only when there are plainly ambiguous
MEASURES statements in the Constitution
The President shall submit to the Congress within 30 “Although the 1987 Constitution imposes limitations
days from the opening of every regular session, as the on the exercise of specific powers of the President, it
basis of the general appropriations bill, a budget of maintains intact with what is traditionally considered
expenditures and sources of financing, including as within the scope of ‘executive power.’ Corollarily,
receipts from existing and proposed revenue the powers of the President cannot be said to be
measures. (1987 Constitution, Art. VII, Sec. 22) limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more
Reason: The President is in the best position to than the sum of specific powers so enumerated.”
determine the needs of the government and propose (Marcos v. Manglapus, G.R. No. 88211, October 27,
the corresponding appropriations therefor on the 1989)
basis of existing or expected sources of revenue.

Political Law
11. VETO POWERS CAUSE OF VACANCY CONSEQUENCE
In case of : (DPR2)
The President may disapprove or veto a measure a. Death; The Vice President shall
upon any ground sufficient for him, as where he b. Permanent Disability; become the President to
considers it unconstitutional or merely inefficacious c. Removal from office; serve the unexpired term.
or unwise. In every case, he should, in returning the or
measure to the House of origin, indicate his objections d. Resignation of the
thereto in what is known as a “veto message” so that President
the same can be studied by the members for possible
overriding of his veto. Two-thirds of each House will In case of :
a. Death; The Senate President,
be sufficient to invalidate the veto and convert the bill
b. Permanent Disability; or in case of his inability,
into law over the President’s objections.
c. Removal from office; the Speaker of the HoR,
or shall act as President
GR: The President must approve entirely or
d. Resignation of both until the President or Vice
disapprove in toto.
the President and the President shall have ben
Vice-President elected and qualified.
XPN: Line or Item Veto
Applies to appropriation, revenue and tariff bills, any Rules and procedure to be followed if a vacancy
particular item or items of which may be disapproved occurs in the offices of the President and Vice-
without affecting the item or items to which he does President. (1987 Constitution, Art. VII, Sec. 10)
not object.
1. At 10:00 A.M. of the third day after said vacancy
D. RULES OF SUCCESSION occurs – Congress shall convene in accordance
with its rules without need of call.
Rules to be applied if there is vacancy before the
term of the President. (1987 Constitution, Art. VII, 2. Within 7 days — Congress shall enact a law
Sec 7) calling for a special election to elect a President
and a Vice President.
CAUSE OF VACANCY CONSEQUENCE
In case of death or 3. Said special election shall be held — Not earlier
permanent The Vice-President elect
than forty-five (45) days nor later than sixty
disability of the shall become President.
(60) days from the time of such call.
President-elect.
In case of failure to The Vice-President shall 4. The bill calling such special election — Shall be
elect the President act as the President until deemed certified under Sec. 26, par. 2, Art. VI of
(i.e. Presidential the President shall have the Constitution and shall become law upon its
elections have not been chosen and qualified. approval on third reading by Congress.
been held or non-
completion of the 5. Appropriations for said special election — Shall
canvass of the be charged against any current appropriations
Presidential elections)
and shall be exempt from the requirements of,
In case no President The Senate President, or Sec. 25, par. 4, Art. VI of the Constitution.
and Vice-President in case of his inability, the
shall have been Speaker of the HoR shall 6. The convening of Congress and the special
chosen and act as President until a election — cannot be suspended or postponed
qualified, or where President or a Vice-
both shall have died President shall have been 7. No special election shall be called — If the
or become chosen and qualified. vacancy occurs within eighteen (18) months
permanently
before the date of the next presidential
disabled. Congress shall by law
provide for the manner in elections.
which one who is to act as
President shall be selected Instances when there is presidential inability to
until a President or a Vice- discharge powers and duties of his office (1987
President shall have Constitution, Art. VII, Sec. 11)
qualified, in case of death,
permanent disability or INSTANCE CONSEQUENCE
inability of the officials. When the President The powers and duties
transmits to the Senate of his office shall be
Rules to be applied if the vacancy occurs during President and to the discharged by the
the incumbency of the President Speaker of the HoR his Vice-President as
written declaration that Acting President.
77
VII. JUDICIAL DEPARTMENT
he is unable to discharge The power of the SC to determine the constitutionality

the powers and duties of of a law, treaty, ordinance, presidential issuance, and
his office. other governmental acts.
When a majority of all the The Vice-President NOTE: When the judiciary mediates to allocate
members of the Cabinet shall immediately constitutional boundaries, it does not assert any
transmit to the Senate assume the powers superiority over other departments; it does not in
President and to the and duties of the office reality nullify or invalidate an act of the legislature,
Speaker of the HoR their as Acting President. but only asserts the solemn and sacred obligation
written declaration that assigned to it by the Constitution to determine
the President is unable conflicting claims of authority under the Constitution
to discharge the powers and to establish for the parties in an actual
and duties of his office. controversy the rights which that instrument secures
and guarantees to them. This is in truth all that is
NOTE: The President can reassume power and duties involved in what is termed as ‘Judicial Supremacy’,
of his office once he transmits to the Senate President which properly is the power of judicial review under
and to the Speaker of the HoR his written declaration the Constitution. (Angara v. The Electoral Commission,
that no inability exists. G.R. No. L-45081, July 15, 1936)
Scope of Judicial Review

The courts have the power to pass upon the validity
It is the duty of the courts of justice to settle actual and the constitutionality of laws enacted by the
controversies involving rights, which are legally legislature, and other bodies of the government,
demandable and enforceable and to determine under the doctrine of checks and balances. The lower
whether or not there has been a grave abuse of courts are likewise vested with the power of judicial
discretion amounting to lack or excess of jurisdiction review, subject however to the appellate jurisdiction
on the part of any branch or instrumentality of the of the higher courts.
Government. [1987 Constitution, Art. VIII, Sec. 1(2)]
Functions of judicial review (CLS)
A. CONCEPTS
1. Checking – Invalidating a law or executive act that
1. JUDICIAL POWER is found to be contrary to the Constitution.
2. Legitimizing – Upholding the validity of the law
Body vested with judicial power
that results from a mere dismissal of a case
It is vested in one Supreme Court and such lower challenging the validity of the law.
courts as may be established by law. (1987 3. Symbolic – To educate the bench and bar as to the
Constitution, Art. VIII, Sec. 1) controlling principles and concepts on matters of
grave public importance for the guidance of, and
Judicial Inquiry restraint upon the future. (Dumlao v. COMELEC,
G.R. No. L-52245, January 22, 1980)
The power of the court to inquire into the exercise of
discretionary powers to determine whether or not
there has been a grave abuse of discretion amounting Power of judicial review in impeachment proceedings
to lack or excess of jurisdiction. includes the power of review over justiciable issues in
impeachment proceedings. (Francisco v. HoR, G.R. No.
Q: Paragraph 2 of Sec. 14 of the Ombudsman Act 160261, November 10, 2003)
(R.A. 6770) provides: “No court shall hear any
appeal or application for remedy against the Judicial review of the SC on findings of facts of
decision or findings of the Ombudsman, except the administrative tribunals and trial courts
Supreme Court, on pure question of law.” Decide on
the constitutionality of this provision. GR: The SC will not disturb the findings of facts of
administrative tribunals and the trial courts.
A: Since the Par. 2 of Sec. 14 of R.A. 6770 limits the
remedy against “decision or findings” of the XPN: The SC may review findings of facts of the lower
Ombudsman to a Rule 45 appeal and thus – similar to courts under the following exceptions: (SM-GF-CBA-
the Par. 4 of Sec. 27 of RA 6770 – attempts to TW-NE) (Spe-M-Gra-F-Con-Ba-T-Wi-N-E)
effectively increase the Supreme Court’s appellate
jurisdiction without its advice and concurrence, 1. When the conclusion is a finding grounded
therefore, the former provision is also entirely on Speculation, surmises and
unconstitutional and invalid. (Carpio-Morales v. Court conjectures;
of Appeals, G.R. No. 217126-27, November 10, 2015) 2. When the inference made is manifestly Mistaken,
absurd or impossible;
2. JUDICIAL REVIEW 3. Where there is a Grave abuse of discretion;

Political Law
4. When the judgment is based on a The court in this case is being asked only to counsel
misapprehension of Facts; and not to decide.
5. When the findings of fact are Conflicting;
6. When the Court of Appeals, in making its “When an act of the legislative department is seriously
findings, went Beyond the issues of the case and alleged to have infringed the Constitution, settling the
the same is contrary to the Admissions of both controversy becomes the due of this Court… by the
appellant and appellee; mere enactment of the questioned law or the approval
7. When the findings are contrary to those of the of the challenged action, the dispute is said to have
Trial court; ripened into a judicial controversy even without any
8. When the findings of fact are Without citation of other overt act. Indeed, even a singular violation of
specific evidence on which the conclusions are the Constitution and/or the law is enough to awaken
based; judicial duty.” (Pimentel v. Aguirre, G.R. No. 132988,
9. When the facts set forth in the petition as well as July 19, 2000).
in the petitioner’s main and reply briefs are Not
disputed by the respondents; and “When an act of the President, who in our
10. When the findings of fact of the Court of Appeals constitutional scheme is a coequal of Congress, who in
are premised on the supposed absence of our constitutional scheme is a coequal of Congress, is
Evidence and contradicted by the evidence on seriously alleged to have infringed the Constitution
record. (David v. Misamis Occidental II, G.R. No. and the laws, settling the dispute becomes the duty
194785, July 11, 2012) and the responsibility of the courts.” (The Province of
North Cotabato v. The Government of the Republic of
a. REQUISITES OF JUDICIAL REVIEW (ALEN) the Philippines Peace Panel on Ancestral Domain. G.R.
No. 183591, October 14, 2008).
Requisites of Judicial Review (A-L-E-N)
Q: Angelo Raphael petitions the SC to nullify House
1. Actual case or Controversy Bill No. 4738 which abolishes the Judicial
Development Fund (JDF) and replaces it with the
Judiciary Support Fund (JSF). The funds from JSF
It involves a conflict of legal rights, assertion of
shall be remitted to the national treasury and
opposite legal claims susceptible of legal resolution. Congress shall determine how the funds will be
used; unlike the JDF, the spending of which is
Controversy; definition exclusively determined by the SC. Rolly argues
that House Bill No. 4738 infringes SC’s fiscal
It must be one that is appropriate for judicial autonomy. Is the petition meritorious?
determination. It must be definite and concrete,
touching the legal relations of parties having adverse A: NO. There is no actual case or controversy. The
legal interests. It must be a real and substantial Court cannot speculate on the constitutionality or
controversy admitting of specific relief through a unconstitutionality of a bill that Congress may or may
decree that is conclusive in character. not pass. It cannot rule on mere speculations or issues
that are not ripe for judicial determination. Filing of
The case must not be moot or academic or based on bills is within the legislative power of Congress and is
extra-legal or other similar considerations not "not subject to judicial restraint" (In the Matter of Save
cognizable by a court of justice. There must be a the Supreme Court v. Abolition of JDF, UDK-15143, Jan.
contrariety of legal rights that can be interpreted and 21, 2015)
enforced on the basis of existing law and
jurisprudence. 2. Locus Standi
Moot; definition
One who has sustained or is in immediate danger of
A case becomes moot and academic when, by virtue of sustaining an injury as a result of the act complained
supervening events, the conflicting issue that may be of. (People v. Vera, G.R. No. 45685November 16, 1937)
resolved by the court ceases to exist. There is no
longer any justiciable controversy that may be Locus standi: “a mere procedural technicality, has
resolved by the court. This court refuses to render been defined as a personal and substantial interest in
advisory opinions and resolve issues that would a case such that the party has sustained or will sustain
provide no practical use or value. This court generally direct injury as a result of the governmental act that is
“declines jurisdiction over such case or dismiss it on being challenged.” (Anak Mindanao Party-list Group v.
the ground of “mootness.” (Republic of the The Executive Secretary, G.R. No. 166052, August 29,
Philippines vs. Moldex Realty, Inc. et al. G.R. No. 2007).
171041, February 10, 2016, PER J. LEONEN)
To have standing, one must show that: (In-T-Re)
A request for advisory opinion cannot come under the
category of an actual case or controversy since the 1. He has suffered some actual or threatened injury
issue raised does not involve any conflict in law that as a result of the allegedly illegal conduct of the
has assumed the proportions of a full-blown dispute. government;
79
2. The injury is fairly traceable to the challenged only to the public but also to the Bench and the Bar,
action; and and should be resolved for the guidance of all.”
3. The injury is likely to be redressed by a (Garcillano v. HoR, G.R. No. 170338, December 23,
2008)
favorable action. (Francisco, Jr. & Hizon v. Toll
Regulatory Board, G.R. Nos. 166910, October 19, The proceeding involves the assertion of a public
2010) right. (Francisco Jr. v. HoR, G.R. No. 160261, November
10, 2003)
Locus Standi vs. Real party-in-interest
When the right to information is invoked. (AKBAYAN
LOCUS STANDI REAL PARTY-IN- v. Aquino, G.R. No. 170516, July 16, 2008)
INTEREST
Character of the plaintiff When freedom of expression, which has been
One who has sustained or considered as “an issue of overarching significance to
is in imminent danger of The party who stands our society,” is involved. (Chavez v. Gonzales, G.R. No.
sustaining an injury as a to be benefited or 168338, February 15, 2008)
result of the act injured by the
complained of (Direct judgment in the suit, Requirements for an ordinary citizen to raise a
injury test). (Ex parte or the party entitled constitutional question:
Levitt, 302 U.S. 633, 1937) to the avails of the
suit. 1. He has personally suffered some actual or
Legal nature threatened injury because of the allegedly illegal
Has constitutional A concept of civil conduct of the government;
underpinnings. procedure. 2. The injury is fairly traceable to the challenged
action; and
As to the issue involved 3. A favorable action will likely redress the injury.
(Francisco v. Fernando, G.R. No. 166501, November
Whether such parties Whether he is "the 16, 2006)
have "alleged such a party who would be
personal stake in the benefited or injured Rule on Taxpayer as Proper Party
outcome of the by the judgment, or
controversy as to assure the 'party entitled to An ordinary taxpayer, or a group of tax payers, can
that concrete adverseness the avails of the suit”. raise the question of the validity of an appropriation
which sharpens the (Francisco, et al., v. law. “The transcendental importance to the public of
presentation of issues House of these cases demands that they be settled promptly
upon which the court so Representatives, G.R. and definitely, brushing aside technicalities of
largely depends for No. 160261, Nov. 10, procedure.” (Araneta v. Dinglasan, G.R. No. L-2044,
illumination of difficult 2003) August 26, 1949)
constitutional questions."
Requirements for a Taxpayer’s suit to prosper:
Legal personality
1. Public funds derived from taxation are
GR: If there is no actual or potential injury, disbursed by a political subdivision or
complainant has no legal personality to raise instrumentality and in doing so, a law is violated
constitutional questions. or some irregularity is committed; and
2. The petitioner is directly affected by the alleged
XPN: If the question is of transcendental importance. act.
Principle of Transcendental Importance is NOTE: The Supreme Court “retains discretion

determined by: (CDO) whether or not to allow a taxpayer’s suit.” (The
Province of North Cotabato v. The Government of the
1. The Character of the funds or other assets Republic of the Philippines Peace Panel on Ancestral
involved in the case; Domain, ibid.)
2. The presence of a clear case of Disregard of a
constitutional or statutory prohibition by the Locus Standi in cases involving Taxes
public respondent agency or instrumentality of
the government; A taxpayer need not be a party to the contract to
3. The lack of any Other party with a more direct challenge its validity. If taxes are involved, people
and specific interest in raising the questions have a right to question contracts entered into by the
being raised. (Francisco, et al., v. House of government. Further, the issues raised in the petition
Representatives. Ibid.) do not refer to the wisdom but to the legality of the
acts complained of. Thus, we find the instant
NOTE: “An interest in the execution of the laws” and controversy within the ambit of judicial review.
the “constitutional right to due process” considering Besides, even if the issues were political in nature, it
the “transcendental and paramount importance not would still come within our powers of review under

Political Law
the expanded jurisdiction conferred upon us by Constitutional question must be raised at the earliest
Section 1, Article VIII of the Constitution, which possible opportunity.
includes the authority to determine whether grave
abuse of discretion amounting to excess or lack of GR: It must be raised in the pleadings.
jurisdiction has been committed by any branch or
instrumentality of the government. (Mamba v. Lara, XPNS:
G.R. No. 165109, December 14, 2009)
In Criminal cases – It may be brought at any stage of
Locus Standi in Environmental Cases the proceedings according to the discretion of the
judge (trial or appeal) because no one shall be
In our jurisdiction, locus standi in environmental cases brought within the terms of the law who are not
has been given a more liberalized approach. Recently, clearly within them and the act shall not be punished
the Court passed the landmark Rules of Procedure when the law does not clearly punish them.
for Environmental Cases, which allow for a “citizen
suit,” and permit any Filipino citizen, as steward of In Civil cases – It may be brought anytime if the
nature, to file an action before our courts for resolution of the constitutional issue is inevitable in
violations of our environmental laws. Thus, the need resolving the main issue.
to give the Resident Marine Mammals legal standing
has been eliminated by our Rules and it is worth In every case, When the jurisdiction of the lower
noting here that the Stewards are joined as real court is in question except when there is estoppel.
parties in the Petition and not just in representation (Tijam v. Sibonghanoy, G.R. No. L-21450, April 15,
of the named cetacean species. (Resident Marine 1968)
Mammals v. Reyes, G.R. No. 180771, April 21, 2015)
4. Necessity of deciding constitutional questions
The filing of a petition for the issuance of a writ of
kalikasan does not require that a petitioner be As long as there are other bases which courts can use
directly affected by an environmental disaster. The for decision, constitutionality of the law will not be
rule clearly allows juridical persons to file the petition touched, thus, courts should refrain from resolving
on behalf of persons whose constitutional right to a any constitutional issue "unless the constitutional
balanced and healthful ecology is violated or question is the lis mota of the case."
threatened with violation. (West Tower v. First
Philippine, G.R. No. 194239, June 16, 2015) Lis mota means "the cause of the suit or action."
Given the presumed validity of an executive act, the
Locus Standi in questioning election laws petitioner who claims otherwise has the burden of
showing first that the case cannot be resolved unless
Voters may be considered as proper parties with the constitutional question he raised is determined by
respect to the implementation of election laws the Court. (General v. Urro, G.R. No. 191560, March 29,
provided that “there must be a showing of obvious 2011)
interest in the validity of the election law in question.”
(David v. Arroyo, G.R. No. 171396, May 3, 2006) Reason why courts will as much as possible avoid
the decision of a constitutional question
Locus Standi for members of the IBP
Can be traced to the doctrine of separation of powers
Although it may be granted standing to assert the which enjoins upon each department a proper respect
right of its members, “the mere invocation by the for the acts of the other department. Every law has in
Integrated Bar of the Philippines, or any member of its favor the presumption of validity. Unless and until
the legal profession, of the duty to preserve the rule of a specific provision of the law is declared invalid and
law does not suffice to clothe it with legal standing.” unconstitutional, the same is valid and binding for all
(The Province of North Cotabato v. The Government of intents and purposes. (SEC v. Interport Resources
the Republic of the Philippines Peace Panel on Ancestral Corporation, G.R. No. 135808, October 6, 2008)
Domain, Ibid)
NOTE: Courts indulge the presumption of
Rule on Intervenors as Proper Party constitutionality and go by the maxim that “to doubt is
to sustain.”
May be given legal standing upon showing of facts
that satisfy the requirements of the law authorizing Limitations of Judicial Review
intervention, such as a legal interest in the matter in
litigation, or in the success of either of the parties. The following are the “Seven Pillars” of limitations to
(The Province of North Cotabato v. The Government of the power of judicial review: (Demetria v. Alba, G.R.
the Republic of the Philippines Peace Panel on Ancestral No. 71977, February 27, 1987)
Domain, Ibid.).
1. The Court will not pass upon the
3. Earliest opportunity constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to
decide such questions “is legitimate only in the
81
last resort, and as a necessity in the unconstitutional, the remainder of the Act shall not be
determination of real, earnest and vital affected by such declaration.
controversy between individuals.
2. The Court will not “anticipate a question of NOTE: Even without such separability clause, it has
constitutional law in advance of the necessity of been held that if the valid portion is so far
deciding it.” independent of the invalid portion, it may be fair to
3. The Court will not “formulate a rule of presume that the legislature would have enacted it by
constitutional law broader than is required by itself if it had supposed that it could constitutionally
the precise facts as to which it is to be applied.” do so. (Barrameda v. Moir, G.R. No. L-7927, April 08,
4. The Court will not pass upon a constitutional 1913).
question although properly presented by the
record, if there is also present some other 2. That the valid portions can stand independently
ground upon which the case may be disposed of. as a separate statute.
NOTE: If a case can be decided on either of two c. POLITICAL QUESTION DOCTRINE

grounds, one involving a constitutional
question, the other a question of statutory These are questions which, under the Constitution,
construction or general law, the Court will are to be decided by the people in their sovereign
decide only the latter. capacity, or in regard to which full discretionary
authority has been delegated to the legislative or
5. The Court will not pass upon the validity of a executive branch of the government. (Tañada v.
statute upon complaint of one who fails to show Cuenco, G.R. No. L-10520, February 28, 1957)
that he is injured by its operation.
6. The Court will not pass upon the constitutionality Political Question Doctrine
of a statute at the instance of one who has availed
himself of its benefits. NOTE: The doctrine that the power of judicial review
7. When the validity of an act of the Congress is cannot be exercised when the issue is a political
drawn in question, and even if a serious doubt of question. It constitutes another limitation on such
constitutionality is raised, it is a cardinal power of the judiciary. (Tañada v. Cuenco, ibid.)
principle that this Court will first ascertain
whether a construction of the statute is fairly Justiciable questions vs. Political questions
possible by which the question may be avoided.
BASIS JUSTICIABLE POLITICAL
b. OPERATIVE FACT DOCTRINE QUESTIONS QUESTIONS
Imply a Questions which
GR: An unconstitutional law produces no effects. given right involve the policy or
legally the wisdom of the law
XPN: Operative fact doctrine - while the demandable or act, or the morality
unconstitutional law remains unconstitutional, but and or efficacy of the
the effects of the unconstitutional law, prior to its enforceable, same. Generally it
judicial declaration of nullity, may be left undisturbed an act or cannot be inquired by
as a matter of equity and fair play. (League of Cities v. omission the courts. Further,
COMELEC, G.R. No. 176951, November 18, 2008) violative of these are questions
such right, which under the
NOTE: The invocation of this doctrine is an admission and a Constitution:
that the law is unconstitutional. remedy
Definition granted and a. are decided by the
Doctrine of Partial Unconstitutionality sanctioned people in their
by law for sovereign
In deference to the doctrine of separation of powers, said breach capacity; and
courts hesitate to declare a law totally of right. b. where full
unconstitutional and, as long as it is possible, will discretionary
salvage the valid portions thereof in order to give authority has been
effect to the legislative will. delegated by the
Constitution
Requisites for a valid declaration of partial either to the
unconstitutionality: executive or
legislative
1. The legislature is willing to retain the valid department.
portions even if the rest of the statute is
declared illegal; and Effect of the expanded definition of judicial power
on the political question doctrine (1995, 1997,
NOTE: This may be expressed in what is known as 2004 BAR)
the separability clause. If for any reason any section
or provision of this Act is declared invalid or

Political Law
The 1987 Constitution expands the concept of judicial 11. The SC alone may initiate the promulgation of
review. Under the expanded definition, the Court the Rules of Court. [1987 Constitution, Art. VIII,
cannot agree that the issue involved is a political Sec. 5 (5)]
question beyond the jurisdiction of the court to 12. The SC alone may order temporary detail of
review. When the grant of power is qualified, judges. [1987 Constitution, Art. VIII, Sec. 5 (3)]
conditional or subject to limitations, the issue of 13. The SC can appoint all officials and employees of
whether the prescribed qualifications or conditions the Judiciary. (1987 Constitution, Art. VIII, Sec. 5
have been met or the limitations respected is (6)]
justiciable—the problem being one of legality or
validity, not its wisdom. Moreover, the jurisdiction to Judicial Privilege (Deliberative Process Privilege
delimit constitutional boundaries has been given to or DPP)
the SC. When political questions are involved, the
Constitution limits the delimitation as to whether or The privilege against disclosure of information or
not there has been a grave abuse of discretion communications that formed the process of judicial
amounting to lack or excess of jurisdiction on the part decisions.
of the official whose action is being questioned.
This applies to confidential matters, which refer to
B. JUDICIAL INDEPENDENCE AND AUTONOMY information not yet publicized by the Court like (1)
raffle of cases, (2) actions taken in each case in the
Constitutional safeguards that guarantee the Court’s agenda, and (3) deliberations of the Members
independence of the judiciary in court sessions on case matters pending before it.
1. The SC is a constitutional body. It cannot be This privilege, however, is not exclusive to the
abolished nor may its membership or the Judiciary and it extends to the other branches of
manner of its meetings be changed by mere government due to our adherence to the principle of
legislation. [Constitution, Art. VIII, Sec. 4 (1)] separation of powers. (In Re: Production of Court
2. Members of the SC may not be removed except Records and Documents and the Attendance of Court
by impeachment. (1987 Constitution, Art. XI, Sec. Officials and Employees as Witnesses under the
2) Subpoenas of Feb. 10, 2012 and the Various Letters of
3. The SC may not be deprived of its minimum Impeachment Prosecution Panel dated January 19 and
original and appellate jurisdiction as prescribed 25, 2012, February 14, 2012)
in Article VIII, Section 5, of the Constitution.
(Constitution, Art. VIII, Sec. 2) Purpose of Judicial Privilege
NOTE: The Congress shall have the power to To prevent the ‘chilling’ of deliberative
define, prescribe, and apportion the jurisdiction communications. It insulates the Judiciary from an
of the various courts (all courts below the SC). improper intrusion into the functions of the judicial
branch and shields judges, justices, and court officials
4. The appellate jurisdiction of the SC may not be and employees from public scrutiny or the pressure of
increased by law without its advice and public opinion that would impair their ability to
concurrence. (Constitution, Art. VI, Sec. 30) render impartial decisions.
5. Appointees to the judiciary are now nominated
by the JBC and no longer subject to confirmation Q: Does the participation of Associate Justices in
by the Commission on Appointments. the hearings of the House Committee on Justice
(Constitution, Art. VIII, Sec. 9) determining probable cause for the impeachment
6. The SC has administrative supervision over all of an impeachable officer make them disqualified
inferior courts and personnel. (1987 to hear a petition for quo warranto against said
Constitution, Art. VIII, Sec. 6) officer?
7. The SC has exclusive power to discipline
judges/justices of inferior courts. (1987 A: NO. Their appearance thereat is in deference to the
Constitution, Art. VIII, Sec. 11) House of Representatives whose constitutional duty
8. The members of the judiciary enjoy security of to investigate the impeachment complaint filed
tenure, which cannot be undermined by a law against an impeachable officer could not be doubted.
reorganizing the judiciary. [1987 Constitution, The same is not a ground for inhibition provided that
Art. VIII, Sec. 2 (2)] their appearance is with the prior consent of the
9. The members of the judiciary may not be Supreme Court En Banc and they faithfully observe
designated to any agency performing quasi- the parameters that the Court set for the purpose.
judicial or administrative functions. (1987
Constitution, Art. VIII, Sec 12) Requisites for a document to be protected by DPP
10. The salaries of judges may not be reduced
during their continuance in office; the judiciary It must be shown that the document is both:
enjoys fiscal autonomy. (1987 Constitution, Art.
VIII, Sec. 3) 1. Pre-decisional – If they were made in the
attempt to reach a final decision; and
83
2. Deliberative – If it reflects the give-and-take of A: The Court may deny request for certified copies of
the consultative process such as the disclosure Statements of Assets, Liabilities and Net Worth
of the information would discourage open (SALNs) of all incumbent justices of the SC and Court
discussion within the agency. of Tax Appeals if it is lacking sufficient basis. It should
not be forgotten that invoking one’s constitutional
NOTE: Court records which are pre-decisional and right to information must not set aside the need to
deliberative in nature are thus protected and cannot preserve the integrity and independence of the
be the subject of subpoena if judicial privilege is to be judiciary. It must be invoked if under the
preserved. circumstances it would not result in endangering,
diminishing or destroying the independence and
NOTE: Members of the Court may not be compelled to security of the members of the judiciary in the
testify in the impeachment proceedings against the performance of their judicial functions or expose
Chief Justice or other Members of the Court about them to revenge for adverse decisions. (RE: Request
information acquired in the performance of their for Copies of the SALN and Personal Data Sheet or
official adjudicatory functions and duties; otherwise, Curriculum Vitae of the Justices of the Supreme Court
their disclosure of confidential matters learned in and Officers and Employees of the Judiciary, A.M. No.
their official capacity violates judicial privilege as it 09-8-6-SC, June 13, 2012)
pertains to the exercise of the constitutional mandate
of adjudication. C. APPOINTMENTS TO THE JUDICIARY
XPN: If the only intent is for them to identify or certify Of proven competence, integrity, probity and
the genuineness of documents within their control independence. [1987 Constitution, Art. VIII, Sec. 7(3)]
that are not confidential and privileged, their
presence in the Impeachment Court may be 1. QUALIFICATIONS OF MEMBERS OF THE
permitted. JUDICIARY
Waiver of privilege LOWER COLLEGIATE LOWER COURTS

COURT
This privilege, incidentally, belongs to the Judiciary 1. Natural born citizen of 1. Citizen of the
and is for the SC (as the representative and entity the Philippines Philippines
speaking for the Judiciary), and not for the individual
2. Member of the 2. Member of the
justice, judge, or court official or employees to waive.
Philippine Bar Philippine Bar
Thus, every proposed waiver must be referred to the
SC for its consideration and approval.
NOTE: The Lower Collegiate Courts are the Court of
Constitutional guarantee of fiscal autonomy Appeals, Court of Tax Appeals, and Sandiganbayan.
(Sps. Consing v. CA, G.R. No. 78272, August 29, 1989)
In Bengzon v. Drilon (G.R. No. 103524, April 15, 1992), The Lower Courts are the Regional Trial Court (RTC),
the SC explained that Fiscal autonomy contemplates a Metropolitan Trial Courts (MeTC), Municipal Trial
guarantee of full flexibility to allocate and utilize Court (MTC), Municipal Trial Court in Cities (MTCC),
resources with the wisdom and dispatch that the and Municipal Circuit Trial Courts (MCTC).
needs require. (Bengzon v. Drilon, G.R. No. 103524,
April 15, 1992) NOTE: For both lower collegiate courts and lower
courts, Congress may prescribe other qualifications.
It recognizes the power and authority to deny, assess [1987 Constitution, Art. VIII, Sec. 7 (1) and (2)]
and collect fees, fix rates of compensation not
exceeding the highest rates authorized by law for Q: By virtue of Republic Act No. 10660, two new
compensation and pay plans of the government and divisions of the Sandiganbayan were created with
allocate and disburse such sums as may be provided three members each, and there were six
by law or prescribed by it in the course of the simultaneous vacancies for Associate Justice of
discharge of its functions. said collegiate court. The JBC then submitted six
separate shortlists for the vacancies for the 16th
Q: The Court received two letters requesting for to the 21st Sandiganbayan Associate Justices.
copies of Statement of Assets, Liabilities, and Net Petitioners assert that President Aquino's power
worth (SALN) and the Personal Data Sheet (PDS) to appoint is limited to each shortlist submitted by
or the Curriculum Vitae (CV) of its justices for the the JBC, President Aquino should have appointed
year 2008 for the purposes of updating their the 16th Sandiganbayan Associate Justice from the
database of information on government officials. nominees in the shortlist for the 16th
Other requests for copies of SALN and other Sandiganbayan Associate Justice, the 17th
personal documents of the Justices of the Court, Sandiganbayan Associate Justice from the
Court of Appeals (CA), and Sandiganbayan (SB) nominees in the shortlist for the 17th
were filed. Can the Court allow the release of Sandiganbayan Associate Justice, and so on and so
copies of SALN and other personal documents of forth. By totally overlooking the nominees for the
the incumbent Justices? 16th Sandiganbayan Associate Justice and
appointing respondents Musngi and Econg, who

Political Law
were both nominees for the 21st Sandiganbayan 2. Other Members
Associate Justice, as the 16th and 18th
d. Representative of the Integrated Bar – 4
Sandiganbayan Associate Justices, respectively,
years
President Aquino violated the Art. VIII, Sect. 9 of e. A professor of law – 3 years
the 1987 Constitution, which requires the
f. A retired member of the SC – 2 years
President to appoint from a list of at least three
g. Private sector representative – 1 year. [1987
nominees submitted by the JBC for every vacancy.
Constitution, Art. VIII, Sec. 8(2)]
Are the petitioners correct?
Rationale: Continuity and preservation of the
A: NO. Nomination by the JBC shall be a qualification
institutional memory
for appointment to the Judiciary, but this only means
that the President cannot appoint an individual who is
Representative of Congress in the JBC
not nominated by the JBC. It should be stressed that
the power to recommend of the JBC cannot be used to
Only one. The word “Congress” used in Sec. 8(1); Art.
restrict or limit the President's power to appoint as
VIII is used in its generic sense. Only a singular
the latter's prerogative to choose someone whom
representative may be allowed to sit in the JBC from
he/she considers worth appointing to the vacancy in
either the Senate or HoR. The seven-member
the Judiciary is still paramount. As long as in the end,
composition of the JBC serves a practical purpose, that
the President appoints someone nominated by the
is, to provide a solution should there be a stalemate in
JBC, the appointment is valid. This does not violate
voting.
Article VIII, Section 9 of the 1987 Constitution. To
meet the minimum requirement under said
b. POWERS OF THE JBC
constitutional provision of three nominees per
vacancy, there should at least be 18 nominees from
the JBC for the six vacancies for Sandiganbayan Functions of the JBC (2000 BAR)
Associate Justice; but the minimum requirement was
even exceeded herein because the JBC submitted for The principal function of the JBC is to recommend
the President's consideration a total of 37 qualified appointees to the judiciary. It may, however, exercise
nominees. (Aguinaldo v. Aquino, G.R. No. 224302, such functions as the SC may assign to it. (1987
November 29, 2016) Constitution, Art. VIII, Sec. 8)
2. JUDICIAL AND BAR COUNCIL (JBC) NOTE: The duty of the JBC to submit a list of
nominees before the start of the President’s
a. COMPOSITION OF THE JBC mandatory 90-day period to appoint is ministerial,
but its selection of the candidates whose names will
be in the list to be submitted to the President lies
Composition of the Judicial and Bar Council
within the discretion of the JBC. (De Castro v. JBC, G.R.
(C-S-C-I-P-Re-P)
No. 191002, March 17, 2010)
1. Chief Justice, as ex-officio chairman
D. THE SUPREME COURT
2. Secretary of Justice, as an ex-officio member
3. Representative of Congress, as an ex-officio
1. COMPOSITION OF THE SUPREME COURT
member
4. Representative of the Integrated Bar
1. Chief Justice
5. A Professor of law
2. 14 Associate Justices
6. A Retired member of the SC
7. Private sector representative
Divisions of the SC
NOTE: JBC does not fall within the scope of a tribunal,
It may sit en banc or in its discretion, in divisions of
board, or officer exercising judicial or quasi-judicial
three, five, or seven members. [1987 Constitution, Art.
functions. However, since the formulation of
VIII, Sec. 4(1)]
guidelines and criteria is necessary and incidental to
the exercise of the JBC’s constitutional mandate, a
Qualifications for appointments to the SC
determination must be made on whether the JBC has
acted with grave abuse of discretion amounting to
1. Natural born citizen of the Philippines;
lack or excess of jurisdiction in issuing and enforcing
2. At least 40 years of age; and
the said policy. (Villanueva v. JBC, G.R. No. 211833,
3. A judge of a lower court or engaged in the
April 7, 2015)
practice of law in the Philippines for 15 years or
more. [1987 Constitution, Art. VIII, Sec. 7(1)]
Staggered Terms of members of the JBC
1. Regular members The members of the judiciary are appointed by the
a. Chief Justice – 4 years President of the Philippines from among a list of at
b. Secretary of Justice – 4 years least three (3) nominees prepared by the Judicial and
c. Representative of Congress – 4 years Bar Council (JBC) for every vacancy.
85
NOTE: The appointment shall need no confirmation remedies are distinct as to jurisdiction, grounds,
from the Commission on Appointments. (1987 applicable rules pertaining to initiation, filing and
Constitution, Art. VIII, Sec. 9) dismissal, and limitations. (Republic v. Sereno, G.R. No.
237428, May 11, 2018)
Rules on vacancies in the SC
2. POWERS AND FUNCTIONS OF THE SUPREME
1. Vacancies in the SC should be filled within 90 COURT
days from the occurrence of the vacancy. (1987
Constitution, Art. VIII, Sec. 4(1)) En Banc Decisions; Cases that should be heard by
2. Vacancies in lower courts should be filled within the SC en banc (T-Ru-P-Pre-Ju-D-e)
90 days from submission to the President of the
JBC list. 1. All cases involving the constitutionality of a
3. The filling of the vacancy in the Supreme Court Treaty, international or executive agreement, or
within the 90-day period is an exception to the law;
prohibition on midnight appointments of the 2. All cases which under the Rules of Court may be
president. This means that even if the period required to be heard en banc;
falls on the period where the president is 3. All cases involving the constitutionality,
prohibited from making appointments application or operation of Presidential decrees,
(midnight appointments); the president is proclamations, orders, instructions, ordinances,
allowed to make appointments to fill vacancies and other regulations;
in the Supreme Court. 4. Cases heard by a Division when the required
majority in the division is not obtained;
Otherwise stated, the prohibition of the 5. Cases where the SC modifies or reverses a
President to make appointments two (2) doctrine or principle of law Previously laid
months prior the immediate presidential either en banc or in division;
election is limited to appointments to the lower 6. Administrative cases involving the discipline or
courts. (De Castro v. JBC, G.R. No. 191002, March dismissal of Judges of lower courts;
17, 2010) 7. Election contests for president or vice-
president.
Tenure of the members of the SC and judges
(1993, 1996, 2000 BAR) Cases that may be heard by division
Members of the SC and judges of lower courts can Other cases or matters may be heard in division, and
hold office during good behavior until: decided or resolved with the concurrence of a
majority of the members who actually took part in the
1. The age of 70 years old; or deliberations on the issues and voted thereon, but in
2. They become incapacitated to discharge their no case without the concurrence of at least three such
duties. members.
Q: May the Supreme Court assume jurisdiction and Scope of the Procedural Rule-Making Power
give due course to a petition for quo warranto (1991, 2000, 2008, 2009, 2013, 2014, 2015 BAR)
against an impeachable officer and against whom
an impeachment complaint has already been filed 1. The protection and enforcement of
with the House of Representatives? constitutional rights
2. Pleadings, practice and procedure in all courts
A: YES. The language of Section 2, Article XI of the 3. Admission to the practice of law
Constitution does not foreclose a quo warranto action 4. The Integrated Bar
against impeachable officers. The provision reads: 5. Legal assistance to the underprivileged
The xxx Members of the Supreme Court, xxx may be Limitations on its rule making power
removed from office on impeachment for, and
conviction of, culpable violation of the Constitution, 1. It should provide a simplified and inexpensive
treason, bribery, graft and corruption, other high procedure for the speedy disposition of cases.
crimes, or betrayal of public trust. xxx 2. It should be uniform for all courts of the same
grade.
While both impeachment and quo warranto may 3. It should not diminish, increase, or modify
result in the ouster of the public official, the two substantive rights.
proceedings materially differ. Thus, they are not
mutually exclusive remedies and may proceed Requirements for the decisions of the SC
simultaneously. At its most basic, impeachment
proceedings are political in nature, while an action for 1. The conclusions of the Supreme Court in any
quo warranto is judicial or a proceeding traditionally case submitted to it for decision en banc or in
lodged in the courts. Aside from the difference in their division shall be reached in consultation before
origin and nature, quo warranto and impeachment the case is assigned to a Member for the writing
may proceed independently of each other as these of the opinion of the Court.

Political Law
2. A certification to this effect signed by the Chief 4. Amendment, modification and/or revocation of
Justice shall be issued. Administrative Orders and Circulars issued by
3. A copy thereof shall be attached to the record of the Supreme Court.
the case and served upon the parties.
5. Matters for policy determination.
4. Any Member who took no part, or dissented, or
abstained from a decision or resolution, must
state the reason thereof. (1987 Constitution, Art. Original and Appellate Jurisdiction
VIII, Sec. 13)
Original and appellate jurisdiction of the SC (1994,
NOTE: No decision shall be rendered by any court 1995, 1996, 2000, 2004, 2006 BAR)
without expressing therein clearly and distinctly the
facts and the law on which it is based. (1987 The Supreme Court has the power to review, revise,
Constitution, Art. VIII, Sec. 13) reverse, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and
When change of venue is permitted orders of lower courts in:
Where there are serious and weighty reasons present, 1. All cases in which the constitutionality or
which would prevent the court of original jurisdiction validity of any treaty, international or executive
from conducting a fair and impartial trial, the Court agreement, law, presidential decree,
has been mandated by Sec. 5(4), Art. VIII to order a proclamation, order, instruction, ordinance, or
change of venue to prevent a miscarriage of justice. regulation is in question.
2. All cases involving the legality of any tax,
The authority vested in the Congress and Supreme impost, assessment, or toll, or any penalty
Court is separate and distinct imposed in relation thereto.
3. All cases in which the jurisdiction of any lower
CONGRESS SUPREME COURT court is in issue.
4. All criminal cases in which the penalty imposed
Authority to define, prescribe, Power to
is reclusion perpetua or higher.
and apportion the jurisdiction promulgate rules of
5. All cases in which only an error or question of
of the various courts. (1987 pleading, practice,
law is involved. [1987 Constitution, Art VIII, Sec.
Constitution, Art. VIII, Sec. 2) and procedure.
5(2)]
[1987 Constitution,
Authority to create statutory Art. VIII, Sec. 5(5)]
courts. (1987 Constitution, Art. VIII. CONSTITUTIONAL COMMISSIONS
VIII, Sec. 1)
A. COMMON PROVISIONS
NOTE: Albeit operatively interrelated, these powers
are institutionally separate and distinct, each to be Independent Constitutional Commissions:
preserved under its own sphere of authority.
1. Civil Service Commission (CSC)
When Congress creates a court and delimits its 2. Commission on Elections (COMELEC)
jurisdiction, it is the Court which fixes the procedure 3. Commission on Audit (CoA)
through the rules it promulgates.
NOTE: The CSC, COMELEC, and COA are equally pre-
Administrative Supervision Over Lower Courts eminent in their respective spheres. Neither one may
claim dominance over the others. In case of conflicting
The Supreme Court exercises administrative rulings, it is the judiciary, which interprets the
supervision over all lower courts. (1987 Constitution, meaning of the law and ascertains which view shall
Art. VIII, Sec. 6) prevail. (CSC v. Pobre, G.R. No. 160508, September 15,
2004)
The SC is assisted by the Court Administrator and the
Deputy Court Administrators in exercising the NOTE: Functions are executive in nature, but are not
administrative function. under the jurisdiction of the Philippine President.
Matters to be attended by the Court En Banc: Purpose
1. Disciplinary Matters involving justices and judges The Constitution established the Constitutional
of all lower courts and lower court personnel. Commissions for the importance of their functions
2. Designation of Judges. and the need of insulation from undesired political
3. Request for transfer of cases from one court, interference or pressure; if merely created by statute,
administrative area or judicial region to another their independence is not assured.
and/or transfer of venue of cases to avoid
miscarriage of justice as provided for in Section B. INSTITUTIONAL INDEPENDENCE SAFEGUARDS
5(4), Article VIII of the Constitution,
87
VIII. CONSTITUTIONAL COMMISSIONS
Guarantees of independence provided for by the Salaries may be increased by a statute but may not be
Constitution to the 3 Commissions decreased during incumbent’s term of office.
NOTE: The decrease is prohibited to prevent the

1. They are constitutionally-created; may not be legislature from exerting pressure upon the
abolished by statute of its judicial functions.
Commissions by “operating on their necessities.”
(1987 Constitution, Art. IX-A, Sec. 1)
Salaries may be increased, as a realistic recognition of
2. Each is conferred certain powers and functions the need that may arise to adjust the compensation to
which cannot be reduced by statute. (1987 any increase in the cost of living.
Constitution, Art. IX-B, C and D)
3. Each is expressly described as independent. Term
(1987 Constitution, Art. IX-A, Sec. 1)
Seven years without reappointment.
4. Chairmen and members are given long terms of
office for seven (7) years. [1987 Constitution,
Art. IX-B, C and D, Sec. 1(2)] NOTE: Appointment to any vacancy shall be only for
the unexpired term of the predecessor. In no case
5. Chairmen and members cannot be removed shall any Member be appointed or designated in a
except by impeachment. (1987 Constitution, Art. temporary or acting capacity. (1987 Constitution, Art.
XI, Sec. 2) IX-C, Sec. 1[2]) (1997, 2005 BAR)
6. Chairmen and members may not be reappointed
or appointed in an acting capacity. [1987 NOTE: A member of a Constitutional Commission may
Constitution, Art. IX-B, C and D, Sec. 1(2)] be extended a promotional appointment as Chairman,
the same must not result in either exceeding the total
NOTE: When an ad interim appointment is not seven-year term of the member, nor result in
confirmed (as it was by-passed or that there appointments which would be shorter that the
was no ample time for Commission on prescribed term.
Appointments to pass upon the same), another
ad interim appointment may be extended to the Requisites for the effective operation of the
appointee without violating the Constitution. rotational scheme of terms of constitutional
(Matibag v. Benipayo, G.R. No. 149036, April 2, bodies
2002)
1. The original members of the Commission shall
7. Salaries of chairmen and members are relatively begin their terms on a common date;
high and may not be decreased during 2. Any vacancy occurring before the expiration of
continuance in office. (1987 Constitution, Art. IX- the term shall be filled only for the balance of
A, Sec. 3; Art. XVIII, Sec. 17) such term. (Republic v. Imperial, G.R. No. L-8684,
8. Commissions enjoy fiscal autonomy. (1987 March 31, 1995)
Constitution, Art. IX-A, Sec. 5)
9. Each commission may promulgate its own NOTE: The members of the Constitutional
procedural rules, provided they do not diminish, Commissions have staggered terms:
increase or modify substantive rights [though
subject to disapproval by the Supreme Court]. 1. To minimize the opportunity of the President to
(1987 Constitution, Art. IX-A, Sec. 7) appoint during his own term more than one
member or group of members in the
10. Chairmen and members are subject to certain
Constitutional Commissions; and
disqualifications and inhibitions calculated to
2. To ensure continuity of the body and its policies.
strengthen their integrity. (1987 Constitution,
Art. IX-A, Sec. 2)
C. POWERS AND FUNCTIONS
11. Commissions may appoint their own officials
and employees in accordance with Civil Service Decision-making process in these Commissions
Law. (1987 Constitution, Art. IX-A, Sec. 4)
12. The Commissions follow the rotational scheme 1. The CSC, COMELEC, and CoA shall decide matter or
or staggered appointments and terms of office. cases by a majority vote of all the members within
sixty (60) days from submission. (Sec. 7 Art. IX-A)
NOTE: The Supreme Court held that the “no report, no
release” policy may not be validly enforced against a. COMELEC may sit en banc or in 2 divisions.
offices vested with fiscal autonomy, without violating b. Election cases, including pre-proclamation
Art. IX-A, Sec. 5. The “automatic release” of approved controversies are decided in division, with
annual appropriations to a Constitutional Commission motions for reconsideration filed with the
vested with fiscal autonomy should thus be construed COMELEC en banc.
to mean that no condition to fund releases may be c. The SC has held that a majority decision
imposed. (CSC v. DBM, G.R. No. 158791, July 22, 2005) decided by a division of the COMELEC is a
valid decision.
Salary

Political Law
NOTE: Pursuant to COMELEC Rules of Procedure, 3. College degree holder; and
when the COMELEC en banc is equally divided in an 4. Not a candidate in any election immediately
opinion and cannot have the required majority, preceding the appointment.
rehearing shall be done. If rehearing is originally
commenced in the Commission and no majority
NOTE: Majority of the members, including the
decision is reached, rehearing shall be dismissed. In
Chairman, shall be members of the Philippine Bar who
appealed cases, the judgment or order appealed from
have been engaged in the practice of law for at least
shall stand affirmed and the petition or motion on all
ten years. [1987 Constitution, Art. IX-C, Sec 1(1)]
incidental matters shall be denied. (Mamerto Sevilla v.
COMELEC, G.R. No. 202833, March 19, 2013)
Constitutional powers and functions of the
COMELEC (1991, 1996, 2001 BAR)
2. As collegial bodies, each Commission must act as
one, and no one member can decide a case for the
1. Enforce and administer all laws and regulations
entire commission.
relative to the conduct of an election, plebiscite,
3. Any decision, order or ruling of each Commission initiative, referendum, and recall.
may be brought to the SC on certiorari by the
aggrieved party within thirty (30) days from Note: COMELEC may order the correction of
receipt of a copy thereof. manifest errors in the tabulation or tallying
results during the canvassing and petitions for
NOTE: When the Court reviews a decision of the this purpose may be filed directly with the
COMELEC, it exercises extraordinary jurisdiction thus, Commission even after the proclamation of the
the proceeding is limited to issues involving grave winning candidates.
abuse of discretion resulting in lack or excess of
jurisdiction and not factual findings of the 2. Exercise:
Commission. (Aratuc v. COMELEC, G.R. No. L-49705-09,
February 8, 1979) a. Exclusive original jurisdiction over all
contests relating to the election, returns and
The appropriate remedy to invalidate disputed qualifications of all elective:
COMELEC resolutions (i.e. final orders, rulings and i. Regional
decisions of the COMELEC rendered in the exercise of ii. Provincial
its adjudicatory or quasi-judicial powers) is certiorari iii. City officials
under Rule 65 of the Rules of Court. (Loong v. b. Exclusive appellate jurisdiction over all
COMELEC, G.R. No. 93986, December 22, 1992) contests involving:
i. Elective municipal officials decided
D. COMPOSITION AND QUALIFICATIONS by trial courts of general
jurisdiction.
CIVIL SERVICE COMMISSION (CSC) ii. Elective barangay officials decided
by courts of limited jurisdiction.
c. Contempt powers
(See discussion under Law on Public Officers)
i. COMELEC can exercise this power
only in relation to its adjudicatory
COMMISSION ON ELECTIONS (COMELEC) or quasi-judicial functions. It
cannot exercise this in connection
Composition of the COMELEC with its purely executive or
ministerial functions.
1. Chairman ii. If it is a pre-proclamation
2. Six (6) Commissioners controversy, the COMELEC
exercises quasi-
Term judicial/administrative powers.
iii. Its jurisdiction over contests (after
Seven years without reappointment. proclamation), is in exercise of its
judicial functions.
NOTE: If the appointment was ad interim, a
subsequent renewal of the appointment does not NOTE: The COMELEC may issue writs of
violate the prohibition on reappointments because no certiorari, prohibition, and mandamus in
previous appointment was confirmed by the exercise of its appellate functions.
Commission on Appointments. The total term of both
appointments must not exceed the 7-year limit. 3. Decide, except those involving the right to vote,
(Matibag v. Benipayo, G.R. No. 149036, April 2, 2002) all questions affecting elections, including
determination of the number and location of
Qualifications polling places, appointment of election officials
and inspectors, and registration of voters.
1. Natural-born citizen;
NOTE: Questions involving the right to vote fall
2. At least 35 years old at the time of appointment;
within the jurisdiction of ordinary courts.
89
VIII. CONSTITUTIONAL COMMISSIONS
4. Deputize, with the concurrence of the President, The effectiveness of a government institution vested
law enforcement agencies and instrumentalities with quasi-judicial power hinges on its authority to
of the government, including the AFP, for the compel attendance of the parties and/or their
exclusive purpose of ensuring free, orderly, witnesses in hearings and proceedings. Suchlike, the
honest, peaceful and credible elections. COMLEC’s investigative power to punish individuals
5. Registration of political parties, organizations, or who refuse to appear during a fact-finding
coalitions and accreditation of citizens’ arms of investigation, despite a previous notice and order to
the COMELEC. attend, cannot be withheld, for it is an essential to its
6. File, upon a verified complaint, or on its own constitutional mandate to secure the conduct of
initiative, petitions in court for inclusion or honest and credible elections. (Bedol v. COMELEC, G.R.
exclusion of voters; investigate and, where No. 179830, December 3, 2009)
appropriate, prosecute cases of violations of
election laws, including acts or omissions Function of Senate Electoral Tribunal (SET)
constituting election frauds, offenses and
malpractices. The SET has jurisdiction to entertain and resolve two
types of electoral contests against a Member of the
NOTE: The grant of exclusive power to Senate: a) petition for quo warranto, and b) election
investigate and prosecute cases of election protest. Mutually exclusive, a petition for quo
offenses to the COMELEC was not by virtue of the warranto cannot include an election protest, nor can
Constitution but by the OEC which was an election protest include a petition for quo
eventually amended by Sec. 43 of RA 9369. Thus, warranto.
the DOJ now conducts preliminary investigation
of election offenses concurrently with the Any registered voter who seeks to disqualify a
COMELEC and no longer as mere deputies. (Jose Member of the Senate on the ground of ineligibility or
Miguel T. Arroyo v. DOJ, et al., G.R. No. 199082, disloyalty to the Republic of the Philippines must file a
September 18, 2012) petition for quo warranto within ten (10) days from
the respondent’s proclamation. However, if the basis
7. Recommend to the Congress effective measures of ineligibility is on citizenship, the petition may be
to minimize election spending, including filed any time during the respondent’s tenure; if the
limitation of places where propaganda materials ground is loss of the required qualifications, the
shall be posted, and to prevent and penalize all petition may be filed at any time during the
forms of election frauds, offenses, malpractices, respondent’s tenure, as soon as the required
and nuisance candidacies. qualification is lost. The petitioner may not be a
8. Recommend to the President the removal of any candidate, unlike in an election protest, which is filed
officer or employee it has deputized, or the only by a candidate who duly filed a certificate of
imposition of any other disciplinary action, for candidacy and had been voted for the office of
violation or disregard of, or disobedience to its Senator. In an election protest, the filing period is
directive, order, or decision. thirty (30) days from prostester’s proclamation.
9. Submit to the President and the Congress a
comprehensive report on the conduct of each Under the 2013 Rules of the Tribunal, joint election
election, plebiscite, initiative, referendum, or protests are not allowed, but for good and sufficient
recall. reasons, the Tribunal may order the consolidation of
individual protests, hear, and decide them jointly.
Remedy of a dissatisfied party in election cases
decided by the COMELEC in division COMMISSION ON AUDIT (COA)
The dissatisfied party may file a motion for
reconsideration before the COMELEC en banc. If the en Composition of the COA
banc’s decision is still not favorable, the same, in
accordance with Sec. 7, Art. IX-A, “may be brought to 1. Chairman
the SC on certiorari within 30 days from receipt of 2. Two (2) Commissioners
copy thereof.” (Reyes v. RTCof Oriental Mindoro, G.R.
No. 108886, May 5, 1995) Term
NOTE: The fact that decisions, final orders or rulings Seven years without reappointment
of the COMELEC in contests involving elective
municipal and barangay offices are final, executory Qualifications
and not appealable, (1987 Constitution, Art. IX-C, Sec.
2[2]) does not preclude recourse to the SC by way of a 1. Natural-born citizen;
special civil action of certiorari. (Galido v. COMELEC, 2. At least 35 years old at the time of appointment;
G.R. No. 95346, January 18, 1991) 3. Certified Public Accountant with not less than
ten years of auditing experience, or member of
COMELEC can exercise its power of contempt in the Philippine Bar who has been engaged in the
connection with its functions as the National practice of law; and
Board of Canvassers during the elections

Political Law
4. Not a candidate in any election immediately Bill of Rights
preceding the appointment.
It is a set of prescriptions setting forth the
NOTE: At no time shall all Members of the fundamental civil and political rights of the individual,
Commission belong to the same profession. [1987 and imposing limitations on the powers of
Constitution, Art. IX-D, Sec 1(1)] government as a means of securing the enjoyment of
those rights.
Powers and duties of COA
The Bill of Rights governs the relationship between
1. Examine, audit and settle all accounts pertaining the individual and the State. Its concern is not the
to revenue and receipts of, and expenditures or relation between private individuals. What it does is
uses of funds and property owned or held in to declare some forbidden zones in the private sphere
trust or pertaining to government. inaccessible to any power holder. (People v. Marti, G.R.
2. Keep general accounts of government and No. 81561, January 18, 1991)
preserve vouchers and supporting papers.
(2019 BAR) 1. PRIVACY AND AUTONOMY
3. Authority to define the scope of its audit and
examination, establish techniques and methods The Bill of Rights cannot be invoked against private
required therein. individuals. In the absence of governmental
interference, the liberties guaranteed by the
NOTE: The power of the Commission to define the Constitution cannot be invoked. The equal protection
scope of its audit and to promulgate auditing rules erects no shield against private conduct, however
and regulations and the power to disallow discriminatory or wrongful. (Yrasegui v. PAL, G.R. No.
unnecessary expenditures is exclusive but its 168081, October 17, 2008)
power to examine and audit is not exclusive.
(Development Bank of the Philippines v. Commission NOTE: However, where the husband invoked his right
on Audit, G.R. No. 88435, January 16, 2002) to privacy of communication and correspondence
against a private individual, his wife, who had forcibly
4. Promulgate accounting and auditing rules and taken from his cabinet documents and private
regulations, including those for prevention and correspondence, and presented as evidence against
disallowance. (1987 Constitution, Art. IX-D, Sec. him, the Supreme Court held these papers are
inadmissible in evidence, upholding the husband’s
2)
right to privacy. (Zulueta v. CA, G.R. No. 107383,
February 20, 1996)
E. PROHIBITED OFFICES & INTERESTS
2. RELATION TO HUMAN RIGHTS
No member of a Constitutional Commission shall,
during his tenure:
The Philippine Bill of Rights “establishes the
1. Hold any other office or employment relationship of the individual to the State and defines
the rights of the individual by limiting the lawful
2. Engage in the practice of any profession powers of the State.” (Smith, R., 1945, The Philippine
3. Engage in the active management and control of Bill of Rights. Association for Asian Studies)
any business which in any way may be affected
by the function of his office The Universal Declaration of Human Rights (UDHR)
4. Be financially interested, directly or indirectly, inspired a number of Constitutions of different States.
in any contract with, or in any franchise or In the Philippines, Articles III and XIII of the
privilege granted by the Government, any of its Constitution safeguard the rights of the people within
subdivisions, agencies or instrumentalities, the State. While the Commission on Human Rights
including GOCCs or their subsidiaries. (1998, (CHR) ensures the protection of human rights as
2015 BAR) guaranteed by the Bill of Rights.
Purpose B. DUE PROCESS OF LAW
1. To compel the chairmen and members of the Due process clause (1992, 1999, 2007, 2009 BAR)
Constitutional Commissions to devote their full
attention to the discharge of their duties; and No person shall be deprived of life, liberty, or
2. To remove from them any temptation to take property without due process of law, nor shall any
person be denied the equal protection of the laws.
advantage of their official positions for selfish
purposes. (1987 Constitution, Art. III, Sec. 1)
1. CONCEPT OF RIGHTS TO LIFE,

IX. BILL OF RIGHTS LIBERTY, AND PROPERTY
A. CONCEPT OF BILL OF RIGHTS Right to Life
91
IX. BILL OF RIGHTS
The right to life is not merely a right to the by the established principles of private rights
preservation of life but also to the security of the and distributive justice.
limbs and organs of the human body against any 3. Protect property from confiscation by legislative
unlawful harm. enactments from seizure, forfeiture, and
destruction without a trial and conviction by the
This constitutional guarantee includes the right of an ordinary modes of judicial procedures. (Suarez,
individual to pursue a lawful calling or occupation; to 2016)
express, write or even paint his ideas for as long as he
does not unlawfully transgress the rights of others; to Kinds of due process
exercise his freedom of choice,--whether this is in the 1. Substantive Due Process
area of politics, religion, marriage, philosophy and
2. Procedural Due Process
employment, or even in the planning of his family; and
in general, to do and perform any lawful act or activity
which, in his judgment, will make his life worth living. PROCEDURAL AND SUBSTANTIVE DUE PROCESS
(Suarez, 2016)
BASIS SUBSTANTIVE PROCEDURAL DUE
The right to life commences upon “conception, that DUE PROCESS PROCESS
is, upon fertilization. Hence, the obligation upon the
State to “equally protect the life of the mother and the This serves as a Serves as a
life of the unborn from conception” and “to prevent restriction on the restriction on
the Legislature from enacting a measure legalizing government’s law actions of judicial
Purpose
abortion.” (Sec. 12, Art. II, 1987 Constitution; Imbong v. and rule-making and quasi-judicial
Ochoa, G.R. No. 204819, April 8, 2014). powers. agencies of the
government.
Right to Liberty
1. The interests of 1. Impartial court or
It is not only the right of a citizen to be free from the the public in tribunal clothed
mere physical restraint of his person, as by general, as with judicial
incarceration, but the term is deemed to embrace the distinguished power to hear
right of the citizen to be free in the engagement of all from those of a and determine
his faculties; to be free to use them in all lawful ways. particular class, the matters
(Allegeyer vs. Louisianna, 165 U.S. 578, January 6, require the before it.
1897) intervention of
the state. 2. Jurisdiction
Right to Property properly acquired
2. The means over the person
It refers to things which are susceptible of employed are of the defendant
appropriation and which are already possessed and reasonably and over
Requi-
found in the possession of man. (Suarez, 2016) necessary for property which is
sites
the the subject
accomplishment matter of the
2. KINDS OF DUE PROCESS of the purpose proceeding.
and not unduly
Due process means: oppressive upon 3. Opportunity to be
individuals. heard.
1. There shall be a law prescribed in harmony with
4. Judgment
the general powers of the legislature;
rendered upon
2. It shall be reasonable in its operation;
lawful hearing
3. It shall be enforced according to the regular
and based on
methods of procedure prescribed; and
evidence
4. It shall be applicable alike to all citizens of the
adduced.
State or to all of a class. (People v. Cayat, G.R. No.
L-45987, May 5, 1939)
a. SUBSTANTIVE DUE PROCESS
Purpose
It requires the intrinsic validity of the law in
The due process clause is a guaranty against any kind interfering with the rights of the person to his life,
of abuse and arbitrariness, by anyone in any of the liberty, or property. If a law is invoked to take away
branches of government. More specifically, the one’s life, liberty or property, the more specific
purpose of the due process clause is to: concern of substantive due process is not to find out
whether said law is being enforced in accordance with
1. Prevent undue encroachment against the life, procedural formalities but whether the said law is a
liberty and property of individuals. proper exercise of legislative power.
2. Secure the individual from the arbitrary
exercise of powers of government, unrestrained

Political Law
NOTE: Publication of laws is part of substantive due NOTE: The Bill of rights is not meant to be invoked
process. It is a rule of law that before a person may be against acts of private individuals like employers.
bound by law, he must be officially and specifically Private actions, no matter how egregious, cannot
informed of its contents. For the publication violate constitutional due process.
requirement, “laws” refer to all statutes, including
those of local application and private laws. This does Effect when due process is not observed
not cover internal regulations issued by
administrative agencies, which are governed by the The cardinal precept is that where there is a violation
Local Government Code. Publication must be full, or of basic constitutional rights, courts are ousted from
there is none at all. (Tañada vs. Tuvera, G.R. No. L- their jurisdiction. The violation of a party's right to
63915, December 29, 1986) due process raises a serious jurisdictional issue which
cannot be glossed over or disregarded at will.
Q: The City of Manila enacted Ordinance 7783, Where the denial of the fundamental right to due
which prohibited the establishment or operation process is apparent, a decision rendered in disregard
of business “providing certain forms of of that right is void for lack of jurisdiction. This rule is
amusement, entertainment, services and facilities equally true in quasi-judicial and administrative
where women are used as tools in entertainment proceedings, for the constitutional guarantee that no
and which tend to disturb the community, among man shall be deprived of life, liberty, or property
the inhabitants and adversely affect the social and without due process is unqualified by the type of
moral welfare of community.” Owners and proceedings (whether judicial or administrative)
operators concerned were given three months to where he stands to lose the same. (Garcia v. Molina
wind up their operations or to transfer to any and Velasco, G.R. Nos. 157383 and 174137, August 10,
place outside the Ermita-Malate area, or convert 2010)
said business to other kinds of business which are
allowed. Does the ordinance violate the due Effect of Waiver or Estoppel
process clause?
Due process is satisfied when the parties are afforded
A: YES. These lawful establishments may only be a fair and reasonable opportunity to explain their
regulated. They cannot be prohibited from carrying respective sides of the controversy. Thus, when the
on their business. This is a sweeping exercise of police party seeking due process was in fact given several
power, which amounts to interference into personal opportunities to be heard and air his side, but it is by
and private rights which the court will not his own fault or choice he squanders these chances,
countenance. There is a clear invasion of personal or then his cry for due process must fail.
property rights, personal in the case of those
individuals desiring of owning, operating and Relativity of due process
patronizing those motels and property in terms of
investments made and the salaries to be paid to those Relativity of due process arises when the definition of
who are employed therein. If the City of Manila due process has been left to the best judgment of our
desired to put an end to prostitution, fornication, and judiciary considering the peculiarity and the
other social ills, it can instead impose reasonable circumstances of each case.
regulations such as daily inspections of the
establishments for any violation of the conditions of In a litany of cases that have been decided in this
their licenses or permits, it may exercise its authority jurisdiction, the common requirement to be able to
to suspend or revoke their licenses for these conform to due process is fair play, respect for justice
violations; and it may even impose increased license and respect for the better rights of others.
fees. (City of Manila v. Laguio, Jr., GR. No. 118127, April
12, 2005) In accordance with the standards of due process, any
court at any particular time, will be well guided,
Constitutional vs. Statutory Due Process instead of being merely confined strictly to a precise
definition which may or may not apply in every case.
CONSTITUTIONAL STATUTORY DUE
DUE PROCESS PROCESS The relativity of due process requires a reasonable
degree of flexibility in applying procedural due
Protects the individual While found in the Labor process. Thus, not all situations calling for procedural
from the government Code and Implementing safeguards call for the same kind of procedure.
and assures him of his Rules, it protects
rights in criminal, civil employees from being A determination of the precise nature of the
or administrative unjustly terminated government function involved as well as of the private
proceedings. without just cause after interest that has been affected by governmental action
notice and hearing. must be considered in determining the application of
(Agabon v. NLRC, G.R. No. the rules of procedure. (Cafeteria & Restaurant
158693, November 17, Workers Union v. McElroy, 367 U.S. 886, June 19, 1961)
2004)
To say that the concept of due process is flexible does
not mean that judges are at large to apply it to any and
93
IX. BILL OF RIGHTS
all relationships. Its flexibility is in its scope once it reconsideration of the action or ruling complained of.
has been determined that some process is due; it is a "To be heard" does not mean only verbal arguments
recognition that not all situations calling for in court; one may be heard also thru pleadings. Where
procedural safeguards for the same kind of procedure. opportunity to be heard, either through oral
(Morrisey v. Brewer, 408 U.S. 471, June 29, 1972) arguments or pleadings, is accorded, there is no denial
of procedural due process.
b. PROCEDURAL DUE PROCESS
When del Rosario filed her motion for reconsideration
assailing Secretary Pangandaman's order, she was
Procedural due process is the aspect of due process
able to completely and exhaustively present her
which serves as a restriction on actions of judicial and
arguments. The denial of her motion was on the basis
quasi-judicial agencies of the government. It refers to
of the merits of her arguments and any other evidence
the method and manner by which a law is enforced.
she was able to present. She was given a fair and
reasonable opportunity to present her side; hence,
The fundamental elements of procedural due
there was no deprivation of due process. (Remigio
process (N-O-J)
Espiritu v. Lutgarda Del Rosario, G.R. No. 204964,
October 15, 2014, as penned by J. LEONEN)
1. Notice (to be meaningful, must be as to time and
Due process in extradition proceedings
place);
2. Opportunity to be heard; and (See Extradition section under Public International Law
3. Court/tribunal must have jurisdiction. for discussion)
Q: Del Rosario filed an application for exemption Q: A complaint was filed against respondent
with the Department of Agrarian Reform, seeking Camille Gonzales, then Chief Librarian, Catalog
to exempt Lot Nos. 854 and 855 from the Division, of the National Library for dishonesty,
Comprehensive Agrarian Reform Program (CARP) grave misconduct and conduct prejudicial to the
coverage. Secretary of Agrarian Reform Roberto best interest of the service. The DECS investigating
M. Pagdanganan (Secretary Pagdanganan) issued committee was created to inquire into the charges
an order granting the application for exemption against Gonzales. Is she entitled to be informed of
but it later on issued another order revoking it. the findings and recommendations of the
investigating committee?
The order revoking the grant earlier given to Del
Rosario was not sent to Asperilla's address in A: NO. It must be stressed that the disputed
Cubao, Quezon City, which was her address on investigation report is an internal communication
record. Del Rosario alleged that she only came to between the DECS Secretary and the Investigation
know of the order when the Provincial Agrarian Committee, and it is not generally intended for the
Reform Officer of Pampanga handed her a copy of perusal of respondent or any other person for that
the order. She then filed her motion for matter, except the DECS Secretary. She is entitled only
reconsideration of the order. Acting on del to the administrative decision based on substantial
Rosario's motion for reconsideration, Secretary evidence made of record, and a reasonable
Pangandaman found that the certifications issued opportunity to meet the charges and the evidence
by the Housing and Land Use Regulatory Board presented against her during the hearings of the
classified the landholdings as agricultural before investigation committee. (Pefianco v. Moral, GR. No.
June 15, 1988. Based on the ocular inspections 132248, January 19, 2000)
conducted by the Center for Land Use Policy,
Planning and Implementation (CLUPPI), the land
remained agricultural and was planted with sugar Q: Cadet 1CL Cudia was a member of Siklab Diwa
cane and corn. Accordingly, Secretary Class of 2014 of the PMA. Prof. Berong issued a
Pangandaman denied del Rosario's motion in the Delinquency Report (DR) against Cadet 1CL Cudia
order . Del Rosario filed a notice of appeal before because he was late for two minutes in his class.
the Office of the President (OP). Through then Cudia reasoned out that: “I came directly from
Deputy Executive Secretary for Legal Affairs OR432 Class. We were dismissed a bit late by our
Manuel B. Gaite, the OP rendered the instructor Sir.”
decision dismissing the appeal for lack of merit.
The Company Tactical Officer (CTO) of Cadet 1CL
Was del Rosario denied due process when the Cudia penalized him with demerits. Cudia
order of Secretary Pangandaman was addressed his Request for Reconsideration to his
"erroneously sent to another address”? Senior Tactical Officer (STO), but the STO
sustained the penalty. The CTO reported him to
A: NO. The essence of procedural due process is the PMA Honors Committee (HC) for violation of
embodied in the basic requirement of notice and a the Honor Code. When the members of the HC
real opportunity to be heard. In administrative casted their votes through secret balloting, the
proceedings, such as in the case at bar, procedural due result was 8-1 in favor of a guilty verdict. After
process simply means the opportunity to explain further deliberation, the Presiding Officer
one's side or the opportunity to seek a announced the 9-0 guilty verdict. Cudia contested

Political Law
the dismissal as being violative of his right to due BASIS ADMINISTRATIVE JUDICIAL
process.
Opportunity to A day in court
Essence
Was the dismissal of Cudia a denial of his right to explain one’s side
due process?
Usually through Submission of
A: NO. Due process in disciplinary cases involving seeking a pleadings and
students does not entail proceedings and hearings reconsideration of oral arguments
similar to those prescribed for actions and Means the ruling or the
proceedings in courts of justice; that the proceedings action taken, or
may be summary; that cross-examination is not an appeal to a
essential part of the investigation or hearing; and that superior authority
the required proof in a student disciplinary action,
which is an administrative case, is neither proof Required when the Both are
beyond reasonable doubt nor preponderance of administrative essential:
evidence but only substantial evidence or “such body is exercising
relevant evidence as a reasonable mind might accept quasi-judicial 1. Notice
Notice and
as adequate to support a conclusion.” function. (PhilCom- 2. Hearing
Hearing
Sat v. Alcuaz, G.R.
No. 84818,
What is crucial is that official action must meet
December 18,
minimum standards of fairness to the individual,
1989)
which generally encompass the right of adequate
notice and a meaningful opportunity to be heard.
NOTE: See further discussion of Administrative Due
It is not required that procedural due process be Process under Administrative Law.
afforded at every stage of developing disciplinary
action. What is required is that an adequate hearing Due process in academic and disciplinary
be held before the final act of dismissal. (Cudia v. proceedings
Superintendent of the PMA, G.R. No. 211362, February
24, 2015) Parties are bound by the rules governing academic
requirements and standards of behavior prescribed
i. JUDICIAL DUE PROCESS by the educational institutions. Resort to courts is
available to parties. (Vivares and Suzara v. St.
Whether in civil or criminal judicial proceedings, due Theresa’s College, G.R. No. 202666, September 29,
process requires that there be: 2014)
1. An impartial and disinterested court clothed by Due process in deportation proceedings

law with authority to hear and determine the
matter before it; Although a deportation proceeding does not partake
of the nature of a criminal action, however,
NOTE: The test of impartiality is whether the considering that it is a harsh and extraordinary
judge’s intervention tends to prevent the proper administrative proceeding affecting the freedom and
presentation of the case or the ascertainment of liberty of a person, the constitutional right of such
the truth. person to due process should not be denied. Thus, the
provisions of the Rules of Court of the Philippines
2. Jurisdiction lawfully acquired over the defendant particularly on criminal procedure are applicable to
or the property which is the subject matter of the deportation proceedings. (Lao Gi v. CA, GR. No. 81789,
December 29, 1989)
proceeding;
Q: Scheer, a German, was granted permanent
3. Notice and opportunity to be heard be given to resident status in the country. In a letter, Vice
the defendant; and Consul Hippelein informed the Philippine
Ambassador to Germany that the respondent had
4. Judgment to be rendered after lawful hearing, police records and financial liabilities in Germany.
clearly explained as to the factual and legal bases. The Board of Commissioners (BOC) thereafter
(Art. VII, 1987 Constitution, Sec. 14) issued a Summary Deportation Order. It relied on
the correspondence from the German Vice Consul
ii. ADMINISTRATIVE DUE PROCESS on its speculation that it was unlikely that the
German Embassy will issue a new passport to the
(See discussion under Administrative Law, respondent; on the warrant of arrest issued by the
Administrative Due Process) District Court of Germany against the respondent
for insurance fraud; and on the alleged illegal
Administrative vs. Judicial due process activities of the respondent in Palawan. The BOC
concluded that the respondent was not only an
95
IX. BILL OF RIGHTS
undocumented but an undesirable alien as well. Is This test is applicable for economic, property and
the Summary Deportation Order is valid? commercial legislation. (White Light Corporation
v. City of Manila)
A: NO. Section 37(c) of Commonwealth Act No. 613, as
amended, provides that no alien shall be deported 2. Intermediate review – The substantiality of the
without being informed of the specific grounds for governmental interest is seriously looked into
deportation or without being given a hearing under and the availability of less restrictive alternatives
rules of procedure to be prescribed by the is considered.
Commissioner of Immigration. Under paragraphs 4
and 5 of Office Memorandum Order No. 34, an alien 3. Strict scrutiny – The focus is on the presence of
cannot be deported unless he is given a chance to be compelling, rather than substantial governmental
heard in a full deportation hearing, with the right to interest and on the absence of less restrictive
adduce evidence in his behalf .The respondent was means for achieving that interest. (Separate
not afforded any hearing at all. The BOC simply opinion of Justice Mendoza in Estrada v.
concluded that the respondent committed insurance Sandiganbayan, G.R. No. 148965, February 26,
fraud and illegal activities in Palawan without any 2002)
evidence. The respondent was not afforded a chance
to refute the charges. He cannot, thus, be arrested and Void-for-Vagueness Doctrine
deported without due process of law as required by
the Bill of Rights of the Constitution. (Domingo v. A law is vague when it lacks comprehensive standards
Scheer, G.R. No. 154745, January 29, 2004) that men of common intelligence must necessarily
guess at its common meaning and differ as to its
Instances when hearings are not necessary application.
1. When administrative agencies are exercising In such instance, the statute is repugnant to the
their quasi-legislative functions; Constitution because:
2. Abatement of nuisance per se;
3. Granting by courts of provisional remedies; 1. It violates due process for failure to accord
4. Cases of preventive suspension; persons, especially the parties targeted by it, fair
5. Removal of temporary employees in the notice of what conduct to avoid; and
government service; 2. It leaves law enforcers an unbridled discretion
6. Issuance of warrants of distraint and/or levy by in carrying out its provisions. (People v. de la
the BIR Commissioner; Piedra, G.R. No. 128777, January 24, 2001)
7. Cancellation of the passport of a person charged
with a crime; and The Supreme Court held that the doctrine can only be
8. Suspension of a bank’s operations by the invoked against that species of legislation that is
Monetary Board upon a prima facie finding of utterly vague on its face, i.e., that which cannot be
liquidity problems in such bank. clarified either by a saving clause or by construction.
(Estrada v. Sandiganbayan, G.R. No. 148560, November
Q: Ordinance 6537 of the City of Manila makes it 19, 2001)
unlawful for non- Filipino citizens to be employed
or to be engaged in any kind of trade, business or The void-for-vagueness doctrine cannot be used to
occupation within the City of Manila, without impugn the validity of a criminal statute using “facial
securing an employment permit from the Mayor of challenge” but it may be used to invalidate a criminal
Manila. Is the ordinance unconstitutional? statute “as applied” to a particular defendant.
A: YES. The ordinance is unconstitutional. While it is Q: Navotas City, City of Manila, and Quezon City
true that the Philippines as a State is not obliged to started to strictly implement their respective
admit aliens within its territory, once an alien is curfew ordinances on minors through police
admitted, he cannot be deprived of life without due operations. Petitioners argue that the Curfew
process of law. This guarantee includes the means of Ordinances are unconstitutional because they
livelihood. The ordinance amounts to a denial of the result in arbitrary and discriminatory
basic right of the people of the Philippines to engage enforcement as there are no clear provisions or
in the means of livelihood. (Mayor Villegas v. Hiu Ching detailed standards on how law enforcers should
Tsai Pao Hao, G.R. No. L-29646, November 10, 1978) apprehend and properly determine the age of the
alleged curfew violators, and thus, fall under the
c. LEVELS OF SCRUTINY void for vagueness doctrine. Is the petitioners’
contention proper?
1. Deferential review (or Rational Basis Test) – Laws A: NO. The void for vagueness doctrine is premised on
are upheld if they rationally further a legitimate due process considerations, which are absent from
governmental interest, without courts seriously this particular claim. Petitioners fail to point out any
inquiring into the substantiality of such interest ambiguous standard in any of the provisions of the
and examining the alternative means by which Curfew Ordinances, but rather, lament the lack of
the objectives could be achieved. detail on how the age of a suspected minor would be
determined. The mechanisms related to the

Political Law
implementation of the Curfew Ordinances are, NOTE: The rights and interests of the State in these
however, matters of policy that are best left for the things are not simply political but also proprietary in
political branches of government to resolve. Verily, nature and so citizens may lawfully be given
the objective of curbing unbridled enforcement is not preference over aliens in their use or enjoyment.
the sole consideration in a void for vagueness
analysis; rather, petitioners must show that this Rationale for allowing, in exceptional cases, valid
perceived danger of unbridled enforcement stems classification based on citizenship
from an ambiguous provision in the law that allows
enforcement authorities to second-guess if a Aliens do not naturally possess the sympathetic
particular conduct is prohibited or not prohibited. consideration and regard for customers with whom
they come in daily contact, nor the patriotic desire to
Besides, petitioners are mistaken in claiming that help bolster the nation’s economy, except insofar as it
there are no sufficient standards to identify suspected enhances their profit, nor the loyalty and allegiance
curfew violators. While it is true that the Curfew which the national owes to the land. These limitations
Ordinances do not explicitly state these parameters, on the qualifications of aliens have been shown on
law enforcement agents are still bound to follow the many occasions and instances, especially in times of
prescribed measures found in statutory law when crisis and emergency. (Ichong v. Hernandez, G.R. No. L-
implementing ordinances. Specifically, RA 9344, as 7995, May 31, 1957)
amended which provides the mechanisms for the
determination of age. (SPARK, Et. al. vs. Quezon City, 2. REQUISITES FOR VALID CLASSIFICATION
GR No. 225442, August 08, 2017)
The classification must (S-G-Ex-A)
C. EQUAL PROTECTION OF LAWS
1. Rest on substantial distinctions;
1. CONCEPT OF EQUAL PROTECTION OF LAWS 2. Be germane to the purpose of the law;
3. Not be limited to existing conditions only; and
All persons or things similarly situated should be 4. Apply equally to all members of the same class.
treated alike, both as to rights conferred and (People v. Cayat, GR. No. L-45987, May 5, 1939)
responsibilities imposed. It guarantees equality, not
identity of rights. It does not forbid discrimination as Q: Rosalie Garcia filed a case against her husband,
to persons and things that are different. What it Jesus Garcia, for violation of R.A. 9262. The RTC
forbids are distinctions based on impermissible then issued a Temporary Protection Order. Jesus
criteria unrelated to a proper legislative purpose, or argues that R.A. 9262 violates the guarantee of
class or discriminatory legislation, which equal protection because the remedies against
discriminates against some and favors others when personal violence that it provides may be invoked
both are similarly situated. only by the wives or women partners but not by
the husbands or male partners even if the latter
Q: EO 1 was issued by President Aquino to could possibly be victims of violence by their
investigate reported cases of graft and corruption women partners. Does R.A. 9262 (VAWC) violate
of the Arroyo administration. Is such action valid? the equal the protection clause of the
Constitution?
A: NO. It must be borne in mind that the Arroyo
administration is but just a member of a class, that is, A: NO. R.A. 9262 rests on substantial distinction.
a class of past administrations. It is not a class of its There is an unequal power relationship between
own. Not to include past administrations similarly women and men and the fact that women are more
situated constitutes arbitrariness which the equal likely than men to be victims of violence and the
protection clause cannot sanction. Such widespread gender bias and prejudice against women
discriminating differentiation clearly reverberates to all make for real differences justifying the
label the commission as a vehicle for vindictiveness classification under the law. The classification is
and selective retribution. (Biraogo v. Philippine Truth germane to the purpose of the law. The distinction
Commission of 2010, G.R. No. 192935, December 7, between men and women is germane to the purpose
2010) of R.A. 9262, which is to address violence committed
against women and children.
Q: Are aliens entitled to the protection of equal
protection clause? There is likewise no merit to the contention that R.A.
9262 singles out the husband or father as the culprit.
A: GR: It applies to all persons, both citizens and As defined above, VAWC may likewise be committed
aliens. The Constitution places the civil rights of aliens "against a woman with whom the person has or had a
on equal footing with those of the citizens. sexual or dating relationship." Clearly, the use of the
gender-neutral word "person" who has or had a
XPN: Statutes may validly limit exclusively to citizens sexual or dating relationship with the woman
the enjoyment of rights or privileges connected with encompasses even lesbian relationships. Moreover,
public domain, the public works, or the natural while the law provides that the offender be related or
resources of the State. connected to the victim by marriage, former marriage,
or a sexual or dating relationship, it does not preclude
97
IX. BILL OF RIGHTS
the application of the principle of conspiracy under Inc., v. BangkoSentral ng Pilipinas, G.R. No. 148208,
the Revised Penal Code. (Garcia v. Drilon, G.R. No. December 15, 2004)
179267, June 25, 2013)
3. LEVELS OF SCRUTINY (2015 BAR)
Q: Sec. 5.23 of the Reproductive Health Law-IRR
provides that skilled health professional such as 1. Rational Basis Test (Differential review) – The
provincial, city or municipal health officers, chiefs traditional test, which requires "only that
of hospital, head nurses, supervising midwives government must not impose differences in
cannot be considered as conscientious objectors. treatment except upon some reasonable
Is this provision unconstitutional? differentiation fairly related to the object of
regulation." Simply put, it merely demands that
A: YES. This is discriminatory and violative of the the classification in the statute reasonably relates
equal protection clause. The conscientious objection to the legislative purpose. (Concurring Opinion of
clause should be equally protective of the religious Justice Leonardo-De Castro in Garcia v. Drilon, G.R.
belief of public health officers. There is no perceptible No. 179267, June 25, 2013)
distinction why they should not be considered exempt
from the mandates of the law. The protection 2. Strict Scrutiny Test – This refers to the standard
accorded to other conscientious objectors should for determining the quality and the amount of
equally apply to all medical practitioners without governmental interest brought to justify the
distinction whether they belong to the public or regulation of fundamental freedoms. Strict
private sector. After all, the freedom to believe is scrutiny is used today to test the validity of laws
intrinsic in every individual and the protective robe dealing with the regulation of speech, gender, or
that guarantees its free exercise is not taken off even if race as well as other fundamental rights as
one acquires employment in the government. (Imbong expansion from its earlier applications to equal
v. Ochoa, G.R. No. 204819, April 8, 2014) protection. (White Light Corporation v. City of
Manila, G.R. No. 122846, January 20, 2009)
Q: The New Central Bank Act created two
categories of employees: (1) BangkoSentral ng It is applied when the challenged statute either:
Pilipinas officers who are exempt from the Salary
Standardization Law (SSL) and (2) rank-and-file a. Classifies on the basis of an inherently
employees with salary grade 19 and below who suspect characteristic; or
are not exempt from the SSL. Subsequent to the b. Infringes fundamental constitutional rights;
enactment of the Act, the charters of the Land that all legal restrictions which curtail the
Bank of the Philippines and all other Government civil rights of a single racial group are
Financial Institutions (GFIs) were amended immediately suspect. That is not to say that
exempting all their personnel, including the rank- all such restrictions are unconstitutional. It
and-file employees, from the coverage of the SSL. is to say that courts must subject them to the
BSP Employees Association filed a petition to most rigid scrutiny. The presumption of
prohibit the BSP from implementing the provision constitutionality is reversed; that is, such
of the Act for they were illegally discriminated legislation is assumed to be unconstitutional
against when they were placed within the until the government demonstrates
coverage of the SSL. Was there a violation of the otherwise. (Central Bank Employees
equal protection clause of the Constitution? Association Inc. v. BSP, GR. No. 148208,
December 15, 2004)
A: YES. In the field of equal protection, the guarantee
that “no person shall be denied the equal protection of 3. Intermediate Scrutiny Test –It requires that the
the laws” includes the prohibition against enacting classification (means) must serve an important
laws that allow invidious discrimination, directly or governmental objective (ends) and is
indirectly. If a law has the effect of denying the equal substantially related to the achievement of such
protection of the law, or permits such denial, it is objective. A classification based on sex is the
unconstitutional. It is against this standard that the best-established example of an intermediate level
disparate treatment of the BSP rank-and-file from the of review. (Concurring Opinion of Justice
other Government Financial Institutions (GFI) cannot Leonardo-De Castro in Garcia v. Drilon, G.R. No.
stand judicial scrutiny. For, as regards the exemption 179267, June 25, 2013)
from the coverage of the SSL, there exists no
substantial distinction so as to differentiate the BSP Rational Basis Test vs. Strict Scrutiny
rank-and-file from the other rank-and-file of other
GFIs. The challenged provision of the New Central RATIONAL BASIS TEST STRICT SCRUTINY
Bank Act was facially neutral insofar as it did not
differentiate between the rank-and-file employees of Applies to legislative Applies to legislative
the BSP and the rank-and-file employees of other classifications in general, classifications affecting
GFIs, and yet its effects, when taken in light of the such as those pertaining fundamental rights or
exemption of the latter employees from the SSL, were to economic or social suspect classes.
discriminatory. (Central Bank Employees Association, legislation, which do not
affect fundamental rights

Political Law
of suspect classes; or is Search warrant is an order in writing, issued in the

not based on gender or name of the People of the Philippine Islands, signed by
illegitimacy. a judge or a justice of the peace, and directed to a
peace officer, commanding him to search for personal
Legislative purpose must Legislative purpose must property and bring it before the court. (Rodriguez vs.
be legitimate. be compelling. Villamiel, G.R. No. 44328, December 23, 1937 cited Sec.
96, General Orders No. 58, as amended by Sec. 6 of Act
Classification must be Classification must be No. 2886)
rationally related to the necessary and narrowly
legislative purpose. tailored to achieve the A search may be conducted by law enforcers only on
(Central Bank Employees legislative purpose. the strength of a search warrant validly issued by a
Association Inc. v. BSP, GR. (Central Bank Employees judge. Articles which are the product of unreasonable
No. 148208, December 15, Association Inc. v. BSP, searches and seizures are inadmissible as evidence.
2004) Ibid) Search warrants to be valid must particularly describe
the place to be searched and the persons or things to
be seized. (People vs. Aruta y Menguin, G.R. No. 120915,
D. RIGHT AGAINST UNREASONABLE April 3, 1998)
SEARCHES AND SEIZURES
The right to be secure from unreasonable search may,
1. CONCEPT OF PRIVACY like every right, be waived, and such waiver may be
made either expressly or impliedly. (People vs.
The right to be left alone. In context, the right to Malasugui, G.R. No. L-44335, July 30, 1936)
privacy means the right to be free from unwarranted
exploitation of one’s person or from intrusion into 3. REQUISITES FOR A VALID WARRANT
ones’ private activities in such a way as to cause
humiliation to a person’s ordinary sensibilities. Valid Warrant, Requisites (P-J-E-P)
Search warrant vs. Warrant of arrest 1. It must be issued upon determination of probable
cause;
SEARCH WARRANT OF 2. The probable cause must be determined by the
WARRANT ARREST judge himself and not by the applicant or any
other person;
The judge must It is not necessary 3. In the determination of probable cause, the judge
personally examine that the judge must examine, under oath or affirmation, the
in the form of should personally complainant and such witnesses as the latter may
searching examine the produce; and
questions and complainant and 4. The warrant issued must particularly describe
As to
answers, in writing his witnesses; the the place to be searched and persons and things
autho-
and under oath, the judge would simply to be seized. (HPS Software and Communication
rity,
complainant and personally review Corporation and Yap v. PLDT, G.R. Nos. 170217
which
the witnesses he the initial and 170694, December 10, 2012)
exa-
may produce on determination of
mines
facts personally the prosecutor to NOTE: General warrant is not allowed. It must be
known to them. see if it is issued pursuant to a specific offense. (Stonehill v.
supported by Diokno, G.R. No. L-19550, June 19, 1967)
substantial
evidence. General warrants
The determination He merely These are warrants of broad and general

of probable cause determines the characterization or sweeping descriptions which will
depends to a large probability, not the authorize police officers to undertake a fishing
extent upon the certainty of guilt of expedition to seize and confiscate any and all kinds of
Basis finding or opinion the accused and, in evidence or articles relating to an offense.
of of the judge who so doing, he need
deter- conducted the not conduct a new Purpose of particularity of description in search
mina- required hearing. warrants
tion examination of the
applicant and the 1. Readily identify the properties to be seized and
witnesses. thus prevent the peace officers from seizing the
wrong items; and
2. Leave peace officers with no discretion
2. CONCEPT OF SEARCH regarding the articles to be seized and thus
prevent unreasonable searches and seizures.
Search warrant (Bache and Co. v. Ruiz, 37 SCRA 823, February 27,
1971)
99
IX. BILL OF RIGHTS
Particularity of description for a search warrant is products. The NBI-IRO - through its agent De Jamil
complied with when: and undercover NBI asset Antonio conducted
surveillance and test-buy operations and
1. The description therein is as specific as the thereafter they filed two Applications for Search
circumstances will ordinarily allow; or Warrant to conduct a search of the Magsingal LPG
2. The description expresses a conclusion of fact, refilling plant. Can the personal knowledge of the
not of law, by which the warrant officer may be witnesses of the commission of the illegal trading
guided in making the search and seizure; or and underfilling of LPG products be a basis for
3. The things described are limited to those which determining probable cause in search warrant
bear direct relation to the offense for which the applications?
warrant is being issued.
A: YES. A finding of probable cause needs only to rest
Properties subject to seizure on evidence showing that, more likely than not, a
crime has been committed and that it was committed
1. Property subject of the offense; by the accused. Probable cause demands more than
2. Stolen or embezzled property and other proceeds bare suspicion; it requires less than evidence which
or fruits of the offense; or would justify conviction. The judge, in determining
3. Property used or intended to be used as means probable cause, is to consider the totality of the
for the commission of an offense. circumstances made known to him and not by a fixed
and rigid formula, and must employ a flexible, totality
NOTE: Seized items in violation of Art. 201 of the RPC, of the circumstances standard. Facts discovered
such as immoral doctrines, obscene publications and during surveillance - on the basis of information and
indecent shows, can be destroyed even if the accused evidence provided by petitioners - constitute personal
was acquitted. P.D. No. 969 (An Act amending Art. knowledge which could form the basis for the
201) mandates the forfeiture and destruction of issuance of a search warrant. (Petron LPG Dealers
pornographic materials involved in the violation of Association v. Ang, G.R. No. 199371, February 3, 2016)
Article 201 of the Revised Penal Code, even if the
accused was acquitted. (Nogales v. People, G.R. No. Personal knowledge
191080, November 21, 2011)
1. The person to be arrested must execute an overt
Nature of search warrant proceedings act indicating that he had just committed, is
actually committing, or is attempting to commit a
Neither a criminal action nor a commencement of a crime; and
prosecution. It is solely for the possession of personal 2. Such overt act is done in the presence or within
property. (United Laboratories, Inc. v. Isip, G.R. No. the view of the arresting officer.
163858, June 28, 2005)
NOTE: Initial hearsay information or tips from
Probable cause confidential informants could very well serve as basis
for the issuance of a search warrant, if followed up
It requires facts and circumstances that would lead a personally by the recipient and validated. Looking at
reasonably prudent man to believe that an offense has the records, it is clear that Padilla and his companions
been committed and that the objects sought in were able to personally verify the tip of their
connection with that offense are in the place to be informant. The evidence on record clearly shows that
searched. (HPS Software and Communications Corp. the applicant and witnesses were able to verify the
and Yap v. PLDT, G.R. Nos. 170217 and 170694, information obtained from their confidential source.
December 10, 2012) The evidence likewise shows that there was probable
cause for the issuance of a search warrant. Thus, the
Such facts and circumstances antecedent to the requirement of personal knowledge of the applicant
issuance of a warrant that in themselves are sufficient and witnesses was clearly satisfied in this case.
to induce a cautious man to rely on them and act in (Microsoft Corporation v. Samir Farajallah, G.R. No.
pursuance thereof. 205800, September 10, 2014)
The evidence necessary to establish probable cause is Mere “reliable information” will not satisfy the
based only on the likelihood, or probability, of guilt. “personal knowledge” requirement
(Estrada v. Office of the Ombudsman, et al., G.R. Nos.
212140–41, January 21, 2015, cited in ABS-CBN The long-standing rule in this jurisdiction, applied
Corporation v. Gozon, G.R. No. 195956, March 11, 2015) with a great degree of consistency, is that “reliable
information” alone is not sufficient to justify a
warrantless arrest under Section 5(a), Rule 113. The
Q: LPG Dealers Association and Total Gaz LPG rule requires, in addition, that the accused perform
Dealers Association filed a letter-complaint before some overt act that would indicate that he “has
the NBI-IRO, requesting assistance in the committed, is actually committing, or is attempting to
surveillance, investigation, apprehension and commit an offense.”
prosecution of respondents for alleged illegal
trading of LPG products and/or underfilling, Searching questions
possession and/or sale of underfilled LPG

Political Law
Examination by the investigating judge of the legitimate access to the said posts. Clearly, the fault, if
complainant and the latter’s witnesses in writing and any, lies with the friends of the minors. Curiously
under oath or affirmation, to determine whether there enough, however, neither the minors nor their
is a reasonable ground to believe that an offense has parents imputed any violation of privacy against the
been committed and whether the accused is probably students who showed the images to Escudero.
guilty thereof so that a warrant of arrest may be (Vivares v. St. Theresa’s College, G.R. No. 202666,
issued and he may be held liable for trial. September 29, 2014)
A police officer cannot amplify or modify what has Q: PNP constituted a team to implement a search
been set out in the warrant warrant issued by the Judge to search Edmund
Bulauitan's residence. Before going to the target
Such a change is proscribed by the Constitution which residence, the search team first went to the house
requires a search warrant to particularly describe the of the Barangay Chairman, who in turn,
place to be searched; otherwise it would open the assigned Kagawad Jerry (Kgd. Jerry) and Kagawad
door to abuse of the search process, and grant to Herald (Kgd. Herald) as search witnesses. Upon
officers executing the search that discretion which the arriving at Bulauitan's residence, the search team
Constitution has precisely removed from them. was met by Bulauitan's two (2) children and
housekeeper, who informed them that Bulauitan
The particularization of the description of the place to was not home. This notwithstanding, the search
be searched may properly be done only by the judge, team explained to the children and housekeeper
and only in the warrant itself; it cannot be left to the the reason for their presence, prompting the
discretion of the police officers conducting the search. latter to allow them inside the house and conduct
the search. SPO2 Baccay then proceeded to
It is neither fair nor licit to allow police officers to Bulauitan's room and there, discovered three (3)
search a place different from that stated in the heat-sealed plastic sachets containing white
warrant on the claim that the place actually searched crystalline substance which was later on
—although not that specified in the warrant — is confirmed as shabu.
exactly what they had in view when they applied for
the warrant and had demarcated in their supporting Based on the testimonies, it was discovered that:
evidence. What is material in determining the validity (a) Bulauitan was not in his residence when the
of a search is the place stated in the warrant itself, not search was conducted; (b) his daughter, Maria,
what applicants had in their thoughts, or had was not able to witness SPO2 Baccay's search of
represented in the proofs they submitted to the court Bulauitan's room as PO3 Tagal kept her in the
issuing the warrant. (People v. CA, 291 SCRA 400, June living room and even instructed her to leave the
26, 1998) house to contact her parents; and (c) Kgd. Jerry
and Kgd. Herald neither witnessed the search as
Q: Nenita and Julienne were graduating high they remained outside Bulauitan's residence. The
school students at St. Theresa’s College (STC), RTC finds Balauitan guilty and was affirmed by the
Cebu City. While changing into their swimsuits for CA. Should the SC uphold the decision?
a beach party they were about to attend, Julia and
Julienne, along with several others, took digital A: NO. Section 8, Rule 126 Search of house, room, or
pictures of themselves clad only in their premises to be made in presence of two witnesses,
undergarments. These pictures were then provides that a search under the strength of a warrant
uploaded by Angela on her Facebook profile. is required to be witnessed by the lawful occupant of
the premises sought to be searched. It must be
Back at the school, Escudero, a computer teacher stressed that it is only upon their absence that their
at STC’s high school department, learned from her presence may be replaced by two (2) persons of
students that some seniors at STC posted pictures sufficient age and discretion residing in the same
online, depicting themselves from the waist up, locality.
dressed only in brassieres. Escudero reported the
matter and, through one of her student’s Facebook In this case, a judicious perusal of the records reveals
page, showed the photos to Tigol, STC’s Discipline- that the policemen involved in the search of
in-Charge, for appropriate action. Were unlawful Bulauitan's residence — as shown in their own
means used by STC in gathering information about testimonies - did not conduct the search in accordance
the photo? with Section 8, Rule 126 of the Revised Rules of
Criminal Procedure. Worse, the search team even
A: NO. Even assuming that the photos in issue are instructed Maria to contact her father via telephone,
visible only to the sanctioned students’ Facebook which she could only do by leaving their residence
friends, respondent STC can hardly be taken to task and going to the house of a certain Dr. Romeo Bago
for the perceived privacy invasion since it was the (Dr. Bago) to use the telephone therein. It was only
minors’ Facebook friends who showed the pictures to after her return to their residence that SPO2 Baccay
Tigol. Respondents were mere recipients of what announced that they have allegedly found shabu in
were posted. They did not resort to any unlawful Bulauitan's room. The search conducted therein by
means of gathering the information as it was the search team fell way below the standard
voluntarily given to them by persons who had mandated by Section 8, Rule 126 of the Revised Rules
101
IX. BILL OF RIGHTS
of Criminal Procedure, and thus deemed unreasonable 3. It is immediately apparent to the officer that the
within the purview of the exclusionary rule of the item he observes may be evidence of a crime,
1987 Constitution. (Edmund Bulauitan Y Mauayan vs. contraband, or otherwise subject to seizure.
People of The Philippines, G.R. No. 218891, September
19, 2016) The law enforcement officer must lawfully make an
initial intrusion or properly be in a position from
4. WARRANTLESS SEARCHES which he can particularly view the area. In the course
(2000, 2009, 2015 BAR) of such lawful intrusion, he came inadvertently across
a piece of evidence incriminating the accused. The
1. Visual search is made of moving vehicles at object must be open to eye and hand, and its
checkpoints; discovery inadvertent. (Fajardo v. People, G.R. No.
2. Search is an incident to a valid arrest; 190889, January 10, 2011)
NOTE: An officer making an arrest may take from NOTE: Plain View Doctrine cannot be applied where
the person: there was no evidence in plain view of law enforcers
a. Any money or property found upon his serving the search warrant. (United Laboratories, Inc.
person which was used in the commission of v. Isip, G.R. No. 163858, June 28, 2005)
the offense
Q: Kwino, a drug pusher was entrapped in a buy
b. Was the fruit thereof
bust operation. He led the police officers to the
c. Which might furnish the prisoner with the
house of Carlo Ray, his supposed associate and his
means of committing violence or escaping
house was searched. A cardboard box with bricks
d. Which might be used as evidence in the trial
of marijuana inside was found in her residence.
of the case
However, Carlo Ray’s warrantless arrest was
declared illegal by the court. It follows that the
3. Search of passengers made in airports;
search of his person and home and the subsequent
4. When things seized are within plain view of a
seizure of the marked bills and marijuana cannot
searching party (Plain View Doctrine);
be deemed legal as an incident to her arrest. Was
5. Stop and frisk (Terry search);
the marijuana in the cardboard box in plain view
6. When there is a valid express waiver made
during the search, making the warrantless seizure
voluntarily and intelligently.
valid and acceptable in evidence?
NOTE: Consent to a search is not to be lightly
A: NO.The law enforcement officer must lawfully
inferred, but shown by clear and convincing
make an initial intrusion or properly be in a position
evidence. Consent must also be voluntary in
from which he can particularly view the area. In the
order to validate an otherwise illegal search; that
course of such lawful intrusion, he came inadvertently
is, the consent must be unequivocal, specific,
across a piece of evidence incriminating the
intelligently given, and uncontaminated by any
accused. The object must be open to eye and hand and
duress or coercion. [Caballes v CA, G.R. No.
its discovery inadvertent.
136292, 373 SCRA 221 (2002)] (2015 BAR)
It is clear that an object is in plain view if the object
7. Customs search; itself is plainly exposed to sight. The difficulty arises
8. Searches of vessels and aircraft for violation of when the object is inside a closed container. Where
immigration and drug laws; the object seized was inside a closed package, the
9. Searches of buildings and premises to enforce object itself is not in plain view and therefore cannot
fire. Sanitary, and building regulations; and be seized without a warrant. However, if the package
10. Exigent and emergency circumstances. (People v. proclaims its contents, whether by its distinctive
De Gracia, 233 SCRA 716, July 6, 1994) configuration, its transparency, or if its contents are
obvious to an observer, then the contents are in plain
Plain View Doctrine (2012 BAR) view and may be seized. (People v. Doria, G.R. No.
125299, January 22, 1999)
Under the plain view doctrine, objects falling in the
"plain view" of an officer, who has a right to be in the Stop-and-frisk search (2009, 2012 BAR)
position to have that view, are subject to seizure and
may be presented as evidence. It applies when the Limited protective search of outer clothing for
following requisites concur: (J-I-A) weapons. Probable cause is not required but a
genuine reason must exist in light of a police officer’s
experience and surrounding conditions to warrant the
1. The law enforcement officer in search of the belief that the person detained has weapons
evidence has a valid justification for an concealed. (Malacat v. CA, G.R. No. 123595, December
intrusion or is in a position from which he can 12, 1997)
view a particular area;
2. The discovery of the evidence in plain view is
inadvertent; and NOTE: "Stop and frisk" searches (sometimes referred
to as Terry searches) are necessary for law
enforcement. That is, law enforcers should be given
the legal arsenal to prevent the commission of

Political Law
offenses. However, this should be balanced with the however reasonably conducted, the former should
need to protect the privacy of citizens in accordance prevail.
with Article III, Section 2 of the Constitution.
A checkpoint is akin to a stop-and-frisk situation
The balance lies in the concept of "suspiciousness" whose object is either to determine the identity of
present in the situation where the police officer finds suspicious individuals or to maintain the status quo
himself or herself in. This may be undoubtedly based momentarily while the police officers seek to obtain
on the experience of the police officer. Experienced more information. (Valmonte v. De Villa, G.R. No.
police officers have personal experience dealing with 83988, September 29, 1989)
criminals and criminal behavior. Hence, they should
Motorists and their vehicles passing through
have the ability to discern — based on facts that they
checkpoints may also be stopped and extensively
themselves observe — whether an individual is acting
searched
in a suspicious manner. Clearly, a basic criterion
would be that the police officer, with his or her
While, as a rule, motorists and their vehicles passing
personal knowledge, must observe the facts leading to
through checkpoints may only be subjected to a
the suspicion of an illicit act.
routine inspection, vehicles may be stopped and
extensively searched when there is probable cause
In Manalili v. Court of Appeals, the police officers were which justifies a reasonable belief among those at the
initially informed about a place frequented by people checkpoints that either the motorist is a law offender
abusing drugs. When they arrived, one of the police or the contents of the vehicle are or have been
officers saw a man with "reddish eyes and [who was] instruments of some offense. (People v. Vinecario, G.R.
walking in a swaying manner." The suspicion No. 141137, January 20, 2004)
increased when the man avoided the police officers.
These observations led the police officers to conclude Checkpoint rules under LTO Code (R.A. 4136)
that the man was high on drugs. These were sufficient
facts observed by the police officers "to stop[the] There is, to stress, nothing in R.A. 4136 that
petitioner [and] investigate." authorized the checkpoint-manning policemen to
order petitioner and his companions to get out of the
In People v. Solayao, police officers noticed a man who vehicle for a vehicle and body search. And it bears to
appeared drunk. This man was also "wearing a emphasize that there was no reasonable suspicion of
camouflage uniform or a jungle suit." Upon seeing the the occurrence of a crime that would allow what
police, the man fled. His flight added to the suspicion. jurisprudence refers to as a "stop and frisk" action. As
After stopping him, the police officers found an SPO4 Bodino no less testified, the only reason why
unlicensed "homemade firearm" in his possession. they asked petitioner to get out of the vehicle was not
This court ruled that "[u]nder the circumstances, the because he has committed a crime, but because of
government agents could not possibly have procured their intention to invite him to Station 9 so he could
a search warrant first." This was also a valid search. rest before he resumes driving. But instead of a tactful
invitation, the apprehending officers, in an act
indicative of overstepping of their duties, dragged the
In these cases, the police officers using their senses
petitioner out of the vehicle and, in the process of
observed facts that led to the suspicion. Seeing a man subduing him, pointed a gun and punched him on the
with reddish eyes and walking in a swaying manner,
face. None of the police officers, to note, categorically
based on their experience, is indicative of a person
denied the petitioner’s allegation about being
who uses dangerous and illicit drugs. A drunk civilian
physically hurt before being brought to the Ospital ng
in guerrilla wear is probably hiding something as well.
Maynila to be tested for intoxication. What the
(People vs. Cogaed, G.R. No. 200334, July 30, 2014 PER J. policemen claimed was that it took the three (3) of
LEONEN).
them to subdue the fifty-five year old petitioner. Both
actions were done in excess of their authority granted
Checkpoints
under R.A. 4136. (Sydeco v. People, G.R. No. 202692,
November 12, 2014)
Searches conducted in checkpoints are lawful,
provided the checkpoint complies with the following Q: Star was a lady frisker whose duty is to frisk
requisites: departing passengers, employees, and crew and
check for weapons, bombs, prohibited drugs,
1. The establishment of checkpoint must be contraband goods, and explosives. When she
pronounced;
frisked Rochelle, a boarding passenger, she felt
2. It must be stationary, not roaming; and
something hard on Rochelle’s abdominal area
3. The search must be limited to visual search
which was later found to be three packs of shabu.
and must not be an intrusive search. Can Rochelle invoke a violation of the search and
seizure clause?
NOTE: Not all searches and seizures are prohibited.
Between the inherent right of the State to protect its A: NO. Persons may lose the protection of the search
existence and promote public welfare and an and seizure clause by exposure of their persons or
individual’s right against warrantless search which is property to the public in a manner reflecting a lack of
103
IX. BILL OF RIGHTS
subjective expectation of privacy, which expectation and ammunition justified as an incident to a
society is prepared to recognize as reasonable. Such lawful arrest?
recognition is implicit in airport security procedures.
With increased concern over airplane hijacking and A: NO. The scope of the warrantless search is not
terrorism has come increased security at the nation’s without limitations. A valid arrest allows the seizure
airport. (People v. Leila Johnson, G.R. No.138881, of evidence or dangerous weapons either on the
December 18, 2000) person of the one arrested or within the area of his
immediate control. The purpose of the exception is to
Q: Luz was flagged down by PO3 Alteza for driving protect the arresting officer from being harmed by the
a motorcycle without a helmet. Alteza invited Luz person arrested, who might be armed with a
to their sub-station and while issuing a citation concealed weapon, and to prevent the latter from
ticket for violation of municipal ordinance, Alteza destroying evidence within reach. In this case, search
was alerted by the latter’s uneasy movement and was made in the locked cabinet which cannot be said
asked him to put out the contents of the pocket of to have been within Kel's immediate control. Thus, the
his jacket. It was revealed that Luz was in search exceeded the bounds of what may be
possession of prohibited drugs. Can the roadside considered as an incident to a lawful arrest. (Valeroso
questioning of a motorist detained pursuant to a v. CA, G.R. No. 164815, September 3, 2009)
routine traffic stop be considered a formal arrest?
Q: A buy-bust operation was conducted in DM’s
A: NO. The time he was waiting for Alteza to write his store. Police Officer CA Tandoc posed as a buyer
citation ticket may be characterized as waiting time. and bought marijuana from DM. After the
Luz could not be said to have been under arrest. There exchange of marked money and marijuana,
was no intention on the part of Alteza to arrest him, Tandoc arrested DM without a warrant. The other
deprive him of his liberty, or take him into custody. In police officer searched the store and seized a
fact, Alteza himself testified that it was only for the plastic container containing six marijuana stocks.
sake of convenience that they were waiting at the sub- Thereafter, DM was charged with selling
station. (Luz v. People of the Philippines, G.R. No. marijuana. Is the warrantless seizure of marijuana
197788, February 29,2012) legal?
Q: A search was conducted on March 3, 1986. A: YES. The search being an incident to a lawful
During which the Philippines has no Constitution. arrest, it needed no warrant for its validity. The
The Constabulary raiding team searched the accused having been caught in flagrante delicto, the
house of Elizabeth Dimaano by virtue of a search arresting officers were duty bound to apprehend her
warrant and thereafter seized some items not immediately. The warrantless search and seizure, as
included in the warrant. Dimaano questioned the an incident to a lawful arrest, may extend to include
search for being violative of the Constitution. Can the premises under the immediate control of the
she invoke her right against unreasonable accused. The accused may not successfully invoke the
searches and seizures during the interregnum? right against a warrantless search, even as regards the
plastic container with dried marijuana leaves found
A: YES. The Bill of Rights under the 1973 Constitution on the table in his store. (People v. Salazar, G.R. No.
was not operative during the interregnum. Be that as 98060, January 27, 1997)
it may, under Art. 17(1) of the International Covenant
on Civil and Political Rights, the revolutionary Q: Sgt. Victorino Noceja and Sgt. Alex de Castro,
government had the duty to insure that no one shall while on a routine patrol in Pagsanjan, Laguna,
be subjected to arbitrary or unlawful interference spotted a passenger jeep unusually covered with
with his privacy, family, home or correspondence. "kakawati" leaves. Suspecting that the jeep was
Art. 17(2) provides that no one shall be arbitrarily loaded with smuggled goods, the two police
deprived of his property. Although the signatories to officers flagged down the vehicle driven by Rudy.
the Declaration did not intend it as a legally binding The police officers then checked the cargo and
document, being only a declaration, the Court has they discovered bundles of 3.08 mm
interpreted the Declaration as part of the generally aluminum/galvanized conductor wires
accepted principles of international law and binding exclusively owned by National Power Corporation
on the state. The revolutionary government did not (NPC). Police officers took Rudy into custody and
repudiate the Covenant or the Declaration during the seized the conductor wires. Was Rudy’s right
interregnum. It was also obligated under against unreasonable searches and seizures
international law to observe the rights of individuals violated when the police officers searched his
under the Declaration. (Republic v. Sandiganbayan, vehicle and seized the wires found therein
G.R. No. 104768, July 21, 2003) without a search warrant?
Q: While sleeping in his room, Kel was arrested by A: YES. When a vehicle is stopped and subjected to an
virtue of a warrant of arrest and he was dragged extensive search, such a warrantless search would be
out of the room. Thereafter, some police officers constitutionally permissible only if the officers
ransacked the locked cabinet inside the room conducting the search have reasonable or probable
where they found a firearm and ammunition. Are cause to believe, before the search, that either the
the warrantless search and seizure of the firearm motorist is a law-offender or they will find the

Political Law
instrumentality or evidence pertaining to a crime in under the belief and impression that submission is
the vehicle to be searched. necessary.
However, the fact that the vehicle looked suspicious At the time that he was waiting for the police officer to
simply because it is not common for such to be write his citation ticket, appellant could not be said to
covered with kakawati leaves does not constitute have been under arrest. There was no intention on the
"probable cause" as would justify the conduct of a part of the former to arrest him, deprive him of his
search without a warrant. Furthermore, the police liberty, or take him into custody. Prior to the issuance
authorities did not claim to have received any of the ticket, the period during which appellant was at
confidential report or tipped information that Rudy the police station may be characterized merely as
was carrying stolen cable wires in his vehicle which waiting time. In fact, as found by the trial court, the
could otherwise have sustained their suspicion. only reason they went to the police sub-station was
that appellant had been flagged down almost in front
It cannot likewise be said that the cable wires found in of that place. Hence, it was only for the sake of
Rudy's vehicle were in plain view, making convenience that they were waiting there. There was
its warrantless seizure valid. The cable wires were not no intention to take him into custody.
exposed to sight because they were placed in
sacks and covered with leaves. The articles were It also appears that, according to City Ordinance No.
neither transparent nor immediately apparent to the 98-012, which was violated by appellant, the failure to
police authorities. (Caballes v. CA, G. R. No. 136292, wear a helmet while riding a motorcycle is penalized
January 15, 2002) by a fine only. Under the Rules of Court, a warrant of
arrest need not be issued if the information or charge
Q: A police officer flagged down a rider for driving was filed for an offense penalized by a fine only. It
without a helmet. The police officer invited the may be stated as a corollary that neither can a
rider to come inside their sub-station located near warrantless arrest be made for such an offense.
the area. While issuing a citation ticket for
violation of a municipal ordinance, the police There being no valid arrest, the warrantless search
officer noticed that the accused was uneasy and that resulted from it was likewise illegal. (Rodel Luz vs.
kept on reaching something from his jacket. He People, G. R. No. 197788, February 29, 2012)
then asked the rider to take out the contents of his
jacket’s pocket. It turned out, the rider has in his 5. WARRANTLESS ARRESTS AND DETENTION
possession two plastic sachets of suspected shabu.
The RTC convicted him of illegal possession of An arrest can be made by a peace officer or a private
dangerous drugs since he had been lawfully person without a warrant in the following instances:
arrested for a traffic violation and then subjected
to a valid search, which led to the discovery on his 1. “In flagrante delicto” arrest: when (a) the person
person of two plastic sachets of shabu. On appeal, to be arrested must execute an overt act
the CA affirmed the RTC’s Decision. indicating he has just committed, is actually
committing, or is attempting to commit a crime;
In his appeal to the SC, the rider claims that there and (b) such overt act is done in the presence or
was no lawful search and seizure, because there within the view of the arresting officer (Valdez vs.
was no lawful arrest since he was not even issued People, G.R. No. 170180, 23 November 2007).
a citation ticket or charged with violation of the 2. “Hot pursuit” arrest: when (a) an offense has just
city ordinance. Even assuming that there was a been committed; and (b), the arresting officer has
valid arrest, he claims that he had never probable cause to believe based on personal
consented to the search conducted upon him. knowledge of facts or circumstances that the
Should the rider-appellant’s contention be person to be arrested has committed it. (Pestilos v
upheld? Generoso, G.R. No. 182601, November 10, 2014).
A: YES. There was no valid arrest of appellant. When
he was flagged down for committing a traffic NOTE: That a crime was in fact committed does
violation, he was not, ipso facto and solely for this not automatically bring the case under “hot
reason, arrested. pursuit” arrests”. There must be “probable cause”
and there must be “immediacy” in the time frame
Arrest is the taking of a person into custody in order from the commission of the crime.
that he or she may be bound to answer for the
commission of an offense. It is effected by an actual The existence of “probable cause” is the
restraint of the person to be arrested or by that “objectifier” or the determinant on how the
person’s voluntary submission to the custody of the arresting officer shall proceed on the facts and
one making the arrest. Neither the application of circumstances, within his personal knowledge,
actual force, manual touching of the body, or physical for purposes of determining whether the person
restraint, nor a formal declaration of arrest, is to be arrested has committed the crime. The
required. It is enough that there be an intention on the “probable cause” for arresting officers is distinct
part of one of the parties to arrest the other, and that from the “probable cause” for public prosecutors
there be an intent on the part of the other to submit, and judges.
105
IX. BILL OF RIGHTS
3. When the person to be arrested is a prisoner who 2. He is not suffering from violent insanity or any
has escaped from a penal establishment or place other ailment requiring compulsory confinement
where he is serving final judgment or is in a hospital (Reyes, 19th ed., 2017)
temporarily confined while his case is pending, or
has escaped while being transferred from one 6. EXCLUSIONARY RULE
confinement to another.
NOTE: Should an arrest be made not in accordance See succeeding discussion.

with the above rules, or otherwise put, if the arrest is
not lawfully warranted, such apprehension will be 7. EFFECTS OF UNREASONABLE SEARCHES AND
declared illegal, and the arresting officers may be SEIZURES
prosecuted for the crime of Arbitrary Detention under
Article 124 of the Revised Penal Code, which penalizes Any evidence obtained in violation of the right against
any public officer or employee who, without legal unreasonable searches and seizures shall be
grounds, detains a person. This is in addition to such inadmissible for any purpose in any proceeding. (Sec.
other crimes or offenses that may be committed in the 3 (2), Art. III, 1987 Constitution)
course of the illegal apprehension and detention.
NOTE: If the illegally seized object is a subject of
In cases falling under paragraphs (1) and (2) litigation, it will remain in custodia legis until the case
justifying warrantless arrests, the person arrested is terminated.
without a warrant shall be delivered to the nearest
police station for the conduct of inquest proceedings. 8. EFFECTS OF ILLEGAL DETENTION
When a person is lawfully arrested without a warrant
involving an offense which requires a preliminary Any public officer or employee who without legal
investigation, inquest by the public prosecutor will grounds, detains a person, shall suffer a penalty of
follow instead of a regular preliminary investigation, imprisonment. (Article 124, RPC)
pursuant to Section 7 of Rule 112 of the Revised Rules
of Criminal Procedure. Illegal detention
Waiver of Unlawful Arrests and Illegal Searches When a private individual makes an arrest without
complying with the requisites under Article 125, he
A waiver of an illegal arrest, however, is not a waiver shall be guilty of illegal detention under Articles 267
of an illegal search. Records have established that or 268 (Reyes, 19th ed., 2017, pg 54)
both the arrest and the search were made without a
warrant. While the accused has already waived his The arresting officer is duty-bound to release a
right to contest the legality of his arrest, he is not detained person if the maximum hours for detention
deemed to have equally waived his right to contest provided under Article 125 of the RPC has already
the legality of the search. (Alcaraz v. People, G.R. No. expired. Failure to cause the release may result in an
199042, November 17, 2014) offense. (Albior vs. Auguis, A.M. No. P-01-1472, June 26,
2002)
Detention
NOTE: The illegality of the detention is not cured by
Detention is defined as the actual confinement of a the subsequent filing of information in court because
person in an enclosure, or in any manner detaining a violation had already been committed before the
and depriving him of his liberty. (People vs. Gungon, information was filed. (Reyes, 19th ed., 2017, pg 59)
G.R. No. 119574, March 19, 1998). A person is detained
when he is in confinement or there is a restraint in his
person. (US vs. Cabanag, 8 Phil. 64, as cited in Reyes,
19th Ed., 2017).
Classes of Arbitrary Detention (A-Del2)
1. Arbitrary detention by detaining a person

without legal ground (Article 124, RPC)
2. Delay in the delivery of detained persons to the
proper judicial authorities (Article 125, RPC)
3. Delaying release (Article 126, RPC)
The detention of a person is without legal ground

when:
1. He has not committed a crime

Political Law
E. PRIVACY OF COMMUNICATION AND the computer system or other similar devices by or in
CORRESPONDENCE which data are recorded or stored. (Rule 2, Section 1,
Electronic Rules on Evidence)
The right to privacy is "to be free from unwarranted
publicity, or to live without unwarranted interference Related to privacy of communications is the Anti-
by the public in matters in which the public is not Wiretapping Act (R.A. 4200) which the Court has
necessarily concerned." To simply put, it is “the right declared as prohibiting the secret recording of
to be let alone.” (Spouses Hing v. Choachuy, G.R. No. conversations either through wiretapping or tape
179736, June 26, 2013) recording.
GR: Right to privacy is inviolable. [Sec. 3 (1), Art. III, Correspondence

1987 Philippine Constitution]
It is a communication by means of letters; or it may
XPNs: refer to the letters which pass between those who
have friendly or business relations. (Reyes, 19th ed.,
1. By lawful order of the court; and 2017, pg. 30)
2. Public safety or public order as prescribed by
law. Forms of Correspondence covered:
NOTE: Any evidence in violation of this right or the 1. Letters;

right against unreasonable searches and seizures shall 2. Messages;
be inadmissible for any purpose in any proceedings. 3. Telephone calls; and
4. Telegrams and the like.
Three Strands of the Right to Privacy
2. INTRUSION, WHEN AND HOW ALLOWED
1. Locational or Situational Privacy – Privacy felt in
physical space, such as that which may be The right to privacy is not absolute
violated by trespass and unwarranted search and
seizure. A limited intrusion into a person's privacy has long
2. Informational Privacy – Defined as the right of been regarded as permissible where that person is a
individuals to control information about public figure and the information sought to be elicited
themselves. from him or to be published about him constitute of a
3. Decisional Privacy – The right of individuals to public character.
make certain kinds of fundamental choices with Succinctly put, the right of privacy cannot be invoked
respect to their personal and reproductive to resist publication and dissemination of matters of
autonomy. (Vivares and Suzara v. St. Theresa’s public interest.
College, G.R. No. 202666, September 29, 2014)
The interest sought to be protected by the right of
1. CONCEPT OF COMMUNICATIONS, privacy is the right to be free from unwarranted
CORRESPONDENCE publicity, from the wrongful publicizing of the private
affairs and activities of an individual which are
Communication outside the realm of legitimate public concern. (Ayer
Productions Pty. Ltd. v. Capulong, G.R. No. 82380, April
Communication is an essential outcome of protected 29, 1988)
speech. Communication exists when:
NOTE: Probable cause in Sec. 2, Art. III should be
1. A speaker, seeking to signal others, uses followed for the court to allow intrusion. Particularity
conventional actions because he or she of description is needed for written correspondence,
reasonably believes that such actions will be but if the intrusion is done through wire-taps and the
taken by the audience in the manner intended; like, there is no need to describe the content.
and However, identity of the person or persons whose
communication is to be intercepted, and the offense
2. The audience so takes the actions. [I]n or offenses sought to be prevented, and the period of
communicative action[,] the hearer may respond the authorization given should be specified.
to the claims by either accepting the speech act’s
claims or opposing them with criticism or A regulation mandating the opening of mail or
requests for justification. (Diocese of Bacolod v correspondence of detainees is not violative of the
COMELEC, G.R. No. 205728, January 21, 2015, constitutional right to privacy
as penned by J. LEONEN)
There is no longer a distinction between an inmate
Information and Communication System and a detainee with regard to the reasonable
expectation of privacy inside his cell. The curtailment
This refers to a system of generating, sending, of certain rights is necessary to accommodate
receiving, storing or otherwise processing electronic institutional needs and objectives of prison facilities,
data messages or electronic documents and includes primarily internal security. As long as the letters are
107
IX. BILL OF RIGHTS
not confidential communication between the detainee other employees from accessing his computer files.
and his lawyer the detention officials may read them. (Pollo v. David, G.R. No. 181881, October 18, 2011)
But if the letters are marked confidential The Cybercrime Law does not regard as crime
communication between detainee and the lawyer, the private communications of sexual character
officer must not read them but only inspect them in between consenting adults
the presence of detainees. A law is not needed before
an executive officer may intrude into the rights of The deliberations of the Bicameral Committee of
privacy of a detainee or a prisoner. By the very fact of Congress on Sec.4(c)(i) of the law show a lack of
their detention, they have diminished expectations of intent to penalize a private showing between and
privacy rights. (Alejano v. Cabuay, G.R. No. 160792, among two private persons although that may be a
August 25, 2005) form of obscenity to some. The understanding of
those who drew up the cybercrime law is that the
Q: The CSC Chairperson Karina Constantino-David element of “engaging in a business” is necessary to
received a letter-complaint which said that an constitute the crime of illegal cybersex. The Act
employee of the CSC was a lawyer of an accused actually seeks to punish cyber prostitution, white
government employee having a pending case in slave trade, and pornography for favor and
the said agency. Acting on the matter, she ordered consideration. This includes interactive prostitution
the backing up of all files in the computers found and pornography, e.g., by webcam. (Disini v. Secretary
in the Public Assistance and Liaison Division of Justice, G.R. No. 203335, February 11, 2014)
(PALD) of which Briccio Pollo was the Officer-in-
Charge. Drafts of legal pleadings were found in Right of privacy in social media
Pollo’s computer. Thereafter, he was charged with
Dishonesty, Grave Misconduct, Conduct To address concerns about privacy, but without
Prejudicial to the Best Interest of the Service and defeating its purpose, Facebook was armed with
Violation of R.A. No. 6713. On his part, Pollo different privacy tools designed to regulate the
attacks the backing up of his files as it was done accessibility of a user’s profile as well as information
without his knowledge and consent, thus uploaded by the user. It is through the availability of
infringing on his constitutional right to privacy. Is said privacy tools that many OSN (Online Social
he correct? Network) users are said to have a subjective
expectation that only those to whom they grant access
A: NO. Public employers have an interest in ensuring to their profile will view the information they post or
that their agencies operate in an effective and efficient upload thereto.
manner, and the work of these agencies inevitably
suffers from the inefficiency, incompetence, This, however, does not mean that any Facebook user
mismanagement, or other work-related misfeasance automatically has a protected expectation of privacy
of its employees. in all of his or her Facebook activities.
Indeed, in many cases, public employees are Before one can have an expectation of privacy in his
entrusted with tremendous responsibility, and the or her OSN activity, it is first necessary that said user,
consequences of their misconduct or incompetence to in this case the children of petitioners, manifest the
both the agency and the public interest can be severe. intention to keep certain posts private, through the
In contrast to law enforcement officials, therefore, employment of measures to prevent access thereto or
public employers are not enforcers of the criminal to limit its visibility. And this intention can materialize
law; instead, public employers have a direct and in cyberspace through the utilization of the OSN’s
overriding interest in ensuring that the work of the privacy tools. In other words, utilization of these
agency is conducted in a proper and efficient manner. privacy tools is the manifestation, in cyber world, of
the user’s invocation of his or her right to
In our view, therefore, a probable cause requirement informational privacy.
for searches of the type at issue here would impose
intolerable burdens on public employers. The delay in Therefore, a Facebook user who opts to make use of a
correcting the employee misconduct caused by the privacy tool to grant or deny access to his or her post
need for probable cause rather than reasonable or profile detail should not be denied the
suspicion will be translated into tangible and often informational privacy right which necessarily
irreparable damage to the agency's work, and accompanies said choice. Otherwise, using these
ultimately to the public interest. privacy tools would be a feckless exercise, such that if,
for instance, a user uploads a photo or any personal
Besides, Pollo failed to prove that he had an actual information to his or her Facebook page and sets its
(subjective) expectation of privacy either in his office privacy level at “Only Me” or a custom list so that only
or government-issued computer which contained his the user or a chosen few can view it, said photo would
personal files. He did not allege that he had a separate still be deemed public by the courts as if the user
enclosed office which he did not share with anyone, or never chose to limit the photo’s visibility and
that his office was always locked and not open to accessibility. Such position, if adopted, will not only
other employees or visitors. Neither did he allege that strip these privacy tools of their function but it would
he used passwords or adopted any means to prevent also disregard the very intention of the user to keep

Political Law
said photo or information within the confines of his or authorized by all the parties to any private
her private space. (Vivares v. St. Theresa’s College, G.R. communication or spoken word;
No. 202666, September 29, 2014) 2. To knowingly possess any tape record, wire
record, disc record, or any other such record, or
Reasonable expectation of privacy test copies thereof, of any communication or spoken
word secured either before or after the effective
This test determines whether a person has a date of this Act in the manner prohibited by this
reasonable expectation of privacy and whether the law;
expectation has been violated. 3. To replay the same for any other person or
persons;
In Ople v. Torres, we enunciated that “the 4. To communicate the contents thereof, either
reasonableness of a person’s expectation of privacy verbally or in writing; or
depends on a two-part test: 5. To furnish transcriptions thereof, whether
complete or partial, to any other person.
1. Whether, by his conduct, the individual has
exhibited an expectation of privacy; and Under Sec. 3 of RA 4200, a peace officer, who is
2. This expectation is one that society recognizes as authorized by a written order of the Court, may
reasonable.” execute any of the acts declared to be unlawful in Sec.
3. Customs, community norms, and practices may, 1 and Sec. 2 of the said law in cases involving the
therefore, limit or extend an individual’s crimes of:
“reasonable expectation of privacy.” Hence, the
reasonableness of a person’s expectation of 1. Treason;
privacy must be determined on a case-to-case 2. Espionage;
basis since it depends on the factual 3. Provoking war and disloyalty in case of war;
circumstances surrounding the case. (Ople v. 4. Piracy and mutiny in the high seas;
Torres, G.R. No. 127685, July 23, 1998) 5. Rebellion (conspiracy and proposal and inciting
to commit included);
Q: Sps. Hing were owner of a parcel of land and 6. Sedition (conspiracy, inciting included)
Aldo Inc. constructed an auto-repair shop building 7. Kidnapping; and
on the adjacent lot. Aldo filed a case for injunction 8. Violations of CA 616 (punishing espionage and
and damages claiming that the Sps. Hing were other offenses against national security).
constructing a fence without valid permit and that
the construction would destroy their building. The The use of telephone extension is not a violation of
case was dismissed for failure of Aldo to R.A. 4200 (Anti-Wire Tapping Law). The use of a
substantiate its allegations. Aldo Inc. then telephone extension to overhear a private
installed two cameras on their building facing the conversation is neither among those devices, nor
property of the Sps. Hing. The spouses contend considered as a similar device, prohibited under the
that the installation of the cameras was an law. (Gaanan v. IAC, G.R. No. L-69809 October 16, 1986)
invasion of their privacy. Is there a limitation on
the installation of surveillance cameras? Q: Ester S. Garcia, in a confrontation with Socorro
Ramirez, allegedly vexed, insulted, and humiliated
A: YES. In this day and age, video surveillance Ramirez in a "hostile and furious mood" and in a
cameras are installed practically everywhere for the manner offensive to Ramirez’s dignity and
protection and safety of everyone. The installation of personality. Ramirez then filed a civil case for
these cameras, however, should not cover places damages against Garcia. In support of her claim,
where there is reasonable expectation of privacy, Ramirez produced a verbatim transcript of the
unless the consent of the individual, whose right to event. The transcript on which the civil case was
privacy would be affected, was obtained. Nor should based was culled from a tape recording of the
these cameras be used to pry into the privacy of confrontation.
another’s residence or business office as it would be
no different from eavesdropping, which is a crime As a result of Ramirez’s recording of the event,
under Republic Act No. 4200 or the Anti-Wiretapping Garcia filed a criminal case for violation of RA
Law. (Sps. Hing v. Choachuy, G.R. No. 179736, June 26, 4200, alleging that the act of secretly taping the
2013) confrontation was illegal. Ramirez contends that
the facts charged do not constitute an offense. Was
Prohibited Acts under the Anti-Wire Tapping Law there a violation of R.A. 4200?
(R.A. No. 4200) (2009 BAR)
A: YES. The unambiguity of the express words of the
1. To tap any wire or cable, or by using any other provision, taken together with the above-quoted
device or arrangement, to secretly overhear, deliberations from the Congressional Record,
intercept, or record such communication or therefore plainly supports the view held by the
spoken word by using a device commonly known respondent court that the provision seeks to penalize
as a dictaphone or dictagraph or detectaphone or even those privy to the private communications.
walkie-talkie or tape recorder, or however
otherwise described by any person, not being
109
IX. BILL OF RIGHTS
Where the law makes no distinctions, one does not
distinguish. Exclusionary rule (“The Fruit of the Poisonous
Tree Doctrine”)
The nature of the conversations is immaterial to a
violation of the statute. The substance of the same This rule prohibits the issuance of general warrants
need not be specifically alleged in the information. that encourage law enforcers to go on fishing
The mere allegation that an individual made a secret expeditions. Evidence obtained through unlawful
recording of a private communication by means of a seizures should be excluded as evidence because it is
tape recorder would suffice to constitute an offense "the only practical means of enforcing the
under Section 1 of R.A. 4200. As the Solicitor General constitutional injunction against unreasonable
pointed out in his COMMENT before the respondent searches and seizures." It ensures that the
court: "Nowhere (in the said law) is it required that fundamental rights to one’s person, houses, papers,
before one can be regarded as a violator, the nature of and effects are not lightly infringed upon and are
the conversation, as well as its communication to a upheld. (PP v Romana, G.R. No. 200334, July 30, 2014)
third person should be professed."
GR: Any evidence obtained in violation of the
Constitution shall be inadmissible for any purpose in
The phrase "private communication" in Section 1 of any proceeding. [Sec. 3 (2), Art. III, 1987 Constitution)
R.A. 4200 is broad enough to include verbal or non-
verbal, written or expressive communications of XPNS:
"meanings or thoughts" which are likely to include the
emotionally-charged exchange between petitioner 1. In the absence of any governmental interference,
and private respondent, in the privacy of the latter's the protection guaranteed by the Constitution
office. (Ramirez v. CA, G.R. No. 93833, September 28, cannot be invoked against the State. (People v.
1995) Marti, G.R. No. 78109, January 18, 1991)
2. It may be used in judicial or administrative action
Q: DOJ Secretary Raul Gonzales warned that that may be filed against the erring officer. (Cruz
reporters who had copies of the compact disc (CD) and Cruz, Constitutional Law, 2015 Ed, p. 330)
and those broadcasting or publishing its contents 3. There is an express or implied waiver.
could be held liable under the Anti-Wiretapping
Act. Secretary Gonzales also ordered the NBI to go NOTE: If the accused did not raise the issue of
after media organizations “found to have caused admissibility against him before arraignment, such
the spread, the playing and the printing of the omission constituted a waiver of protection. (People v.
contents of a tape” of an alleged wiretapped Exala, G.R. No. 76005, April 23, 1993)
conversation involving the President about fixing
votes in 2004 national elections. Can the DOJ Q: Can the exclusionary rule be applied as against
Secretary use the Anti-Wiretapping act as a private individuals who violate the right to
regulatory measure to prohibit the media from privacy?
publishing the contents of the CD?
A: YES. Although generally, the Bill of Rights can only
A: NO. The Court ruled that not every violation of a be invoked against violations of the government, the
law will justify straitjacketing the exercise of freedom Court has recognized an instance where it may also be
of speech and of the press. There are laws of great applied as against a private individual. Letters of a
significance but their violation, by itself and without husband’s paramour kept inside the husband’s
more, cannot support suppression of free speech and drawer, presented by the wife in the proceeding for
free press. legal separation, is not admissible in evidence The
reason is that marriage does not divest one of his/her
In fine, violation of law is just a factor, a vital one to be right to privacy of communication. (Zulueta v. CA, G.R.
sure, which should be weighed in adjusting whether No. 107383, February 20, 1996)
to restrain freedom of speech and of the press.
The totality of the injurious effects of the violation to F. FREEDOM OF SPEECH AND EXPRESSION
private and public interest must be calibrated in light
of the preferred status accorded by the Constitution No law shall be passed abridging the freedom of
and by related international covenants protecting speech, of expression, or of the press, or of the right of
freedom of speech and of the press. the people peaceably to assemble and petition the
government for redress of grievances. (Art. III, Sec. 4,
By all means, violations of law should be vigorously 1987 Philippine Constitution)
prosecuted by the State for they breed their own evil
consequence. But to repeat, the need to prevent their 1. CONCEPT OF FREEDOM OF SPEECH AND
violation cannot per se trump the exercise of EXPRESSION
free speech and free press, a preferred right whose
breach can lead to greater evils. (Chavez v. Gonzales,
G.R. No. 168338, February 15, 2008) People are kept from any undue interference from the
government in their thoughts and words. It flows
3. EXCLUSIONARY RULE from the philosophy that the authorities do not
necessarily know what is best for the people.

Political Law
Scope of protected freedom of expression under distributor, with the intent to limit or restrict
the Constitution circulation. These modes of interfering with the
freedom to circulate have been constantly
1. Freedom of speech; stricken down as unreasonable limitations on
2. Freedom of the press; press freedom. (Chavez v. Gonzales G.R. No.
3. Right of assembly and to petition the 168338, February 15, 2008) (2014 BAR)
government for redress of grievances;
4. Right to form associations or societies not NOTE: There need not be total suppression; even
contrary to law; restriction of circulation constitutes censorship.
5. Freedom of religion; and
6. Right to access to information on matters of Political Speech
public concern.
Political speech is one of the most important
Speech is not limited to vocal communication. expressions protected by the Fundamental Law “and
Conduct is treated as a form of speech sometimes have to be protected at all costs for the sake of
referred to as “symbolic speech, such that when democracy." (GMA Network v. COMELEC, G.R. No.
speech and non-speech elements are combined in the 205357, September 2, 2014).
same course of conduct, the “communicative element”
of the conduct may be “sufficient to bring into play the Political speech is motivated by the desire to be heard
right to freedom of expression the form of expression and understood, to move people to action. It is
is just as important as the information conveyed that concerned with the sovereign right to change the
it forms part of the expression. (Diocese of Bacolod v. contours of power whether through the election of
Commission on Elections, G.R. No. 205728, January 21, representatives in a republican government or the
2015) revision of the basic text of the Constitution. We
evaluate restrictions on freedom of expression from
Protected speech includes every form of expression, their effects. We protect both speech and medium
whether oral, written, tape or disc recorded. It because the quality of this freedom in practice will
includes motion pictures as well as symbolic speech define the quality of deliberation in our democratic
such as the wearing of an armband as a symbol of society. (Diocese of Bacolod v. COMELEC, G. R. No.
protest. Peaceful picketing comprises the meaning of 205728, January 21, 2015)
speech.
a. CONTINUUM OF THOUGHT, SPEECH,
Four aspects of freedom of speech and press EXPRESSION, AND SPEECH ACTS
1. Freedom from censorship or prior restraint – see Speech is not limited to vocal communication.
discussion on prior restraint. Conduct is treated as a form of speech sometimes
referred to as ‘symbolic speech,’" such that "‘when
2. Freedom from subsequent punishment to ‘speech’ and ‘nonspeech’ elements are combined in
publication – see discussion on subsequent the same course of conduct,’ the ‘communicative
punishment. element’ of the conduct may be ‘sufficient to bring
into play the [right to freedom of expression].
3. Freedom of access to information regarding
matters of public interest – Official papers, reports The right to freedom of expression, thus, applies to
and documents, unless held confidential and the entire continuum of speech from utterances made
secret by competent authority in the public to conduct enacted, and even to inaction itself as a
interest, are public records. As such, they are symbolic manner of communication. (Diocese of
open and subject to regulation, to the scrutiny of Bacolod v COMELEC, G.R. No. 205728, January 21,
the inquiring reporter or editor. Information 2015)
obtained confidentially may be printed without
specification of the source; and that source is B. PURPOSES OF FREE SPEECH DOCTRINES
closed to official inquiry, unless the revelation is
deemed by the courts, or by a House or The Constitution provides that “sovereignty resides in
committee of the Congress, to be vital to the the people” who manifest it regularly through their
security of the State. suffrages and, more frequently and generally, by the
assertion of their freedom of expression. This
4. Freedom of circulation – Refers to the sovereignty would be negated if they were denied the
unhampered distribution of newspapers and opportunity to participate in the shaping of public
other media among customers and among the affairs through the arbitrary imposition upon them of
general public. It may be interfered with in the ban of silence. (Cruz, Constitutional Law, page 472,
several ways. The most important of these is 2015 edition)
censorship. Other ways include requiring a permit
or license for the distribution of media and C. BALANCE BETWEEN UNBRIDLED EXPRESSION
penalizing dissemination of copies made without AND LIBERTY
it, and requiring the payment of a fee or tax,
imposed either on the publisher or on the
111
IX. BILL OF RIGHTS
Freedom to express a person’s sentiments and belief the “aggregate-based” airtime limits – leveling the
does not grant one the license to nullify the honor and playing field – does not constitute a compelling state
integrity of another. Any sentiment must be expressed interest which would justify such a substantial
within the proper forum and with proper regard for restriction on the freedom of candidates and political
the right of others. (Soriano v. Laguardia, G.R. 164785, parties to communicate their ideas, philosophies,
March 15, 2010) platforms and programs of government. And, this is
specially so in the absence of a clear-cut basis for the
Q: Social Weather Station (SWS) questions imposition of such a prohibitive measure. In this
COMELEC Resolution 9674 requiring them to particular instance, what the COMELEC has done is
disclose the names of commissioners and/or analogous to letting a bird fly after one has clipped its
payors of election surveys on the ground that it is wings.
a curtailment of free speech. Decide.
It is also particularly unreasonable and whimsical to
A: SWS is wrong. The names of those who commission adopt the aggregate-based time limits on broadcast
or pay for election surveys, including subscribers of time when we consider that the Philippines is not only
survey firms, must be disclosed pursuant to Section composed of so many islands. There are also a lot of
5.2(a) of the Fair Election Act. This requirement is a languages and dialects spoken among the citizens
valid regulation in the exercise of police power and across the country. Accordingly, for a national
effects the constitutional policy of guaranteeing equal candidate to really reach out to as many of the
access to opportunities for public service. Section electorates as possible, then it might also be necessary
5.2(a)’s requirement of disclosing subscribers neither that he conveys his message through his
curtails petitioners’ free speech rights nor violates the advertisements in languages and dialects that the
constitutional proscription against the impairment of people may more readily understand and relate to. To
contracts. Concededly, what are involved here are not add all of these airtimes in different dialects would
election propaganda per se. Election surveys, on their greatly hamper the ability of such candidate to
face, do not state or allude to preferred candidates. express himself – a form of suppression of his political
When published, however, the tendency to shape speech.
voter preferences comes into play. In this respect,
published election surveys partake of the nature of COMELEC itself states that “[t]elevision is arguably
election propaganda. It is then declarative speech in the most cost-effective medium of dissemination.
the context of an electoral campaign properly subject Even a slight increase in television exposure can
to regulation. Hence, Section 5.2 of the Fair Election significantly boost a candidate's popularity, name
Act’s regulation of published surveys. recall and electability.” If that be so, then drastically
curtailing the ability of a candidate to effectively reach
While it does regulate expression (i.e., petitioners’ out to the electorate would unjustifiably curtail his
publication of election surveys), it does not go so far freedom to speak as a means of connecting with the
as to suppress desired expression. There is neither people.
prohibition nor censorship specifically aimed at
election surveys. The freedom to publish election Finally on this matter, it is pertinent to quote what
surveys remains. All Resolution No. 9674 does is Justice Black wrote in his concurring opinion in the
articulate a regulation as regards the manner of landmark Pentagon Papers case: “In the First
publication, that is, that the disclosure of those who Amendment, the Founding Fathers gave the free press
commissioned and/or paid for, including those the protection it must have to fulfill its essential role
subscribed to, published election surveys must be in our democracy. The press was to serve the
made. (Social Weather Station v. COMELEC, G.R. No. governed, not the governors. The Government's
208062, April 7, 2015) power to censor the press was abolished so that the
press would remain forever free to censure the
Q: COMELEC Resolution No. 9615 deviated from Government. The press was protected so that it could
the previous COMELEC resolutions relative to the bare the secrets of government and inform the people.
airtime limitations on political advertisements. It Only a free and unrestrained press can effectively
computes the airtime on an aggregate basis expose deception in government.” (GMA Network v.
involving all the media of broadcast COMELEC, G.R. No. 205357, September 2, 2014)
communications compared to the past where it
was done on a per station basis. The result of Q: Members of the faculty of the University of the
which is the reduction of the allowable minutes Philippines College of Law published a statement
within which candidates and political parties on the allegations of plagiarism and
would be able to campaign through the air. Did misrepresentation relative to a certain Court’s
COMELEC commit grave abuse of discretion in decision. Essentially, the faculty calls for the
issuing said resolution? resignation of Justice Mario Pascual in the face of
allegations of plagiarism in his work. Does this act
A: YES. The assailed rule on “aggregate-based” airtime of the faculty members squarely fall under the
limits is unreasonable and arbitrary as it unduly freedom of speech and expression?
restricts and constrains the ability of candidates and
political parties to reach out and communicate with A: NO. The publication of a statement by the faculty of
the people. Here, the adverted reason for imposing the University of the Philippines College regarding the

Political Law
allegations of plagiarism and misrepresentation in the so long as men fight and that no court could
Supreme Court was totally unnecessary, uncalled for regard them as protected by any constitutional
and a rash act of misplaced vigilance. While most right;
agree that the right to criticize the judiciary is critical 2. The primary requirements of decency may be
to maintaining a free and democratic society, there is enforced against obscene publications; and
also a general consensus that healthy criticism only
3. The security of community life may be protected
goes so far. Many types of criticism leveled at the
against incitements to acts of violence and the
judiciary cross the line to become harmful and
irresponsible attacks. These potentially devastating overthrow by force of orderly government.
attacks and unjust criticism can threaten the
Provisions of the Revised Penal Code on Libel and
independence of the judiciary. (Re: Letter of the UP
the provision of the Cyber Crime Law on cyber
Law Faculty entitled “Restoring Integrity: A Statement
libel are constitutional
by the Faculty of the University of the Philippines
College of Law on the Allegations of Plagiarism and
Libel is not a constitutionally protected speech and
Misrepresentation in the Supreme Court.”, A.M. No. 10-
that the government has an obligation to protect
10-4-SC, October 19, 2010)
private individuals from defamation. Indeed, cyber
libel is actually not a new crime since Art. 353, in
2. TYPES OF REGULATION
relation to Art. 355 of the penal code, already
punishes it. In effect, Sec. 4(c)(4) merely affirms that
a. PRIOR RESTRAINT AND SUBSEQUENT
online defamation constitutes “similar means” for
PUNISHMENT committing libel. Furthermore, the United Nations
Human Rights Committee did not actually enjoin the
It refers to the official government restrictions on the Philippines to decriminalize libel. It simply suggested
press or other forms of expression in advance of that defamation laws be crafted with care to ensure
actual publication or dissemination. (Bernas, The 1987 that they do not stifle freedom of expression. Free
Philippine Constitution A Comprehensive Reviewer, speech is not absolute. It is subject to certain
2006) restrictions, as may be necessary and as may be
provided by law. (Disini v. Secretary of Justice, G.R. No.
NOTE: There need not be total suppression. 203335 February 11, 2014)
Freedom from prior restraint is largely freedom from NOTE: In her dissenting and concurring opinion, Chief
government censorship of publications, whatever the Justice Maria Lourdes Sereno posits that the ponencia
form of censorship, and regardless of whether it is correctly holds that libel is not a constitutionally
wielded by the executive, legislative or judicial branch protected conduct. It is also correct in holding that,
of the government. Thus, it precludes governmental generally, penal statutes cannot be invalidated on the
acts that required approval of a proposal to publish; ground that they produce a “chilling effect,” since by
licensing or permits as prerequisites to publication their very nature, they are intended to have an in
including the payment of license taxes for the terrorem effect (benign chilling effect) to prevent a
privilege to publish; and even injunctions against repetition of the offense and to deter criminality. The
publication. Even the closure of the business and “chilling effect” is therefore equated with and justified
printing offices of certain newspapers, resulting in the by the intended in terrorem effect of penal provisions.
discontinuation of their printing and publication, are
deemed as previous restraint or censorship. Any law Thus, when Congress enacts a penal law affecting free
or official that requires some form of permission to be speech and accordingly imposes a penalty that is so
had before publication can be made, commits an discouraging that it effectively creates an “invidious
infringement of the constitutional right, and remedy chilling effect,” thus impeding the exercise of speech
can be had at the courts. (Chavez v. Gonzales, G.R. No. and expression altogether, then there is a ground to
168338, February 15, 2008) invalidate the law. In this instance, it will be seen that
the penalty provided has gone beyond the in terrorem
Exceptions to the prohibition of prior restraint (P- effect needed to deter crimes and has thus reached
F-A-D) the point of encroachment upon a preferred
constitutional right.
1. Pornography;
2. False or Misleading Advertisement; Two kinds of chilling effect
3. Advocacy of Imminent Lawless Actions; and
4. Danger to National Security. (Soriano v. BENIGN CHILLING INVIDIOUS CHILLING
Laguardia, G.R. No. 165636, April 29, 2009) EFFECT EFFECT
May be caused by penal May be caused by penal
Near v. Minnesota, 283 US 697 (1931) adds the statutes which are laws affecting free
following to the enumeration: intended to have an in speech and accordingly
terrorem effect to imposes a penalty that is
1. When a nation is at war, many things that might prevent a repetition of so discouraging thus
be said in time of peace are such a hindrance to the offense and to deter impeding the exercise of
its effort that their utterance will not be endured criminality. The chilling speech and expression
113
IX. BILL OF RIGHTS
effect is equated with altogether. 2. Obscenity – In Pita v. Court of Appeals, the

and justified by the Supreme Court declared that the determination
intended in terrorem of what is obscene is a judicial function. (Pita v.
effect of penal CA, G.R. No. 80806, October 5, 1989)
provisions. 3. Criticism of Official Conduct – In New York Times
Permissible Not Permissible v. Sullivan, 376 US 254, March 9, 1964, the
constitutional guarantee requires a federal rule
that prohibits a public official from recovering
Q: Nestor posted on Facebook that Juan Dela Cruz, damages for a defamatory falsehood relating to
a married person, has an illicit affair with Maria. his official conduct unless he proves that the
Dexter liked this post and commented: “Yes! This statement was made with actual malice.
is true! What an immoral thing to do?!” This post
was likewise liked by 23 people. Juan Dela Cruz 4. Rights of students to free speech in school premises
filed a case for online libel against Nestor, Dexter are not absolute – The school cannot suspend or
and 23 other people who liked the post using as expel a student solely on the basis of the articles
his basis Sec. 5 of the Cybercrime law which he has written except when such article
penalizes any person who willfully abets or aids in materially disrupts class work or involves
the commission of any of the offenses enumerated substantial disorder or invasion of rights of
in the said law. Is this provision of the law others. (Miriam College Foundation v. CA, GR
constitutional? 127930, December 15, 2000)
A: NO. Section 5 with respect to Section 4(c)(4) is Doctrine of Fair Comment

unconstitutional. Its vagueness raises apprehension
on the part of internet users because of its obvious GR: Every discreditable public imputation is false
chilling effect on the freedom of expression, especially because every man is presumed innocent, thus, every
since the crime of aiding or abetting ensnares all the false imputation is deemed malicious, hence,
actors in the cyberspace front in a fuzzy way. What is actionable.
more, as the petitioners point out, formal crimes such
as libel are not punishable unless consummated. In XPN: When the discreditable imputation is directed
the absence of legislation tracing the interaction of against a public person in his public capacity, such is
netizens and their level of responsibility such as in not necessarily actionable.
other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited NOTE: For it to be actionable, it must be shown that
Commercial Communications, and Section 4(c)(2) on either there is a false allegation of fact or comment
Child Pornography, cannot stand scrutiny. (Ibid.) based on a false supposition.
Freedom from subsequent punishment XPN to the XPN: If the comment is an

expression of opinion, based on established
A limitation on the power of the State from imposing a facts; it is immaterial whether the opinion
punishment after publication or dissemination. happens to be mistaken, as long as it might
Without this assurance, the individual would hesitate reasonably be inferred from facts. (Borjal v.
to speak for fear that he might be held to account for CA, G.R. No. 126466, January 14, 1999)
his speech, or that he might be provoking the
vengeance of the officials he may have criticized. Freedom of the Press
(Nachura, Outline Reviewer in Political Law, p. 152)
The guaranty of freedom to speak is useless without
This second basic prohibition of the free speech and the ability to communicate and disseminate what is
press clause prohibits systems of subsequent said. And where there is a need to reach a large
punishment which have the effect of unduly curtailing audience, the need to access the means and media for
expression. such dissemination becomes critical. This is where the
press and broadcast media come along.
NOTE: Freedom from subsequent punishment is not
absolute; it may be properly regulated in the interest In the ultimate analysis, when the press is silenced, or
of the public. The State may validly impose penal otherwise muffled in its undertaking of acting as a
and/or administrative sanctions such as in the sounding board, the people ultimately would be the
following: victims. (GMA Network v. COMELEC, G.R. No. 205357,
September 2, 2014)
1. Libel – A public and malicious imputation of a
crime, vice or defect, real or imaginary or any act Q: A national daily newspaper carried an exclusive
omission, status tending to cause dishonor, report stating that Senator Bal Bass received a
discredit or contempt of a natural or judicial house and lot located at YY Street, Makati, in
person, or blacken the memory of one who is consideration for his vote to cut cigarette taxes by
dead. (Art 353, Revised Penal Code) 50%. The Senator sued the newspaper, its
reporter, editor and publisher for libel, claiming
the report was completely false and malicious.

Political Law
According to the Senator, there is no YY Street in and threaten the doctrine of judicial independence.
Makati, and the tax cut was only 20%. He claimed (In Re: Allegations Contained in the Columns of Mr.
one million pesos in damages. The defendants Amado P. Macasaet, A.M. No. 07-09-13-SC, August 8,
denied "actual malice," claiming privileged 2008)
communication and absolute freedom of the press
to report on public officials and matters of public b. CONTENT-BASED AND CONTENT-NEUTRAL
concern. If there was any error, the newspaper REGULATIONS
said it would publish the correction promptly. Are
the defendants liable for damages?
CONTENT-NEUTRAL CONTENT-BASED
A: NO. Since Senator Bal Bass is a public person and REGULATION RESTRAINT
the questioned imputation is directed against him in
his public capacity, in this case actual malice means Merely concerned with The restriction is based on
the statement was made with knowledge that it was the incidents of the the subject matter of the
false or with reckless disregard of whether it was false speech, or one that utterance or speech. The
or not. Since there is no proof that the report was merely controls the cast of the restriction
published with knowledge that it is false or with time, place or manner, determines the test by
reckless disregard of whether it was false or not, the and under well-defined which the challenged act
defendants are not liable for damages. (Borjal v. CA, standards. is assailed with.
G.R. No. 126466, January 14, 1999)
No presumption of There is presumption of
The Borjal doctrine is not applicable in a case unconstitutionality. unconstitutionality.
where the allegations against a public official
were false and no effort was exerted to verify the
information before publishing his articles.
NOTE: The burden of
Types of Privileged Communications proof to overcome the
presumption of
1. Absolutely Privileged –those which are not unconstitutionality is with
actionable even if the actor acted in bad faith the government.
e.g.: Art. VI, Sec 11, of the 1987
Test to be used: Test to be used: Clear and
Constitution, which exempts a member
Intermediate Present Danger.
of Congress from liability of any speech
Approach.
or debate in the Congress or in any
Committee thereof.
Q: As part of the Catholic Church’s opposition to
2. Qualifiedly Privileged - defamatory imputations are the Reproductive Health Law, the Diocese of
not actionable unless found to have been made Bacolod put up a 6’ by 10’ tarpaulin with the
without good intention or justifiable motive. To this heading “Conscience Vote”, identifying the
genre belong “private communications” and “fair and candidates who voted for (Team Patay) or against
true report without any comments or remarks.” the law (Team Buhay). The COMELEC advised the
(Borjal v. CA, G.R. No. 126466, January 14, 1999) Diocese to pull down the same since it is beyond
the maximum size of 2’ by 3’. The Church refused,
Q: Wincy Diez penned several articles in Malaya alleging that the regulation is against their
newspaper regarding alleged bribery incidents in freedom of expression. COMELEC argue that the
the Supreme Court and characterizing the justices tarpaulin is election propaganda as it endorsed
as “thieves” and “a basket of rotten apples.” The candidates who voted against the RH Law and
Court En Banc required Wincy to explain why no rejected those who voted for it. As such, it is
sanction should be imposed on her for indirect subject to regulation by COMELEC under its
contempt of court. Did the order of the Court constitutional mandate. Also, it avers that the
violate freedom of the press? regulation is content-based. Are the contentions of
COMELEC proper?
A: NO. While freedom of speech, of expression and of
the press are at the core of civil liberties and have to A: NO. While the tarpaulin may influence the success
be protected at all costs for the sake of democracy, or failure of the named candidates and political
these freedoms are not absolute. For, if left unbridled, parties, this does not necessarily mean it is an election
they have the tendency to be abused and can translate propaganda. The tarpaulin was not paid for or posted
to licenses, which could lead to disorder and anarchy. "in return for consideration" by any candidate,
Erika crossed the line, as hers are baseless scurrilous political party, or party-list group.
attacks which demonstrate nothing but an abuse of
press freedom. They leave no redeeming value in Size limitations during elections hit at a core part of
furtherance of freedom of the press. They do nothing expression. The content of the tarpaulin is not easily
but damage the integrity of the High Court, undermine divorced from the size of its medium. Content-based
the faith and confidence of the people in the judiciary, regulation bears a heavy presumption of invalidity,
115
IX. BILL OF RIGHTS
and is measured against the clear and present danger activities.
rule.
Even with the clear and present danger test,

COMELEC failed to justify the regulation. There is no
compelling and substantial state interest endangered
by the posting of the tarpaulins to justify curtailment
of the right of freedom of expression. The size of the
tarpaulin does not affect anyone else’s constitutional
rights. (Diocese of Bacolod v. COMELEC, G.R. No.
205728, January 21, 2015, penned by J. LEONEN)
c. INCITEMENT AND ADVOCACY

Q: Is facial challenge to a penal statute allowed?
INCITEMENT TO ADVOCACY OF
COMMIT A CRIME LAWLESS ACTION A: NO. Facial challenges are not allowed in penal
Part of unprotected One of the speeches that statutes. Criminal statutes have general in
speech wherein a person may be suppressed. terrorem effect resulting from their very existence,
becomes criminally (Chavez v Gonzales, 545 and, if facial challenge is allowed for this reason
liable by inciting a SCRA 441) alone, the State may well be prevented from enacting
person to commit a laws against socially harmful conduct. In the area of
crime. criminal law, the law cannot take chances as in the
area of free speech. (KMU v. Ermita, G.R. No. 17855,
d. SPECIFICITY OF REGULATION AND October 5, 2010)
OVERBREADTH DOCTRINE
NOTE: A litigant cannot thus successfully mount a
facial challenge against a criminal statute on either
Facial Challenge (2015 BAR) vagueness or overbreadth grounds.
A challenge to a statute in court, in which the plaintiff The rule established in our jurisdiction is, only
alleges that the legislation is always, and under all statutes on free speech, religious freedom, and other
circumstances, unconstitutional, and therefore void. fundamental rights may be facially challenged.
(Southern Hemisphere Engagement Network, Inc. v.
Facial challenge is allowed to be made to a vague Anti-Terrorism Council, G.R. No. 178552, October 5,
statute and to one which is overbroad because of 2010)
possible “chilling effect” upon protected speech. The
theory is that “[w]hen statutes regulate or proscribe Overbreadth Doctrine (2010, 2014 BAR)
speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a The overbreadth doctrine decrees that a
single prosecution, the transcendent value to all governmental purpose to control or prevent activities
society of constitutionally protected expression is constitutionally subject to state regulations may not
deemed to justify allowing attacks on overly broad be achieved by means which sweep unnecessarily
statutes with no requirement that the person making broadly and thereby invade the area of protected
the attack demonstrate that his own conduct could freedoms. (Southern Hemisphere Engagement
not be regulated by a statute drawn narrow specifity.” Network, Inc. v. Anti-Terrorism Council, G.R. No.
(Estrada v. Sandiganbayan GR. 148560, November 19, 178552, October 5, 2010)
2001)
NOTE: The application of the overbreadth doctrine is
Facial Challenge vs. “As-applied” Challenge limited to a facial kind of challenge and, owing to the
given rationale of a facial challenge, applicable only to
FACIAL CHALLENGE “AS-APPLIED” free speech cases.
CHALLENGE
An examination of the entire Considers The most distinctive feature of the overbreadth
only extant facts technique is that it marks an exception to some of the
law, pinpointing its flaws
affecting real litigan usual rules of constitutional litigation.
and defects, not only on the
ts (Southern
basis of its actual operation Ordinarily, a particular litigant claim that a statute is
Hemisphere
to the parties, but also on unconstitutional as applied to him or her; if the
Engagement
the assumption or litigant prevails, the courts carve away the
Network, Inc. v. Anti-
prediction that its very unconstitutional aspects of the law by invalidating its
Terrorism Council,
improper applications on a case-to-case basis.
existence may cause others G.R. No. 178552,
not before the court to October 5, 2010)
Moreover, challengers to a law are not permitted to
refrain from constitutionally raise the rights of the third parties and can only assert
protected speech or their own interests. In overbreadth analysis, those

Political Law
rules give way; challenges are permitted to raise the His statements could have exposed children to a
rights of third parties; and the court invalidates the language that is unacceptable in everyday use. As
entire statute “on its face,” not merely “as applied for” such, the welfare of children and the State’s mandate
so that the overbroad law becomes unenforceable to protect and care for them, as parens patriae,
until a properly authorized court construes it more constitute a substantial and compelling government
narrowly. interest in regulating Soriano’s tterances in TV
broadcast.
The factor that motivates court to depart from the
normal adjudicatory rules is the concern with the NOTE: In his dissenting opinion, Justice Carpio cited
“chilling,” deterrent effect of the overbroad statute on Action for Children's Television v. FCC
third parties not courageous enough to bring suit. The which establishes the safe harbor period to be from
Court assumes that an overbroad law’s “very 10:00 in the evening to 6:00 in the morning, when the
existence may cause others not before the court to number of children in the audience is at a minimum.
refrain from constitutionally protected speech or In effect, between the hours of 10:00 p.m. and 6:00
expression.” An overbreadth ruling is designed to a.m., the broadcasting of material considered indecent
remove that deterrent effect on the speech of those is permitted. Between the hours of 6:00 a.m. and
third parties. (Southern Hemisphere Engagement 10:00 p.m., the broadcast of any indecent material
Network, Inc. v. Anti-Terrorism Council, G.R. No. may be sanctioned.
178552, October 5, 2010)
Clear and Present Danger Test (2014 BAR)
Dangerous Tendency Test
The government must also show the type of harm the
Question: Whether the speech restrained has a speech sought to be restrained would bring about—
rational tendency to create the danger apprehended, especially the gravity and the imminence of the
be it far or remote, thus government restriction would threatened harm – otherwise the prior restraint will
then be allowed. It is not necessary though that evil is be invalid. Prior restraint on speech based on its
actually created for mere tendency towards the evil is content cannot be justified by hypothetical fears, “but
enough. only by showing a substantive and imminent evil that
has taken the life of a reality already on ground.”
Emphasis: Nature of the circumstances under which As formulated, “the question in every case is whether
the speech is uttered, though the speech per se may the words used are used in such circumstances and
not be dangerous. are of such a nature as to create a clear and
present danger that they will bring about the
Balancing of interest Test substantive evils that Congress has a right to prevent.
Question: Which of the two conflicting interests (not It is a question of proximity and degree.” The
involving national security crimes) demands the regulation which restricts the speech content must
greater protection under the particular circumstances also serve an important or substantial government
presented: interest, which is unrelated to the suppression of free
expression. (Chavez v. Gonzales, G.R. No. 168338,
1. When particular conduct is regulated in the February 15, 2008)
interest of public order
2. And the regulation results in an indirect, The question in every case is whether the words used
are used in such circumstances and are of such a
conditional and partial abridgement of speech.
nature as to create a clear and present danger that
(Gonzales v. COMELEC, G.R. No. L-27833, April they will bring about the substantive evils that
18, 1969) Congress has a right to prevent. (Schenck v. United
States, 249 U.S. 47, March 3, 1919)
Q: Can an offensive and obscene language uttered
in a prime-time television broadcast which was NOTE: The test can be applied with regard to the
easily accessible to the children be reasonably Freedom of Religion when what is involved is
curtailed and validly restrained? religious speech as this is often used in cases of
freedom of expression.
A: YES. In Soriano v. MTRCB, G.R. No. 165636, April
29, 2009, the Court, applying the balancing of interest e. SPEECH REGULATION IN RELATION TO
doctrine, ruled that the government’s interest to ELECTION
protect and promote the interests and welfare of the
children adequately buttresses the reasonable Regulation of speech in the context of electoral
curtailment and valid restraint on petitioner’s prayer campaigns made by persons who are not candidates
to continue as program host of Ang Dating or who do not speak as members of a political party
Daan during the suspension period. Soriano’s which are, taken as a whole, principally advocacies of
offensive and obscene language uttered on prime- a social issue that the public must consider during
time television broadcast, without doubt, was easily elections is unconstitutional.
accessible to the children.
117
IX. BILL OF RIGHTS
Such regulation is inconsistent with the guarantee of coverage by live media neither constitutes a
according the fullest possible range of opinions barbarous act nor inflicts upon the accused
coming from the electorate including those that can inhuman physical harm or torture that is shocking
catalyze candid, uninhibited, and robust debate in the to the conscience and is freedom of the press.
criteria for the choice of a candidate. (Diocese of Should live broadcast of the trial be disallowed?
Bacolod v COMELEC, G.R. No. 205728, January 21, 2015.
Penned by J. LEONEN) A: NO. The Court is now disallowing live media
broadcast of the trial of “Maguindanao massacre”
f. SPEECH REGULATION IN RELATION TO MEDIA cases but is still allowing the filming of the
proceedings for (1) the real-time transmission to
Live Media Coverage of Court Proceedings specified viewing areas, and (2) documentation.
The propriety of granting or denying permission to While the Court recognizes the freedom of press and
the media to broadcast, record, or photograph court the right to public information, the constitutional
proceedings involves weighing the constitutional rights of the accused provide more than ample
guarantees of freedom of the press, the right of the justification to take a second look at the view that a
public to information and the right to public trial, on camera that broadcasts the proceedings live on
the one hand, and on the other hand, the due process television has no place in a criminal trial because of its
rights of the defendant and the inherent and prejudicial effects on the rights of accused individuals.
constitutional power of the courts to control their As previously held, the live coverage of judicial
proceedings in order to permit the fair and impartial proceedings involve an inherent denial of due process.
administration of justice.
In this case that has achieved notoriety and
Collaterally, it also raises issues in the nature of sensational status, a greater degree of care is required
media, particularly television and its role in society, to safeguard the constitutional rights of the accused.
and of the impact of new technologies on law. To be in the best position to weigh the conflicting
testimonies of the witnesses, the judge must not be
Video footage of court hearings for news purposes affected by any outside force or influence. Like any
shall be restricted and limited to shots of the human being, however, a judge is not immune from
courtroom, the judicial officers, the parties and their the pervasive effects of media.
counsel taken prior to the commencement of official
proceedings. No video shots or photographs shall be In a constitutional sense, public trial is not
permitted during the trial proper. synonymous with publicized trial. The right to a
public trial belongs to the accused. The accused’s right
An accused has a right to a public trial but it is a right to a public trial should not be confused with the
that belongs to him, more than anyone else, where his freedom of the press and the public’s right to know as
life or liberty can be held critically in balance. A public a justification for allowing the live broadcast of the
trial aims to ensure that he is fairly dealt with and trial (Notice of Resolution, In Re: Petition for Radio and
would not be unjustly condemned and that his rights TV Coverage of cases against Zaldy Ampatuan, A.M. No.
are not compromised in secret conclaves of long ago. 10-11-5-SC, October 23, 2012).
A public trial is not synonymous with publicized trial; Q: Can an offensive and obscene language uttered
it only implies that the court doors must be open to in a prime-time television broadcast which was
those who wish to come, sit in the available seats, easily accessible to the children be reasonably
conduct themselves with proper decorum and curtailed and validly restrained?
observe the trial process. (Secretary of Justice v.
Estrada, A.M. No. 01-4-03-SC, September 13, 2001) A: YES. In Soriano v. MTRCB, G.R. No. 165636, April
29, 2009, the Court, applying the balancing of interest
Q: In 2011, the Supreme Court promulgated a doctrine, ruled that the government’s interest to
Resolution partially granting pro hac vice the protect and promote the interests and welfare of the
request for live broadcast by television and radio children adequately buttresses the reasonable
of the trial court proceedings of the “Maguindanao curtailment and valid restraint on petitioner’s prayer
massacre” cases, subject to specific guidelines set to continue as program host of Ang Dating
forth in said Resolution. Accused Andal Ampatuan, Daan during the suspension period. Soriano’s
Jr. filed a Motion for Reconsideration alleging that offensive and obscene language uttered on prime-
the Resolution “deprives him of his rights to due time television broadcast, without doubt, was easily
process, equal protection, presumption of accessible to the children. His statements could have
innocence, and to be shielded from degrading exposed children to a language that is unacceptable in
psychological punishment.” Ampatuan contends everyday use. As such, the welfare of children and the
that the Court should accord more vigilance State’s mandate to protect and care for them,
because the immense publicity and adverse public as parens patriae, constitute a substantial and
opinion which live media coverage can produce compelling government interest in regulating
would affect everyone, including the judge, Soriano’s utterances in TV broadcast.
witnesses, and the families of all concerned
parties. The OSG, however, contends that the

Political Law
NOTE: In his dissenting opinion, Justice Carpio cited The constitutional guarantee against prior restraint
Action for Children's Television v. FCC and subsequent punishment, the jurisprudential
which establishes the safe harbor period to be from requirement of “actual malice”, and the legal
10:00 in the evening to 6:00 in the morning, when the protection afforded by “the privilege
number of children in the audience is at a minimum. communications” all ensure that protected speech
In effect, between the hours of 10:00 p.m. and 6:00 remains guarded. As long as the expression or speech
a.m., the broadcasting of material considered indecent falls within the protected sphere, it is the solemn duty
is permitted. Between the hours of 6:00 a.m. and of the courts to ensure that the rights of the people
10:00 p.m., the broadcast of any indecent material are protected. (Jose Disni v. Secretary of Justice, G.R. No.
may be sanctioned. 203335, April 22, 2014)
3. JUDICIAL ANALYSIS, PRESUMPTIONS AND c. SEDITION AND SPEECH IN RELATION TO

LEVELS AND TYPES OF SCRUTINY REBELLION
Judicial Analysis The government has a right to be protected against

broadcasts which incite the listeners to violently
There is always a higher degree of judicial review of overthrow it. Radio and television may not be used to
regulation that affects speech to ensure, among organize a rebellion or to signal the start of
others, that it does not amount to a disguised form of widespread uprising. At the same time, the people
censorship or that its exercise does not burden the have a right to be informed. Radio and television
same exercise of the same rights by others. would have little reason for existence if broadcasts
are limited to bland, obsequious, or pleasantly
We read this constitutional provision on the right to entertaining utterances. Since they are the most
freedom of expression together with the other convenient and popular means of disseminating
constitutional provisions, laws, jurisprudence, and varying views on public issues, they also deserve
implementing rules and regulations that reflect the special protection. (Chaves v. Gonzales, G.R. No.
state’s policy on the different government employees’ 168338, February 15, 2008)
right to peaceful concerted activities and to self-
organization for purposes of collective bargaining. d. OBSCENITY / PORNOGRAPHY
This brings us to a limited or regulated right to Obscenity

freedom of expression by government employees in
differing levels of limitation depending on the nature The case of Miller v. California, established basic
of functions discharged by the different government guidelines, to wit: (Fernando v. Court of Appeals, G.R.
branches, departments, bureaus, offices, and other No. 159751, December 6, 2006) (A-PO-L)
government agencies and instrumentalities. (Davao
City Water District v. Aranjuez, et al., G.R. No. 194192, 1. Whether the Average person, applying
16 June 2015, Concurring Opinion as penned by J. contemporary standards, would find that the
Leonen ) work, taken as a whole, appeals to the prurient
interest;
2. Whether the work depicts or describes, in a
4. SPECIAL TOPICS IN FREE EXPRESSION CASES
Patently Offensive way, sexual conduct
specifically defined by the application state law;
a. HATE SPEECH
and
3. Whether the work, taken as a whole, Lacks
Hate Speech do not enjoy constitutional serious literary, artistic, political or scientific
protection value. No one will be subject to prosecution for
the sale or exposure of obscene materials unless
These are words heaping extreme profanity, intended these materials depict or describe patently
merely to incite hostility, hatred or violence and have offensive “hard core” sexual conduct. What
no social value. Such do not enjoy constitutional remains clear is that obscenity is an issue for
protection. In Beauharnais v. Illinois, it was ruled that judicial determination and should be treated on a
hate speech which denigrates a group of persons case-to-case basis, and on the judge’s sound
identified by their religion, race or ethnic origin discretion.
defames that group and the law may validly prohibit
such speech on the same ground as defamation of an Pornography
individual. (MVRS Publications Inc., et al. v. Islamic
Da’Wah Council of the Philippines Inc., et al, G.R. No. refers to any representation, whether visual, audio, or
135306, January 28, 2003) written combination thereof, by electronic,
mechanical, digital, optical, magnetic or any other
b. DEFAMATION AND LIBEL means, of child engaged or involved in real or
simulated explicit sexual activities. (Section 3, RA
Libel is not protected speech 9775)
Pornography in relation to freedom of expression
119
IX. BILL OF RIGHTS
The cyberspace is an incomparable, pervasive Q: EO 51 (Milk Code) was issued by President Val
medium of communication. It is inevitable that any Anton is on October 28, 1986 by virtue of the
government threat of punishment regarding certain legislative powers granted to the President
uses of the medium creates a chilling effect on the under the Freedom Constitution. On May 15, 2006,
constitutionally-protected freedom of expression of the DOH issued Revised Implementing Rules and
the great masses that use it. The particularly complex Regulations (RIRR) which was to take effect
web of interaction on social media websites would on July 7, 2006. The Association of Healthcare
give law enforcers such latitude that they could Workers claimed that the Milk Code only
arbitrarily or selectively enforce the law. regulates and does not impose unreasonable
requirements for advertising and promotion
Section 19 of RA 10175 or the Cybercrime Pevention while RIRR imposes an absolute ban on such
Act of 2012 (Restricting or Blocking Access to activities for breast milk substitutes intended for
Computer Data) was declared unconstitutional infants from 0-24 months old or beyond, and
because the content of the computer data can also forbids the use of health and nutritional
constitute speech. In such a case, Section 19 operates claims. Were the labeling requirements and
as a restriction on the freedom of expression over advertising regulations under the RIRR valid?
cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional A: YES. Sec. 13 on “total effect” and Sec. 26 of Rule
bounds, declare certain kinds of expression as illegal. VII of the RIRR contain some labeling requirements,
But for an executive officer to seize content alleged to specifically: a) that there be a statement that there is
be unprotected without any judicial warrant, it is not no substitute to breastmilk; and b) that there be a
enough for him to be of the opinion that such content statement that powdered infant formula may contain
violates some law, for to do so would make him judge, pathogenic microorganisms and must be prepared
jury, and executioner all rolled into one. (Disini vs. and used appropriately. Sec. 16 of the RIRR prohibits
Secretary of Justice, G.R. No. 203335 February all health and nutrition claims for products within the
11, 2014) scope of the Milk Code, such as claims of increased
emotional and intellectual abilities of the infant and
e. COMMERCIAL SPEECH young child.
Commercial speech is a separate category of speech These provisions of the Milk Code expressly forbid
which is not accorded the same level of protection as information that would imply or create a belief that
that given to other constitutionally guaranteed forms there is any milk product equivalent to breast milk or
of expression but is nonetheless entitled to protection. which is humanized or maternalized, as such
The State cannot rob him of this right without information would be inconsistent with the
violating the constitutionally guaranteed freedom of superiority of breastfeeding.
expression. Unsolicited advertisements are legitimate
forms of expression. (Disini v. Secretary of Justice, G.R. Thus, the RIRR is a reasonable means of enforcing the
No. 203335, February 18, 2014) Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as
It pertains to communication which “no more than embodied in the Milk Code. (Pharmaceutical and
proposes a commercial transaction,” such as Health Care Association of the Philippines v. Duque, G.R.
Advertisements of goods or of services. No. 173034, October 9, 2007)
To enjoy protection, commercial speech: Heckler’s Veto (2014 BAR)
1. Must not be false or misleading; and Occurs when an acting party's right to freedom of
(Friedman v. Rogers, 440 US 1, February 21, speech is curtailed or restricted by the government in
1979) order to prevent a reacting party's behavior. The term
2. Should not propose an illegal transaction. Heckler’s Veto was coined by University of Chicago
(Pittsburgh Press Co. v Human Relations professor of law Harry Kalven.
Commissions, 413 US 376, June 21, 1973)
The “heckler's veto” involves situations in which the
NOTE: However, even truthful and lawful commercial government attempts to ban protected speech
speech maybe regulated if: because it might provoke a violent response. In such
situations, “the mere possibility of a violent reaction
1. Government has a substantial interest to to protected speech is simply not a constitutional
protect; basis on which to restrict the right to speak”. (Roe v.
2. The regulation directly advances that Crawford, 514 F.3d 789, January 22, 2008)
interest; and
It may be in the guise of a permit requirement in the
3. It is not more than extensive than is
holding of rallies, parades, or demonstrations
necessary to protect that interest. (Central
conditioned on the payment of a fee computed on the
Hudson Gas & Electric Corp v. Public Service
basis of the cost needed to keep order in view of the
Commission of NY, 447 US 557, June 20,
expected opposition by persons holding contrary
1980)

Political Law
views. (Gorospe, 2006, citing Forsyth County v. rather, the case should likewise be examined under
Nationalist Movement, 505 U.S. 123, June 19, 1992) the constitutional precept of freedom of the press. But
if the utterances are false, malicious, or unrelated to a
f. NATIONAL EMERGENCIES public officer's performance of his duties or irrelevant
to matters of public interest involving public figures,
The Court declared unconstitutional government the same may give rise to criminal and civil liability. In
threats to close down mass media establishments that contrast, where the subject of the libelous article is a
refused to comply with government prescribed private individual, malice need not be proved by the
"standards" on news reporting following the plaintiff. The law explicitly presumes its existence
declaration of a State of National Emergency by (malice in law) from the defamatory character of the
President Arroyo due to consecutive rallies and raids assailed statement. (Manila Bulletin Publishing
against the government. (David vs. Macapagal-Arroyo, Corporation and Ruther Batuigas v. Victor A. Domingo
G.R. No. 171396, May 3, 2006) and the People of the Philippines, G.R. No. 170341, July
5, 2017)
The Court struck down this "wave of warning[s]"
made by the Presidential Chief of Staff as 5. COGNATE RIGHTS
impermissible restraint on freedom of expression.
The Court ruled that "the imposition of standards on a. FREEDOM OF ASSEMBLY
media or any form of prior restraint on the press, as
well as the warrantless search of the Tribune offices The right to peaceably assemble and petition for
and whimsical seizure of its articles for publication redress of grievances is, together with freedom of
and other materials, are declared unconstitutional." speech, of expression, and of the press, a right that
(Chaves v. Gonzales, G.R. No. 168338, February 15, enjoys primacy in the realm of constitutional
2008) protection. For these rights constitute the very basis
of a functional democratic polity, without which all
g. SPEECH OF PUBLIC OFFICERS the other rights would be meaningless and
unprotected. (BAYAN, et al. v. Ermita, et al., G.R. No.
Unprotected Speech 169838, April 25, 2006)
Unprotected speech or low value expression refers to b. FREEDOM OF ASSOCIATION

libelous statements, obscenity or pornography, false
or misleading advertisement, insulting or fighting Right of Association
words. Those by which their very utterance inflicts
injury or tent to incite an immediate breach of peace The right of association is already comprehended in
and expression endangering nation security. (Soriano due process, particularly as it protects the person’s
v. Laguardia, G.R. 164785, March 15, 2010) liberty. The right of association is deemed embraced
in the freedom of expression because the organization
Limitations on freedom of expression (2014 BAR) can be used as a vehicle for the expression of views
that have a bearing on the public welfare. (Cruz and
It should be exercised within the bounds of laws Cruz, 2015 ed., pg 548)
enacted for the promotion of social interests and the
protection of other equally important individual Q: Is compelling a lawyer to be a member of the
rights such as: Bar a violation of his constitutional freedom to
associate?
1. Laws against obscenity, libel and slander
A: NO. Bar integration does not compel the lawyer to
(contrary to public policy);
associate with anyone. The only compulsion to which
2. Right to privacy of an individual;
he is subjected is the payment of annual dues. The
3. Right of state/government to be protected from
Supreme Court, in order to further the State's
seditious attacks;
legitimate interest in elevating the quality of
4. Legislative immunities;
professional legal services, may require that the cost
5. Fraudulent matters;
of improving the profession in this fashion be shared
6. Advocacy of imminent lawless conducts;
by the subjects and beneficiaries of the regulatory
7. Fighting words; and
program — the lawyers. Assuming that the
8. Guarantee implies only the right to reach a
questioned provision does in a sense compel a lawyer
willing audience but not the right to compel
to be a member of the Integrated Bar, such
others to listen, see or read.
compulsion is justified as an exercise of the police
power of the State. (In Re: Atty. Marcial A. Edillon, A.M.
Libel cases involving public officials and the
No. 1928, August 3, 1978)
discharge of their functions
Q: Can members of religious sects be compelled to
When confronted with libel cases involving
join labor unions due to closed shop agreements
publications which deal with public officials and the
with the employers?
discharge of their official functions, this Court is not
confined within the wordings of the libel statute;
121
IX. BILL OF RIGHTS
A: NO. In spite of any closed shop agreement, classified information. (Chavez v. PCGG, G.R. No.
members of said religious sects cannot be refused 130716, December 9, 1998)
employment or dismissed from their jobs on the sole
ground that they are not members of the collective
bargaining union. It is clear, therefore, that the Q: Adolfo, filed in his capacity as a citizen and as a
stakeholder in the industry involved in importing
assailed Act, far from infringing the constitutional
petrochemicals, filed a mandamus petition to
provision on freedom of association, upholds and
compel the Committee on Tariff and Related
reinforces it. It does not prohibit the members of said
religious sects from affiliating with labor unions. It Matters (CTRM) to provide him a copy of the
minutes of its May 23, 2005 meeting; as well as to
still leaves to said members the liberty and the power
provide copies of all official records, documents,
to affiliate, or not to affiliate, with labor unions.
papers and government research data used as
Republic Act No. 3350, therefore, does not violate the
constitutional provision on freedom of association. basis for the issuance of Executive Order No. 486
which lifted the suspension of the tariff reduction
(Victoriano v. Elizalde Rope Workers Union, Inc., G.R.
schedule on petrochemicals. Wilfredo based his
No. L-25246, September, 12, 1947)
action on the constitutional right to information
c. FREEDOM OF INFORMATION
on matters of public concern and the State’s policy
of full public disclosure. Will the petition prosper?
Rationale
A: NO. The State’s policy of full public disclosure is
The purpose is to promote transparency in policy- restricted to transactions involving public interest
making and in the operations of the government, as and is tempered by reasonable conditions prescribed
well as provide the people sufficient information to by law.
exercise effectively other constitutional rights. Armed
with the right information, citizens can participate in Two requisites must concur before the right to
public discussions leading to the formulation of information may be compelled by writ of
government policies and their effective mandamus.
implementation. An informed citizenry is essential to
the existence and proper functioning of any Firstly, the information sought must be in relation to
democracy. (IDEALs v. PSALM, G.R. No. 192088, matters of public concern or public interest. And,
October 9, 2012) secondly, it must not be exempt by law from the
operation of the constitutional guarantee.
Three categories of information:
The information sought by Wilfredo are classified as a
1. Official records; closed-door Cabinet meeting by virtue of the CTRM’s
2. Documents and papers pertaining to official composition and the nature of its mandate dealing
acts, transactions and decisions; and with matters of foreign affairs, trade and policy-
3. Government research data used in formulating making. A President and those who assist him must be
policies. (Article 3, Section 7, 1987 Constitution) free to explore alternatives in the process of shaping
policies and making decisions and to do so in a way
Scope and Limitations of the Right to Information many would be unwilling to express except privately.
Without doubt, therefore, ensuring and promoting the
GR: The access must be for a lawful purpose and is free exchange of ideas among the members of CTRM
subject to reasonable conditions by the custodian of tasked to give tariff recommendations to the
the records. President were truly imperative. (Sereno v.
Committee on Tariff and Related Matters of the NEDA,
XPNs: G.R. No. 175210, February 1, 2016)
The right does not extend to the following: Q: The Supreme Court directed the Office of the
Solicitor General (OSG) to submit the following
1. National security matters. These include state
information/documents in connection with the
secrets regarding military, diplomatic and police drug operations conducted from July 1,
other national security, and information on 2016 to November 30, 2017, to wit:
inter-government exchanges prior to the
conclusion of treaties and executive 1. List of persons killed in legitimate police
agreements. operations from 1 July 2016 to 30
2. Criminal matters relating to investigation, November 2017;
apprehension, and detention of criminals which 2. List of deaths under investigation from 1
the court may not inquire into prior to arrest, July 2016 to 30 November 2017;
prosecution and detention; 3. List of Chinese and Fil-Chinese drug lords
3. Trade and industrial secrets and other banking who have been neutralized;
transactions as protected by the Intellectual 5. List of drugs involved whether shabu,
Property Code and the Secrecy of Bank cocaine, marijuana, opioids, etc.;
Deposits Act; and 6. Comparative tables on index crimes;
4. Other confidential information falling under the 7. Statistics of internal cleansing within the
scope of the Ethical Safety Act concerning police force;

Political Law
8. Drug watchlist in the affected areas; A: YES. Aside from the fact that Chair Bautista clearly
9. Reports and documents regarding Almora, breached an express stipulation of the MOA allowing
Aparri and Soriano; Rappler, Inc. to stream online the coverage of the
10. Pre- and post-operation reports in all the debates, the presidential and vice-presidential
Dafio incidents; debates are held primarily for the benefit of the
11. Number of buy-bust incidents in San Andres electorate to assist the electorate in making informed
Bukid from 1 July 2016 to 30 November choices on election day.
2017;
12. List of warrants and warrantless arrests in Through the conduct of the national debates among
High Value Target police operations; and presidential and vice-presidential candidates, the
13. List of cases under investigation under electorate will have the "opportunity to be informed
Internal Affairs Service. of the candidates' qualifications and track record,
platforms and programs, and their answers to
The OSG claimed that they cannot submit the significant issues of national concern."
abovementioned documents to the Court since
these documents involve sensitive information The political nature of the national debates and the
that have national security implications. Is the public's interest in the wide availability of the
OSG correct? information for the voters' education certainly justify
allowing the debates to be shown or streamed in
A: NO. To clarify, lest the OSG be confused, the order other websites for wider dissemination. (Rappler, Inc.
to produce the information and documents is about v. Bautista, G.R. No. 222702, April 5, 2016)
the existence of the requested information and
documents. This Court would like to determine for Publication of Laws And Regulations
itself, through the existence of the requested
information and documents, whether the conduct of There is a need for publication of laws to reinforce the
operations were indeed done in the performance of right to information. In Tañada v. Tuvera, the Court
official functions. Indeed, this Court is not a trier of said that Laws must come out in the open in the clear
facts, and it is not within our jurisdiction to determine light of the sun instead of skulking in the shadows
questions of fact and evaluate the truthfulness of the with their dark, deep secrets. Mysterious
contents. In ordering the production of the pronouncements and rumored rules cannot be
documents, the Court exercises its judicial power to recognized as binding unless their existence and
protect and enforce inherent rights. contents are confirmed by a valid publication
intended to make full disclosure and give proper
Contrary to the claim of the Solicitor General, the notice to the people.
requested information and documents do not
obviously involve state secrets affecting national Publication of regulations
security. The information and documents relate to
routine police operations involving violations of laws Publication is necessary to apprise the public of the
against the sale or use of illegal drugs. There is no contents of penal regulations and make the said
showing that the country's territorial integrity, penalties binding on the persons affected thereby.
national sovereignty, independence, or foreign (Pesigan v. Angeles, G.R. No. L-6427, April 30, 1984)
relations will be compromised or prejudiced by the
release of these information and documents to this Publication is required in the following:
Court or even to the public. These information and
documents do not involve rebellion, invasion, 1. All statutes, including those of local
terrorism, espionage, infringement of our sovereignty application, and private laws;
or sovereign rights by foreign powers, or any military, 2. President decrees and executive orders
diplomatic or state secret involving national security. promulgated by the President;
It is simply ridiculous to claim that these information 3. Administrative rules and regulations if their
and documents on police operations against drug purpose is to enforce and implement existing
pushers and users involve national security matters law; and
so sensitive that even this Court cannot peruse these 4. Memorandum Circulars, if they are meant
information and documents in deciding constitutional note merely to interpret but to “fill in the
issues affecting the fundamental right to life and details” which that body is supposed to
liberty of thousands of ordinary citizens. (Almora vs. enforce.
Dir. Gen. Dela Rosa, G.R. No. 234359, April 3, 2018)
Publication is NOT required in the following:
Electoral Debates
1. Interpretative regulations and those merely
Q: The online news agency Rappler, Inc. sued internal in nature, regulating only the
COMELEC Chair Bautista for breach of contract personnel of the administrative agency; and
(MOA) in disallowing the former to stream online 2. Letters of instructions issued by
the coverage of the 2016 presidential and vice- administrative superiors concerning rules
presidential debates. Does Rappler, Inc. have a and guidelines.
cause of action against Chair Bautista?
123
IX. BILL OF RIGHTS
G. FREEDOM OF RELIGION 1. Non-establishment clause; and

2. Free exercise clause.
1. BASIC PRINCIPLES
2. PRINCIPLE OF SEPARATION OF CHURCH AND
No law shall be made respecting an establishment of STATE
religion or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession Doctrine of Separation of Church and the State
and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be The idea is to delineate the boundaries between the
required for the exercise of civil or political rights. two institutions and thus avoid encroachments by one
(Section 5, Article III, 1987 Constitution) against the other because of misunderstanding of the
limits of their respective exclusive jurisdictions. The
Charitable institutions, churches and parsonages or demarcation line calls on the entities to "render
convents appurtenant thereto, mosques, non-profit therefor unto Ceasar the things that are Ceasar’s and
cemeteries, and all lands, buildings, and unto God the things that are God’s.” (Cruz and Cruz,
improvements, actually, directly, and exclusively used 2015)
for religious, charitable, or educational purposes shall
be exempt from taxation. [Section 28(3), Article VI, It is not only the State that is prohibited from
1987 Constitution] interfering in purely ecclesiastical affairs; the Church
is likewise barred from meddling in pure secular
No public money or property shall be appropriated, matters. And the reason is that a union of the Church
applied, paid, or employed, directly or indirectly, for and State "tends to destroy government and to
the use, benefit, or support of any sect, church, degrade religion." (Engel v. Vitale, 370 SCRA 421) It is
denomination, sectarian institution, or system of also likely to result in a conspiracy, well-nigh
religion, or of any priest, preacher, minister, or other irresistible because of its composite strength, against
religious teacher, or dignitary as such, except when the individual's right to worship. (Ibid)
such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal Q: What is a purely ecclesiastical affair to which
institution, or government orphanage or leprosarium. the State cannot meddle?
[Section 29(2), Article VI, 1987 Constitution]
A: An ecclesiastical affair is “one that concerns
a. PURPOSE OF FREEDOM OF RELIGION doctrine, creed, or form of worship of the church, or
the adoption and enforcement within a religious
The non-establishment clause means that the State association of needful laws and regulations for the
cannot set up a church, nor pass laws which aid government of the membership, and the power of
religion or prefer one religion over the another, nor excluding from such associations those deemed not
force nor influence a person to go or remain away worthy of membership.” Based on this definition, an
from church against his will or force him to profess a ecclesiastical affair involves the relationship between
belief or disbelief in any religion, etc. In Engel v. Vitale, the church and its members on matters of faith,
370 U.S. 421, known as the “School Prayer Case”, the religious doctrines, worship and governance of the
recitation by the students in public school in New congregation. To be concrete, examples of this so-
York of a prayer composed by the Board of Regents called ecclesiastical affairs to which the State cannot
was held unconstitutional. (Nachura, 2015 citing meddle are proceedings for excommunication,
Everson v. Board of Education, 30 U.S. 1) ordinations of religious ministers, administration of
sacraments and other activities with attached
The government is neutral religious significance. (Pastor Dionisio V. Austria v.
NLRC, G.R. No. 124382, Aug. 16, 1999, 1st Div.
While protecting all, it prefers no one, and it [Kapunan])
disparages none. All here applies both to the believer
and non-believer. Freedom of religion includes Q: Petitioner is a religious minister of the Seventh
freedom from religion; the right to worship includes Day Adventist (SDA). He was dismissed because of
the right not to worship. (Imbong vs. Ochoa, G.R. No. alleged misappropriation of denominational
204819, April 8, 2014) funds, willful breach of trust, serious misconduct,
gross and habitual neglect of duties and
b. CONCEPT OF RELIGION commission of an offense against the person of his
employer’s duly authorized representative. He
Religion filed an illegal termination case against the SDA
before the labor arbiter. The SDA filed a motion to
Religion is a profession of faith to an active power that dismiss invoking the doctrine of separation of
binds and elevates man to his creator. (Aglipay v. Ruiz, Church and State. Should the motion be granted?
G.R. No. L-45459, March 13, 1937)
A: NO. Where what is involved is the relationship of
Guarantees contained in Sec. 5 Art. III of the 1987 the church as an employer and the minister as an
Constitution (1996, 1997, 1998, 2003, 2009, 2012 employee and has no relation whatsoever with the
BAR) practice of faith, worship or doctrines of the church,

Political Law
i.e., the minister was not excommunicated or expelled 2. In Ebralinag v. Division Superintendent of Schools
from the membership of the congregation but was of Cebu, the petitioners, who were members of
terminated from employment, it is a purely secular the Jehovah's Witnesses, refused to salute the flag,
affair. Consequently, the suit may not be dismissed sing the national anthem, and recite the patriotic
invoking the doctrine of separation of church and the pledge for it is their belief that those were acts of
state. (Pastor Dionisio V. Austria v. NLRC, G.R. No. worship or religious devotion, which they could
124382, Aug. 16, 1999) not conscientiously give to anyone or anything
except God.
Growth of a religious sect as a social force must come 3. In Re: Request of Muslim Employees in the
from the voluntary support of its members because of Different Courts in Iligan City (Re: Office Hours),
the belief that both spiritual and secular society will the Court recognized that the observance of
benefit if religions are allowed to compete on their Ramadan as integral to the Islamic faith and
own intrinsic merit without benefit of official allowed Muslim employees in the Judiciary to
patronage. (Bernas, S.J., 2011) hold flexible office hours from 7:30 o'clock in the
morning to 3:30 o'clock in the afternoon without
3. NON-ESTABLISHMENT CLAUSE any break during the period.
4. The Revised Administrative Code of 1987 has
Non-Establishment Clause declared Maundy Thursday, Good Friday, and
Christmas Day as regular holidays.
Art. III, Sec. 5 states that “No law shall be made 5. Republic Act (R.A.) No. 9177 proclaimed the
respecting an establishment of religion, or prohibiting FIRST Day of Shawwal, the tenth month of the
the free exercise thereof.” Islamic Calendar, a national holiday for the
observance of EidulFitr (the end of Ramadan).
NOTE: The non-establishment clause means that the 6. R.A. No. 9849 declared the tenth day of Zhu/
state should adopt a “position of neutrality” when it Hijja, the twelfth month of the Islamic Calendar, a
comes to religious matters. (Political Law Reviewer, national holiday for the observance of EidulAdha.
Suarez, p. 252 citing CJ Fernando, 2011) The non- 7. Presidential Decree No. 1083, otherwise known
establishment clause bars the State from establishing, as the Code of Muslim Personal Laws of the
through laws, rules, and moral. Philippines, expressly allows a Filipino Muslim to
have more than one (1) wife and exempts him
Purpose of non-establishment clause: from the crime of bigamy punishable under
Revised Penal Code (RPC). The same Code allows
1. Protects voluntarism; and Muslims to have divorce.
2. Insulation of political process from interfaith
dissension. Constitutional provisions which express the non-
establishment clause
NOTE: Voluntarism, as a social value, means that the
growth of a religious sect as a social force must come 1. Art. VI, Sec. 29 “No public money/property given
from the voluntary support of its members because of to religious sect or minister/religious personnel”
the belief that both spiritual and secular society will (except for those assigned to army, penal
benefit if religions are allowed to compete on their institution, government orphanage and
own intrinsic merit without benefit of official leprosarium). It has also been held that the
patronage. (Bernas, S.J., 2011) aforecited constitutional provision "does not
inhibit the use of public property for religious
Accommodation purposes when the religious character of such
use is merely incidental to a temporary use which
Accommodations are government policies that take is available indiscriminately to the public in
religion specifically into account not to promote the general". (Re: Letter of Tony Q. Valenciano,
governments favored form of religion, but to allow Holding of Religious Rituals at the Hall of Justice
individuals and groups to exercise their religion Building in Quezon City, A.M. No. 10-4-19-SC,
without hindrance. Their purpose or effect therefore March 7, 2017)
is to remove a burden on, or facilitate the exercise of,
a persons or institutions religion. (Estrada v Escritur, 2. Art. II, Sec. 6 “Separation of church and state is
AM P-02-1651, August 4, 2003) inviolable.”
Examples of governmental accommodation 3. Art. IX(C), Sec. 2(5) “No religious sects can be
registered as political parties.”
1. In Victoriano v. Elizalde Rope Workers Union, the Constitutionally created exceptions to the non-
Court upheld the exemption of members establishment clause
of Iglesia ni Cristo from the coverage of a closed
shop agreement between their employer and a 1. Art. 6, Sec.29 (prohibition on appropriation of
union, because it would violate the teaching of public money or property for the use, benefit or
their church not to affiliate with a labor support of any religion);
organization.
125
IX. BILL OF RIGHTS
2. Art. 6, Sec. 28(3) (exemption from taxation of 6. Openly or secretly participate in the affairs of
properties actually, directly and exclusively used any religious organization or group or vice versa.
for religious purposes); (Everson v Board of Education, 330 U.S. 1.,
February 10, 1947)
3. Art. 14, Sect. 3(3) (optional religious instruction
in public elementary and high schools); 4. FREE EXERCISE CLAUSE
NOTE: Religious instruction in public schools:
The Free Exercise Clause affords absolute protection
a. At the option of parents/guardians to individual religious convictions. However, the
expressed in writing; government is able to regulate the times, places, and
manner of its exercise. (Cantwell v. Connecticut, 310
b. Within the regular class hours by U.S. 296, May 20, 1940)
instructors designated or approved
by religious authorities of the religion Aspects of freedom and enjoyment of religious
to which the children belong; and profession and worship:
c. Without additional costs to the
1. Right to believe, which is absolute; and
government
4. Art. 14, Sec. 4 (2) (citizenship requirement of The individual is free to believe (or disbelieve) as
ownership of educational institutions, except he pleases concerning the hereafter. He may
those established by religious groups and indulge his own theories about life and death;
mission boards); and worship any god he chooses, or none at all;
embrace or reject any religion; acknowledge the
5. Art. 6, Sec. 29 (2) (appropriation allowed where divinity of God or of any being that appeals to his
ecclesiastic is employed in armed forces, in a reverence; recognize or deny the immortality of
penal institution, or in a government-owned his soul – in fact, cherish any religious conviction
orphanage or leprosarium.) as he and he alone sees fit.
Exceptions to the non-establishment clause as However absurd his beliefs may be to others,
held by jurisprudence: even if they be hostile and heretical to the
majority, he has full freedom to believe as he
1. Government sponsorship of town fiestas, some pleases. He may not be required to prove his
purely religious traditions have now been beliefs. He may not be punished for his inability
considered as having acquired secular to do so. (Iglesiani Cristo v. CA, G.R. No. 119673,
character; (Garces v. Estenzo, G.R. No. L-53487, July 26, 1996)
May 25, 1981)
2. Postage stamps depicting Philippines as the 2. Right to act on one’s belief, which is subject to
venue of a significant religious event – benefit regulation.
to the religious sect involved was merely
incidental as the promotion of Philippines as a Where the individual externalizes his beliefs in acts
tourist destination was the primary objective; or omissions that affect the public, his freedom to
and (Aglipay v. Ruiz, G.R. No. L-45459 March 13, do so becomes subject to the authority of the State.
1937) As great as this liberty may be, religious freedom,
3. Exemption from zoning requirements to like all the other rights guaranteed in the
accommodate unique architectural features of Constitution, it is limited and subject to the police
religious buildings i.e. Mormon’s tall pointed power of the State and can be enjoyed only with
steeple. (Martin v. Corporation of the Presiding proper regard to the rights of others.
Bishop, 434 Mass. 141, May 16, 2001)
Benevolent Neutrality
The non-establishment clause states that the State
CANNOT: Benevolent neutrality is an approach that looks
further than the secular purposes of government
1. Set up a church; action and examines the effect of these actions on
2. Pass laws which aid one, all religions or prefer religious exercise. Benevolent neutrality recognizes
one over another; the religious nature of the Filipino people and the
3. Force or influence a person to go to or stay away elevating influence of religion in society; at the same
from church against his will or force him to time, it acknowledges that the government must
profess a belief or disbelief in any religion; pursue its secular goals. In pursuing these goals,
4. Punish a person for entertaining or professing however, it might adopt laws or actions of general
religious beliefs or disbeliefs, for church applicability which inadvertently burden religious
attendance or non-attendance; exercise. Benevolent neutrality gives room for
5. Collect tax in any amount, can be levied to accommodation of these religious exercises as
support any religious activity or institution required by the Free Exercise Clause. It allows these
whatever they may adopt to teach or practice breaches in the wall of separation to uphold religious
religion; liberty, which after all is the integral purpose of the

Political Law
religion clauses. (Estrada v. Escritor, A.M. No. P-02- Q: Ang Ladlad is an organization composed of men
1651, August 4, 2003) and women who identify themselves as lesbians,
gays, bisexuals, or transgendered individuals
Conscientious Objector (LGBTs). Ang Ladlad applied for registration with
the COMELEC to participate in the party-list
An "individual who has claimed the right to refuse to elections. The COMELEC dismissed the petition on
perform military service on the grounds of freedom moral grounds, stating the definition of sexual
of thought, conscience, and/or religion.” orientation of the LGBT sector makes it crystal
(International Covenant on Civil and Political Rights, clear that petitioner tolerates immorality which
Art. 18) offends religious beliefs based on the Bible and
the Koran. Ang Ladlad argued that the denial of
Requisites for one to be considered a registration, insofar as it justified the exclusion by
conscientious objector (O-R-S) using religious dogma, violated the constitutional
guarantees against the establishment of religion.
1. The person is opposed to war in any form; Is this argument correct?
2. He must show that this opposition is based upon
religious training and belief; and A: YES. It was a grave violation of the non-
3. And he must show that this objection is sincere. establishment clause for the COMELEC to utilize the
(Clay v. United States, 403 U.S.698, June 28, 1971) Bible and the Koran to justify the exclusion of Ang
Ladlad. Our Constitution provides in Art. III, Sec. 5
Q: Angel, a court interpreter, is living with a man that “no law shall be made respecting an
not her husband. Ben filed an administrative case establishment of religion, or prohibiting the free
against Angel as he believes that she is committing exercise thereof.” At bottom, what our non-
an immoral act that tarnishes the image of the establishment clause calls for is government
court, thus she should not be allowed to remain neutrality in religious matters. Clearly, governmental
employed therein as it might appear that the court reliance on religious justification is inconsistent with
condones that act. Angel admitted that she has this policy of neutrality. (Ang Ladlad v. COMELEC, G.R.
been living with a man without the benefit of No. 190582, April 8, 2010)
marriage for twenty years and that they have a
son. But as a member of the religious sect known NOTE: When the law speaks of immoral or,
as the Jehovah’s Witnesses, the Watch Tower and necessarily, disgraceful conduct, it pertains to public
Bible Tract Society, their conjugal arrangement is and secular morality; it refers to those conducts
in conformity with their religious beliefs. In fact, which are proscribed because they are detrimental to
after ten years of living together, she executed on conditions upon which depend the existence and
July 28, 1991 a “Declaration of Pledging progress of human society. (Leus v. St. Scholastica’s
Faithfulness.” Should Angel’s right to religious College Westgrove, G.R. No. 187226, January 28, 2015)
freedom carve out an exception from the
prevailing jurisprudence on illicit relations for Q: Dychie, Rose Anne, Julie, Kimmy, Alarice and
which government employees are held Krizelle were minor school children and member
administratively liable? of the sect, Jehovah’s Witnesses. They were
expelled from their classes by various public
A: YES. Angel’s conjugal arrangement cannot be school authorities for refusing to salute the flag,
penalized as she has made out a case for exemption sing the national anthem and recite the “Panatang
from the law based on her fundamental right to Makabayan” required by R.A. 1265. According to
freedom of religion. The Court recognizes that the them, the basic assumption in their universal
State’s interests must be upheld in order that freedom refusal to salute the flags of the countries in which
– including religious freedom – may be enjoyed. In the they are found is that such a salute constitutes an
area of religious exercise as a preferred freedom, act of religious devotion forbidden by God's law
however, man stands accountable to an authority and that their freedom of religion is grossly
higher than the State, and so the State interest sought violated. On the other hand, the public authorities
to be upheld must be so compelling that its violation claimed that the freedom of religious belief
will erode the very fabric of the State that will also guaranteed by the Constitution does not mean
protect the freedom. In the absence of showing that exception from non-discriminatory laws like the
such State interest exists, man must be allowed to saluting of flag and the singing of the national
subscribe to the Infinite. anthem. To allow otherwise would
disrupt school discipline and demoralize the
Furthermore, our Constitution adheres to teachings of civic consciousness and duties of
the Benevolent Neutrality approach that gives room citizenship. Is the expulsion justified?
for accommodation of religious exercises as required
by the Free Exercise Clause. The benevolent neutrality A: NO. Religious freedom is a fundamental right of
doctrine allows accommodation of morality based on highest priority. The two-fold aspect of right to
religion, provided it does not offend compelling state religious worship is: 1.) Freedom to believe which is
interests. (Estrada v. Escritor, A.M. No. P-02-1651, June an absolute act within the realm of thought. 2.)
22, 2006) Freedom to act on one’s belief regulated and
translated to external acts. The only limitation to
127
IX. BILL OF RIGHTS
religious freedom is the existence of grave that the means in which it is achieving its
and present danger to public safety, morals, health legitimate State objective is the least
and interests where the right to prevent belongs to intrusive means, or it has chosen a way to
the State. The expulsion of the petitioners from achieve its legitimate State end that
the school is not justified. imposes as little as possible intrusion on
religious beliefs.
In the case at bar, the students expelled are only
standing quietly during ceremonies. By observing the H. LIBERTY OF ABODE AND FREEDOM OF
ceremonies quietly, it doesn’t present any danger so MOVEMENT
evil and imminent to justify their expulsion. The
expulsion of the students by reason of their religious Rights guaranteed under Sec. 6 of the Bill of Rights
beliefs is also a violation of a citizen’s right to free (1991, 1996, 1998, 2012 BAR)
education.
1. Freedom to choose and change one’s place of
The non-observance of the flag ceremony does not abode; and
totally constitute ignorance of patriotism and civic 2. Freedom to travel within the country and
consciousness. Love for country and admiration for outside.
national heroes, civic consciousness, and form of
government are part of the school curricula. Liberty of abode
Therefore, expulsion due to religious beliefs is
unjustified. (Ebralinag v. Division Superintendent of It is the right of a person to have his home or to
Cebu, G.R. No. 95770, March 1, 1993) maintain or change his home, dwelling, residence or
habitation in whatever place he has chosen, within the
Lemon Test limits prescribed by law.
A test to determine whether an act of the government This right, pursuant to the Constitution, may only be
violates the non-establishment clause. impaired by lawful order of the court. Unless there be
important societal considerations and interests that
To pass the Lemon test, a government act or policy are implicated by a person’s decision to stay
must: anywhere, he should be given complete freedom of
choice as to where he may want to dwell and set up
1. Have a secular purpose; his abode.
2. Not promote or favor any set of religious beliefs
or religion generally; and 1. SCOPE AND LIMITATIONS
3. Not get the government too closely involved
(“entangled”) with religion. (Lemon v. Kurtzman,
403 U.S. 602, June 28, 1971) The right is NOT absolute, as there may be a law that
restricts the freedom , as when the person is a leper or
Compelling State Interest a convict.
Used to determine if the interests of the State are The liberty of abode may be impaired only:
compelling enough to justify infringement of religious
1. Upon lawful order of the court and; and
freedom. It involves a three-step process:
2. Within the limits prescribed by law such as
1. Has the statute or government action public safety and security.
created a burden on the free exercise of
religion? – Courts often look into the Examples:
sincerity of the religious belief, but without
inquiring into the truth of the belief since 1. Persons in the danger zone areas (e.g. Mt.
the free exercise clause prohibits inquiring Pinatubo, Taal Volcano) may be relocated to
about its truth; safer areas and evacuation centers in case of
danger and emergency to save lives and
2. Is there a sufficiently compelling state property.
interest to justify this infringement of
2. Insane persons who roam around in Roxas
religious liberty? – In this step, the
Boulevard may be committed by the
government has to establish that its
government to the National Mental Hospital
purposes are legitimate for the State and
for appropriate treatment and medical
that they are compelling; and
attention.
3. Has the State in achieving its legitimate NOTE: Under Art. III, Sec. 6, of the Constitution, a
purposes used the least intrusive means lawful order of the court is required before the liberty
possible so that the free exercise is not of abode and of changing the same can be impaired.
infringed any more than necessary to
achieve the legitimate goal of the State? –
The analysis requires the State to show

Political Law
Q: Paz, was employed by the Far Eastern The right to travel does not mean the right to choose
Employment Bureau, owned by Jocelyn. An any vehicle in traversing a toll way. The right to travel
advanced payment has already been given to Paz refers to the right to move from one place to another.
by the employment agency, for her to work as a Petitioners are not denied the right to move from
maid. However, Paz wanted to transfer to another Point A to Point B along the toll way. Anyone is free to
residence, which was disallowed by the access the toll way, much as the rest of the public can.
employment agency. Further she was detained The mode by which one wishes to travel pertains to
and her liberty was restrained. The employment the manner of using the tollway, a subject that can be
agency wanted that the advance payment, which validly limited by regulation. There was no absolute
was applied to her transportation expense from right to drive; on the contrary, this privilege was
the province should be paid by Paz before she heavily regulated. (Mirasol v. DPWH, G.R. No. 158793,
could be allowed to leave. Does the employment June 8, 2006)
agency has the right to restrain and detain a maid
who could not return the advance payment it Q: PASEI is engaged in the recruitment of Filipino
gave? workers, male and female, for overseas
employment. It challenged the validity of
A: NO. An employment agency, regardless of the Department Order 1 of the Department of Labor
amount it may advance to a prospective employee or and Employment (DOLE) because it suspends the
maid, has absolutely no power to curtail her freedom deployment of female domestic and household
of movement. The fact that no physical force has been workers in Iraq, Jordan and Qatar due to growing
exerted to keep her in the house of the respondent incidence of physical and personal abuses to
does not make less real the deprivation of her female overseas workers. PASEI contends that it
personal freedom of movement, freedom to transfer impairs the constitutional right to travel. Is the
from one place to another, freedom to choose one’s contention correct?
residence.
A: NO. The deployment ban does not impair the right
Freedom may be lost due to external moral to travel. The right to travel is subject, among other
compulsion, to founded or groundless fear, to things, to the requirements of "public safety," "as may
erroneous belief in the existence of an imaginary be provided by law." Department Order No. 1 is a
power of an impostor to cause harm if not blindly valid implementation of the Labor Code, in particular,
obeyed, to any other psychological element that may its basic policy to "afford protection to labor,"
curtail the mental faculty of choice or the unhampered pursuant to the Department of Labor's rule-making
exercise of the will. authority vested in it by the Labor Code. The
petitioner assumes that it is unreasonable simply
If the actual effect of such psychological spell is to because of its impact on the right to travel, but as we
place a person at the mercy of another, the victim is have stated, the right itself is not absolute. The
entitled to the protection of courts of justice as much disputed Order is a valid qualification thereto.
as the individual who is illegally deprived of liberty by (Philippine Association of Service Exporters, Inc. v.
duress or physical coercion. (Cuanca v Salazar, 82 Phil. Drilon, G.R. No. 81958, June 30, 1988)
851, January 1, 1941)
A member of the military cannot travel freely to
Right to Travel other places apart from his command post.
This refers to the right of a person to go where he Mobility of travel is another necessary restriction on
pleases without interference from anyone. members of the military. A soldier cannot leave
his/her post without the consent of the commanding
The limitations on the right to travel (S-S-H) officer. The commanding officer has to be aware at all
times of the location of the troops under command, so
1. Interest of national security; as to be able to appropriately respond to any
2. Public safety; and exigencies. For the same reason, commanding officers
3. Public health. have to be able to restrict the movement or travel of
their soldiers, if in their judgment, their presence at
NOTE: It is settled that only a court may issue a hold place of call of duty is necessary. military life calls for
departure order against an individual addressed to considerable personal sacrifices during the period of
the Bureau of Immigration and Deportation. However, conscription, wherein the higher duty is not to self but
administrative authorities, such as passport-officers, to country. (Gudani v. Senga, G.R. No. 170165, August
may likewise curtail such right in the interest of 15, 2006)
national security, public safety, or public health, as
may be provided by law. 2. WATCH-LIST AND HOLD DEPARTURE ORDERS
DPWH may validly ban certain vehicles on Right to travel is not impaired by a hold departure
expressways in consideration of constitutional order. The basic reason for the rule is found in People
provisions of right to travel. v Uy Tuising, 61 Phil. 404, 1935, where it was said that
inasmuch as the jurisdiction of the courts from which
orders and processes were issued does not extend
129
IX. BILL OF RIGHTS
beyond that of the Philippines, they would have no is a law that (a) is complete in itself, setting forth
binding force outside of said jurisdiction. therein the policy to be executed, carried out, or
implemented by the delegate; and (b) fixes a standard
Q: Several criminal complaints were filed against the limits of which are sufficiently determinate and
former President Gloria Macapagal Arroyo (GMA) determinable to which the delegate must conform in
before the DOJ. In view thereof, DOJ Sec. De Lima the performance of his functions.
issued Watchlist Orders (WLO) pursuant to her
authority under DOJ Circular No. 41 which was Q: President Rodrigo Duterte issued Proclamation
issued pursuant to the rule-making powers of the No. 475 formally declaring a state of calamity in
DOJ in order to keep individuals under Boracay and ordering its closure for six (6)
preliminary investigation within the jurisdiction months. On account of this, Boracay residents
of the Philippines. Subsequently, GMA requested Mark Anthony Zabal and Thiting Jacosalem filed
for the issuance of Allow Departure Orders (ADO) the present petition alleging that they would
so that she may be able to seek medical attention suffer grave and irreparable damage as their
abroad. Before the resolution of her application livelihood depends on the tourist activities
for ADO, GMA filed a petition with prayer for the therein. They attacked the order on the ground
issuance of a TRO seeking to annul and set aside that it violates the right to travel. Are they
DOJ Circular No. 41 and WLOs issued against her correct?
for being unconstitutional. A TRO was issued but
GMA was prevented from leaving the country. Is A: NO. This case does not actually involve the right to
DOJ Circular No. 41 unconstitutional for being a travel in its essential sense. Any bearing that
violation of the right to travel? Proclamation No. 475 may have on the right to travel
is merely corollary to the closure of Boracay and the
A: YES. The DOJ has no authority to issue DOJ Circular ban of tourists and non-residents therefrom which
No. 41 which effectively restricts the right to travel were necessary incidents of the island's rehabilitation.
through the issuance of WLOs and HDOs (Hold There is certainly no showing that Proclamation No.
Departure Orders). There are only three 475 deliberately meant to impair the right to travel.
considerations that may permit a restriction on the The questioned proclamation is clearly focused on its
right to travel: national security, public safety or purpose of rehabilitating Boracay and any intention to
public health. Further, there must be an explicit directly restrict the right cannot, in any manner, be
provision of statutory law or Rules of Court providing deduced from its import.
for the impairment.
The closure of Boracay was only temporary
DOJ Circular No. 41 is not a law. It is not a legislative considering the categorical pronouncement that it
enactment, but a mere administrative issuance was only for a definite period of six months. Hence, if
designed to carry out the provisions of an enabling at all, the impact of Proclamation No. 475 on the right
law. DOJ is not authorized to issue WLOs and HDOs to to travel is not direct but merely consequential; and,
restrict the constitutional right to travel. the same is only for a reasonably short period of time
or merely temporary. (Zabal v. Duterte, G.R. No.
There is no mention of the exigencies stated in the 238467, February 12, 2019)
Constitution that will justify the impairment. The
provision simply grants the DOJ the power to Return to one’s country
investigate the commission of crimes and prosecute
offenders. It does not carry the power to Q: Ferdinand Marcos, in his deathbed, has
indiscriminately devise all means it deems proper in signified his desire to return to the Philippines to
performing its functions without regard to die. But President Corazon Aquino barred the
constitutionally-protected rights. return of Marcos and his family. The Marcoses
invoke their right to return. Is the right to return a
DOJ cannot justify the restraint in the liberty of constitutionally protected right?
movement imposed by the circular on the ground that
it is necessary to ensure presence and attendance in A: NO. The right to return to one’s country is not
the preliminary investigation of the complaints. among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and
There is no authority of law granting it the power to the right to travel. Nevertheless, the right to return
compel the attendance of the subjects of a preliminary may be considered as a generally accepted principle
investigation pursuant to its investigatory powers. Its of International law, and under the Constitution, is
investigatory power is simply inquisitorial and, part of the law of the land. However, it is distinct and
unfortunately, not broad enough to embrace the separate from the right to travel and enjoys a different
imposition of restraint on the liberty of movement. protection under the International Covenant of Civil
(Genuino v. De Lima, G.R. No. 197930, April 17, 2018) and Political Rights. (Marcos v. Manglapus, G.R. No.
88211, September 15, 1989 & October 27, 1989)
It is, however, important to stress that before there
can even be a valid administrative issuance, there Residual powers, according to Theodore Roosevelt,
must first be a showing that the delegation of dictate that the President can do anything which is not
legislative power is itself valid. It is valid only if there forbidden in the Constitution (Corwin, supra at 153),

Political Law
inevitable to vest discretionary powers on the NOTE: It can only be invoked if it is against the
President (Hyman, American President) and that the government or when the government intervenes in
president has to maintain peace during times of contract between the parties. (Pacific Wide Realty and
emergency but also on the day-to-day operation to the Development Corp. v. Puerto Azul Land, Inc., G.R. No.
State. 180893, November 25, 2009)
I. EMINENT DOMAIN NOTE: The non-impairment clause always yields to

the police power of the state–and even to the power of
See prior discussion on Eminent Domain taxation and eminent domain–for as long as the
subject matter of the contract is imbued with
J. NON-IMPAIRMENT OF CONTRACTS paramount public interest. Into every contract is
deemed written the police power of the State. Also,
the police power may not be bargained away through
Impairment of contracts the medium of a contract, or even that of a treaty.
Any law which introduces a change into the express Mutuality of contracts
terms of the contract, or its legal construction, or its
validity, or its discharge, or the remedy for its GR: Valid contracts should be respected by the
enforcement, impairs the contract. legislature and not tampered with by subsequent laws
that will change the intention of the parties or modify
The law impairs the obligation of contracts if: their rights and obligations.
1. It changes the terms and conditions of a legal NOTE: The will of the parties to a contract must
contract either as to the time or mode of prevail. A later law which enlarges, abridges, or in any
performance; or manner changes the intent of the parties to the
2. It imposes new conditions or dispenses with contract necessarily impairs the contract itself and
those expressed if it authorizes for its satisfaction cannot be given retroactive effect without violating
something different from that provided in its the constitutional prohibition against impairment of
terms. contracts. (Sangalang v. IAC, G.R. No. 71169, December
22, 1988)
NOTE: Mere technical change which does not change
the substance of the contract, and which still leaves an XPN: Enactment of laws pursuant to the exercise of
efficacious remedy for enforcement does NOT impair police power because public welfare prevails over
the obligation of contracts. A valid exercise of police private rights. It is deemed embedded in every
power is superior to the obligation of contracts. contract a reservation of the State’s exercise of police
power, eminent domain and taxation, so long as it
Applicability of the provision deals with a matter affecting the public welfare. (PNB
v. Remigio, G.R. No. 78508, March 21, 1994)
NOTE: It is NOT absolute and is NOT to be read with
literal exactness. It is restricted to contracts with Q: While still being a GOCC, PAL entered into a
respect to property or some object of value and which Commercial Agreement and Joint Services
confer rights that may be asserted in a court of justice; Agreement with Kuwait Airways in 1981
it has no application to statutes relating to public establishing a joint commercial arrangement
subjects within the domain of the general legislative whereby PAL and Kuwait Airways were to jointly
powers of the State and involving the public rights operate the Manila-Kuwait (and vice versa) route,
and public welfare of the entire community affected utilizing the planes and services of Kuwait
by it. Airways. In that Agreement, PAL may collect
royalties from Kuwait Airways. Subsequently, the
This constitutional provision is applicable ONLY if the government lost control over PAL and became a
obligation of contract is impaired by legislative act private corporation. After 14 years, delegations
(statute, ordinance, etc.). The act need not be by a from the Philippine government and Kuwait
legislative office; but it should be legislative in nature. government met. The talks culminated in a
Furthermore, the impairment must be substantial. Confidential Memorandum of Understanding
(Philippine Rural Electric Cooperatives Assoc. v. DILG (CMU). The CMU terminates the agreement
Secretary, G.R. No. 143076, June 10, 2003) concerning the royalties effective April 12, 1995.
However, PAL insists that the agreement could
Inapplicability of the provision only be effectively terminated on 31 October
1995, or the last day of the then current traffic
One, in case of franchises, privileges, licenses, etc. period and therefore the provisions of the
agreement shall continue to be enforced until
NOTE: These are subject to amendment, such date. Can the execution of the CMU between
alteration or repeal by Congress when the Kuwait and Philippine Governments
common good so requires. automatically terminate the Commercial
Agreement?
Two, there is neither public interest involved nor a
law that supports the claim.
131
IX. BILL OF RIGHTS
A: NO. An act of the Philippine Government negating indigent litigant that can be exempted from payment
the commercial agreement between the two airlines of legal fees. Exemption cannot be extended to the
would infringe the vested rights of a private foundations even if they are working for the indigent
individual. Since PAL was already under private and underprivileged people. (Re: Query of Mr. Roger C.
ownership at the time the CMU was entered into, the Prioreschi Re: exemption from legal and filing fees of
Court cannot presume that any and all commitments the Good Shepherd Foundation, Inc., A. M. No. 09-6-9-
made by the Philippine Government are unilaterally SC, August 19, 2009)
binding on the carrier even if this comes at the
expense of diplomatic embarrassment. Even granting Q: A pauper is known to have several parcels of
that the police power of the State may be exercised to land but that for several years prior to the filing of
impair the vested rights of privately-owned airlines, the complaint in the inferior court said parcels of
the deprivation of property still requires due process land had been divided and partitioned amongst
of law. (Kuwait Airline Corporation v. PAL, G.R. No. his children who had since been in possession
156087, May 8, 2009) thereof and paying the taxes thereon. Is he
considered indigent? May he apply for free legal
K. ADEQUATE LEGAL ASSISTANCE AND FREE assistance?
ACCESS TO COURTS
A. YES. Republic Act 6034 (An Act Providing
Basis Transportation and Other Allowances for Indigent
Litigants), has defined the term "indigent" to refer to a
Free access to courts and quasi-judicial bodies and person "who has no visible means of income or whose
adequate legal assistance shall not be denied to any income is insufficient for the subsistence of his
person by reason of poverty. (Sec. 11, Art. 3, 1987 family."
Constitution) (1991, 2002 BAR)
Even on the assumption that petitioner owns
Right to free access to courts property, he may still be an indigent considering his
sworn statement that he had no income. Under the
This right is the basis for Sec. 17, Rule 5 of the New standard set forth in Acar v. Rosal as well as the recent
Rules of Court allowing litigation in forma pauper is. legislations heretofore adverted to, it is the income of
Those protected include low paid employees, a litigant that is the determinative factor. For, really,
domestic servants and laborers. (Cabangis v. Almeda property may have no income. It may even be a
Lopez, G.R. No. 47685, September 20, 1940) financial burden whose income is insufficient for the
subsistence of his family."
Q: The Municipal Trial Court denied Jaypee’s
petition to litigate in forma pauperis on the Even on the assumption that petitioner owns
ground that Jaypee has regular employment and property, he may still be an indigent considering his
sources of income thus cannot be classified as sworn statement that he had no income. Under the
poor or pauper. Is the court’s order justified? standard set forth in Acar v. Rosal as well as the recent
legislations heretofore adverted to, it is the income of
A: NO. They need not be persons so poor that they a litigant that is the determinative factor. For, really,
must be supported at public expense. It suffices that property may have no income. It may even be a
the plaintiff is indigent. And the difference between financial burden. (Enaje v. Ramos, G.R. No. L-22109,
paupers and indigent persons is that the latter are January 30, 1970)
persons who have no property or sources of income
sufficient for their support aside from their own labor I. RIGHT AGAINST SELF-INCRIMINATION
though self-supporting when able to work and in
employment. (Acar v. Rosal, G.R. No. L-21707, March Basis
18, 1967)
No person shall be compelled to be a witness against
“A person so poor that he must be supported at public himself. (1987 Constitution, Sec. 17, Art. III) (1990,
expense; also suitor who, on account of poverty, is 1992, 1998, 2006 BAR)
allowed to sue or defend without being chargeable
with costs.”- Black’s Law Dictionary This constitutional privilege has been defined as a
protection against testimonial compulsion, but this
has since been extended to any evidence
Q: The Good Shepherd Foundation, Inc. seeks to be “communicative in nature” acquired under
exempted from paying legal fees for its indigent circumstances of duress. (People v. Olvis, G.R. No.
and underprivileged clients couching their claim 71092, September 30, 1987)
on the free access clause embodied in Sec. 11, Art.
III of the Constitution. Is the contention tenable? NOTE: What is prohibited is the use of physical or
moral compulsion to extort communication from the
A: NO. The Court cannot grant exemption of payment witness or to otherwise elicit evidence which would
of legal fees to foundations/institutions working for not exist were it not for the actions compelled from
indigent and underprivileged people. According to the witness–NOT the inclusion of his body in evidence
Sec. 19, Rule 141, Rules of Court, only when it may be material. For instance, substance
a natural party litigant may be regarded as an

Political Law
emitted from the body of the accused may be received The privilege against self-incrimination can be
as evidence in prosecution for acts of lasciviousness. claimed only when the specific question,
(US v. Tan Teng, 23 Phil. 145, September 7, 1912). And incriminatory in character, is actually addressed to
morphine forced out of the mouth of the accused may the witness. It cannot be claimed at any other time. It
also be used as evidence against him(US v. Ong Siu does not give a witness the right to disregard a
Hong, 36 Phil. 735, August 3, 1917) subpoena, to decline to appear before the court at the
time appointed. (Rosete v. Lim, G.R. No. 136051, June 8,
Consequently, although accused-appellant insists that 2006)
hair samples was forcibly taken from him and
submitted to the NBI for forensic examination, the Right against self-incrimination of an accused vs.
hair samples may be admitted in evidence against Right against self-incrimination of a witness
him, for what is proscribed is the use of testimonial
compulsion or any evidence communicative of the ACCUSED ORDINARY WITNESS
nature acquired from the accused under duress. Can refuse to take the Cannot refuse to take the
(People v. Rondero, 320 SCRA 333, 399-401, December. witness stand altogether witness stand; can only
9, 1999) by invoking the right refuse to answer specific
against self- questions which would
1. SCOPE AND COVERAGE incrimination. incriminate him in the
commission of an
The right is available in: (C-C-I-A-O) offense.
1. Criminal cases;
2. Civil cases; NOTE: For, in reality, the purpose of calling an
3. Impeachment; accused as a witness for the People would be to
4. Administrative cases; incriminate him. The rule positively intends to avoid
5. Other legislative investigations that possess a and prohibit the certainly inhuman procedure of
criminal or penal aspect. compelling a person “to furnish the missing evidence
necessary for his conviction”. (Chavez v. CA, G.R. L-
2. APPLICATION 29169, August 19, 1968)
It does not apply to private investigations done by

private individual (BPI v. CASA, GR.No.149454, May 28, 3. IMMUNITY STATUTES
2004). When the privilege against self-incrimination is
violated outside of court, say, by the police, then the 1. Use Immunity
testimony, as already noted, is not admissible under 2. Transactional Immunity. (Galman v. Pamaran,
the exclusionary rule. When the privilege is violated G.R. Nos. 71208-09, August 30, 1985)
by the court itself, that is, by the judge, the court is
ousted of its jurisdiction, all its proceedings are null
TRANSACTIONAL USE IMMUNITY
and void, and it is as if no judgment has been
rendered (Chavez v. CA, G.R. No. L-29169, August 19, IMMUNITY
1968). (Note: heading of the note says private The testimony of any The use of the witness
individuals but enumerated public authority instead) person or whose compelled testimony
possession of evidence and its fruits in any
NOTE: This right may be invoked not only in criminal necessary or convenient manner in connection
cases, but even in administrative proceedings that in determining any part of with the criminal
partake of a criminal nature (Secretary of Justice v. investigation conducted is prosecution of the
Lantion, 322 SCRA 160, January 18, 2000). This may immune from criminal witness are prohibited.
even be invoked during inquiries in aid of legislation prosecution for an offense (Galman v Pamaran, GR
in the Congress, and even in impeachment to which such compelled Nos. 71208-09, August
proceedings. (Bengzon v. Senate Blue Ribbon testimony relates. 30, 1985)
Committee, 203 SCRA 767, November 20, 1991)
The witness cannot be The witness can still be
Incriminating question prosecuted at all. prosecuted, but his
compelled testimony
A question tends to incriminate when the answer of may not be used against
the accused or the witness would establish a fact him.
which would be a necessary link in a chain of evidence
to prove the commission of a crime by the accused or
the witness. M. RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATION
NOTE: The privilege against self-incrimination is not
self-executing or automatically operational. It must be
Also known as the “Miranda Rights.” These are the
claimed. It follows that the right may be waived,
rights to which a person under custodial investigation
expressly, or impliedly, as by a failure to claim it at the
is entitled. At this stage, the person is not yet an
appropriate time.
133
IX. BILL OF RIGHTS
accused as there is yet no case filed against him. He is Investigation and the Duties of the Arresting,
merely a suspect. Detaining and Investigating Officers
Start of Custodial Investigation This is a special penal law enacted pursuant to Section
12, par. 4, Art. III of the 1987 Constitution.
Custodial investigation commences when a person is
taken into custody and is singled out as a suspect in The custodial investigation shall include the practice
the commission of a crime under investigation and the of issuing an invitation to a person who is under
police officers begin to ask questions on the suspect's investigation in connection with an offense he is
participation therein and which tend to elicit an suspected to have committed. (R.A. 7438, Sec. 2)
admission. (Ariel Lopez v. People of the Philippines,
G.R. No. 212186, June 29, 2016, as penned by J. NOTE: Rights during custodial investigation apply
LEONEN) only against testimonial compulsion and not when the
body of the accused is proposed to be examined (e.g.
The following are the rights of suspects: (2013 BAR) urine sample, photographs, measurements, garments,
shoes) which is a purely mechanical act.
1. Right to remain silent;
2. Right to competent and independent counsel, In the case of Galman v. Pamaran, G.R. Nos. 71208-09,
preferably of his own choice; August 30, 1985, it was held that the constitutional
3. Right to be reminded that if he cannot afford the safeguard is applied notwithstanding that the person
services of counsel, he would be provided with is not yet arrested or under detention at the time.
one However, Fr. Bernas has qualified this statement by
4. Right to be informed of his rights; saying that jurisprudence under the 1987
5. Right against torture, force, violence, threat, Constitution has consistently held, following the
intimidation or any other means which vitiate stricter view, that the rights begin to be available only
the free will; when the person is already in custody. (People v. Ting
6. Right against secret detention places, solitary, Lan Uy, G.R. No. 157399, November 17, 2005)
incommunicado, or similar forms of detention;
7. Right to have confessions or admissions Furthermore, in the case of People v. Reyes, G.R. No.
obtained in violation of these rights considered 178300, March 17, 2009, the court held that: “The
inadmissible in evidence. (Miranda v Arizona, mantle of protection afforded by the above-quoted
384 U.S. 436, June 13, 1966) provision covers the period from the time a person is
taken into custody for the investigation of his possible
NOTE: Even if the person consents to answer participation in the commission of a crime from the
questions without the assistance of counsel, the time he was singled out as a suspect in the
moment he asks for a lawyer at any point in the commission of the offense although not yet in custody.
investigation, the interrogation must cease until an
attorney is present. Infraction of the rights of an accused during custodial
investigation or the so-called Miranda Rights render
The “Miranda Rights” are available to avoid inadmissible only the extrajudicial confession or
involuntary extrajudicial confession. admission made during such investigation. "The
admissibility of other evidence, provided they are
The purpose of providing counsel to a person under relevant to the issue and is not otherwise excluded by
custodial investigation is to curb the police-state law or rules, is not affected even if obtained or taken
practice of extracting a confession that leads appellant in the course of custodial investigation" (Ho Wai Pang
to make self-incriminating statements. (People v. v. People, G.R. No. 176229, October 19, 2011)
Rapeza, G.R. No. 169431, April 3, 2007)
Unavailability of Miranda Rights
1. AVAILABILITY
1. During a police line-up, unless admissions or
confessions are being elicited from the suspect;
1. During custodial investigation; (Gamboa v. Cruz, G.R. No. L-56291, June 27, 1988)
2. During administrative investigations; (Sebastian,
As soon as the investigation ceases to be a Jr. v Garchitorena, G.R. No 114028, October 18,
general inquiry unto an unsolved crime and 2000)
direction is aimed upon a particular suspect, as
when the suspect who has been taken into police 3. Confessions made by an accused at the time he
custody and to whom the police would then voluntarily surrendered to the police or outside
direct interrogatory questions which tend to the context of a formal investigation; (People v
elicit incriminating statements; or (2014 BAR) Baloloy, G.R. No 140740, April 12, 2002)
4. Statements made to a private person; and (People
2. Critical pre-trial stage. v Tawat, G.R. No 62871, May 25, 1985)
5. Forensic investigation is not tantamount to
R.A. 7438 - An Act Defining Certain Rights of custodial investigation, therefore Miranda rights
Person Arrested, Detained or Under Custodial

Political Law
is not applicable. (People v. Tranca, 235 SCRA 455, the truth. (People v. Andan, G.R. No. 116437, March 3,
August 17, 1994) 1997)
2. REQUISITES FOR A PERSON TO BE PLACED Q: Constancio and Berry were charged with the
UNDER CUSTODIAL INVESTIGATION crime of Rape with Homicide committed against
“AAA”. During the trial, Amparo, a news reporter,
The rights would only be available if a person has testified that he personally interviewed Berry.
already arrested and in custody. Looking at the Amparo declared that during his interview, Berry
historical background of the Miranda Rights, it would revealed what happened the night “AAA” was
seem that the rights kick in the moment a person has killed. Atty. Suarez testified that during the
already become the suspect, or the one singled out for custodial investigation he advised Berry of his
investigation for possible participation in the crime constitutional rights and the consequences of his
under scrutiny. (People vs Marra, 236 SCRA 565, 1994 statements. Berry then executed an extrajudicial
and People vs Ting Lan Uy, Jr., 475 SCRA 248, 2005) confession which was embodied in a Sinumpaang
Salaysay. However, at the trial, Berry attested that
3. WAIVER the Sinumpaang Salaysay was false, and claimed
that he was threatened into signing the same. Is
Rights that may be waived the confession admissible?
1. Right to remain silent; and A: YES. The Court believed that Berry’s confession is
2. Right to counsel. admissible because it was voluntary executed with
the assistance of a competent and independent
Rights that may not be waived counsel in the person of Atty. Suarez following Section
12, Article III of the Constitution. In default of proof
The right of the accused to be given the Miranda that Atty. Suarez was negligent in his duties, the Court
warnings. held that the custodial investigation of Berry was
regularly conducted. there was no ample proof to
Requisites for valid waiver show that Berry’s narration of events to Amparo was
the product of intimidation or coercion. Berry’s
1. Made voluntarily, knowingly and intelligently; extrajudicial confession to Amparo, a news reporter,
2. In writing; and is deemed voluntary and is admissible in evidence as
3. With the presence of counsel. (People v. Galit, G.R. it was not made to the police authorities or to an
No. L-51770, March 20, 1985) investigating officer. (People v. Constancio, G.R. No.
206226, April 4, 2016)
Admissibility as evidence of confessions given to
news reporters and/or media and videotaped Exclusionary Rule; Fruit of the Poisonous Tree
confessions Doctrine
Confessions given in response to a question by news Once the primary source (the tree) is shown to have
reporters, not policemen, are admissible. Where the been unlawfully obtained, any secondary or derivative
suspect gave spontaneous answers to a televised evidence (the fruit) derived from it is also
interview by several press reporters, his answers are inadmissible. It does not necessarily follow that the
deemed to be voluntary and are admissible. property illegally seized will be returned immediately,
it could remain in custodia legis.
Videotaped confessions are admissible, where it is
shown that the accused unburdened his guilt Any evidence obtained in violation of this or the
willingly, openly and publicly in the presence of the preceding section shall be inadmissible for any
newsmen. Such confessions do not form part of purpose in any proceeding. (Sec. 3(2))
confessions in custodial investigations as it was not
given to policemen but to media in attempt to solicit The issue of admissibility of such evidence may be
sympathy and forgiveness from the public. waived. Objections are deemed waived if not raised
during trial. (Demaisip vs. CA, 193 SCRA 373)
However, due to inherent danger of these videotaped
confessions, they must be accepted with extreme NOTE: The rule is based on the principle that
caution. They should be presumed involuntary, as evidence illegally obtained by the State should not be
there may be connivance between the police and used to gain other evidence, because the originally
media men. (People v. Endino, G.R. No. 133026, illegally obtained evidence taints all evidence
February 20, 2001) subsequently obtained.
NOTE: What the Constitution bars is the compulsory Q: Mayor Tatum arrived and proceeded to the
disclosure of the incriminating facts or confessions. investigation room. Upon seeing the mayor,
The rights under Sec. 12 are guarantees to preclude appellant Flores approached him and whispered a
the slightest use of coercion by the State, and not to request to talk privately. The mayor led appellant
prevent the suspect from freely and voluntarily telling to the office of the Chief of Police and there, Flores
broke down and said "Mayor, patawarin mo ako! I
135
IX. BILL OF RIGHTS
will tell you the truth. I am the one who killed No person shall be held to answer for a criminal
Villaroman." The mayor opened the door of the offense without due process of law. [1987
room to let the public and media representatives Constitution, Sec. 14(1), Art. III]
witness the confession. The mayor first asked for
a lawyer to assist appellant but since no lawyer Requisites of criminal due process (NO-CPJ)
was available she ordered the proceedings
photographed and videotaped. In the presence of 1. Accused is heard by a Court of competent
the mayor, the police, representatives of the jurisdiction;
media and appellant's own wife and son, appellant 2. Accused is proceeded against under the orderly
confessed his guilt. His confession was captured Processes of law;
on videotape and covered by the media 3. Accused is given Notice and Opportunity to be
nationwide. Did such uncounseled confession heard;
violate the suspect’s constitutional rights? 4. Judgment must be rendered after lawful hearing.
A: NO. A confession given to the mayor may be Right to appeal not a natural right
admitted in evidence if such confession by the suspect
was given to the mayor as a confidant and not as a law The right to appeal is neither a natural right nor part
enforcement officer. In such a case, the uncounseled of due process. It is a mere statutory right, but once
confession did not violate the suspect’s constitutional given, denial constitutes violation of due process.
rights. What the constitution bars is the compulsory
disclosure of incriminating facts or confessions. The 2. BAIL
rights under Sec. 12 are guarantees to preclude the
slightest use of coercion by the State and not to Concept
prevent the suspect from freely and voluntarily telling
the truth. (People v. Andan, G.R. No. 116437, March 3, Bail is a matter of right except where a person is
1997) charged with an offense punishable by reclusion
perpetua, life imprisonment, or death and where
Q: Accused Antonio Lauga was charged and evidence of guilt is strong. (1987 Constitution, Article
convicted of the crime of rape of his thirteen-year III, Section 13)
old daughter, AAA. During the proceedings, Juan
Paulo Nepomuceno, a bantaybayanin the Bail is not granted to prevent the accused from
barangay, testified that the accused confessed that committing additional crimes. Bail acts as a
he had in fact raped AAA. The trial court found reconciling mechanism to accommodate both the
him guilty of the crime of rape. Lauga contends accused’s interest in pretrial liberty and society’s
that the extrajudicial confession he made to interest in assuring the accused’s presence at trial
Nepomuceno is inadmissible in evidence as it was (Leviste vs. Court of Appeals, 615 SCRA 619, March 17,
made without assistance of counsel. Is his 2010).
contention tenable?
Forms of Bail
A: YES. A barangay bantay bayan is considered a
public officer and any extrajudicial confession made 1. Corporate Surety
to him without the assistance of counsel is 2. Property Bond
inadmissible in evidence as provided for under Sec. 3. Cash deposit; and
12, Art. III of the Constitution. (People v. Lauga, G.R. 4. Recognizance (Rules of Court, Rule 114, Section
No. 186228, March 15, 2010)
1)
N. RIGHTS OF THE ACCUSED
Amount of Bail; Guidelines
(D-I-C-A-S-WIT-E-D-B)
1. Financial ability of accused to give bail;
2. Nature and circumstances of offense;
1. Due process;
3. Penalty for offense charged;
2. Be presumed Innocent;
2. Character and reputation of accused;
3. Be heard by himself and Counsel;
3. Age and health of the accused;
4. Be informed of the nature and cause of the
4. Weight of evidence against him;
Accusation against him;
5. Probability of the accused appearing in trial;
5. A Speedy, impartial and public trial;
6. Forfeiture of other bonds;
6. Meet the witnesses face to face;
7. The fact that accused was a fugitive from justice
7. Have compulsory process to secure the
when arrested; and
attendance of witnesses and production of
8. Pendency of other cases in which the accused is
evidence on his behalf;
under bond
8. Against double jeopardy; and
9. Bail.
Bail as a matter of right vs. when bail is
discretionary
1. CRIMINAL DUE PROCESS

Political Law
RIGHT DISCRETIONARY violated when there is a logical connection between

1. BEFORE conviction 1. AFTER conviction of the fact proved and the ultimate fact presumed. When
by the MTC, MTCC or the MTC, MTCC or such prima facie evidence is unexplained or not
MCTC; and MCTC contradicted by the accused, the conviction founded
2. Before conviction by 2. The offense is NOT on such evidence will be valid. However, the
the RTC punishable by death, prosecution must still prove the guilt of the accused
3. The offense must reclusion perpetua or beyond reasonable doubt. The existence of a
NOT be punishable life imprisonment disputable presumption does not preclude the
by death, reclusion (Sections 4 and 5, Rule presentation of contrary evidence.
perpetua, or life 114 of the Rules of
imprisonment Court) Here, petitioner fails to show that a logical relation
between the fact proved—presence of a person
The application for bail during the hazing—and the ultimate fact presumed—
may be acted upon by their participation in the hazing as a principal—is
the trial court despite lacking. Neither has it been shown how Section 14 of
the filing of a notice of the Anti-Hazing Law does away with the requirement
appeal that the prosecution must prove the participation of
the accused in the hazing beyond reasonable doubt.
NOTE: As long as the (Fuertes vs. Senate, G.R. No. 208162, January 07, 2020)
original record has not
yet been transmitted to 4. RIGHT TO BE HEARD
the appellate court.
The right to counsel proceeds from the fundamental
Bail shall be denied upon showing of the following principle of due process which basically means that a
or similar circumstances: (6-R-E-P-F-U) person must be heard before being condemned. The
due process requirement is part of a person’s basic
1. The penalty imposed by the trial court is rights; it is not a mere formality that may be
imprisonment exceeding 6 years dispensed with or performed perfunctorily. (People vs
2. He is a Recidivist, quasi-recidivist or habitual Ferrer, 406 SCRA 658, 2003)
delinquent or has committed a crime aggravated
by reiteration If he opts to be silent where he has a right to speak, he
3. He has Escaped from confinement, evaded cannot later be heard to complain that he was unduly
sentence or violated the conditions of his bail silenced. (Stronghold Ins. Co. vs. Court of Appeals, G.R.
without valid justification No. 89020, May 5, 1992)
4. He committed the offense while under Probation,
parole or conditional pardon 5. ASSISTANCE OF COUNSEL
5. The circumstances of the case indicate the
probability of Flight if released on bail The right to counsel is absolute and may be invoked at
6. There is Undue risk that he may commit another all times. In an ongoing litigation, it is a right that
crime during the pendency of the appeal. must be exercised at every step of the way, with the
lawyer faithfully keeping his client company. Unless
3. PRESUMPTION OF INNOCENCE the accused is represented by a lawyer, there is great
danger that any defense presented in his behalf will
Every circumstance favoring the innocence of the be inadequate considering the legal perquisites and
accused must be taken into account. The proof against skills needed in the court proceedings. This would
him must survive the test of reason, the strongest certainly be a denial of due process. (Inacay vs People,
suspicion must not be permitted to sway judgment. G.R. No. 223506, November 28, 2016)
(People vs. Austria, G.R. No. 55109, April 8, 1991)
When a defendant appears without attorney, the
However, after conviction by the trial court, the court must:
presumption of innocence terminates and,
accordingly, the constitutional right to bail ends. 1. Inform the defendant that it is his right to have
[Leviste vs. Court of Appeals, 615 SCRA 650 (2010), and attorney;
reiterated in Qui vs People, 682 SCRA 94 (2012)] 2. Ask him if he desires the aid of an attorney;
3. Assign an attorney de oficio, if he desires and is
unable to employ attorney; and
Q: Section 14 , paragraph 4 of the Anti-Hazing Law
4. Grant him a reasonable time, if he desires to
provides that an accused's presence during a
procure an attorney of his own. (People vs.
hazing is prima facie evidence of his or her
Hodalgo, G.R. No. L-2809, March 22, 1950)
participation. Does this provision violate the
constitutional presumption of innocence?
6. RIGHT TO BE INFORMED OF THE NATURE AND
CAUSE OF ACCUSATION
A: NO. This Court has upheld the constitutionality of
disputable presumptions in criminal laws. The An accused cannot be convicted in the courts of any
constitutional presumption of innocence is not offense, unless it is charged in the complaint or
137
IX. BILL OF RIGHTS
information on which he is tried, or necessarily 10. TRIALS IN ABSENTIA
included therein. He has the right to be informed as to
the nature of the offense with which he is charged The holding of trial in absentia is authorized under
before he is put on trial, and to convict him of an Section 14 (2), Article III of the 1987 Constitution
offense higher than that charged in the complaint or which provides that “after arraignment, trial may
information on which he is tried would be an proceed notwithstanding the absence of the accused
unauthorized denial of that right. (Canceran vs People, provided that he has been duly notified and his failure
G.R. No. 206442, July 1, 2015) to appear is unjustifiable.”
Purposes Requisites of a Valid Trial in Absentia
1. To furnish the accused with such a description of 1. The accused has already been arraigned;
the charge against him as will enable to make his 2. He has duly been notified of the trial;
defense; 3. His failure to appear is unjustifiable (Bernardo vs.
2. To avail himself of his conviction or acquittal for People, G.R. No. 166980, April 4, 2007)
protection against a further prosecution for the
same cause; and O. RIGHT TO SPEEDY DISPOSITION OF CASES
3. To inform the court of the facts alleged, so that it
may decide whether they are sufficient in law to Right to speedy disposition of cases
support a conviction, if one should be had (U.S. vs
Karelsen, G.R. No. 1376, January 21, 1904) This is a right that is available to all persons in all
kinds of proceedings, whether criminal, civil, or
7. RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC administrative, unlike the right to speedy trial which
TRIAL is available only to an accused in a criminal case and,
therefore, only the accused may invoke such.
See discussion on Right to Speedy Disposition of Cases
The right to speedy disposition of cases is different
8. RIGHT TO CONFRONTATION from the right to speedy trial to the extent that the
former applies to all cases, whether judicial, quasi-
Purposes of confrontation judicial, or administrative cases. (1987 Constitution,
Art. III, Sec. 16); whereas, the latter applies to criminal
1. To secure the opportunity of cross-examination; cases only. [1987 Constitution, Art. III, Sec. 14(2)]
that has been repeatedly pointed out in judicial
opinion, so that if the opportunity of cross- Violation
examination has been secured the function, and
test of confrontation has also been accomplished, The right to a speedy disposition of a case, like the
the confrontation being merely the dramatic right to a speedy trial, is deemed violated only when
preliminary to cross-examination; and the proceedings are attended by vexatious, capricious,
2. So that the tribunal may have before it the and oppressive delays; or when unjustified
deportment and appearance of the witnesses postponements of the trial are asked for and secured;
while testifying. or even without cause or justifiable motive, a long
period of time is allowed to elapse without the party
NOTE: But the latter purpose is so much a having his case tried. (Roquero v. Chancellor of UP-
subordinate and incidental one of that no vital Manila, G.R. No. 181851, March 9, 2010)
importance is attacked to it; consequently, if it cannot
be had it is dispensed with, provided that chief In determining whether the accused has been
purpose, cross-examination, has been attained. deprived of his right to a speedy disposition of the
(Greenlead on Evidence, Vol. 1, par. 163) case and to a speedy trial, four factors must be
considered: (a) length of delay; (b) the reason for the
9. COMPULSORY PROCESS delay; (c) the defendant's assertion of his right; and
(d) Prejudice to the defendant. (Angelito Magno vs.
While the prosecution must provide the accused every People Philippines, G.R No. 230657, March 14, 2018)
opportunity to take the deposition of witnesses that
are material to his defense in order to avoid charges Q: Luz Almeda, Schools Division Superintendent of
of violating the right of the accused to compulsory the DepEd, was being charged of violation of R.A.
process, the State itself must resort to deposition- 3019. However, the preliminary investigation
taking sparingly if it is to guard against accusations of proceedings took more than 11 long years to
violating the right of the accused to meet the resolve due to the repeated indorsement of the
witnesses against him face to face. Great care must be case between the Office of the Ombudsman
observed in the taking and use of depositions of (Ombudsman) and the Office of the Special
prosecution witnesses to the end that no conviction of Prosecutor (OSP). It is attributed to the
an accused will rely on ex parte affidavits and Ombudsman’s failure to realize that Almeda was
deposition. (Go vs People, G.R. No. 185527, July 18, not under the jurisdiction of the OSP or
2012) the Sandiganbayan. Almeda then prays for the
dismissal of the case against her, claiming that

Political Law
there was a violation of her right to speedy trial. Is the Sandiganbayan for violation of Section 3 (e) of
she correct? R.A. No. 3019 and Malversation of Public Funds
through Falsification of Public Documents against
A: YES. The right includes within its contemplation him. He filed a Motion to Quash/Dismiss on the
the periods before, during and after trial, such as ground that there was inordinate delay of seven
preliminary investigations and fact-finding (7) years in the filings of the Informations which
investigations conducted by the Office of the violated his constitutional rights to due process
Ombudsman. Further, this right applies to all cases and to speedy disposition of cases. Did the
pending before all judicial, quasi-judicial or Sandiganbayan commit grave abuse of discretion
administrative bodies and not limited to the accused on the ground of inordinate delay in denying
in criminal proceedings but extends to all parties in all petitioner’s Motion to Quash Dismiss?
cases, be it civil or administrative in nature. [Almeda v.
Office of the Ombudsman (Mindanao), G.R. No. 204267, A: NO. Under Article III, Section 16 of the 1987
July 25, 2016] Constitution, "all persons shall have the right to a
speedy disposition of their cases before all judicial,
Q: Roman and several others were charged with a quasi-judicial, or administrative bodies. Inordinate
violation of the Anti-Graft and Corrupt Practices delay in the resolution and termination of a
Act for wrongfully claiming that a mini-theater preliminary investigation will result in the dismissal
construction was already finished. Roman filed of the case against the accused. Courts should
several extensions to file his counter-affidavit and appraise a reasonable period from the point of view of
asked for the consolidation of the case with how much time a competent and independent public
another complaint. Later on, Roman filed a officer would need in relation to the complexity of a
motion to quash the information claiming that his given case. Nonetheless, the accused must invoke his
right to speedy disposition of cases was violated or her constitutional rights in a timely manner. The
as 11 years already lapsed since the filing of the failure to do so could be considered by the courts as a
complaint before the Ombudsman. The Republic waiver of right. Despite the pendency of the case since
claims that they followed the procedures of the 2003, Cagang only invoked his right to speedy
law and that the presence of several of accused disposition of cases when the informations were filed
made it difficult to resolve the case. Will Roman’s on November 17, 2011. Admittedly, while there was
motion to quash prosper? delay in filing the information, Cagang did not show
that he asserted his rights during this period,
A: NO. Citing the case of Corpuz vs. Sandiganbayan, choosing instead to wait until the information was
the Court ruled that the right to speedy disposition of filed against him with the Sandiganbayan. (Cesar
cases is violated only when there is inordinate delay. Matas Cagang v. Sandiganbayan, G.R. Nos. 206438
The Republic showed that it followed the procedure and 206458, July 31, 2018, as penned by J. LEONEN)
leading to the resolution of the preliminary
investigation. When the Complaint was filed before Right to public trial
the Ombudsman, it required the counter-affidavits of
respondents. It even granted the motions for GR:
extension filed by Roman. Despite this, Roman did not
allege any irregularity in the conduct of the 1. Trial must be public in order to prevent possible
preliminary investigation and approval of the abuses which may be committed against the
Resolution. Further the Republic explained that the accused; and
multiple respondents and numerous documents 2. The attendance at the trial is open to all,
involved made the case more complex and difficult to irrespective of their relationship to the accused.
resolve. The investigating officer needed to evaluate
whether each accused impleaded is probably guilty of XPN: If the evidence to be adduced is “offensive to
the charges. decency or public morals,” the public may be
excluded. (Sec. 21, Rule 119 of the Rules of Criminal
In addition, Roman contributed to the delay as he Procedure)
moved for an extension to file his counter-affidavit
twice and filed another motion to consolidate the case Public trial is not synonymous with publicized
with another complaint. (Republic vs. trial
Sandiganbayan and Roman, G.R. No. 231144,
February 19, 2020, as penned by J. LEONEN) The right to a public trial belongs to the accused. The
requirement of a public trial is satisfied by the
Q: Cesar Matas Cagang, provincial treasurer of opportunity of the members of the public and the
Sarangani was one of the government officials press to attend the trial and to report what they have
alleged of graft and corruption by embezzling
observed. The accused’s right to a public trial should
millions in public funds. On August 11, 2004, the not be confused with the freedom of the press and the
Office of the Ombudsman found probable cause to public’s right to know as a justification for allowing
charge him of Malversation of Public Funds the live broadcast of the trial. The tendency of a high
through Falsification of Public Documents and
profile case like the subject case to generate undue
Violation of Section 3 (e) of R.A. No. 3019. On publicity with its concomitant undesirable effects
November 17, 2011 the Ombudsman filed a case at weighs heavily against broadcasting the trial.
139
IX. BILL OF RIGHTS
Moreover, the fact that the accused has legal remedies NOTE: The power to re-impose the death penalty for
after the fact is of no moment, since the damage has certain heinous crimes is vested in the Congress; not
been done and may be irreparable. It must be pointed in the President. After all, the power to define crimes
out that the fundamental right to due process of the and impose penalties is legislative in nature.
accused cannot be afforded after the fact but must be
protected at the first instance. (In Re: Petition for Q: Petitioner claims that the Anti-Hazing Law
Radio and Television Coverage of the Multiple Murder imposes cruel and unusual punishments on those
Cases against Maguindanao Governor Zaldy Ampatuan, charged under it, as the offense is punishable
A.M. No. 10-11-5-SC, October 23, 2012) with reclusion perpetua, a non-bailable offense.
P. RIGHTS AGAINST EXCESSIVE FINES AND CRUEL A: NO. Settled is the rule that a punishment
AND INHUMAN PUNISHMENTS authorized by statute is not cruel, degrading or
disproportionate to the nature of the offense unless it
The prohibition of cruel and unusual punishments is is flagrantly and plainly oppressive and wholly
generally aimed at the form or character of the disproportionate to the nature of the offense as to
punishment rather than its severity in respect of shock the moral sense of the community. It takes
duration or amount, and applies to punishments more than merely being harsh, excessive, out of
which public sentiment has regarded as cruel or proportion or severe for a penalty to be obnoxious to
obsolete, for instance, those inflicted at the whipping the Constitution. Based on this principle, the Court has
post, or in the pillory, burning at the stake, breaking consistently overruled contentions of the defense that
on the wheel, disemboweling, and the like. Fine and the penalty of fine or imprisonment authorized by the
imprisonment would not thus be within the statute involved is cruel and degrading.
prohibition. It takes more than merely being harsh,
excessive, out of proportion, or severe for a penalty to The intent of the Anti-Hazing Law is to deter members
be obnoxious to the Constitution. of a fraternity, sorority, organization, or association
from making hazing a requirement for admission. By
In line with this, this Court has found that the penalty making the conduct of initiation rites that cause
of life imprisonment or reclusion perpetua does not physical and psychological harm malum
violate the prohibition. Even the death penalty in itself prohibitum, the law rejects the defense that one's
was not considered cruel, degrading, or inhuman. desire to belong to a group gives that group the
license to injure, or even cause the person's death.
Nonetheless, this Court has found that penalties like
fines or imprisonment may be cruel, degrading, or
inhuman when they are "flagrantly and plainly Moreover, the law was meant to counteract the
oppressive and wholly disproportionate to the nature exculpatory implications of "consent" and " initial
of the offense as to shock the moral sense of the innocent act" in the conduct of initiation rites by
community." However, if the severe penalty has a making the mere act of hazing punishable or mala
legitimate purpose, then the punishment is prohibita.
proportionate and the prohibition is not
violated. (Fuertes vs. Senate, G.R. No. 208162, January Petitioner here fails to show how the penalties
07, 2020) imposed under the Anti Hazing Law would be cruel,
degrading, or inhuman punishment, when they are
NOTE: The fact that the punishment authorized by the similar to those imposed for the same offenses under
statute is severe does not make it cruel and unusual. the Revised Penal Code, albeit a degree higher. To
(Corpuz v. People, G.R. No. 180016, April 29, 2014) emphasize, the Anti-Hazing Law aims to prevent
organizations from making hazing a requirement for
Mere extinguishment of life alone does not constitute admission. The increased penalties imposed on those
cruel, degrading, inhuman punishment. To be such, it who participate in hazing is the country's response to
must involve prolonged agony and suffering; it refers a reprehensible phenomenon that persists in schools
more to the nature of the punishment to be inflicted and institutions. The Anti-Hazing Law seeks to punish
upon a convict, that which is shocking to the the conspiracy of silence and secrecy, tantamount to
conscience of mankind under contemporary impunity, that would otherwise shroud the crimes
standards. (Leo Echegaray v. Secretary of Justice, G.R. committed. (Fuertes vs. Senate, G.R. No. 208162,
No. 132601, October 12, 1998) January 07, 2020)
Cruel and Inhuman penalty Q. NON-IMPRISONMENT FOR DEBTS
A penalty is cruel and inhuman if it involves torture or Basis

lingering suffering (e.g. being drawn and quartered).
No person shall be imprisoned for debt or non-
Degrading penalty payment of a poll tax. (1987 Constitution, Sec. 20, Art.
III) (1993, 1997, 2000, 2002 BAR)
A penalty is degrading if it exposes a person to public
humiliation (e.g. being tarred and feathered, then Debt
paraded throughout town).

Political Law
It is any civil obligation arising from contract. 1. A first jeopardy must have attached prior to the
second;
Poll tax 2. The first jeopardy must have been validly
terminated; and
A specific sum levied upon any person belonging to a 3. The second jeopardy must be for the same
certain class without regard to property or occupation offense or the second offense includes or is
(e.g. community tax). necessarily included in the offense charged in
the first information or is an attempt to commit
NOTE: A tax is not a debt since it is an obligation the same or is a frustration thereof.
arising from law. Hence, its non-payment maybe
validly punished with imprisonment. Only poll tax is Rationale
covered by the constitutional provision.
To reconsider a judgment of acquittal places the
If an accused fails to pay the fines imposed upon him, accused twice in jeopardy for being punished for the
this may result in his subsidiary imprisonment crime of which he has already been absolved. There is
because his liability is ex delicto and not ex contractu. reason for this provision of the Constitution. In
Generally, a debtor cannot be imprisoned for failure criminal cases, the full power of the State is ranged
to pay his debt. However, if he contracted his debt against the accused. If there is no limit to attempts to
through fraud, he can be validly punished in a prosecute the accused for the same offense after he
criminal action as his responsibility arises not from has been acquitted, the infinite power and capacity of
the contract of loan but from commission of a crime. the State for a sustained and repeated litigation would
(Lozano v. Martinez, G.R. No. L-63419, December 18, eventually overwhelm the accused in terms of
1986) resources, stamina, and the will to fight. (Lejano v.
People, G.R. Nos. 176389 and 176864, January 18,
R. RIGHT AGAINST DOUBLE JEOPARDY 2011)
No person shall be twice put in jeopardy of Related protections provided by the right against
punishment for the same offense. If an act is punished double jeopardy
by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another
1. Against a second prosecution for the same
prosecution for the same act.
offense after acquittal;
2. Against a second prosecution for the same
Two kinds of double jeopardy
offense after conviction; and
1. Double jeopardy for the same offense; (1st 3. Against multiple punishments for the same
sentence, Sec. 21 of Art. III); and offense.
2. Double jeopardy for the same act. (2nd sentence,
Sec. 21 of Art. III); (People v. Quijada, 259 SCRA 2. LIMITATIONS OF DOUBLE JEOPARDY
191, July 24, 1995)
Exceptions to the right against double jeopardy
1. REQUISITES; SCOPE OF DOUBLE JEOPARDY
1. When the trial court acted with grave abuse of
Legal jeopardy attaches only upon: discretion amounting to lack or excess of
jurisdiction; (Bangayan, Jr. v. Bangayan, G.R. No.
(COM-FI-A-P-A,WEC) 172777, and De Asis Delfin v. Bangayan, G.R. No.
172792, October 19, 2011)
1. Valid complaint or information; 2. The accused was not acquitted nor was there a
2. Filed before a competent court; valid and legal dismissal or termination of the
3. The arraignment of the accused; case;
3. Dismissal of the case was during the preliminary
4. To which he had pleaded; and
investigation;
5. Defendant was previously acquitted or convicted, 4. It does not apply to administrative cases; and
or the case dismissed or otherwise terminated 5. Dismissal or termination of the case was with the
without his express consent. (Saldariega v. express consent of the accused.
Panganiban, G.R. Nos. 211933 & 211960, April 15,
2015) NOTE: When the dismissal is made at the
instance of the accused, there is no double
NOTE: Consent of the accused to the dismissal cannot jeopardy. (People v. Quijada, 160 SCRA 516, July
be implied or presumed; it must be expressed as to 24, 1996)
have no doubt as to the accused’s conformity. (Caes v.
IAC, 179 SCRA 54, November 6, 1989) GR: Double jeopardy is not available when the
case is dismissed other than on the merits or
To substantiate a claim of double jeopardy, the other than by acquittal or conviction upon motion
following must be proven: of the accused personally, or through counsel,
since such dismissal is regarded as with express
141
IX. BILL OF RIGHTS
consent of the accused, who is therefore deemed merely a means to commit other crimes such that
to have waived the right to plea double jeopardy. conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense,
XPNs: regardless of its various resulting acts.
a. Dismissal based on insufficiency of evidence; Reason and precedent both coincide in that once
(Saldariega v. Panganiban, G.R. Nos. 211933 convicted or acquitted of a specific act of reckless
& 211960, April 15, 2015) imprudence, the accused may not be prosecuted again
b. Dismissal because of denial of accused’s for that same act. For the essence of the quasi-offense
right to speedy trial; and (Ibid.) of criminal negligence under Art. 365 of the Revised
c. Accused is discharged to be a State witness. Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be
6. When the case was provisionally dismissed; punishable as a felony.
7. The graver offense developed due to supervening
facts arising from the same act or omission The law penalizes thus the negligent or careless act,
constituting the former charge; not the result thereof. The gravity of the consequence
is only taken into account to determine the penalty, it
NOTE: Doctrine of Supervening Event - The does not qualify the substance of the offense.
accused may still be prosecuted for another
offense if a subsequent development changes the And, as the careless act is single, whether the
character of the first indictment under which he injurious result should affect one person or several
may have already been charged or convicted. persons, the offense (criminal negligence) remains
one and the same, and cannot be split into different
8. The facts constituting the graver charge became crimes and prosecutions. (Jason Ivler y Aguilar v. Hon.
known or were discovered only after a plea was Modesto-San Pedro, G.R. No. 172716, November 17,
entered in the former complaint or information; 2010)
9. The plea of guilty to a lesser offense was made
without the consent of the prosecutor and of the A valid information is required in order for the
offended party except as otherwise provided in first jeopardy to attach
Sec. 1(f) of Rule 116.
When accused policemen entered their pleas of not
Q: Hans, a writer in Q Magazine, published an guilty, and later arraigned anew by reason of
article about Carlo’s illicit affairs with other amendment of information, and consequently
women. The magazine also happened to have a convicted, they were not placed in double jeopardy.
website where the same article was published. The first requirement for jeopardy to attach – that the
Carlo then filed a libel case against Hans both information was valid – has not been complied with.
under the Revised Penal Code and the Cybercrime (Herrera v. Sandiganbayan, G.R. Nos. 119660-61,
Law. Is there a violation of the proscription February 13, 2009)
against double jeopardy?
NOTE: When the first case was dismissed due to
A: YES. There should be no question that if the insufficiency of evidence without giving the
published material on print, said to be libelous, is prosecution the opportunity to present its evidence,
again posted online or vice versa, that identical jeopardy has not yet attached. (People v. Dumlao, G.R.
material cannot be the subject of two separate libels. No. 168918, March 2, 2009)
The two offenses, one, a violation of Art. 353 of the
Revised Penal Code and the other a violation of Sec. Q: After a long and protracted trial, the accused
4(c)(4) of R.A. 10175 involve essentially the same involved in the murder of then Senator Aquino
elements and are in fact one and the same offense. were acquitted by the Sandiganbayan. After the
Online libel under Sec. 4(c)(4) is not a new crime but EDSA People Power Revolution, a commission
is one already punished under the Art. 353. Sec. appointed by President Aquino recommended the
4(c)(4) merely establishes the computer system as re-opening of the Galman-Aquino murder case
another means of publication. Charging the offender after finding out that the then authoritarian
under both laws would be a blatant violation of the president Marcos ordered the Tanodbayan and
proscription against double jeopardy. (Disini v. Sandiganabyan to rig the trial. Marcos repudiated
Secretary of Justice, G.R. No. 203335, February 11, the findings of the very Fact Finding Board that he
2014) himself appointed to investigate the assassination
of Ninoy Aquino; he totally disregarded the
Q: Jet was convicted for Reckless Imprudence Board's majority and minority findings of fact and
Resulting in Slight Physical Injuries. Can he still be publicly insisted that the military's "fall guy"
prosecuted for Reckless Imprudence Resulting in Rolando Galman was the killer of Ninoy Aquino;
Homicide and Damage to Property arising from the Sandiganbayan's decision in effect convicted
the same incident? Rolando Galman as Ninoy's assassin
notwithstanding that he was not on trial but the
A: NO. The doctrine that reckless imprudence under victim, and granted all 26 accused total absolution
Art. 365 is a single quasi-offense by itself and not notwithstanding the Fact Finding Board declaring

Political Law
the soldiers' version of Galman being Aquino's 1. Punishment for a crime for which the party has
killer a perjured story. Will the rule on double been duly convicted;
jeopardy apply? 2. Personal military or civil service in the interest
of national defense;
A: NO. There was no double jeopardy. It is a settled 3. In naval enlistment, a person who enlists in a
doctrine that double jeopardy cannot be invoked merchant ship may be compelled to remain in
against this Court's setting aside of the trial courts' service until the end of a voyage;
judgment of dismissal or acquittal where the 4. Posse comitatus or the conscription of able-
prosecution which represents the sovereign people in bodied men for the apprehension of criminals;
criminal cases is denied due process.The proceedings 5. Return to work order issued by the DOLE
that took place before was a sham and a mock trial Secretary or the President;
which resulted in the denial of the State’s right to due 6. Minors under patria potestas are obliged to obey
process. (Galman v. Sandiganbayan, G.R. No. 72670, their parents.
September 12, 1986)
T. EX POST FACTO LAW AND
Effect of order of a court which lacks jurisdiction BILL OF ATTAINDER
Since the MTC did not have jurisdiction to take An ex post facto law is any law that makes an action,
cognizance of the case pending this Court's review of done before the passage of the law, and which was
the RTC Order, its order of dismissal was a total innocent when done, criminal, and punishes such
nullity and did not produce any legal effect. Thus, the action. Ex post laws, unless they are favorable to the
dismissal neither terminated the action on the merits, defendant, are prohibited. (United State v. Vicente Diaz
nor amounted to an acquittal. Conde and Apolinaria R. De Conde, G.R. No. L-18208,
February 14, 1922) (1990 BAR)
The same can be said of the Order of Revival. Since
both orders cannot be the source of any right nor Kinds of ex post facto law
create any obligation, the dismissal and the
subsequent reinstatement of Criminal Case No. 89724 It can be a law that:
did not effectively place the petitioners in double
jeopardy. (Quiambao v. People, G.R. No. 185267, 1. Makes an act, which was innocent when done,
September 17, 2014) criminal and punishes such action;
2. Aggravates a crime or makes it greater than
The appeal of an accused operates as a waiver of when it was committed;
his right against double jeopardy 3. Changes the punishment and inflicts a greater
punishment than the law annexed to the crime
When an accused appeals from the sentence of the when it was committed;
trial court, he waives the constitutional safeguard 4. Alters the legal rules of evidence and receives
against double jeopardy and throws the whole case less or different testimony than the law required
open to the review of the appellate court, which is at the time of the commission of the offense in
then called upon to render such judgment as law and order to convict the defendant;
justice dictate, whether favorable or unfavorable to 5. Assumes to regulate civil rights and remedies
the appellant." In other words, when appellant only. In effect imposes penalty or deprivation of a
appealed the RTC’s judgment of conviction for right for something which when done was lawful;
murder, he is deemed to have abandoned his right to or
invoke the prohibition on double jeopardy since it 6. Deprives a person accused of a crime of some
became the duty of the appellate court to correct lawful protection to which he has become
errors as may be found in the appealed judgment. entitled, such as the protection of a former
Thus, appellant could not have been placed twice in conviction or acquittal, or a proclamation of
jeopardy when the CA modified the ruling of the RTC amnesty. (Nuñez v. Sandiganbayan and People,
by finding him guilty of robbery with homicide as G.R. Nos. L-50581-50617, January 30, 1982)
charged in the Information instead of murder. (People
v. Torres, G.R. No. 189850, September 22, 2014) Characteristics of ex post facto law
S. RIGHT AGAINST INVOLUNTARY SERVITUDE The ex post facto law must: (C-R-P)
Involuntary servitude 1. Refer to criminal matters;

2. Be retroactive in its application; and
It is the condition where one is compelled by force, 3. Be to the prejudice of the accused.
coercion, or imprisonment, and against his will, to
labor for another, whether he is paid or not.
Q: On Oct. 8, 1992 President Ramos issued A.O. No.
13 creating the Presidential AdHoc Fact-Finding
GR: No involuntary servitude shall exist. (1993 BAR)
Committee on Behest Loans. The Committee was
XPNs: (P-S-E-C-O-M)
tasked to inventory all behest loans and
143
X. LAW ON PUBLIC OFFICERS
determine the courses of action that the Not being penal laws, Administrative Order No. 13
government should take to recover these loans. and Memorandum Order No. 61 cannot be
characterized as ex post facto laws. There is,
By Memorandum Order No. 61 dated Nov. 9, 1992, therefore, no basis for the Ombudsman to rule that
the functions of the Committee were expanded to the subject administrative and memorandum orders
include all non-performing loans which shall are ex post facto. (Salvador v. Mapa, Jr.,G.R. No.
embrace behest and non-behest loans. Said 135080, November 28, 2007)
Memorandum also named criteria to be utilized as
a frame of reference in determining a behest loan. Bill of attainder
Several loan accounts were referred to the A bill of attainder is generally understood as a
Committee for investigation, including the loan legislative act which inflicts punishment on
transactions between PEMI and the DBP. individuals or members of a particular group without
a judicial trial.
Consequently, Atty. Salvador, Consultant of the
Fact-Finding Committee, and representing the
PCGG, filed with the Ombudsman a sworn A bill of attainder encroaches on the courts' power to
complaint for violation of Sections 3(e) and (g) of determine the guilt or innocence of the accused and to
R.A. No. 3019 against the respondents Mapa, Jr. et. impose the corresponding penalty, violating the
al. The Ombudsman dismissed the complaint on doctrine of separation of powers. (Fuertes vs. Senate,
the ground of prescription. G.R. No. 208162, January 07, 2020)
According to the Ombudsman, the loans were NOTE: For a law to be considered a bill of attainder, it
entered into by virtue of public documents must be shown to contain all of the following: "a
during the period of 1978 to 1981.Records show specification of certain individuals or a group of
that the complaint was referred and filed with the individuals, the imposition of a punishment, penal or
Ombudsman on Oct. 4, 1996 or after the lapse of otherwise, and the lack of judicial trial." The most
more than fifteen years from the violation of the essential of these elements is the complete exclusion
law. Therefore, the offenses charged had already of the courts from the determination of guilt and
prescribed. imposable penalty. (Fuertes vs. Senate, G.R. No.
208162, January 07, 2020)
The Presidential Ad Hoc Committee on Behest
Loans was created on Oct. 8, 1992 under It is only when a statute applies either to named
Administrative Order No. 13. Subsequently, individuals or to easily ascertainable members of a
Memorandum Order No. 61, dated Nov. 9, 1992, group in such a way as to inflict punishment on them
was issued defining the criteria to be utilized as a without a judicial trial does it become a bill of
frame of reference in determining behest loans. attainder.
Accordingly, if these Orders are to be considered Two kinds of bill of attainder

the bases of charging respondents for alleged
offenses committed, they become ex-post facto 1. Bill of attainder proper (legislative imposition of
laws which are proscribed by the Constitution. the death penalty); and
The Committee filed a Motion for Reconsideration, 2. Bill of pains and penalties (imposition of a lesser
but the Ombudsman denied it on July 27, 1998. penalty.
Are Administrative Order No. 13 and X. LAW ON PUBLIC OFFICERS

Memorandum Order No. 61 ex-post facto laws?
A. GENERAL PRINCIPLES
A: NO. The constitutional doctrine that outlaws an ex
post facto law generally prohibits the retrospectivity Public office
of penal laws. Penal laws are those acts of the
legislature which prohibit certain acts and establish It is the right, authority, and duty created and
penalties for their violations; or those that define conferred by law, by which for a given period, either
crimes, treat of their nature, and provide for their fixed by law or enduring at the pleasure of the
punishment. The subject administrative and creating power, an individual is invested with some
memorandum orders clearly do not come within the portion of the sovereign functions of the government,
shadow of this definition. to be exercised by him for the benefit of the public.
(Fernandez v. Sto. Tomas, G.R. No. 116418, March 7,
Administrative Order No. 13 creates the Presidential 1995)
Ad Hoc Fact-Finding Committee on Behest Loans, and
provides for its composition and functions. It does not Purpose of a public office
mete out penalty for the act of granting behest loans.
Memorandum Order No. 61 merely provides a frame A public office is created to effect the end for which
of reference for determining behest loans. government has been instituted which is the common
good; not profit, honor, or private interest of any

Political Law
person, family or class of persons. (63C Am. Jur. 2d PUBLIC
BASIS PUBLIC OFFICE
Public Officers and Employees 667 [1997]) CONTRACT
Incident of Originates from
Characteristics of public office (P3VN) sovereignty. the will of the
contracting
1. It is a Public trust – The principle of “public office As to
parties, subject
is a public trust” means that the officer holds the creation
to the
public office in trust for the benefit of the limitations
people—to whom such officers are required to be imposed by law.
accountable at all times, and to serve with utmost Has for its object Imposes
responsibility, loyalty, and efficiency, act with the carrying out of obligations only
patriotism and justice, and lead modest lives. sovereign as well upon persons
(1987 Constitution, Art. XI, Sec. 1) As to
as governmental who entered
persons
functions affecting the same.
2. It is not a Property and is outside commerce of affected
even persons not
man. It cannot be the subject of a contract.– The bound by
concept "public office is not a property” means contract.
that no officer an acquire vested right in the Embraces the idea Is almost
holding of a public office, nor can his right to hold of tenure, always limited
the office be transmitted to his heirs upon his duration, and in its duration
death. Nevertheless, the right to hold a public continuity. The and specific in
office is a protected right-secured by due process duties connected its objects. Its
and the provision of Constitution on security of therewith are terms define
tenure. (Santos v. Secretary of Labor, G.R. No.L- generally and limit the
21624, February 27, 1968) As to subject
continuing and rights and
matter and
permanent. obligations of
3. It is Personal to the public officer – It is not a scope
the parties, and
property transmissible to the heirs of the officer neither may
upon the latter’s death. (Santos v. Secretary of depart
Labor, G.R. No.L-21624, February 27, 1968) therefrom
without the
4. It is not a Vested right. consent of the
other.
NOTE: However, right to a public office is
nevertheless a protected right. Nevertheless, Public officer
right to a public office is a protected right. It
cannot be taken from its incumbent without due The public officer, generally, is the one who holds a
process. (Morfe v. Mutuc, G.R. No. L-20387, “public office.” A public officer is such an officer as is
January 31, 1968; Aparri v. CA, G.R. No. L-30057, required by law to be elected or appointed, who has a
January. 31, 1984) designation or title given to him by law, and who
exercise functions concerning the public, assigned to
5. It is not a Natural right – Under our political him by law.
system, the right to hold public office exists only
because and by virtue of some law expressly or NOTE: Under Section 2 (b), RA 3019: The Anti-Graft
impliedly creating and conferring it. and Corrupt Practices Act, public officer includes
elective and appointive officials and employees,
Elements of a public office (CALIC) permanent or temporary, whether in the classified,
unclassified or exempt service, receiving
1. Created by Constitution or by law or by some compensation, even nominal, from the government.
body or agency to which the power to create the
office has been delegated; Kinds of a public officer
2. Vested with Authority to exercise some portion
of the sovereign power of the State; 1. As to creation
3. The powers conferred and the duties to be a. Constitutional; or
discharged must be defined directly or impliedly b. Statutory.
by the Legislature or through legislative 2. As to nature of functions
authority; a. Civil; or
4. Duties are performed Independently without b. Military.
control unless those of a subordinate; and 3. As to the branch of Government to which it
5. Continuing and permanent. (Fernandez v. Sto. belongs
Tomas, G.R. No. 116418, March 7, 1995; Tejada v. a. Legislative;
Domingo, G.R. No. 91860, January 13, 1992) b. Executive; or
c. Judicial.
Public office vs. Public contract 4. As to the branch of Government served
a. National; or
145
b. Local. It is, in law, equivalent to “filling a vacancy”. (Conde v.
5. As to exercise of judgment National Tobacco Corp., G.R. No. L-11985, January 28,
a. Quasi-Judicial/Discretionary; or 1961)
b. Ministerial.
6. As to compensation NOTE: It is a basic precept in the law of public officers
a. Lucrative, office of profit, or office that no person, no matter how qualified and eligible
coupled with an interest; or he is for a certain position, may be appointed to an
b. Honorary. office which is not vacant. There can be no
7. As to legality of title to office appointment to a non-vacant position. The incumbent
a. De facto; or must first be legally removed, or his appointment
b. De jure. validly terminated before one could be validly
installed to succeed him. (Garces v. Court of Appeals,
Kinds of Government Employment G.R. No. 114795, July 17, 1996)
CAREER SERVICE NON-CAREER SERVICE Nature of appointment

Entrance is based on Entrance is based on
merits and fitness, qualifications other than Appointment is an essentially discretionary power
which is determined merit and fitness. and must be performed by the officer in which it is
by competitive vested according to his best lights, the only condition
examination (except being that the appointee should possess the
for non-competitive qualifications required by law. If he does, then the
positions) or based appointment cannot be faulted on the ground that
on highly technical there are others better qualified who should have
qualifications. been preferred. This is a political question involving
considerations of wisdom which only the appointing
Opportunity for No such opportunity. authority can decide. (Luego v. CSC, G.R. No. L-69137,
advancement to August 5, 1986)
higher career
position. Appointment vs. Designation
There is security of Tenure is limited to a
tenure. period specified by law, APPOINTMENT DESIGNATION
coterminous with the It is the selection by the It connotes merely the
appointing authority or proper authority of an imposition by law of
subject to his pleasure, or individual who is to additional duties on an
which is limited to the exercise the functions of incumbent official..
duration of a particular a given office.
purpose. It connotes permanence. Shall hold the office only
When completed, in a temporary capacity
usually with its and maybe replaced at will
confirmation, by the appointing
B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE appointment results in authority. It does not
security of tenure unless confer security of tenure
Modes of filling up public offices (A-E-D-LAW) he is replaceable at the in the person named.
pleasure because of the
1. Appointment; nature of his office.
2. Election; Essentially executive in Legislative in nature.
3. Designation; or nature.
4. In some instances by contract or by some other (Binamira v. Garrucho, (Binamira v. Garrucho, G.R.
modes authorized by law. (Preclaro v. G.R. No. 92008, July 30, No. 92008, July 30, 1990)
Sandiganbayan, G.R. No. 111091, August 21, 1990)
1995)
a. Succession by operation of law; or Appointing authority
b. By direct provisions of law.
1. Inherently belongs to the people.
C. MODES AND KINDS OF APPOINTMENT
It belongs to where the people have chosen to
Appointment place it by their Constitution or laws. (63C Am. Jur.
2d Public Officers and Employees 738, 1997)
The act of designation by the executive officer, board,
or body to whom that power has been delegated, the 2. Entrusted to designated elected and appointed
individual who is to exercise the powers and functions public officials.
of a given office. It refers to the nomination or
designation of an individual to an office. (Borromeo v.
The appointment of public officials is generally
Mariano, G.R. No. L-16808, January 3, 1921)
looked upon as properly belonging to the

Political Law
executive department. Appointments may also be valid where there is no provision of law to the
made by Congress or the courts, but when so made contrary.
should be taken as an incident to the discharge of
functions within their respective spheres. XPN: Acceptance, however, is necessary to enable the
(Government v. Springer, 50 Phil. 259, affirmed in appointee to have full possession, enjoyment, and
Springer v. Government, 277 U.S. 189, 72 Ed. 845, 48 responsibility of an office. (Borromeo v Mariano, G.R.
S.CT. 480 [1928]) No. L-16808, January 3, 1921; Lacson v. Romero, G.R.
No. L-3081, October 14, 1949)
NOTE: The general rule is that the appointing power
is the exclusive prerogative of the President, upon NOTE: An appointee cannot impose his own
which no limitations may be imposed by Congress, conditions for the acceptance of a public office. He
except those resulting from the need of securing the may only either accept or decline it. (De Leon, 2014)
concurrence of the Commission of Appointments and
from the exercise of the limited power to prescribe The following elements should always concur in
the qualifications or disqualifications to a given the making of a valid (which should be
appointive office. (Rafael v. Embroidery and Apparel understood as both complete and effective)
Control and Inspections Board, G.R. No. L-19978, appointment
September. 29, 1967)
1. Authority to appoint and evidence of the
Where the law is silent as to who is the appointing exercise of the authority;
authority, it is understood to be the President of the 2. Transmittal of the appointment paper and
Philippines. (Rufino v. Endriga, G.R. No. 139554, July evidence of the transmittal;
21, 2006) 3. A vacant position at the time of appointment;
and
Absent any contrary statutory provision, the power to 4. Receipt of the appointment paper and
appoint carries with it the power to remove or acceptance of the appointment by the appointee
discipline. (Aguirre, Jr. v. De Castro, G.R. No. 127631, who possesses all the qualifications and none of
December 17, 1999) the disqualifications.
President appoints four groups of officers The concurrence of all these elements should always
apply, regardless of when the appointment is made,
1. First group - Heads of the Executive whether outside, just before, or during the
departments, ambassadors, other public appointment ban. These steps in the appointment
ministers and consuls, officers of the armed process should always concur and operate as a single
forces from the rank of colonel or naval captain, process. There is no valid appointment if the process
and other officers; lacks even one step. (Velicaria-Garafil v. Office Of The
President, G.R. No. 203372, June 16, 2015)
NOTE: The only officers whose
appointments need confirmation by the Procedure for the appointment of those that
Commission on Appointments are those require confirmation by the Commission on
mentioned in the first group. Appointments
2. Second group - Those whom the President may 1. Nomination by the President;
be authorized by law to appoint without the 2. Confirmation by the Commission on
consent of the Commission on Appointments; Appointments;
3. Issuance of commission; and
3. Third group - Refers to all other officers of the 4. Acceptance by the appointee.
Government whose appointments are not
otherwise provided by law (the law is silent or if NOTE: Appointment is deemed complete upon
the law authorizing the head of a department, acceptance. Pending such acceptance, which is
agency, commission, or board to appoint is optional on the part of the appointee, the appointment
declared unconstitutional) and without the may still be validly withdrawn.
consent of the Commission on Appointments;
and GR: Appointment to a public office cannot be forced
upon any citizen.
4. Fourth group - Lower-ranked officers whose
appointments Congress may by law vest in the XPN: If it is for purposes of defense of the State under
heads of departments, agencies, commissions, or Sec. 4, Art. 2 (also an XPN to the rule against
boards. (1987 Constitution, Art. VII, Sec. 16) involuntary servitude). (Lacson v. Romero, No. L-3081,
Oct. 14, 1949)
Appointee’s acceptance of office
NOTE: In ad interim appointments, steps 1, 3 and 4
GR: An appointee’s acceptance of office is not precede step 2. For appointments which do not
necessary to complete or to make the appointment require confirmation, step 2 is skipped.
147
Kinds of Appointments Service Act of 1959]
1. Permanent – An appointment in the civil service Necessary in the public Vacancy occurs and the
issued to a person who meets all the interest to fill the filing thereof is necessary
requirements for the position to which he is vacancy. in the interest of the
being appointed, including the appropriate service & there is no
eligibility prescribed, in accordance with the appropriate register of
provisions of law, rules and standards eligible at the time of
promulgated in pursuance thereof. It lasts until appointment.
lawfully terminated, thus, enjoys security of Meets all requirements Has not qualified in an
tenure. [P.D. 807 (Civil Service Decree), Sec. 25(a)] for position except civil appropriate examination
service eligibility. [Sec but otherwise meets
2. Temporary – A kind of appointment issued to a 25(b), Civil Service Act requirements for
person who meets all the requirements for the of 1959] appointment to a regular
position to which he is being appointed, except position.
the appropriate civil service eligibility, in the
absence of appropriate eligibilities and it NOTE: Provisional appointments in general have
becomes necessary in the public interest to fill a already been abolished by R.A. 6040. However, it
vacancy. [P.D. 807, Sec. 25(b)] still applies with regard to teachers under the
Magna Carta for Public School Teachers.
NOTE: Temporary appointment shall not exceed
12 months, but the appointee may be replaced 4. Regular appointment – One made by the
sooner if a qualified civil service eligible becomes President while Congress is in session, takes
available. [P.D. 807, Sec. 25(b)] effect only after confirmation by the CA and, once
approved, continues until the end of the term of
One who holds a temporary or acting the appointee.
appointment has no fixed tenure of office, and,
therefore, his enjoyment can be terminated at the 5. Ad interim appointment– One made by the
pleasure of the appointing power even without President while Congress is not in session, which
hearing or cause. (Erasmo v. Home Insurance & takes effect immediately, but ceases to be valid if:
Guaranty Corporation, G.R. No. 139251, August 29, a. Disapproved by the CA or
2002) b. Upon the next adjournment of Congress,
either in regular or special session, the CA
However, if the appointment is for a specific has not acted upon it. (1990, 1994 BAR)
period, the appointment may not be revoked
until the expiration of the term. Difference between Regular appointment, Ad
interim appointment, Temporary appointment
NOTE: Acquisition of civil service eligibility will and Designation
not automatically convert the temporary
appointment into a permanent one. (Prov. Of TEMPO- DESIG-
AD
Camarines Sur v. CA, G.R. No. 104639, July 14, REGULAR RARY or NATION
INTERIM
1995) ACTING
Made Made Lasts until a Mere
3. Provisional appointment – One which may be when when permanent imposition of
issued, upon the prior authorization of the Congress is Congress appointment new or
Commissioner of the CSC, to a person who has not in session. is NOT in is issued. additional
qualified in an appropriate examination but who session. duties to be
otherwise meets the requirements for performed by
appointment to a regular position in the an officer in a
competitive service, whenever a vacancy occurs special
and the filling thereof is necessary in the interest manner while
of the service and there is no appropriate register he performs
of eligibles at the time of appointment. (Jimenea v. the function
Guanzon, G.R. No. L-24795, January 29, 1968) of his
permanent
Temporary Appointment vs. Provisional office.
Appointment (1994 BAR) Made only Made Cannot be The officer is
after the before validly already in
TEMPORARY PROVISIONAL nominatio confirmat confirmed by service by
APPOINTMENT APPOINTMENT n is ion of the the CA virtue of an
Issued to a person to a Issued upon to the prior confirmed CA. because earlier
position needed only authorization of CSC. [Sec by CA. there was no appointment
for a limited period not 24(e), Civil Service Act of valid performing
exceeding twelve 1959] nomination other
months. [Sec 24(d), Civil functions.

Political Law
Continues Shall May be Maybe After an appointment is completed, the CSC has the
until the cease to terminated terminated power to recall an appointment initially approved on
expiration be valid if at the anytime. any of the following grounds
of the disappro- pleasure of
term. ved by CA appointing 1. Non-compliance with procedures/criteria in
or upon power merit promotion plan;
the next without 2. Failure to pass through the selection board;
adjourn- hearing or 3. Violation of existing collective relative agreement
ment of cause. to promotion;
Congress. 4. Violation of CSC laws, rules and regulations.
(Debulgado v. CSC, G.R. No. 111471, Sept. 26, 1994)
Acting Appointment (2003 BAR)
D. ELIGIBILITY AND QUALIFICATION
An acting appointment is merely temporary. (Sevilla v. REQUIREMENTS
CA, G.R. No. 88498, June 9, 1992) A temporary
appointment cannot become a permanent Requirements for public office
appointment, unless a new appointment, which is
permanent, is made. (Marohombsar v. Alonto, G.R. No. 1. Eligibility – It is the state or quality of being
93711, February 25, 1991) legally fit or qualified to be chosen.
However, if the acting appointment was made 2. Qualification – This refers to the act which a
because of a temporary vacancy, the temporary person, before entering upon the performance of
appointee holds office until the assumption of office his duties, is by law required to do such as the
by the permanent appointee. In such case, this taking, and often, subscribing and filing of an
temporary appointment cannot be used by the official oath, and, in some cases, the giving of an
appointing authority as an argument or justification in official bond. It may refer to:
order to evade or avoid the security of tenure
principle provided for under the Constitution and the a. Endowments, qualities or attributes which
Civil Service Law. (Gayatao v. CSC, G.R. No. 93064, June make an individual eligible for public office
22, 1992) e.g. citizenship; or
b. The act of entering into the performance of
Q: Can the CSC revoke an appointment by the the functions of a public office e.g. taking
appointing power and direct the appointment of oath of office.
an individual of its choice?
NOTE: To entitle a public officer to hold a public
A: NO. The CSC cannot dictate to the appointing office, he must possess all the qualifications and none
power whom to appoint. Its function is limited to of the disqualifications prescribed by law for the
determining whether or not the appointee meets the position, not only at the time of his election or
minimum qualification requirements prescribed for appointment but also during his incumbency.
the position. Otherwise, it would be encroaching upon
the discretion of the appointing power. (Medalla v. Sto. General Qualifications for Public Office
Tomas, G.R. 94255, May 5, 1992) (CARESCAP)
Protest to appointment 1. Citizenship;
Any person who feels aggrieved by the appointment NOTE: Only natural-born Filipinos who owe total
may file an administrative protest against such and undivided allegiance to the Republic of the
appointment. Protests are decided in the first Philippines could run for and hold elective
instance by the Department Head, subject to appeal to public office. (Arnado v. COMELEC, G.R. No.
the CSC. 210164, August 18, 2015)
The protest must be for a cause (i.e. appointee is not Congress enacted R.A. 9225 allowing natural-
qualified; appointee was not the next-in-rank; born citizens of the Philippines who have lost
unsatisfactory reasons given by the appointing their Philippine citizenship by reason of their
authority in making the questioned appointment). The naturalization abroad to re-acquire Philippine
mere fact that the protestant has the more impressive citizenship and to enjoy full civil and political
resume is not a cause for opposing an appointment. rights upon compliance with the requirements of
(Aquino v. CSC, G.R. No. 92403, April 22, 1992) the law. They may now run for public office in the
Philippines provided that they: (1) meet the
Revocation vs. Recall of appointment qualifications for holding such public office as
required by the Constitution and existing laws;
Where an appointment requires the approval of the and (2) make a personal and sworn renunciation
CSC, such appointment may be revoked or withdrawn of any and all foreign citizenships before any
by the appointing authority any time before the public officer authorized to administer an oath
approval by the CSC. prior to or at the time of filing of their CoC.
149
(Arnado v. COMELEC, ibid.; RA 9225, Sec. 5) cannot remove it under the power to prescribe
qualifications as to such offices as it may create. (46
This rule applies to all those who have re- C.J. 936-937)
acquired their Filipino citizenship without regard
as to whether they are still dual citizens or not. It Perfection of the right of a public officer to enter
is a pre-requisite imposed for the exercise of the in office
right to run for public office. (Sobejana-Condon v.
COMELEC, G.R. No. 198742, August 10, 2012) Upon his oath of office, it is deemed perfected. Only
when the public officer has satisfied this prerequisite
For appointive public officials, R.A. 9225 can his right to enter into the position be considered
requires an oath of allegiance to the Republic of complete. Until then, he has none at all, and for as long
the Philippines and its duly constituted as he has not qualified; the holdover officer is the
authorities prior to their assumption of office: rightful occupant. (Lecaroz v. Sandiganbayan, G.R. No.
Provided, that they renounce their oath of 130872, March 25, 1999)
allegiance to the country where they took that
oath. [R.A. 9225, Sec. 5(3)] E. DISABILITIES AND INHIBITIONS OF PUBLIC
OFFICERS
2. Age;
3. Residence; Disqualifications attached to civil service
4. Education; employees or officials
5. Suffrage;
6. Civil service examination; 1. Losing candidate in any election:
7. Ability to read and write; and a. Cannot be appointed to any office in the
8. Political affiliation, as a rule, is not a qualification. government or GOCCs or their subsidiaries;
and
XPN: Party-list, membership in the Electoral b. Period of disqualification: One year after
Tribunal, Commission on Appointments such election.
XPN: Losing candidates in barangay
NOTE: The qualifications for public office are elections
continuing requirements and must be possessed not
only at the time of appointment, election, or 2. Elective officials:
assumption of office but during the officer’s entire
tenure. Once any of the required qualification is lost, GR: They are not eligible for appointment or
his title may be reasonably challenged. (Frivaldo v. designation in any capacity to any public office or
COMELEC, G.R. No. 87193, June 23, 1989; Aguila v. position during their tenure.
Genato, G. R No. L-55151, March 17, 1981)
XPN: May hold ex officio positions.
Authority to prescribe qualifications E.g. The Vice President may be appointed as a
Cabinet member.
Congress is generally empowered to prescribe the
qualifications for holding public office, provided it 3. Appointive officials:
does not exceed thereby its constitutional powers or
impose conditions of eligibility inconsistent with GR: Cannot hold any other office in the
constitutional provisions. government. or any agency or instrumentality
thereof, including GOCCs and their subsidiaries.
Limitation on the power of Congress to prescribe
qualifications XPN: Unless otherwise allowed by law, or by the
primary functions of his position.
Congress has no power to require qualifications other
than those qualifications specifically set out in the NOTE: The exception does not apply to Cabinet
Constitution. Such Constitutional criteria are members, and those officers mentioned in Art.
exclusive. VII, Sec. 13. They are governed by the stricter
prohibitions contained therein.
Power of Congress to prescribe disqualifications
Prohibitions attached to elective and appointive
In the absence of constitutional inhibition, Congress officials in terms of compensation
has the same right to provide disqualifications as it
has to provide qualifications for office. GR: They cannot receive (A-D-Ic):
Congress, however, may not add disqualifications 1. Additional compensation – An extra reward given
where the Constitution has provided them in such a for the same office
way as to indicate intention that the disqualifications e.g. bonus
provided shall embrace all which are to be permitted. 2. Double compensation – When an officer is given
Moreover, when the Constitution has attached a two sets of compensation for two different offices
disqualification to the holding of any office, Congress held concurrently by one officer.

Political Law
3. Indirect compensation - Any benefit to the official shall hold any other office or employment in
employee that doesn't come in the form of cash the Government or any subdivision, agency or
instrumentality thereof, including GOCCs or their
XPN: Unless specifically authorized by law. subsidiaries. (1987 Constitution, Art. IX – B, Sec. 7;
Flores v. Drilon, G.R. No. 104732 June 22, 1993)
NOTE: “Specifically authorized” means a specific
authority particularly directed to the officer or E. No member of the armed forces in the active
employee concerned. service shall, at any time, be appointed or
designated in any capacity to a civilian position in
Pensions and gratuities, per diems and allowances are the government including GOCCs or any of their
not considered as additional, double, or indirect subsidiaries. [1987 Constitution, Art. XVI, Sec. 5(4)]
compensation. (1987 Constitution, Art. IX-B, Sections 7-
8) Grounds for disqualification to hold public office
Prohibitions imposed under the Constitution 1. Mental or physical incapacity;

against the holding of two or more positions 2. Misconduct or commission of a crime;
3. Impeachment;
A. Members of Congress shall not: 4. Removal or suspension from office;
1. Appear as counsel before any court, electoral NOTE: Where there is no constitutional or
tribunal, or quasi-judicial and other statutory declaration of ineligibility for
administrative bodies; suspension or removal from office, the courts
2. Be interested in any contract with, or in any may not impose the disability.
franchise, or special privilege granted by the
Government, or any subdivision, agency or 5. Consecutive terms exceeding the allowable
instrumentality thereof, including GOCCs, or number of terms;
its subsidiary; or 6. Holding more than one office (except ex officio)
3. Intervene in any matter before any office of 7. Relationship with the appointing power
the Government for his pecuniary benefit or (nepotism) (2010 BAR);
where he may be called upon to act on 8. Office newly created or the emoluments of which
account of his office. have been increased (forbidden office);
9. Being an elective official (Flores v. Drilon, G.R. No.
B. The President, Vice President, Members of the 104732, June 22, 1993);
Cabinet, and their deputies or assistants, unless 10. Losing candidate in the election within 1 year
otherwise allowed by the Constitution, shall not: following the date of election (prohibitions from
office, not from employment); and
1. Directly or indirectly practice any other
profession; or XPN: Losing candidates in barangay elections
2. Participate in any business, or be financially
interested in any contract with, or in any 11. Grounds provided for under the LGC.
franchise, or special privilege granted by the
Government, or any subdivision, agency or NOTE: The Supreme Court held that while all other
instrumentality thereof, including GOCCs, or appointive officials in the Civil Service are allowed to
its subdivisions; shall avoid conflict of hold other office or employment in the government
interest in the conduct of their office. during their tenure when such is allowed by law or by
the primary functions of their positions, members of
C. Members of the Constitutional Commission shall the Cabinet, their deputies and assistants may do so
not: only when expressly authorized by the Constitution
itself. (Civil Liberties Union v. Executive Secretary, G.R.
1. Hold any other office or employment or No. 83896, February 22, 1991)
engage in the practice of any profession or
in the active management or control of any Prohibitions under Code of Conduct and Ethical
business that may be affected by the Standards for Public Officials and Employees
functions of his office; or
2. Be financially interested, directly or 1. Prohibition against financial and material interest
indirectly, in any contract with, or in any – Directly or indirectly having any financial or
franchise, or special privilege granted by the material interest in any transaction requiring the
Government, or any subdivision, agencies or approval of their office;
instrumentalities including GOCCs, or their
subsidiaries. These shall also apply to the 2. Prohibition against outside employment and other
Ombudsman and his deputies during his activities related thereto – Owning, controlling,
term. managing or accepting employment as officer,
employee, consultant, counsel, broker, agent,
D. Unless otherwise allowed by law or by the trustee or nominee in any private enterprise
primary functions of his position, no appointive regulated, supervised or licensed by their office;
151
3. Engaging in the private practice of their b. Scholarship or fellowship grant or medical
profession; and treatment; or
4. Recommending any person to any position in any c. Travel grants or expenses for travel outside
private enterprise which has a regular or pending
the Philippines. [RA 6713, Sec. 7(d)]
official transaction with their office.
NOTE: These prohibitions shall continue to apply 2. Prohibition against partisan political activities.
for a period of one year after resignation, [1987 Constitution, Art. IX(B), Sec. 2(4)]
retirement, or separation from public office,
except in the case of participating in any business NOTE: Partisan political activity is an act
or having financial interest in any contract with designed to promote the election or defeat of a
the government, but the professional concerned particular candidate/s to a public office. It is also
cannot practice his profession in connection with known as “electioneering”. (OEC, Sec. 79)
any matter before the office he used to be with, in
which case the one-year prohibition shall Officers or employees in the Civil Service
likewise apply. including members of the Armed Forces cannot
engage in such activity except to vote. They shall
Prohibitions against the practice of other not use their official authority or influence to
professions under the LGC coerce the political activity of any person. (1987
Administrative Code, Book V, Title I, Subtitle A, Sec.
1. Local chief executives (governors, city and 55)
municipal mayors) are prohibited from
practicing their profession; Officers and employees in the Civil Service can
2. Sanggunian members may practice their nonetheless express their views on current
profession, engage in any occupation, or teach in political issues and mention the names of the
schools except during session hours; and candidates they support.
3. Doctors of medicine may practice their
profession even during official hours of work in Q: De Vera, a Court Stenographer deliberately
cases of emergency provided that they do not and fraudulently, and for a consideration,
derive monetary compensation therefrom. misrepresented her ability to assist the
complainant in the adoption of her niece and
Q: Can the members of Sanggunian engage in the nephew. The Office of the Court Administrator
practice of law under the LGC? equated those acts as Grave Misconduct and
dismissed De Vera from office. Is the OCA
A: GR: Yes. correct?
XPNs: (A-R-Not2) A: YES. Section 2, Canon 1 of the Code of Conduct

of Court Personnel has enjoined all court
1. Cannot appear as counsel in any civil case personnel from soliciting or accepting any gift,
wherein a LGU or any office, agency or favor or benefit based on any or explicit
instrumentality of the government is the Adverse understanding that such gift, favor or benefit
party; shall influence their official actions. De Vera thus
2. Cannot appear as counsel in any criminal case violated her sacred oath as a court employee to
wherein an officer or employee of the national or serve the Judiciary with utmost loyalty and to
local government is accused of an offense preserve the integrity and reputation of the
committed in Relation to his office; Judiciary as an institution dispensing justice to
3. Shall Not collect any fee for their appearance in all. Her violation was made worse by her
administrative proceedings involving the LGU of committing it in exchange for easy money. She
which he is an official; and was thereby guilty of corruption. She
4. May Not use property and personnel of the compounded her guilt by disobeying the orders
Government, except when defending the interest of the Court requiring her to explain herself.
of the Government. Under the circumstances, she committed grave
misconduct which is punishable by dismissal
Other prohibitions imposed on public officers from service. (Galindez v. Susbilla-De Vera, A.M.
No. P-13-3126, February 4, 2014)
1. Prohibition against solicitation of gifts. [R.A. 6713,
Sec. 7(d)] Public officers who may engage in partisan
political activities
NOTE: Public officers, however, may accept the
a. Those holding political offices, such as the
following gifts from foreign governments:
President of the Philippines, Vice President
of the Philippines; Executive Secretary or
a. Gifts of nominal value received as souvenir
Department Secretaries and other Members
or mark of courtesy; of the Cabinet; all other elective officials at

Political Law
all levels; and those in the personal and (Pimentel v. COMELEC, G.R. No. L-53581, December 19,
confidential staff of the above officials; and 1980)
NOTE: It shall, however, be unlawful for them to Kinds of duties of public officers
solicit contributions from their subordinates or
subject them to any of the acts involving MINISTERIAL DISCRETIONARY
subordinates prohibited in the Election Code. Discharge is Public officer may do
imperative and it whichever way he
b. National, provincial, city and municipal must be done by the wants provided it is in
elective officials. (Santos v. Yatco, G.R. No. L- public officer. accordance with law
16133, November 6, 1959) and not in a whimsical
manner.
3. Prohibition against engaging in strike. (Social Can be compelled by Cannot be compelled
Security System Employees Assn. v. CA, G.R No. mandamus. by mandamus except
85279, July 28, 1989) when there is grave
4. Restriction against engaging in the practice of abuse of discretion.
law. (R.A. 7160, Sec. 90) Can be delegated. Cannot be delegated
5. Prohibition against practice of other professions. unless otherwise
(R.A. 7160, Sec. 90) provided by law
6. Restriction against engaging in private business. (2010 BAR).
(Abeto v. Garces, A.M. No. P-88-269, December 29,
1995) Doctrine of Ratification
7. Restriction against accepting certain
employment. [RA 6713, Sec. 7(b)] Although the acts of a public officer may not be
binding on the State because he has exercised his
Q: Does the election or appointment of an attorney powers defectively, his acts may be ratified.
to a government office disqualify him from
engaging in the private practice of law? 1. The doctrine does not apply where:
2. There is a want of power in the public officer to
A: YES. As a general rule, judges, other officials of the perform the original act;
superior courts, of the office of the Solicitor General 3. The act was absolutely void at the time it was
and of other government prosecution offices; the done;
President; Vice-President, and members of the cabinet 4. If the principal himself could not have lawfully
and their deputies or assistants; members of done the act; or
constitutional commissions; and civil service officers 5. If it could not have lawfully been done by anyone.
or employees whose duties and responsibilities
require that their entire time be at the disposal of the Duties of public officers
government are strictly prohibited from engaging in
the private practice of law. (E.O. 297) 1. Be accountable to the people;
2. Serve the people with utmost responsibility,
F. POWERS AND DUTIES OF PUBLIC OFFICERS integrity, and efficiency;
3. Act with patriotism and justice and to lead
Sources of powers of public officers modest lives;
4. Submit a declaration under oath of his assets,
1. Expressly conferred upon him by the Act liabilities, and net worth upon assumption of
appointing him; office and as often thereafter as may be required
2. Expressly annexed to the office by law; and by law; and
3. Attached to the office by common law as 5. Owe the State and the Constitution allegiance at
incidents to it. all times.
NOTE: In general, the powers and duties of public Reasons for the imposition of the duty to disclose
officers are prescribed by the Constitution or by financial records
statute or both. Public officers have only those powers
expressly granted or necessarily implied by law. If 1. To maintain public confidence in the Government
broader powers are desirable, they must be conferred and in public officials and employees;
by the proper authority. They cannot merely be 2. To avoid conflicts of interest from arising;
assumed by administrative officers, nor can they be 3. To deter corruption; and
created by the courts in the proper exercise of their 4. To provide the citizens with information
judicial functions. [63C Am. Jur. 2d Public Officers and concerning a public officer’s financial affairs and
Employees 883 (1997)] thus enable them to better judge his integrity and
fitness for office.
Doctrine of Necessary Implication
G. RIGHTS OF PUBLIC OFFICERS
All powers necessary for the effective exercise of the
express powers are deemed impliedly granted.
153
Rights and privileges of public officers 4. Liability on contracts entered into in excess or
without authority; and
Right to: (O-C-A-Va-Ma-Re-Lo-P-Se-P) 5. Liability on tort if the public officer acted beyond
the limits of authority and there is bad faith. (USA
1. Office; v. Reyes, G.R. No. 79253, March 1, 1993)
2. Compensation/salary;
3. Appointment; NOTE: Ruling in Arias v. Sandiganbayan that heads of
4. Vacation and sick leave; offices may rely to a certain extent on their
5. Maternity leave; subordinates is not automatic. As held in Cesa v. Office
6. Retirement pay; of the Ombudsman, when there are facts that point to
7. Longevity pay; an irregularity and the officer failed to take steps to
8. Pension; rectify it, even tolerating it, the Arias doctrine is
9. Self-organization; and inapplicable. (Ombudsman v. de los Reyes, G.R. No.
10. Protection of temporary employees. 208976, October 13, 2014)
Prohibition against diminution of salary of Three-fold responsibility/liability of public

constitutional officers officers
Congress is given the power to fix the salaries of 1. Criminal liability;

certain constitutional officers, but after it has done so, 2. Civil liability; and
it may not reduce the salary of any of them during his 3. Administrative liability.
term or tenure. This provision is intended to secure
their independence. [1987 Constitution, Art. IX (A), Sec. Liabilities of ministerial officers (MNM)
3]
1. Non-feasance – It is the neglect to perform an act
Extent of the right to self-organization of which is the officer's legal obligation to perform.
employees in the public service 2. Misfeasance – The failure to observe the proper
degree of care, skill, and diligence required in the
While the Constitution recognizes the right of public performance of official duty; and
employees to organize, they are prohibited from 3. Malfeasance – It refers to the performance of an
staging strikes, demonstrations, mass leaves, walk- act which the officer had no legal right to
outs, and other forms of mass action which may result perform.
to temporary cessation of work or disturbance of
public service. Their right to self-organization is NOTE: The plaintiff must show that he has suffered an
limited only to form unions or to associate without injury, and that it results from a breach of duty which
including the right to strike. Labor unions in the the officer owed him.
government may bargain for better terms and
conditions of employment by either petitioning the Command Responsibility Doctrine (L-R-O-A-R)
Congress for better terms and conditions or
negotiating with the appropriate government A superior officer is liable for the acts of his
agencies for the improvement of those not fixed by subordinate in the following instances:
law. (SSS Employees Assn. v. CA, G.R No. 85279, July 28,
1989) 1. He negligently or willfully employs or Retains
unfit or incompetent subordinates;
H. LIABILITIES OF PUBLIC OFFICERS 2. He negligently or willfully fails to Require his
subordinates to conform to prescribed
GR: A public officer is not liable for injuries sustained regulations;
by another due to official acts done within the scope 3. He negligently or carelessly Oversees the
of authority. business of the office as to give his subordinates
the opportunity for default;
XPNs: 4. He directed, cooperated, or Authorized the
wrongful act; or
1. Otherwise provided by law; 5. The Law expressly makes him liable. (E.O. No.
2. Statutory liability; (New Civil Code, Articles. 27, 32, 292, Administrative Code of 1987, Book I, Chap. 9,
34) Sections 38 and 39)
3. Presence of bad faith, malice, or negligence;
Arias Doctrine
NOTE: Absent of any showing of bad faith or
malice, every public official is entitled to the The head of office is not required to examine every
presumption of good faith as well as regularity in single detail of any transaction from its inception until
the performance or discharge of official duties. it is finally approved. We would be setting a bad
(Blaquera v. Alcala, G.R. No. 109406, September precedent if a head of office plagued by all too
11, 1998) common problems—dishonest or negligent
subordinates, overwork, multiple assignments or
positions, or plain incompetence—is suddenly swept

Political Law
into a conspiracy conviction simply because he did against him. This may be done through various
not personally examine every single detail, pleadings. (Torres v. Garchitorena, G.R. No. 153666,
painstakingly trace every step from inception, and December 27, 2002)
investigate the motives of every person involved in a
transaction before affixing his signature as the final Periods of preventive suspension
approving authority.
1. For administrative cases:
All heads of offices have to rely to a reasonable extent
on their subordinates and on the good faith of those a. Civil Service Law – 90 days
who prepare bids, purchase supplies, or enter into b. Local Government Code (R.A. 7160)
negotiations. There has to be some added reason why
he should examine each voucher in such detail. (Arias i. Sec. 85: 60 days for appointive
v. Sandiganbayan, G.R. No. 81563, December 19, 1989) officials (suspension to be imposed
by the local chief executive)
NOTE: It must include certification from the ii. Sec. 63: 60 or 90 days for elective
subordinate and the supporting documents, otherwise officials
Arias doctrine cannot be upheld.
c. Ombudsman Act – six months
Condonation Doctrine
2. For criminal cases: Anti-Graft and Corrupt Practices
The condonation doctrine connotes a complete Act (R.A. 3019) – 90 days by analogy (Gonzaga v.
extinguishment of liability of a public officer or Sandiganbayan G.R. No. 96131 September 6, 1991).
“denying the right to remove one from office because
of misconduct during a prior term.” NOTE: Service of preventive suspension will not be
credited to the penalty of suspension after having
Prospective application of the doctrine been found guilty because they are of different
character. If however the preventive suspension is
Under the new ruling, the Supreme Court simply finds indefinite wherein his term is about to expire and
no legal authority to sustain the condonation doctrine suspension is not lifted such will be considered
in this jurisdiction. The abandonment of the unconstitutional for being violative of due process of
condonation doctrine should be prospective in law. (Layno, Sr. v. Sandiganbayan, G.R. No. L-65848,
application for the reason that judicial decisions May 24, 1985)
applying or interpreting the laws or the Constitution,
until reversed, shall form part of the legal system of CASE FILED PERIOD
the Philippines. (Carpio-Morales v. CA, G.R. No. 217126-
27, November 10, 2015) Civil Service 90 days
Local Government 60 days
The condonation doctrine would not apply to Code (Appointive)
appointive officials since, as to them, there is no
sovereign will to disenfranchise. (Carpio-Morales v. Local Government Code 60 or 90 days
CA, ibid.) (Elective)
Ombudsman 6 months
1. PREVENTIVE SUSPENSION AND BACK SALARIES
Criminal Cases 90 days by analogy
Preventive suspension is not a penalty by itself; it is
merely a measure of precaution so that the employee
Preventive suspension pending investigation vs.
who is charged may be separated from the scene of
preventive suspension pending appeal
his alleged misfeasance while the same is being
investigated, to prevent him from using his position or
office to influence prospective witnesses or tamper PENDING
PENDING APPEAL
with the records, which may be vital in the INVESTIGATION
prosecution of the case against him. (Beja v. CA, G.R. Not a penalty but only a Punitive in character
No. 91749, March 31, 1992) means of enabling the
disciplinary authority an
It can be ordered even without a hearing because this unhampered investigation
is only preliminary step in an administrative
investigation (Alonzo v. Capulong, et al., G.R. No. After the lapse of 90 If exonerated, he
110590, May 10, 1995). days, the law should be reinstated
provides that he be with full pay for the
NOTE: When a public officer is charged with violation automatically period of suspension
of the Anti-Graft and Corrupt Practices Act or R.A. reinstated
3019, a pre-suspension hearing is required solely to
During such preventive If during the appeal he
determine the applicability of such law and for the
suspension, the employee remains suspended
accused be given a fair and adequate opportunity to is not entitled to payment and the penalty
challenge the validity of the criminal proceedings
155
of salaries imposed is only c. Suspension for more than 30 days or fine

reprimand, the equivalent to more than 30 day salary. [P.D.
suspension pending 807, Sec.37(a)]
appeal becomes illegal
and he is entitled to NOTE: Decisions are initially appealable to the
back salary department heads and then to the CSC. Only the
corresponding to the respondent in the administrative disciplinary case,
period of suspension. not the complainant, can appeal to the CSC from an
adverse decision. The complainant in an
Q: Is a public officer entitled to back wages during administrative disciplinary case is only a witness, and
his suspension pending appeal when the result of as such, the latter cannot be considered as an
the decision from such appeal does not amount to aggrieved party entitled to appeal from an adverse
complete exoneration but carries with it a certain decision. (Mendez v. CSC, G. R. No. 95575, December 23,
number of days of suspension? 1991)
A: NO. Although entitled to reinstatement, he is not 2. Appeal is NOT available if the penalty is:
entitled to back wages during such suspension a. Suspension for not more than 30 days;
pending appeal. Only one who is completely b. Fine not more than 30 day salary;
exonerated or merely reprimanded is entitled to such c. Censure;
back wages. (Sec. of Education v. CA. G.R. No. 128559, d. Reprimand;
October 4, 2000) e. Admonition; or
f. When the respondent is exonerated.
Conditions before an employee may be entitled to
back salaries (IU) NOTE: In the second case, the decision becomes final
and executory by express provision of law.
1. The employee must be found innocent of the
charges; and Availability of the services of the Solicitor General
2. His suspension must be unjustified. (CSC v. Cruz
If the public official is sued for damages arising out of
GR No. 187858, August 9, 2011) a felony for his own account, the State is not liable and
the Solicitor General is not authorized to represent
NOTE: The requirement that the suspension must be him therefore. The Solicitor General may only do so in
unjustified is automatically subsumed in the other suits for damages arising not from a crime but from
requirement of exoneration. (CSC v. Cruz GR No. the performance of a public officer’s duties. (Vital-
187858, August 9, 2011) Gozon v. CA, G.R No. 101428, August 5, 1992)
Q: When is suspension unjustified? The Office of the Solicitor General can represent the
public official at the preliminary investigation of his
A: If the proper penalty imposable for the offense case, and that if an information is eventually filed
actually committed does not exceed one month, then against the said public official, the said Office may no
there would have been no occasion for a suspension longer represent him in the litigation. (Anti-Graft
pending appeal since a decision imposing the penalty League v. Ortega, G.R. No. L-33912, September 11,
of suspension for not more than 30 days or fine in an 1980)
amount not exceeding thirty days salary is final and
not subject to appeal. (Book V, Section 47, par. 2 of 2. ILLEGAL DISMISSAL, REINSTATEMENT, AND
Executive Order No. 292; Section 7, Rule III of BACK SALARIES
Administrative Order No. 7, Rules of Procedure of the
Office of the Ombudsman, April 10, 1990, as amended Guiding principles
by Administrative Order No.17, September 15, 2003
which took effect on November 19, 2003) 1. Reinstatement and back salaries are separate and
distinct reliefs available to an illegally dismissed
Disciplinary Action public officer or employee;
2. Back salaries may be awarded to illegally
It is a proceeding, which seeks the imposition of
dismissed based on the constitutional provision
disciplinary sanction against, or the dismissal or
that no officer or employee in the civil service
suspension of, a public officer or employee on any of
shall be removed or suspended except for cause
the grounds prescribed by law after due hearing.
provided by law; to deny these employees their
back salaries amounts to unwarranted
Availability of appeal in administrative
punishment after they have been exonerated
disciplinary cases
from the charge that led to their dismissal or
suspension. The present legal basis for an award
1. Appeal is available if the penalty is:
of back salaries is Section 47, Book V of the
a. Demotion; Administrative Code of 1987;
b. Dismissal; or

Political Law
3. Back salaries are ordered paid to an officer or an An impeachable officer may be ousted from office
employee only if he is exonerated of the charge through other means of methods, such as quo
against him and his suspension or dismissal is warranto. (Republic v. Sereno, G.R. No. 237428, May,
found and declared to be illegal; 11, 2018)
4. If the exoneration of the employee is relative (as
distinguished from complete exoneration), an Grounds for impeachment (CTB-GOB) (1999,
inquiry into the factual premise of the offense 2012, 2013 BAR)
charged and of the offense committed must be
made. If the administrative offense found to have 1. Culpable violation of the Constitution;
been actually committed is of lesser gravity than 2. Treason;
the offense charged, the employee cannot be 3. Bribery;
considered exonerated if the factual premise for 4. Graft and Corruption;
the imposition of the lesser penalty remains the 5. Other high crimes; and
same. The employee found guilty of a lesser 6. Betrayal of public trust (1987 Constitution, Art. XI,
offense may only be entitled to back salaries Sec. 2)
when the offense actually committed does not
carry the penalty of more than one month NOTE: The enumeration is exclusive.
suspension or dismissal (CSC v. Cruz, G.R. No.
187858, August 9, 2011). Culpable violation of the Constitution
Good faith vs. COA disallowance It refers to wrongful, intentional or willful disregard or
flouting of the fundamental law. Obviously, the act must
Every public official is entitled to the presumption of be deliberate and motivated by bad faith to constitute a
good faith in the discharge of official duties, such that, ground for impeachment. Mere mistakes in the proper
in the absence of any proof that a public officer has construction of the Constitution, on which students of
acted with malice or bad faith, he should not be law may sincerely differ, cannot be considered a valid
charged with personal liability for damages that may ground for impeachment.
result from the performance of an official duty. (Lanto
vs COA, G.R. No. 217189, April 18, 2017) Betrayal of public trust
Under the circumstances, the petitioners albeit This refers to “acts which are just short of being
officials of the MWSS, were not members of the Board criminal but constitute gross faithlessness against
of Trustees and, as such, could not be held personally public trust, tyrannical abuse of power, inexcusable
liable for the disallowed benefits by virtue of their negligence of duty, favoritism, and gross exercise of
having had no part in the approval of the disallowed discretionary powers.” Acts that should constitute
benefits. In sum, the recipients of the benefits − betrayal of public trust as to warrant removal from
_officials and employees alike − _were not liable to office may be less than criminal but must be attended
refund the amounts received for having acted in good by bad faith and of such gravity and seriousness as the
faith due to their honest belief that the grant of the other grounds for impeachment. (Gonzales III v. Office of
benefits had legal basis. (Metropolitan Waterworks the President, G.R. No. 196231, September 4, 2012)
and Sewerage System v. COA, G.R. No. 217189,
November 21, 2017) A new ground was added as a catch-all to cover all
manner of offenses unbecoming a public functionary
Impeachment but not punishable by criminal statutes like (BIT):
It is a method of national inquest into the conduct of 1. Inexcusable negligence of duty

public men. It is an extraordinary means of removal 2. Tyrannical abuse of authority
exercised by the legislature over a selected number of 3. Breach of official duty by malfeasance or
officials, the purpose being to ensure the highest care misfeasance, cronyism, favoritism, obstruction of
in their indictment and conviction and the imposition duty. (Cruz, Philippine Political Law)
if special penalties in case of finding a guilt, taking into
account the degree or nature of the offense committed Steps in the impeachment process (2012 BAR)
and the high status of the wrongdoers. (Cruz and Cruz,
Philippine Political Law, 2014) Constitution provides that the House of
Representatives shall have the exclusive power to
Impeachable officers initiate all cases of impeachment. (1987 Constitution,
Art XI)
1. President;
2. Vice-President; 1. Initiating impeachment case
3. Members of the Supreme Court; a. Verified complaint filed by any member of
4. Members of the Constitutional Commissions; and the House of Representatives or any citizen
5. Ombudsman. upon resolution of endorsement by any
member thereof;
NOTE: The enumeration is exclusive. (1987
Constitution, Art. XI, Sec. 2)
157
NOTE: If the verified complaint is filed by at In the discharge of that power and in the exercise of
least 1/3 of all its members of the House of its discretion, the House has formulated determinable
Representatives, the same shall constitute standards as to form and substance of an
the Articles of Impeachment, and trial by the impeachment complaint. Furthermore, the
Senate shall forthwith proceed. [1987 impeachment rules are clear in echoing the
Constitution, Art. XI, Sec. 3 (4)] constitutional requirements in providing that there
must be a “verified complaint or resolution” and that
b. Inclusion in the order of business within 10 the substance requirement is met if there is “a recital
session days; of facts constituting the offense charged and
c. Referred to the proper committee within 3 determinative of the jurisdiction of the committee.”
session days from its inclusion; (Gutierrez v. House of Representatives Committee on
d. The committee, after hearing, and by Justice, G.R. No. 193459, February 15, 2011)
majority vote of all its members, shall submit
its report to the House of Representatives Power of the HoR to determine the sufficiency of
together with the corresponding resolution; form and substance of an impeachment complaint
e. Placing on calendar the Committee
resolution within 10 days from submission; It is an exponent of the express constitutional grant of
f. Discussion on the floor of the report; and rulemaking powers of the HoR. In the discharge of
g. A vote of at least 1/3 of all the members of that power and in the exercise of its discretion, the
the House of Representatives shall be House has formulated determinable standards as to
necessary either to affirm a favorable form and substance of an impeachment complaint.
resolution with the Articles of Impeachment Furthermore the impeachment rules are clear in
of the committee or override its contrary echoing the constitutional requirements in providing
resolution. [(1987 Constitution, Art. XI, Sec. 3 that there must be a “verified complaint or resolution”
(2-3)] and that the substance requirement is met if there is
“a recital of facts constituting the offense charged and
2. Trial and Decision in impeachment proceedings determinative of the jurisdiction of the committee”.
(Gutierrez v. House of Representatives Committee on
a. The Senators take an oath or affirmation; Justice, ibid.)
and
Limitations imposed by the Constitution upon the
NOTE: When the President of the initiation of impeachment proceedings
Philippines shall be impeached, the Chief
Justice of the Supreme Court shall preside, 1. The House of Representatives shall have the
otherwise the Senate President shall preside exclusive power to initiate all cases of
in all other cases of impeachment. (Senate impeachment; and
Resolution No. 890)
2. Not more than one impeachment proceeding
b. A decision of conviction must be concurred shall be initiated against the same official within
in by at least 2/3 of all the members of a period of one year (One-year bar rule).
Senate.
NOTE: An impeachment case is the legal
NOTE: The power to impeach is essentially a non- controversy that must be decided by the Senate
legislative prerogative and can be exercised by while an impeachment proceeding is one that is
Congress only within the limits of the authority initiated in the House of Representatives. For
conferred upon it by the Constitution. (Gutierrez v. purposes of applying the one-year bar rule, the
House of Representatives Committee on Justice, G.R. No. proceeding is initiated or begins when a verified
193459, February 15, 2011) complaint is filed and referred to the Committee
on Justice for action. (Francisco v. House of
The Senate has the sole power to try and decide all Representatives, et. al., G.R. No. 160261, November
cases of impeachment. [1987 Constitution, Art. XI, Sec. 10, 2003)
3(6)] Hence, judgment in an impeachment proceeding
is normally not subject to judicial review. Impeachment is deemed initiated
XPN: Courts may annul the proceedings if there is a A verified complaint is filed and referred to the
showing of a grave abuse of discretion or non- Committee on Justice for action. This is the initiating
compliance with the procedural requirements of the step which triggers the series of steps that follow. The
Constitution. term “to initiate” refers to the filing of the
impeachment complaint coupled with Congress’
Determination of sufficiency of form and taking initial action of said complaint. (Francisco v.
substance of an impeachment complaint House of Rep., G.R. No. 160261, Nov. 10, 2003)
An exponent of the express constitutional grant of One-year bar rule (2014 BAR)
rulemaking powers of the House of Representatives.

Political Law
Once an impeachment complaint has been initiated in An impeachable officer who is a member of the
the foregoing manner, another may not be filed Philippine bar cannot be disbarred first without being
against the same official within the one year period. impeached. (Jarque v. Desierto, A.C. No. 4509,
(Gutierrez v. HoR Committee on Justice, ibid.) December 5, 1995)
NOTE: The limitation refers to the element of time, Judicial review in impeachment proceedings
and not the number of complaints. The impeachable
officer should defend himself in only one The precise role of the judiciary in impeachment cases
impeachment proceeding, so that he will not be is a matter of utmost importance to ensure the
precluded from performing his official functions and effective functioning of the separate branches while
duties. Similarly, Congress should run only one preserving the structure of checks and balance in our
impeachment proceeding so as not to leave it with government. The acts of any branch or
little time to attend to its main work of law-making. instrumentality of the government, including those
(Gutierrez v. The House of Representatives Committee traditionally entrusted to the political departments,
on Justice, ibid.) are proper subjects of judicial review if tainted with
grave abuse or arbitrariness. (Chief Justice v. Senate,
Purpose of the one-year bar rule G.R. No. 200242, July 17, 2012)
1. To prevent undue or too frequent harassment; I. IMMUNITY OF PUBLIC OFFICERS

and
2. To allow the legislature to do its principal task of It is an exemption that a person or entity enjoys from
legislation. (Francisco v. House of Representatives the normal operation of the law such as a legal duty or
supra.) liability, either criminal or civil.
The consideration behind the intended limitation Immunity of public officers from liabilities to third
refers to the element of time, and not the number of persons
complaints. The impeachable officer should defend
himself in only one impeachment proceeding, so that It is well settled, as a general rule, that public officers
he will not be precluded from performing his official of the government, in the performance of their public
functions and duties. Similarly, Congress should run functions, are not liable to third persons, either for the
only one impeachment proceeding so as not to leave it misfeasances or positive wrongs, or for the non-
with little time to attend to its main work of law- feasances, negligence, or omissions of duty of their
making. The doctrine laid down in Francisco that official subordinates. (McCarthy v. Aldanese, G.R. No. L-
initiation means filing and referral remains congruent 19715, March 5, 1923)
to the rationale of the constitutional provision.
(Gutierrez v. The House of Representatives Committee Rationale behind official immunity
on Justice, supra)
It promotes fearless, vigorous, and effective
NOTE: Congress may look into separate complaints administration of policies of government. The threat
against an impeachable officer and consider the of suit could also deter competent people from
inclusion of matters raised therein, in the adoption of accepting public office.
the Articles of Impeachment. (Francisco v. House of
Representatives, et. al., supra) The immunity of public officers from liability for the
non-feasances, negligence or omissions of duty of
Effects of conviction in impeachment (2012 BAR) their official subordinates and even for the latter’s
(L-D-R) misfeasances or positive wrongs rests upon obvious
considerations of public policy, the necessities of the
1. Removal from office; public service and the perplexities and
2. Disqualification to hold any other office under embarrassments of a contrary doctrine. [Alberto
the Republic of the Philippines; and Reyes, Wilfredo B. Domo-Ong and Herminio C. Principio
3. Party convicted shall be liable and subject to v. Rural Bank of San Miguel (Bulacan), Inc., G.R. No.
prosecution, trial and punishment according to 154499, February 27, 2004]
law. [1987 Constitution, Art. XI, Sec. 3 (7)]
Applicability of the doctrine
Q: Can a Supreme Court Justice be charged in a
criminal case or disbarment proceeding instead of This doctrine is applicable only whenever a public
an impeachment proceeding? officer is in the performance of his public functions.
On the other hand, this doctrine does not apply
A: NO, because the ultimate effect of either is to whenever a public officer acts outside the scope of his
remove him from office, circumventing the provision public functions.
on removal by impeachment thus violating his
security of tenure. (In Re: First Indorsement from Hon. NOTE: A public officer enjoys only qualified, NOT
Raul Gonzalez, A.M. No. 88-4-5433, April 15, 1988) absolute immunity.
159
Distinction between official immunity from State 1. The lawful acts, so far as the rights of third
immunity persons are concerned are, if done within the
scope and by the apparent authority of the office,
Immunity of public officials is a more limited principle are considered valid and binding;
than governmental immunity, since its purpose is not 2. The de facto officer cannot benefit from his own
directly to protect the sovereign, but rather to do so status because public policy demands that
only collaterally, by protecting the public official in unlawful assumption of public office be
the performance of his government function, while, discouraged;
the doctrine of State immunity principally rested upon
the tenuous ground that the king could do no wrong. NOTE: The general rule is that a de facto officer
It serves to protect the impersonal body politic or cannot claim salary and other compensations for
government itself from tort liability. services rendered by him as such. However, the
officer may retain salaries collected by him for
STATE IMMUNITY OFFICIAL IMMUNITY services rendered in good faith when there is no
Principle of Concept of Municipal de jure officer claiming the office.
International Law. Law.
Availed of by States Availed of by public 3. The de facto officer is subject to the same
against an international officials against the liabilities imposed on the de jure officer in the
court or tribunal. members of the public. discharge of official duties, in addition to
whatever special damages may be due from him
The purpose is to To protect the public
because of his unlawful assumption of office; and
protect the assets of the official from liability
4. The acts of the de facto public officer, insofar as
State from any arising from negligence in
they affect the public, are valid, binding and with
judgment. the performance of his
full legal effect.
discretionary duties.
Manner by which challenge to a de facto office is
NOTE: When public officials perform purely
made
ministerial duties, however, they may be held liable.
1. The incumbency may not be challenged
J. DE FACTO AND DE JURE OFFICERS
collaterally or in an action to which the de facto
officer is not a party;
De jure officer
2. The challenge must be made in a direct
proceeding where title to the office will be the
A de jure officer is one who is in all respects legally
principal issue; and
appointed or elected and qualified to exercise the
3. The authorized proceeding is quo warranto
office.
either by the Solicitor General in the name of the
Republic or by any person claiming title to the
De facto officer (2000, 2004, 2009, 2010 BAR)
office.
A de facto officer is one who assumed office under the
Q: Ross ran as congressman of Cagayan province.
color of a known appointment or election but which
His opponent, Paulo, however, was the one
appointment or election is void for reasons that the
proclaimed as the winner by the COMELEC. Ross
officer was not eligible, or that there was want of
filed seasonably a protest before the HRET. After
power in the electing body, or that there was some
two years, the HRET reversed the COMELEC’s
other defect or irregularity in its exercise, wherein
decision and Ross was proclaimed finally as the
such ineligibility, want of power, or defect being
duly elected Congressman. Thus, he had only one
unknown to the public.
year to serve in Congress.
De jure officer vs. De facto officer
1. Can Ross collect salaries and allowances from
the government for the first two years of his
DE JURE OFFICER DE FACTO OFFICER
term as Congressman?
Has lawful title to the Has possession of and 2. Should Paulo refund to the government the
office. performs the duties under salaries and allowances he had received as
a colorable title without Congressman?
being technically qualified 3. What will happen to the bills that Paulo alone
in all points of law to act. authored and were approved by the HoR
Holding of office Holding of office rests on while he was seated as Congressman? Reason
rests on right. reputation. and explain briefly.
Officer cannot be Officer may be ousted in a
removed through a direct proceeding against A.
direct proceeding him.
(quo warranto). 1. NO. Ross cannot collect salaries and allowances
from the government for the first two years of his
Effects of the acts of de facto public officers term, because in the meanwhile Paulo collected
the salaries and allowances. Paulo was a de facto

Political Law
officer while he was in possession of the office. USURPER (2000
To allow Ross to collect the salaries and DE FACTO OFFICER
Bar)
allowances will result in making the government
pay a second time. Complies with the 3 elements Takes possession
2. NO. Paulo is not required to refund to the of a de jure officer, namely: of an office and
government the salaries and allowances he does official acts
received. As a de facto officer, he is entitled to the 1. Existence of a de jure without any actual
salaries and allowances because he rendered office; or apparent
services during his incumbency. 2. Must possess the legal authority.
qualifications for the
3. The bills which Paulo alone authored and were office in question; and
approved by the House of Representatives are 3. Must have qualified
valid because he was a de facto officer during his himself to perform the
incumbency. The acts of a de facto officer are duties of such office
valid insofar as the public is concerned. according to the mode
(Rodriguez v. Tan, G.R. No. L-3913, August 7, 1952) prescribed by law.
Recovery of the salary received by a de facto

officer during a wrongful tenure Has color of right or title to Has neither color of
office. right or title to
As a rule, the rightful incumbent of the public office office.
may recover from a de facto officer the salaries
received by the latter during the time of the latter's Acts are rendered valid as to Acts are absolutely
wrongful tenure even though he entered into the the public until his title is void.
office in good faith and under a colorable title. The de adjudged insufficient.
facto officer takes the salaries at his risks and must
therefore account to the de jure officer for the GR: The rightful incumbent of Not entitled to
amounts he received. However, where there is no de a public office may recover compensation
jure officer, a de facto officer shall be entitled to the from an officer de facto the
salaries and emoluments accruing during the period salary received by the latter
when he actually discharged the duties. (Monroy v. CA, during the time of his tenure
G.R. No. L-23258, July 1, 1967) even though he entered into
the office in good faith and
NOTE: In Monroy v. CA, the Supreme Court said that under color of title.
the Rodriguez ruling cannot be applied for the absence
of factual and legal similarities. XPN:
Where there is no de jure
Essence of de facto doctrine public officer, the officer de
facto who in good faith has had
The de facto doctrine has been formulated, not for the possession of the office and
protection of the de facto officer principally, but has discharged the duties
rather for the protection of the public and individuals pertaining thereto, is legally
who get involved in the official acts of persons entitled to the emoluments of
discharging the duties of an office without being the office, and may, in an
lawful officers. appropriate action, recover the
salary, fees and other
Q: May the salary of a public officer or employee compensations attached to the
be subject to garnishment? Why? office. (Gen. Manager,
Philippine Ports Authority v.
A: NO. It may not, by garnishment, attachment, or Monserate, G.R. No. 129616,
order of execution, be seized before being paid to him, April 17, 2002)
and appropriated for the payment of his debts,
because of the following reasons: K. TERMINATION OF OFFICIAL RELATION
1. While it is still in the hands of the disbursing Modes of terminating official relationships
officer, it belongs to the government;
2. Public policy forbids such practice since it would 1. Expiration of term or tenure;
be fatal to the public service; and 2. Reaching the age limit for retirement;
3. It would be tantamount to a suit against the State 3. Resignation;
in its own court, which is prohibited, except with 4. Recall;
its consent. 5. Removal;
6. Abandonment;
De facto officer vs. Usurper 7. Acceptance of an incompatible office;
8. Abolition of office;
9. Prescription of the right to office;
161
10. Impeachment; officials.
11. Death;
12. Failure to assume office; Courtesy Resignation
13. Conviction of a crime; or
14. Filing of a COC It cannot properly be interpreted as resignation in the
legal sense for it is not necessarily a reflection of a
NOTE: Appointive officials, active members of public official's intention to surrender his position.
the Armed Forces of the Philippines, and officers Rather, it manifests his submission to the will of the
and employees of the GOCCs, shall be resigned political authority and the appointing power. (Ortiz V.
from his office upon the filing of his COC. (Quinto COMELEC, G.R. No. 78957, June 28, 1988)
v. COMELEC, February 22, 2010, G.R. No. 189698)
Q: During the May 1998 election, petitioner
Elective officials shall continue to hold office, Sabrina was elected President while respondent
whether he is running for the same or a different Immaculate was elected Vice-President. From the
position. (Fair Elections Act, Sec. 14 expressly beginning of her term, petitioner was plagued by
repealed B.P. Blg. 881, Sec. 67) jueteng issues that slowly eroded her popularity.
Afterwards, the impeachment trial started and the
Age limit for retirement people conducted a 10-kilometer line holding
lighted candles in EDSA Shrine to symbolize their
AGE FOR solidarity in demanding Sabrina’s resignation. On
POSITION January 19, Sabrina agreed to the holding of a
RETIREMENT
snap election for President. On January 20, Chief
For members of SC and 70 years old Justice Valentin administered the oath to
judges of lower courts respondent Immaculate as President of the
Philippines. On the same day, Sabrina issued a
Gov't officers and employees 65 years old press statement that she was leaving Malacañang
Optional retirement 60 years old and Palace for the sake of peace and in order to begin
must have the healing process of the nation. It also appeared
rendered at least that on the same day, she signed a letter stating
20 service years that she was transmitting a declaration that she
was unable to exercise the powers and duties of
his office and that by operation of law and the
Resignation (2000 BAR)
Constitution, the Vice-President shall be the
Acting President. Are the acts of Sabrina
It is the act of giving up or declining a public office and
constitutive of resignation?
renouncing the further right to use such office
indefinitely. In order to constitute a complete and
A: YES. Resignation is not a high level legal
operative act of resignation, the officer or employee
abstraction. It is a factual question and
must show a clear intention to relinquish or
its elements are beyond quibble: there must be an
surrender his position accompanied by an act of
intent to resign and the intent must be coupled by acts
relinquishment. Resignation implies of the intention
of relinquishment (totality test). The validity of a
to surrender, renounce, relinquish the office. (Estrada
resignation is not governed by any formal
v. Desierto, G.R. No. 146738, March 2, 2001)
requirement as to form. It can be oral, written,
express or implied. As long as the resignation is clear,
It must be in writing and accepted by the accepting
it must be given legal effect. (Estrada v.Desierto, G.R.
authority as provided for by law.
No. 146738, March 2, 2001)
Accepting authorities for resignation
Removal
1. For appointed officers, the tender of resignation
It refers to the forcible and permanent separation of
must be given to the appointing authority;
the incumbent from office before the expiration of the
2. For elected officers, tender to officer authorized
public officer's term. (Feria, Jr. v. Mison, G.R. No. 8196,
by law to call an election to fill the vacancy. The
August 8, 1989)
following authorized officers are:
Recall
a. Respective chambers – For members of
Congress;
It is an electoral mode of removal employed directly
b. President – For governors, vice-governors,
by the people themselves through the exercise of their
mayors and vice-mayors of highly urbanized
right of suffrage. It is a political question not subject to
cities and independent component cities;
judicial review. It is a political question that has to be
c. Provincial governor – For municipal mayors
decided by the people in their sovereign capacity.
and vice-mayors, city mayors and vice-
(Evardone v. COMELEC, G.R. No. 94010, December 2,
mayors of component cities;
1991)
d. Sanggunian concerned – For sanggunian
members; and
NOTE: Recall only applies to local officials.
e. Municipal/city mayors – For barangay

Political Law
Limitations on recall Prescriptive period for petitions for
reinstatement or recovery of public office
1. An elective official can be subjected to recall only
once; and It must be instituted within one year from the date of
2. No recall shall take place within one year from unlawful removal from the office. Such period may be
the assumption of office or one year immediately extended on grounds of equity.
preceding a regular local election. [R.A. No. 7160,
Sec. 74 (b)] Period to take the oath of office to avoid failure to
assume office
NOTE: For the time bar to apply, the approaching
local election must be one where the position of Failure to take the oath of office within six months
the official to be recalled is to be actually from proclamation of election shall cause the vacancy
contested and filled by the electorate. (Angobung of the office UNLESS such failure is for a cause beyond
v. COMELEC, G.R. No. 126576, March 5, 1997) his control. (OEC. 881, Sec. 11)
Effect of recall on the three-term limit rule (2010 Termination of official relationship through
BAR) conviction by final judgment
The three-term limit for local elected officials is not When the penalty imposed carries with it the
violated when a local official wins in a recall election accessory penalty of disqualification.
for mayor after serving three full terms as mayor
since the recall election is not considered an Quo Warranto
immediate re-election, it is not counted for purposes
of the three-term limit. Term limits should be It is a proceeding or writ issued by the court to
construed strictly to give the fullest possible effect to determine the right to use an office, position or
the right of the electorate to choose their leaders. franchise and to oust the person holding or exercising
(Socrates v. COMELEC, G.R. No. 154512, November 12, such office, position or franchise if his right is
2002) unfounded or if a person performed acts considered
as grounds for forfeiture of said exercise of position,
Abandonment (2000 BAR) office, or franchise.
It is the voluntary relinquishment of an office by the NOTE: It is commenced by a verified petition brought
holder with the intention of terminating his in the name of the Republic of the Philippines or in the
possession and control thereof. name of the person claiming to be entitled to a public
office or position usurped or unlawfully held or
Q: Does the acceptance of an incompatible office exercised by another. (Rules of Court, Rule 66, Sec. 1)
ipso facto vacate the other?
Nature and purpose of quo warranto
A: GR: Yes.
It literally means “by what authority” and the object is
XPN: Where such acceptance is authorized by law. to determine the right of a person to the use or
exercise of a franchise or office and to oust the holder
NOTE: It is contrary to the policy of the law that the from its enjoyment, if his claim is not well-founded, or
same individual should undertake to perform if he has forfeited his right to enjoy the office. (Tecson
inconsistent and incompatible duties. He who, while v. Comelec, G.R. No. 161434, March 3, 2004)
occupying one office, accepts another incompatible
with the first, ipso facto, absolutely vacates the first Propriety of Quo Warranto as a mode to remove
office. That the second office is inferior to the first an Impeachable Officer
does not affect the rule.
The language of Section 2, Article XI of the
Q: Does the acceptance of an incompatible office Constitution does not foreclose a quo warranto action
pertain to its physical impossibility? against impeachable officers. The provision uses the
permissive term "may" which, in statutory
A: NO. The incompatibility contemplated is not the construction, denotes discretion and cannot be
mere physical impossibility of one person’s construed as having a mandatory effect. We have
performing the duties of the two offices due to a lack consistently held that the term "may" is indicative of a
of time or the inability to be in two places at the same mere possibility, an opportunity or an option. The
moment, but that which proceeds from the nature and grantee of that opportunity is vested with a right or
relations of the two positions to each other as to give faculty which he has the option to exercise. An option
rise to contrariety and antagonism should one person to remove by impeachment admits of an alternative
attempt to faithfully and impartially discharge the mode of effecting the removal.
duties of one toward the incumbent of the other.
(Canonizado v. Aguirre, G.R. No. 133132, February 15, We hold, therefore, that by its tenor, Section 2, Article
2001) XI of the Constitution allows the institution of a quo
warranto action against an impeachable officer. After
163
all, a quo warranto petition is predicated on grounds That prescription does not lie in this case can also be
distinct from those of impeachment. The former deduced from the very purpose of an action for quo
questions the validity of a public officer's warranto. People v. City Whittier explains that the
appointment while the latter indicts him for the so- remedy of quo warranto is intended to prevent a
called impeachable offenses without questioning his continuing exercise of an authority unlawfully
title to the office he holds. (Republic vs. Sereno, G.R. No. asserted. Indeed, on point is People v. Bailey when it
237428, May 11, 2018) ruled that because quo warranto serves to end a
continuous usurpation, no statute of limitations
NOTE: The courts should be able to inquire into the applies to the action.
validity of appointments even of impeachable officers. Needless to say, no prudent and just court would
To hold otherwise is to allow an absurd situation allow an unqualified person to hold public office,
where the appointment of an impeachable officer much more the highest position in the Judiciary. In
cannot be questioned even when, for instance, he or this case, the Republic cannot be faulted for
she has been determined to be of foreign nationality questioning respondent's qualification· for office only
or, in offices where Bar membership is a qualification, upon discovery of the cause of ouster. (Republic vs.
when he or she fraudulently represented to be a Sereno, G.R. No. 237428, May 11, 2018)
member of the Bar. Unless such an officer commits
any of the grounds for impeachment and is actually One-year prescriptive period applies only to
impeached, he can continue discharging the functions private individuals
of his office even when he is clearly disqualified from
holding it. Such would result in permitting unqualified The long line of cases decided by this Court since the
and ineligible public officials to continue occupying 1900's, which specifically explained the spirit behind
key positions, exercising sensitive sovereign functions the rule providing a prescriptive period for the filing
until they are successfully removed from office of an action for quo warranto, reveals that such
through impeachment. This could not have been the limitation can be applied only against private
intent of the framers of the Constitution. (ibid.) individuals claiming rights to a public office, not
against the State.
Prescription does not lie against the State in Quo
Warranto Proceedings Indeed, there is no proprietary right over a public
office. Hence, a claimed right over a public office may
When the Solicitor General himself commences the be waived. In fact, even Constitutionally-protected
quo warranto action either (1) upon the President's rights may be waived. Thus, we have consistently held
directive, (2) upon complaint or (3) when the Solicitor that the inaction of a person claiming right over a
General has good reason to believe that there is proof public office to assert the same within the prescriptive
that (a) a person usurps, intrudes into, or unlawfully period provided by the rules, may be considered a
holds or exercises· a public office, position or waiver of such right. This is where the difference
franchise; (b) a public officer does or suffers an act between a quo warranto filed by a private individual
which is a ground for the forfeiture of his office; or (c) as opposed to one filed by the State through the
an association acts as a corporation without being Solicitor General lies. There is no claim of right over a
legally incorporated or without lawful authority so to public office where it is the State itself, through the
act, he does so in the discharge of his task and Solicitor General, which files a petition for quo
mandate to see to it that the best interest of the public warranto to question the eligibility of the person
and the government are upheld. In these three holding the public office. As We have emphasized in
instances, the Solicitor General is mandated under the the assailed Decision, unlike Constitutionally-
Rules to commence the necessary quo warranto protected rights, Constitutionally-required
petition. qualifications for a public office can never be waived
either deliberately or by mere passage of time. While
When the government is the real party in interest, and a private individual may, in proper instances, be
is proceeding mainly to assert its rights, there can be deemed to have waived his or her right over title to
no defense on the ground of laches or prescription. public office and/or to have acquiesced or consented
Indubitably, the basic principle that "prescription to the loss of such right, no organized society would
does not lie against the State" which finds textual allow, much more a prudent court would consider, the
basis under Article 1108 (4) of the Civil Code, applies State to have waived by mere lapse of time, its right to
in this case. uphold and ensure compliance with the requirements
for such office, fixed by no less than the Constitution,
Jurisprudence across the United States likewise richly the fundamental law upon which the foundations of a
reflect that when the Solicitor General files a quo State stand, especially so when the government
warranto petition in behalf of the people and where cannot be faulted for such lapse. (Republic vs. Sereno,
the interests of the public are involved, the lapse of G.R. No. 237428, June 19, 2018)
time presents no effective bar. Aptly, in State ex rel
Stovall v. Meneley, it was held that a quo warranto Quo warranto under Rule 66 vs. Quo warranto in
action is a governmental function and not a propriety electoral proceedings
function, and therefore the doctrine of laches does not
apply. QUO WARRANTO UNDER QUO WARRANTO IN
RULE 66 ELECTORAL

Political Law
PROCEEDINGS The Chairman and the Commissioners shall be

The issue is legality of the The issue is eligibility of appointed by the President with the consent of the
occupancy of the office by the person elected. Commission on Appointments for a term of seven
virtue of a legal years without reappointment.
appointment.
Grounds: usurpation, Grounds: ineligibility or NOTE: Appointment to any vacancy shall be only for
forfeiture, or illegal disqualification to hold the unexpired term of the predecessor. In no case
association. (Rules of the office. (OEC, Sec. 253) shall any Member be appointed or designated in a
Court, Rule 66, Sec. 1) temporary or acting capacity. [1987 Constitution, Art.
Presupposes that the Petition must be filed IX-B, Sec. 1(2)]
respondent is already within 10 days from the
actually holding office and proclamation of the Qualifications
action must be candidate.
commenced within one 1. Natural-born citizen;
year from cause of ouster 2. At least 35 years old at the time of appointment;
or from the time the right 3. With proven capacity for public administration;
of petitioner to hold office and
arose. 4. Not a candidate in any election immediately
Petitioner is person Petitioner may be any preceding the appointment. [1987 Constitution,
entitled to office. voter even if he is not Art. IX-B, Sec 1(1)]
entitled to the office.
Person adjudged entitled Actual or compensatory Disqualifications (LEAC)
to the office may bring a damages are recoverable
1. No candidate who has Lost in any election shall,
separate action against in quo warranto
within one year after such election, be
the respondent to recover proceedings under the
appointed to any office in the Government of
damages. (Rules of Court, OEC.
any GOCC or in any of its subsidiaries; (1987
Rule 66, Sec. 11)
Constitution, Art. IX-B, Sec. 6)
NOTE: If the dispute is as to the counting of votes or 2. No Elective official shall be eligible for
on matters connected with the conduct of the election, appointment or designation in any capacity to
quo warranto is not the proper remedy but an election any public office or position during his tenure;
protest. (Cesar v. Garrido, G.R. No. 30705, March 25, [1987 Constitution, Art. IX-B, Sec. 7(1)] (1995,
1929) 2002 BAR)
L. CIVIL SERVICE 3. Unless otherwise allowed by law or by the

primary functions of his position, no Appointive
The Civil Service embraces every branch, agency, official shall hold any other office or
subdivision, and instrumentality of the government, employment in the Government or any
including every government-owned or controlled subdivision, agency or instrumentality thereof
corporations whether performing governmental or including GOCCs or their subsidiaries; [1987
proprietary functions. [1987 Constitution, Art. IX-B, Constitution, Art. IX-B, Sec. 7(2)] and,
Sec. 2(1)]
4. No officer or employee in the Civil service shall
engage, directly or indirectly, in any
1. SCOPE
electioneering or partisan political activity.
[1987 Constitution, Art. IX-B, Sec. 2(4)]
Constitutional Functions of the CSC
Classification
As the central personnel agency of the government, it:
1. Career Service; and
1. Establishes a career service; 2. Non-Career Service.
2. Adopts measures to promote morale, efficiency,
integrity, responsiveness, progressiveness and Career Service
courtesy in the Civil Service;
3. Strengthens the merits and rewards system; The Career Service shall be characterized by (1)
4. Integrates all human resources and development entrance based on merit and fitness to be determined
programs for all levels and ranks; and as far as practicable by competitive examinations or
5. Institutionalizes a management climate based on highly technical qualifications; (2)
conducive to public accountability. (1987 opportunity for advancement to higher career
Constitution, Art. IX-B, Sec. 3) positions; and (3) security of tenure.
Composition of the CSC The Career Service shall include:
1. Chairman; and 1. Open Career positions are those for appointment

2. Two Commissioners to which prior qualification in an appropriate
examination is required;
165
2. Closed Career positions are those which are 2. Department Heads and other officials of Cabinet
scientific or highly technical in nature; these rank who hold positions at the pleasure of the
include the faculty and academic staff of state President and their personal or confidential
colleges and universities, and scientific and staff;
technical positions in scientific or research 3. Chairman and members of commissions and
institutions which shall establish and maintain boards with fixed terms of office and their
their own merit systems; personal or confidential staff;
3. Positions in the Career Executive Service (CES), 4. Contractual personnel or those whose
employment in the government is in accordance
namely Undersecretary, Assistant Secretary,
with a special contract to undertake a specific
Bureau Director, Assistant Bureau Director,
work or job, requiring special or technical skills
Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of not available in the employing agency, to be
accomplished within a specific period, which in
equivalent rank as may be identified by the
no case shall exceed one year, and performs or
Career Executive Service Board, all of whom are
accomplishes the specific work or job, under his
appointed by the President;
own responsibility with a minimum of direction
and supervision from the hiring agency; and
NOTE: For a position to be considered as CES,
5. Emergency and seasonal personnel.
a. The position must be among those
enumerated under Book V, Title I, Subtitle A, Classes of positions in the Career Service
Chapter 2, Section 7(3) of the Administrative
Code of 1987 or a position of equal rank as 1. Classes of positions in the career service
those enumerated and identified by the CESB appointment to which requires examinations
to be such position of equal rank; and shall be grouped into three major levels as
b. The holder of the position must be a follows:
presidential appointee. (Seneres v. Sabido,
G.R. No. 172902, October 21, 2015) a. The first level shall include clerical, trades,
crafts, and custodial service positions which
Requisites for a CES employee to acquire involve non-professional or sub-professional
security of tenure: work in a non-supervisory or supervisory
capacity requiring less than four years of
i. CES eligibility; and collegiate studies;
ii. Appointment to the appropriate b. The second level shall include professional,
CES rank. (Seneres v. Sabido, ibid.) technical, and scientific positions which
involve professional, technical, or scientific
4. Career officers, other than those in the Career work in a non-supervisory or supervisory
Executive Service, who are appointed by the capacity requiring at least four years of
President, such as the Foreign Service Officers in college work up to Division Chief level; and
the Department of Foreign Affairs; c. The third level shall cover positions in the
5. Commissioned officers and enlisted men of the Career Executive Service.
Armed Forces which shall maintain a separate
merit system; 2. Except as herein otherwise provided, entrance to
6. Personnel of government-owned or -controlled the first two levels shall be through competitive
corporations, whether performing governmental examinations, which shall be open to those inside
or proprietary functions, who do not fall under and outside the service who meet the minimum
the non-career service; and qualification requirements. Entrance to a higher
7. Permanent laborers, whether skilled, semi- level does not require previous qualification in
skilled, or unskilled. the lower level. Entrance to the third level shall
be prescribed by the Career Executive Service
Non-Career Service Board.
The Non-Career Service shall be characterized by (1) 3. Within the same level, no civil service
entrance on bases other than those of the usual tests examination shall be required for promotion to a
of merit and fitness utilized for the career service; and higher position in one or more related
(2) tenure which is limited to a period specified by occupational groups. A candidate for promotion
law, or which is coterminous with that of the should, however, have previously passed the
appointing authority or subject to his pleasure, or examination for that level. (P.D. 807, Art. IV)
which is limited to the duration of a particular project
for which purpose employment was made. 2. APPOINTMENTS TO THE CIVIL SERVICE
The Non-Career Service shall include: Manner of appointment to the civil service
1. Elective officials and their personal or Appointments in the civil service shall be made only
confidential staff; according to merit and fitness to be determined, as far

Political Law
as practicable, and, except to positions which are The Civil Service Commission has the authority to
policy-determining, primarily confidential, or highly recall appointments made in disregard of the
technical, by competitive examination. [1987 applicable provisions of Civil Service Law and
Constitution, Art. IX-B Sec. 2(2)] regulations. (Sales v. Carreon Jr., G.R. No. 160791,
February 13, 2007)
Principal groups of position in the Civil Service, on
the basis of appointment Q: The CSC issued a Resolution granting the City
Government of Dumaguete the authority to take
1. Competitive positions – According to merit and final action on all its appointments subject to
fitness to be determined by competitive rules and regulations and within the limits and
examinations, as far as practicable; restrictions of the implementing guidelines of the
CSC Accreditation Program as amended and
2. Non-competitive positions – Do not have to take subject to monthly monitoring by the Civil Service
into account merit and fitness. No need for Field Office (CSFO). On June 5, 7, and 11, 2001,
competitive examinations; and Dumaguete City outgoing Mayor Felipe Antonio B.
a. Policy-determining – They are tasked to Remollo promoted 15 city hall employees, and
formulate a method of action for the regularized another 74 city hall employees,
government or any of its subdivisions. including the herein 52 petitioners. But the
b. Primarily confidential – Their duties are not incoming Mayor Perdices did not honor the
merely clerical but devolve upon the head of appointments made by former Mayor Remollo and
an office, which, by reason of his numerous he ordered the City Administrator to direct the
duties, delegates his duties to others, the City Assistant Treasurer to refrain from making
performance of which requires skill, any cash disbursements for payments of
judgment, trust and confidence petitioners' salary differentials based on their
new positions. Further, a CSC resolution was
Proximity Rule passed invalidating the appointments of the
employees. Is the CSC authorized to invalidate
The test used to determine confidentiality of a appointments?
position. The occupant of a particular position
could be considered a confidential employee if A: YES. In Quirog v. Aumentado, the Court held that the
the predominant reason why he was chosen by ruling in De Rama v. Court of Appeals does not mean
the appointing authority was the latter’s belief that the raison d' etre behind the prohibition against
that he can share a close intimate relationship midnight appointments may not be applied to those
with the occupant which ensures freedom of made by chief executives of local government units.
discussion without fear of embarrassment or Indeed, the prohibition is precisely designed to
misgivings of possible betrayals of personal discourage, nay, even preclude, losing candidates
trust and confidential matters of State. (De los from issuing appointments merely for partisan
Santos v. Mallare, G.R. No. L-3881, August 31, purposes thereby depriving the incoming
1950) administration of the opportunity to make the
corresponding appointments in line with its new
c. Highly technical – Requires technical skill or policies. (Nazareno v. City of Dumaguete, G.R. No.
training in the highest degree. 181559, October 2, 2009)
NOTE: The test to determine whether the Security of tenure

position is non-competitive is the nature of the
responsibilities, not the description given to it. It means that no officer or employee in the civil
The Constitution does not exempt the above- service shall be suspended or dismissed except for
given positions from the operation of the cause provided by law, and after due process or after
principle that “no officer or employee of the civil he shall have been given the opportunity to defend
service shall be removed or suspended except for himself.
cause provided by law.”
NOTE: One must be validly appointed to enjoy
Q: Who may be appointed in the civil service? security of tenure. Thus, one who is not appointed by
the proper appointing authority does not acquire
A: Whoever fulfills all the qualifications prescribed by security of tenure.
law for a particular position may be appointed Once an appointment is issued and completed and the
therein. appointee assumes the position, he acquires a legal
right, not merely an equitable right to the position.
NOTE: The CSC cannot disapprove an appointment (Lumigued v. Exevea, G.R. No. 117565, November. 18,
just because another person is better qualified, as long 1997)
as the appointee is himself qualified. It cannot add
qualifications other than those provided by law. Regardless of the characterization of the position held
(Cortez v. CSC, G.R. No. 92673, March 13, 1991) by a government employee covered by civil service
rules, be it career or non-career position, such
Authority to recall appointments
167
employee may not be removed without just cause. Illustration: The position of NCC (National Computer
(Jocom v. Regalado, G.R. No. 77373, August 22, 1991) Center) Director General is a CES position equivalent
to Career Executive Service Officer (CESO) Rank I.
Bases of the constitutional guaranty of security of Seneres is already CES eligible, but no President has
tenure in the civil service (1999, 2005 BAR) yet appointed him to any CES rank (despite the
previous recommendation of the CESB for his
The prohibition against suspension or dismissal of an appointment to CESO Rank I). Therefore, Seneres's
officer or employee of the Civil Service “except for membership in the CES is still incomplete. Falling
cause provided by law” is “a guaranty of both short of one of the qualifications that would complete
procedural and substantive due process.” “Not only his membership in the CES, Seneres cannot
must removal or suspension be in accordance with successfully interpose violation of security of tenure.
the procedure prescribed by law, but also they can His appointment to the position of NCC Director
only be made on the basis of a valid cause provided by General could only be construed as temporary, and he
law.” (Land Bank of the Philippines v. Rowena O. could be removed any time even without cause. Even
Paden, G.R. No. 157607, July 7, 2009) assuming that he was already conferred with a CES
rank, his appointment would be permanent as to his
Characteristic of security of tenure CES rank only but not as to his position as NCC
Director General. As member of the CES, he could be
It is the nature of the appointment that characterizes reassigned or transferred from one position to
security of tenure and not the nature of one’s duties another from one department, bureau, or office to
or functions. another provided that there would be no reduction in
his rank or salary and that his reassignment/transfer
Where the appointment is permanent, it is protected was not oftener than every two years, among other
by the security of tenure provision. But if it is conditions. (Seneres v. Sabido, ibid.)
temporary or in an acting capacity, which can be
terminated at any time, the officer cannot invoke the Security of tenure for non-competitive positions
security of tenure.
1. Primarily confidential officers and employees
NOTE: The holder of a temporary appointment cannot hold office only for so long as confidence in them
claim a vested right to the station to which assigned, remains. If there is genuine loss of confidence,
nor to security of tenure thereat. Thus, he may be there is no removal, but merely the expiration of
reassigned to any place or station. (Teotico v. Agda, the term of office.
G.R. No. 87437, May 29, 1991) 2. Non-career service officers and employees’
security of tenure is limited to a period specified
Attachment of security of tenure by law, coterminous with the appointing
authority or subject to his pleasure, or which is
It attaches once an appointment is issued and the limited to the duration of a particular purpose.
moment the appointee assumes a position in the civil
3. Political appointees in Foreign Service possess
service under a completed appointment, he acquires a
tenure coterminous with that of the appointing
legal, not merely equitable, right (to the position)
authority or subject to his pleasure.
which is protected not only by statute, but also by the
constitution, and cannot be taken away from him
Instances where a transfer may be considered
either by revocation of the appointment, or by
violative of employee’s security of tenure
removal, except for cause, and with previous notice
and hearing. (Aquino v. CSC, G.R. No. 92403, April 22,
1992) When the transfer is a preliminary step toward his
removal, or a scheme to lure him away from his
permanent position, or when it is designed to
Security of tenure for Career Executive Service
indirectly terminate his service, or force his
(CES)
resignation. Such a transfer would in effect
circumvent the provision that safeguards the tenure
Security of tenure in the CES is thus acquired with
of office of those who are in the Civil Service. (CSC v.
respect to rank and not to position. The guarantee of
PACHEO, G.R. No. 178021, January 25, 2012)
security of tenure to members of the CES does not
extend to the particular positions to which they may
NOTE: Acceptance of a temporary appointment or
be appointed  a concept which is applicable only to
assignment without reservation or upon one’s own
first and second-level employees in the civil service 
volition is deemed waiver of security of tenure.
but to the rank to which they are appointed by the
(Palmera v. CSC, G.R. No. 110168, August 4, 1994)
President. Within the CES, personnel can be shifted
from one office or position to another without
Rules applicable to temporary employees vis-a-vis
violation of their right to security of tenure because
security of tenure
their status and salaries are based on their ranks and
not on their jobs. (Seneres v. Sabido, G.R. No. 172902,
1. Not protected by security of tenure – can be
October 21, 2015)
removed anytime even without cause;

Political Law
2. If they are separated, this is considered an 3. Transfer – A movement from one position to
expiration of term. But, they can only be removed another which is of equivalent rank, level or
by the one who appointed them; and salary without break in service involving
3. Entitled to such protection as may be provided by issuance of an appointment;
law. [1987 Constitution, Art. IX-B, Sec. 2(6)] 4. Reinstatement – A person who has been
permanently appointed to a position in the career
Q: May the courts determine the proper service and who has, through no delinquency or
classification of a position in government? Is the misconduct, been separated therefrom, may be
position of corporate secretary in a GOCC reinstated to a position in the same level for
primarily confidential in nature? which he is qualified;
5. Reemployment – Persons who have been
A: YES. The courts may determine the proper appointed permanently to positions in the career
classification of a position in government. A strict service and who have been separated as result of
reading of the law (E.O. 292) reveals that primarily reduction in force and or reorganization shall be
confidential positions fall under the non-career entered in a list from which selection for
service. The tenure of a confidential employee is reemployment shall be made; (The Revised
coterminous with that of the appointing authority, or Administrative Code of 1987, Chapter 5, Book V,
is at the latter's pleasure. However, the confidential Title I-A, Sec. 26[5])
employee may be appointed or remain in the position
6. Detail – A movement of an employee from one
even beyond the compulsory retirement age of 65
years. agency to another without issuance of an
appointment and shall be allowed, only for a
limited period in the case of employees
Jurisprudence establishes that the Court is not bound
occupying professional, technical and scientific
by the classification of positions in the civil service
made by the legislative or executive branches, or even positions; (The Revised Administrative Code of
1987, Chapter 5, Book V, Title I-A, Sec. 26[6])
by a constitutional body like the CSC. The Court is
expected to make its own determination as to the 7. Reassignment – An employee may be reassigned
nature of a particular position, such as whether it is a from one organizational unit to another in the
primarily confidential position or not, without being same agency, provided that such reassignment
bound by prior classifications made by other bodies. shall not involve a reduction in rank, status or
salary; [Revised Administrative Code of 1987, Title
In fine, a primarily confidential position is I-A, Book V, Chapter 5, Sec. 26(7)]
characterized by the close proximity of the positions of 8. Demotion – A movement from one position to
the appointer and appointee as well as the high another involving the issuance of an appointment
degree of trust and confidence inherent in their with diminution in duties, responsibilities, status
relationship. or rank which may or may not involve reduction
in salary;
In the light of the instant controversy, the Court's 9. Secondment – It is the movement of an employee
view is that the greater public interest is served if the from one department or agency to another which
position of a corporate secretary is classified as is temporary in nature. It may or may not require
primarily confidential in nature. (CSC v. Javier, G.R. No. the issuance of an appointment, and may involve
173264, February 22, 2008)
an increase in compensation and benefits.
Acceptance of a secondment is voluntary on the
3. PERSONNEL ACTIONS part of the employee. The payment of salaries of a
seconded employee shall be borne by the
Any action denoting movement or progress of
receiving agency and the seconded employee
personnel in the civil service. (City Mayor Debulgado v. shall be on leave without pay in his mother
CSC, G.R. No. 111471, September 26, 1994) agency for the duration of his secondment.
(Señeres v. Sabido, G.R. No. 172902, Oct. 21, 2015)
Personnel actions include
M. ACCOUNTABILITY OF PUBLIC OFFICERS
1. Appointment through Certification – It is issued to
a person who has been selected from a list of Public office is a public trust. Public officers and
qualified persons certified by the Commission
employees must, at all times, be accountable to the
from an appropriate register of eligible and who people, serve them with utmost responsibility,
meets all other requirements of the position; integrity, loyalty, and efficiency; act with patriotism
[Revised Administrative Code of 1987, Title I-A, and justice, and lead modest lives. (Section 1, Article
Book V, Chapter 5, Sec. 26(2)]
XI, 1987 Constitution)
2. Promotion – It is the movement from one position
to another with increase in duties and 1. TYPES OF ACCOUNTABILITY
responsibilities as authorized by law and usually
accompanied by an increase in pay; [Revised Types of Accountability
Administrative Code of 1987, Title I-A, Book V,
Chapter 5, Sec. 26(2)] 1. Administrative
169
2. Criminal Sales, he had continuously incurred tardiness during
the months of January to September 2011 for more
a. ADMINISTRATIVE ACCOUNTABILITY OF PUBLIC than 10 times each month, except during the month of
OFFICERS March when he only came in late 10 times. (Re:
Habitual tardiness of Cesare Sales, MTC Office of Clerk
of Court, Manila, A.M. No. P-13-3171, January 28, 2014)
Disciplinary Action
Q: Hallasgo was the Municipal Treasurer of the
It is a proceeding, which seeks the imposition of
Municipality of Damulog, Bukidnon and was
disciplinary sanction against, or the dismissal or
accused before the Office of the Deputy
suspension of, a public officer or employee on any of
Ombudsman for Mindanao of unauthorized
the grounds prescribed by law after due hearing.
withdrawal of monies of the public treasury
amounting to malversation of public funds by
Grounds for the discipline of public officers
outgoing and incumbent officials of the
municipality. The Office of the Ombudsman for
1. Dishonesty;
Mindanao determined that it could not make a
2. Oppression;
complete evaluation of the issues without
3. Neglect of duty;
conducting an extensive audit. The Deputy
Ombudsman for Mindanao issued a Decision
NOTE: Gross neglect is such neglect which, from
finding petitioner guilty of grave misconduct. Is
the gravity of the case or the frequency of
the petitioner correct when it contended that the
instances, becomes so serious in its character as
CA failed to appreciate that there was no
to endanger or threaten the public
substantial evidence to warrant the meting out of
welfare. (Office of the Court Administrator v.
the extreme penalty of dismissal from service?
Guan, A.M. No. P-07-2293, July 15, 2015)
A: NO. Misconduct generally means wrongful,
4. Misconduct;
improper or unlawful conduct motivated by a
5. Disgraceful and immoral conduct;
premeditated, obstinate or intentional purpose. It is a
6. Discourtesy in the course of official duties;
transgression of some established and definite rule of
7. Inefficiency and incompetence in the
action, a forbidden act, a dereliction of duty. Qualified
performance of official duties;
by the term “gross,” it means conduct that is “out of all
8. Conviction of a crime involving moral turpitude;
measure beyond allowance; flagrant; shameful; such
9. Being notoriously undesirable;
conduct as is not to be excused.” We find that the
10. Falsification of official documents;
evidence on record demonstrates a pattern of
11. Habitual drunkenness;
negligence and gross misconduct on the part of the
12. Gambling;
petitioner that fully satisfies the standard of
13. Refusal to perform official duty or render
substantial evidence. Substantial evidence is such
overtime service;
amount of relevant evidence that a reasonable mind
14. Physical or mental incapacity due to immoral or
might accept as adequate to support a conclusion.
vicious habits; and
(Hallasgo v. Commission on Audit, G.R. No. 171340,
15. Willful refusal to pay just debts or willful failure
September 11, 2009)
to pay taxes.
Q: In 1993, Macario Catipon filed an application to
Q: The Office of the Court Administrator
take the Career Service Professional Examination
recommends that Cesare Sales be dismissed from
(CPSE), believing that the CSC still allowed
service in the Judiciary despite his 17 years length
applicants to substitute the length of their
of service on the ground of habitual tardiness. The
government service for any academic deficiency
Report submitted shows that Sales had always
which they may have. When he passed, he was
been tardy in going to the office for the months of
later promoted to Senior Analyst and Officer-in-
January to September 2011. In addition, he was on
Charge Branch Head of the SSS Bangued. In
several sick leaves, forced leaves, and vacation
October 1995, he finally eliminated his deficiency
leaves. On the days he was on leave, he indicated
of 1.5 units in Military Science.
in his DTRs "sick leave applied," "vacation leave
applied" or "forced leave applied." In his
In 2003, he was charged with Dishonesty,
comment, Sales admitted his frequent tardiness in
Falsification of Official documents, Grave
going to the office but pleaded that he be given
Misconduct and Conduct Prejudicial to the Best
consideration by the Court. Should Sales be
Interest of the Service by the CSC-CAR for making
dismissed from service on the ground of habitual
deliberate false entries in his CSPE application.
tardiness?
The CSC exonerated Catipon from the offense
charged but found him guilty of Conduct
A: YES. Under CSC Memorandum Circular No. 04, s.
Prejudicial to the Best Interest of Service. Catipon
1991, an officer or employee shall be considered
appealed the judgment directly to the Court of
habitually tardy if he is late for work, regardless of the
Appeals, but the petition was dismissed for
number of minutes, ten (10) times a month for at least
violating the doctrine of administrative remedies.
two (2) months in a semester, or at least two (2)
consecutive months during the year. In the case of

Political Law
1. Is the CA correct? agencies, including government-owned or –controlled
2. Should Catipon be exonerated of the latter corporations with original charters. It has the
offense? authority to hear and decide administrative
disciplinary cases instituted directly with it or
A: 1. YES. It is the Civil Service Commission Proper, brought to it on appeal and to enforce or order
which shall have jurisdiction over decisions of Civil execution of its decisions, resolutions or orders. (De
Service Regional Offices. It is only the decision of the Leon, 2014)
Commission Proper that may be brought to the CA on
petition for review, under Section 50 of MC 19. Jurisdiction over administrative disciplinary
Indeed, the administrative agency concerned is in the actions against elective local officials.
"best position to correct any previous error
committed in its forum." Jurisdiction over administrative disciplinary actions
against elective local officials is lodged in two
2. YES. Catipon was negligent in filling up his CSPE authorities: the Disciplinary Authority and the
application form and in failing to verify beforehand Investigating Authority. (A.O. No. 23)
the specific requirements for the CSPE examination.
The claim of good faith and absence of deliberate The Disciplining Authority is the President of the
intent or willful desire to defy or disregard the rules Philippines, whether acting by himself or through the
relative to the CSPE is not a defense as to exonerate Executive Secretary. The Secretary of the Interior and
him from the charge of conduct prejudicial to the best Local Government is the Investigating Authority, who
interest of the service; under our legal system, may act by himself or constitute an Investigating
ignorance of the law excuses no one from compliance Committee. The Secretary of the DILG, however, is not
therewith. (Catipon Jr. vs. Japson, G.R. No. 191787, June the exclusive Investigating Authority. In lieu of the
22, 2015) DILG Secretary, the Disciplining Authority may
designate a Special Investigating Committee.
Jurisdiction
The President as Disciplinary Authority
Disciplinary Jurisdiction of Heads of ministries,
agencies and instrumentalities, provinces, cities The power to discipline evidently includes the power
and municipalities to investigate. As the Disciplining Authority, the
President has the power derived from the
They have jurisdiction to investigate and decide Constitution itself to investigate complaints against
matters involving disciplinary action against officers local government officials. A.O. No. 23, however,
and employees under their jurisdiction. Their decision delegates the power to investigate. The President
shall be final in case the penalty imposed is remains the Disciplining Authority. What is delegated
suspension of not more than 30 days or fine in an is the power to investigate, not the power to
amount not exceeding 30 days salary. In other cases, discipline.
the decision shall be initially appealed to the
department head and finally to the Civil Service NOTE: A Presidential appointee is under the direct
Commission and pending appeal, the same shall be disciplinary authority of the President (Villaluz v.
executory except when the penalty is removal, in Zaldivar, G.R. No. L-22754, December 31, 1965)
which case the same shall be executory only after
confirmation by the department head. (Sec. 37, P.D. Availability of appeal in administrative
807) disciplinary cases
NOTE: Sec. 9, R.A. 4670 Magna Carta for Public School 1. Appeal is available if the penalty is: (DDS)
Teachers provides that the committee to hear a. Demotion;
administrative charges against public school teachers b. Dismissal; or
must include a representative of the teachers’ c. Suspension for more than 30 days or fine
organization. The appointment by the DECS Secretary equivalent to more than 30 days’ salary. [P.D.
of teachers to the committee does not comply with 807, Sec.37(a)]
this requirement, as it is the teachers’ organization
which possesses the right to indicate its choice of NOTE: Decisions are initially appealable to the
representative in the committee, and the DECS department heads and then to the CSC. Only the
Secretary cannot usurp such right. The inclusion of a respondent in the administrative disciplinary case,
representative of the teachers’ organization in the not the complainant, can appeal to the CSC from an
committee is indispensable to ensure an impartial adverse decision. The complainant in an
tribunal. (Fabella v. Court of Appeals G R No. 110379, administrative disciplinary case is only a witness, and
November 28, 1997) as such, the latter cannot be considered as an
aggrieved party entitled to appeal from an adverse
Disciplinary Jurisdiction of Civil Service decision. (Mendez v. CSC, G. R. No. 95575, December 23,
Commission 1991)
It has jurisdiction over the employees of Government 2. Appeal is NOT available if the penalty is: (SF-
branches, subdivisions, instrumentalities, and CRAE)
171
a. Suspension for not more than 30 days; 17. Refusal to perform official duty or render
b. Fine not more than 30 days’ salary; overtime service;
c. Censure; 18. Disgraceful, immoral or dishonest conduct prior
d. Reprimand; to entering the service;
e. Admonition; or 19. Physical or mental incapacity or disability due to
f. When the respondent is exonerated. immoral or vicious habits;
20. Borrowing money by superior officers from
NOTE: In the second case, the decision becomes final subordinates or lending by subordinates to
and executory by express provision of law. superior officers;
21. Lending money at usurious rates of interest;
Availability of the services of the Solicitor General 22. Willful failure to pay just debts or willful failure
to pay taxes due to the government;
If the public official is sued for damages arising out of 23. Contracting loans of money or other property
a felony for his own account, the State is not liable from persons with whom the office of the
and the Solicitor General is not authorized to employee concerned has business relations;
represent him therefore. The Solicitor General may 24. Pursuit of private business, vocation or
only do so in suits for damages arising not from a profession without the permission required by
crime but from the performance of a public officer’s Civil Service rules and regulations;
duties. (Vital-Gozon v. CA, G.R No. 101428, August 5, 25. Insubordination;
1992) 26. Engaging directly or indirectly in partisan
political activities by one holding a non-political
The Office of the Solicitor General can represent the office;
public official at the preliminary investigation of his 27. Conduct prejudicial to the best interest of the
case, and that if an information is eventually filed service;
against the said public official, the said Office may no 28. Lobbying for personal interest or gain in
longer represent him in the litigation. (Anti-Graft legislative halls or offices without authority;
League v. Ortega, G.R. No. L-33912, September 11, 29. Promoting the sale of tickets in behalf of private
1980) enterprises that are not intended for charitable
or public welfare purposes and even in the latter
b. CRIMINAL ACCOUNTABILITY OF PUBLIC cases if there is no prior authority;
OFFICERS 30. Nepotism as defined in Section 60 of this Title.
(Section 46, EO 292)
The following shall be grounds for disciplinary action:
2. THE OMBUDSMAN AND THE OFFICE OF THE
1. Dishonesty; SPECIAL PROSECUTOR
2. Oppression;
3. Neglect of duty; Composition of the Ombudsman:
4. Misconduct;
5. Disgraceful and immoral conduct; 1. The Ombudsman;
6. Being notoriously undesirable; 2. One overall Deputy;
7. Discourtesy in the course of official duties; 3. At least one Deputy each for Luzon, Visayas and
8. Inefficiency and incompetence in the Mindanao; and
performance of official duties; 4. A Deputy for the military establishment may also
9. Receiving for personal use of a fee, gift or other be appointed. (1987 Philippine Constitution, Art.
valuable thing in the course of official duties or in XI, Sec. 5)
connection therewith when such fee, gift, or
other valuable thing is given by any person in the Functions
hope or expectation of receiving a favor or better
treatment than that accorded other persons, or 1. Investigate and prosecute on its own or on
committing acts punishable under the anti-graft complaint by any person, any act or omission of
laws; any public officer or employee, office or agency,
10. Conviction of a crime involving moral turpitude; when such act or omission appears to be illegal,
11. Improper or unauthorized solicitation of unjust, improper or inefficient. It has primary
contributions from subordinate employees and jurisdiction over cases cognizable by the
by teachers or school officials from school Sandiganbayan and, in the exercise of this
children; primary jurisdiction, it may take over, at any
12. Violation of existing Civil Service Law and rules stage, from any investigatory agency of
or reasonable office regulations; Government, the investigation of such cases;
13. Falsification of official document; (2012 BAR)
14. Frequent unauthorized absences or tardiness in
reporting for duty, loafing or frequent 2. Direct, upon complaint or at its own instance, any
unauthorized absences from duty during regular officer or employee of the Government, or of any
office hours; subdivision, agency or instrumentality thereof, as
15. Habitual drunkenness; well as any government-owned or controlled
16. Gambling prohibited by law; corporations with original charter, to perform

Political Law
and expedite any act or duty required by law, or 9. Punish for contempt in accordance with the
to stop, prevent, and correct any abuse or Rules of Court and under the same procedure
impropriety in the performance of duties; and with the same penalties provided therein;
3. Direct the officer concerned – 10. Delegate to the Deputies, or its investigators or
a. to take appropriate action against a representatives such authority or duty as shall
public officer or employee at fault or ensure the effective exercise or performance of
who neglect to perform an act or the powers, functions, and duties herein or
discharge a duty required by law, and hereinafter provided;
b. recommend his removal, suspension,
demotion, fine, censure, or 11. Investigate and initiate the proper action for
prosecution, and ensure compliance the recovery of ill-gotten and/or unexplained
therewith; or enforce its disciplinary wealth amassed after February 25, 1986 and
authority as provided in Section 21 of the prosecution of the parties involved therein;
R.A. 6770: and (R.A. 6770, Sec. 15)
The refusal by any officer without 12. Promulgate its rules of procedure and exercise
just cause to comply with an order of such other powers or perform such functions
the Ombudsman to remove, suspend, or duties as may be provided by law. [1987
demote, fine, censure, or prosecute an Constitution, Art. XI, Sec. 13(7); see also R.A.
officer or employee who is at fault or 6770, Sec. 18]
who neglects to perform an act or
discharge a duty required by law NOTE: The Ombudsman can investigate the acts of the
shall be a ground for disciplinary Supreme Court. (2003 BAR)
action against said officer; (2009
BAR) The powers of the Ombudsman are not merely
recommendatory. His office was given teeth to render
4. Direct the officer concerned, in any this constitutional body not merely functional but also
appropriate case, and subject to such effective. Under R.A. 6770 and the 1987 Constitution,
limitations as it may provide in its rules of the Ombudsman has the constitutional power to
procedure, to furnish it with copies of directly remove from government service an erring
documents relating to contracts or public official other than a member of Congress and
transactions entered into by his office the Judiciary. (Estarija v. Ranada, G.R. No. 159314, June
involving the disbursement or use of public 26, 2006)
funds or properties, and report any irregularity
to the Commission on Audit for appropriate Effect of charges arising from same act/omission
action; lodged before the Ombudsman and regular courts
5. Request any government agency for assistance Administrative and criminal charges filed before the
and information necessary in the discharge of Office of the Ombudsman and the trial court,
its responsibilities, and to examine, if respectively, are separate and distinct from each
necessary, pertinent records and documents; other even if they arise from the same act or omission.
This is because the quantum of proof required in
6. Publicize matters covered by its investigation criminal cases is proof beyond reasonable doubt,
of the matters mentioned in paragraphs (1), while in administrative cases, only substantial
(2), (3) and (4) hereof, when circumstances so evidence is required. Moreover, the purpose of the
warrant and with due prudence: provided, that administrative proceedings is mainly to protect the
the Ombudsman under its rules and public service, based on the time-honored principle
regulations may determine what cases may not that a public office is a public trust. On the other hand,
be made public: provided, further, that any the purpose of the criminal prosecution is the
publicity issued by the Ombudsman shall be punishment of crime. Thus, even the dismissal of a
balanced, fair and true; criminal case does not necessarily foreclose the
administrative action against the respondent.
7. Determine the causes of inefficiency, red tape, (Gonzales v. Serrano. G.R. No. 175433, March 11, 2015)
mismanagement, fraud, and corruption in the
Government, and make recommendations for Ombudsman’s fiscal autonomy
their elimination and the observance of high
standards of ethics and efficiency; The Ombudsman shall enjoy fiscal autonomy. Its
approved annual appropriations shall be
8. Administer oaths, issue subpoena and automatically and regularly released. (1987
subpoena duces tecum, and take testimony in Constitution, Art. XI, Sec. 14)
any investigation or inquiry, including the
power to examine and have access to bank Term of office
accounts and records;
173
Seven years without reappointment. (1987 1. officials who may be removed only by
Constitution, Art. XI, Sec. 11) impeachment;
2. members of Congress
Qualifications of the Ombudsman and his Deputies 3. members of the Judiciary (R.A. 6770, Sec. 21)
1. Natural born citizen of the Philippines; NOTE: The Office of the Ombudsman shall have the
2. At least 40 years of age at the time of power to investigate any serious misconduct in office
appointment; allegedly committed by officials removable by
3. Of recognized probity and independence; impeachment, for the purpose of filing a verified
4. Member of the Philippine Bar; complaint for impeachment, if warranted. (R.A. 6770,
5. Must not have been candidate for any elective Sec. 22)
office in the immediately preceding election; and
6. For the Ombudsman: He must have been for 10 Scope of powers
years or more, a judge or engaged in the practice
of law in the Philippines. (1987 Constitution, Art. 1. The Ombudsman exercises jurisdiction over
XI, Sec. 8) public officials or employees of government-
owned and controlled corporations with original
NOTE: Only the Ombudsman, not his deputies, is charters. This being so, it can only investigate and
impeachable. Under Sec. 2, Art. XI, the impeachable prosecute acts or omissions of the officials or
officers are the President, the Vice-President, the employees of government corporations; (Khan, Jr
members of the Supreme Court, the members of the v. Ombudsman, G.R. No. 125296, July 20, 2006)
Constitutional Commission, and the Ombudsman. The
list is exclusive. (Ombudsman v. CA and Mojica, G.R. 2. The jurisdiction of the Ombudsman over
146468, March 4, 2005) disciplinary cases involving public school
teachers has been modified by Sec. 9 of R.A. 4670
Rank and salary (Magna Carta for Public School Teachers) which
says that such cases must first go to an
The Ombudsman and his Deputies shall have the rank investigating committee; (Ombudsman v.
of Chairman and Members, respectively, of the Estandarte, G.R. 168670, April 13, 2007)
Constitutional Commissions, and they shall receive
the same salary, which shall not be decreased during NOTE: In Alcala v. Villar, G.R. 156063, Nov. 18,
their term of office. (1987 Philippine Constitution, Art. 2003, as cited in Ombudsman v. Galicia, G.R. No.
XI, Sec. 10) 167711, Oct. 10, 2008, the Court, while
recognizing the jurisdiction of the committee of
Disqualifications and inhibitions the School Superintendent, nonetheless upheld
the decision of the Ombudsman on the ground
1. Shall not hold any other office or employment that the parties were afforded their right to due
during their tenure; process during the investigation proceedings.
2. Shall not engage in the practice of any profession The respondent in Alcala was given sufficient
or in the active management or control of any opportunity to be heard and submit his defenses
business which in any way may be affected by the to the charges made against him. Thus, he is
functions of his office; and estopped from questioning the jurisdiction of the
3. Shall not be financially interested, directly or Ombudsman.
indirectly, in any contract with, or in any
franchise or privilege granted by the government, 3. The Ombudsman Act authorizes the Ombudsman
or any of its subdivisions, etc. agencies or to impose penalties in administrative cases;
instrumentalities, including GOCCs or their (Ombudsman v. CA, G.R. No. 167844, Nov. 22, 2006;
subsidiaries. Ombudsman v. Lucero, G.R. No. 168718 November
4. Shall not be qualified to run for any office in the 24, 2006)
election immediately succeeding their cessation
from office. (R.A. 6770, Sec. 9) NOTE: According to Sec. 60 of the LGC, elective
officials may be dismissed only by the proper
Officials subject to the disciplinary authority of court. “Where the disciplining authority is given
the Ombudsman only the power to suspend and not the power to
remove, it should not be permitted to manipulate
General rule: The Office of the Ombudsman has the law by usurping the power to remove.”
disciplinary authority over all elective and appointive (Sangguniang Barangay v. Punong Barangay, G.R.
officials of the Government and its subdivisions, No. 170626, March 3, 2008)
instrumentalities and Agencies, including members of
the Cabinet, local government, GOCCs and their 4. The Special Prosecutor may not file an
subsidiaries. (R.A. 6770, Sec. 21) information without authority from the
Ombudsman; (Perez v. Sandiganbayan, G.R. No.
Exceptions: 166062, September 26, 2006)

Political Law
5. The Ombudsman has been conferred rule making bounds of law. This should not be interpreted as
power to govern procedures under it; usurpation of the Ombudsman of the authority of the
(Buencamino v. CA, GR 175895, April 12, 2007) head of office or any officer concerned. It has long
been settled that the power of the Ombudsman to
6. A preventive suspension will only last 90 days, investigate and prosecute any illegal act or omission
not the entire duration of the criminal case; of any public official is not an exclusive authority, but
(Villasenor v. Sandiganbayan G.R. No. 180700, a shared or concurrent authority in respect of the
March 4, 2008) offense charged. (Ledesma v. CA, G.R. No. 161629, July
29, 2005)
7. Sec 14, first paragraph, of the Ombudsman Act,
which says, “No writ of injunction shall be issued Power of the Military Deputy Ombudsman to
by any court to delay an investigation being investigate civilian police
conducted by the Ombudsman under this Act,
unless there is a prima facie evidence that the Since the power of the Ombudsman is broad and the
subject matter of the investigation is outside the Deputy Ombudsman acts under the direction of the
jurisdiction of the Office of the Ombudsman” is Ombudsman, the power of the Military Deputy to
DECLARED INEFFECTIVE until SC issues a investigate members of the civilian police has also
procedural rule on the matter; and (Carpio- been affirmed. (Acop v. Ombudsman, G.R. No. 120422,
Morales v. CA, G.R. No. 217126-27, November 10, September 27, 1995)
2015)
The Ombudsman may still investigate even if the
8. Sec 14, second paragraph, of the Ombudsman private complainants lack sufficient personal
Act, which says, “No court shall hear any appeal or interest in the subject matter of grievance
application for remedy against the decision or
findings of the Ombudsman, except the Supreme Sec 20 of R.A. 6770 has been clarified by the Rules of
Court, on pure question of law” is Procedure of the Office of the Ombudsman. Under, Sec
UNCONSTITUTIONAL for it attempts to 4, Rule III thereof, even if the ground raised is the
effectively increase SC’s appellate jurisdiction supposed lack of sufficient personal interest of
without its advice and concurrence. (Carpio- complainants in the subject matter of the grievance
Morales v. Binay, Jr., ibid.) under Sect 20(4) [R.A. 6770], the dismissal on that
ground is not mandatory and is discretionary on
Delegability of the powers of the Ombudsman the part of the Ombudsman or Deputy Ombudsman
evaluating the administrative complaint. The
The power to investigate or conduct a preliminary Ombudsman cannot be faulted for exercising its
investigation on any Ombudsman case may be discretion under Sec 20 of R.A. 6670, which allows the
exercised by an investigator or prosecutor of the Ombudsman to decide not to conduct the necessary
Office of the Ombudsman, or by any Provincial or City investigation of any administrative act or omission
Prosecutor or their assistants, either in their regular complained of, if it believes that the complainant has
capacities or as deputized Ombudsman prosecutors. no sufficient personal interest in the subject matter of
(Honasan II v. Panel of Investigators of the DOJ, G.R. No. the grievance. (Bueno v. Office of the Ombudsman, G.R.
159747, June 15, 2004) No. 191712, September 17, 2014)
NOTE: While the Ombudsman’s power to investigate Q: Can the claim of confidentiality prevent the
is primary, it is not exclusive and, under the Ombudsman from demanding the production of
Ombudsman Act of 1989, he may delegate it to others documents needed for their investigation?
and take it back any time he wants to. (Acop v.
Ombudsman, G.R. No. 120422, September 27, 1995) A: NO. In Almonte v. Vasquez, G.R. No. 95367, May 23,
1995, the Court said that where the claim of
Power of the Ombudsman to directly dismiss a confidentiality does not rest in the need to protect
public officer military, diplomatic or the national security secrets
but on general public interest in preserving
The powers of the Ombudsman are not merely confidentiality, the courts have declined to find in the
recommendatory. Under the Ombudsman Act and the Constitution an absolute privilege of the President.
1987 Constitution, the Ombudsman has the
constitutional power to directly remove from Allowing the Ombudsman to start an investigation
government office an erring public official other than based on an anonymous letter does not violate the
a member of Congress and the Judiciary. (Estarija v. equal protection clause. The Office of the Ombudsman
Ranada, G.R. No. 159314, June 26, 2006) is different from other investigatory and prosecutory
agencies of government because those subject to its
The refusal, without just cause, of any officer to jurisdiction are public officials who, through official
comply with such an order of the Ombudsman to pressure and influence, can quash, delay or dismiss
penalize an erring officer or employee is a ground for investigations against them.
disciplinary action. Thus, there is a strong indication
that the Ombudsman’s recommendation is not merely Moreover, even in cases where matters are really
advisory in nature but actually mandatory within the confidential, inspection can be done in camera.
175
Authority of the Ombudsman in reviewing Powers of the Office of the Special Prosecutor
administrative proceedings
The Office of the Special Prosecutor shall, under the
Sec. 19 of the Ombudsman Act further enumerates the supervision and control and upon the authority of the
types of acts covered by the authority granted to the Ombudsman, have the following powers:
Ombudsman. The Ombudsman shall act on all
complaints relating, but not limited to acts or 1. To conduct preliminary investigation and
omissions which: prosecute criminal cases within the jurisdiction
of the Sandiganbayan;
1. Are contrary to law or regulation; 2. To enter into plea bargaining agreements; and
2. Are unreasonable, unfair, oppressive or 3. To perform such other duties assigned to it by
discriminatory; the Ombudsman.
3. Are inconsistent with the general course of an
agency's functions, though in accordance with Composition
law;
4. Proceed from a mistake of law or an arbitrary The Office of the Special Prosecutor shall be
ascertainment of facts; composed of the Special Prosecutor and his
5. Are in the exercise of discretionary powers but prosecution staff.
for an improper purpose; or
6. Are otherwise irregular, immoral or devoid of The existing Tanodbayan (at the time of the adoption
justification. of the 1987 Constitution) shall hereafter be known as
the Office of the Special Prosecutor. It shall continue
In the exercise of its duties, the Ombudsman is given to function and exercise its powers as now or
full administrative disciplinary authority. His power hereafter provided by law, except those conferred on
is not limited merely to receiving, processing the Office of the Ombudsman created under the
complaints, or recommending penalties. He is to Constitution. (Zaldivar v. Gonzales, G.R. No. 79690-707,
conduct investigations, hold hearings, summon October 7, 1988)
witnesses, and require production of evidence and
place respondents under preventive suspension. This The Tanodbayan (called the Special Prosecutor under
includes the power to impose the penalty of removal, the 1987 Constitution) is clearly without authority to
suspension, demotion, fine, or censure of a public conduct preliminary investigations and to direct the
officer or employee. (Ombudsman v. Galicia, G.R. No. filing of criminal cases with the Sandiganbayan,
167711, October 10, 2008) except upon orders of the Ombudsman. The right to
do so was lost when the 1987 Constitution became
NOTE: Appeals from resolutions of the Office of the effective on February 2, 1987. (Salvador Perez v.
Ombudsman in administrative disciplinary cases Sandiganbayan, G.R. No. 166062, September 26, 2006)
should be taken to the Court of Appeals via Petition
for Review under Rule 43 of the Rules of Court. In Orap v. Sandiganbayan, 139 SCRA 252, it was held
(Fabian v. Desierto, G.R. No. 129742, September 16, that the Special Prosecutor may prosecute before the
1998) Sandiganbayan judges accused of graft and
corruption, even if they come under the
Authority of the Ombudsman in reviewing penal administrative supervision of the Supreme Court. (De
proceedings Leon, 2014)
The Court cannot review the exercise of discretion of Pursuant to PD 1607, the Tanodbayan could review
the Ombudsman in prosecuting or dismissing a and reverse the findings of the City Fiscal, and order
complaint filed before it. It cannot interfere with the him to withdraw certain charges, inasmuch as the
discretion of the Ombudsman to determine the President’s power of control (in this instance) is
specificity and adequacy of the averments of the exercised not by the Secretary of Justice but by the
offense charged. The Ombudsman may dismiss the Tanodbayan because the offense/s charged were
complaint forthwith if he finds it to be sufficient in allegedly committed by a public functionary in
form or substance or if he otherwise finds no ground connection with her office. (De Leon, 2014 citing Inting
to continue with the inquiry; or he may proceed with v. Tanodbayan, 97 SCRA 494)
the investigation if the complaint is, in his view, in due
and proper form. (Ocampo v. Ombudsman, G.R. No. 3. THE SANDIGANBAYAN
103446-47, August 30, 1993)
Sandiganbayan is a special appellate collegial court
NOTE: While the Ombudsman has the full discretion in the Philippines. The special court was established
to determine whether or not a criminal case is to be by P.D. No. 1486, as subsequently modified by P.D. No.
filed, the Court is not precluded from reviewing the 1606 and by R.A. numbered 7975, 8249 and 10660.
Ombudsman’s action when there is grave abuse of
discretion. (Garcia-Rueda v. Pascasio, G.R. No. 118141, Composition of the Sandiganbayan
September 5, 1997)
Under P.D. 1606, as amended by R.A. 8249, further
OFFICE OF THE SPECIAL PROSECUTOR amended by R.A. 10660, it is composed of:

Political Law
1. Presiding Justice; and b. Members of Congress and officials thereof
2. Twenty Associate Justices, with the rank of classified as Grade 27 and higher under the
Justice of the Court of Appeals. Compensation and Position Classification
Act of 1989;
NOTE: It sits in seven divisions with three members c. Members of the Judiciary without prejudice
each. to the provisions of the Constitution;
Nature of the Sandiganbayan d. Chairmen and members of Constitutional

Commissions, without prejudice to the
Sandiganbayan is NOT a constitutional court. It is a provisions of the Constitution; and
statutory court; that is, it is created not by the
Constitution, but by statute, although its creation is e. All other national and local officials
mandated by the Constitution. classified as Grade'27'and higher under the
Compensation and Position Classification
Exclusive original jurisdiction of the Act of 1989.
Sandiganbayan 2. Other offenses or felonies whether simple or
complexed with other crimes committed by the
1. Violations of R.A. No. 3019, or the Anti-gGraft public officials and employees mentioned in
and Corrupt Practices Act, R.A. No. 1379, and subsection (a) of Section 4 in relation to their
Chapter II, Section 2, Title VII, Book II of the office.
Revised Penal Code, where one or more of the
accused are officials occupying the following 3. Civil and criminal cases filed pursuant to and in
positions in the government whether in a connection with Executive Order Nos. 1, 2, 14 and
permanent, acting or interim capacity, at the 14-A, issued in 1986. (PD 1606, Sec. 4, as amended
time of the commission of the offense: by R.A. 10660, Sec. 2)
a. Officials of the executive branch occupying NOTE: The Regional Trial Court shall have exclusive
the positions of regional director and higher, original jurisdiction where the information: (a) does
otherwise classified as Grade '27' and not allege any damage to the government or any
higher, of the Compensation and Position bribery; or (b) alleges damage to the government or
Classification Act of 1989 (R.A. No. 6758), bribery arising from the same or closely related
specifically including: transactions or acts in an amount not exceeding One
million pesos (P1,000,000.00). (R.A. 10660, Sec. 2)
i. Provincial governors, vice-governors,
members of the sangguniang In cases where none of the accused are occupying
panlalawigan and provincial treasurers, positions corresponding to Salary Grade 27 or up,
assessors, engineers and other provincial exclusive original jurisdiction thereof shall be vested
department heads; in the proper RTC, MTC, MeTC, and MCTC, as the case
ii. City mayors, vice-mayors, members of may be. (ibid.)
the sangguniang panlungsod, city
treasurers, assessors, engineers and In case private individuals are charged as co-
other city department heads; principals, accomplices or accessories with the public
officers or employees, they shall be tried jointly with
iii. Officials of the diplomatic service said public officers and employees. (ibid.)
occupying the position of consul and
higher; Private persons may be charged together with public
officers to avoid repeated and unnecessary
iv. Philippine army and air force colonels, presentation of witnesses and exhibits against
naval captains, and all officers of higher conspirators in different venues, especially if the
rank; issues involved are the same. It follows therefore that
if a private person may be tried jointly with public
v. Officers of the Philippine National Police
officers, he may also be convicted jointly with them.
while occupying the position of
(Balmadrid v. Sandiganbayan, G.R. No. L-58327, March
provincial director and those holding the
22, 1991)
rank of senior superintendent or higher;
vi. City and provincial prosecutors and their Determination of the jurisdiction of the
assistants, and officials and prosecutors Sandiganbayan
in the Office of the Ombudsman and
special prosecutor; and It shall be determined by the allegations in the
information specifically on whether or not the acts
vii. Presidents, directors or trustees, or complained of were committed in relation to the
managers of government-owned or - official functions of the accused. It is required that
controlled corporations, state the charge be set forth with particularity as will
universities or educational institutions reasonably indicate that the exact offense which the
or foundations. accused is alleged to have committed is one in relation
177
to his office. (Lacson v. Executive Secretary¸ G.R. No. NOTE: Under Sec. 13, R.A. 3019, any public officer
128096, January 20, 1999) against whom any criminal prosecution under a valid
information under this Act or under the provisions of
Jurisdiction over the violation of R.A. No. 9165 the RPC on bribery is pending in court, shall be
committed by a public official with Salary Grade suspended from office. Should he be convicted by final
31 during incumbency judgment, he shall lose all retirement or gratuity
benefits under any law, but if he is acquitted, he shall
A plain reading of R.A. 9165, as of R.A. 6425, will be entitled to reinstatement and to the salaries and
reveal that jurisdiction over drug-related cases is benefits which he failed to receive during suspension,
exclusively vested with the Regional Trial Court. The unless in the meantime administrative proceedings
clear intent of the legislature is not only to retain the have been filed against him.
"exclusive original jurisdiction" of the RTCs over
violations of the drugs law but to segregate from Appeal from a decision of the Sandiganbayan to
among the several RTCs of each judicial region some the SC
RTCs that will "exclusively try and hear cases
involving violations of R.A. 9165." If at all, the change The appellate jurisdiction of the Supreme Court over
introduced by the new phraseology of Section 90, R.A. decisions and final orders of the Sandiganbayan is
9165 is not the deprivation of the RTCs' "exclusive limited to questions of law. (Cabaron v. People, G.R. No.
original jurisdiction" but the further restriction of this 156981, October 5, 2009)
"exclusive original jurisdiction. The exclusive original
jurisdiction over violations of R.A. 9165 is not Ill-gotten wealth
transferred to the Sandiganbayan whenever the
accused occupies a position classified as Grade 27 or Any asset, property, business enterprise or material
higher, regardless of whether the violation is alleged possession of any person within the purview of Sec. 2
as committed in relation to office. The power of the of R.A. 7080, acquired by him directly or indirectly
Sandiganbayan to sit in judgment of high-ranking through dummies, nominees, agents, subordinates
government officials is not omnipotent. The and/or business associates by any combination or
Sandiganbayan's jurisdiction is circumscribed by law series of the following means or similar schemes:
and its limits are currently defined in R.A. 10660.
1. Through misappropriation, conversion, misuse,
Section 4(b) of P.D. 1606, as amended by R.A. 10660, or malversation of public funds or raids on the
is the general law on jurisdiction of the public treasury;
Sandiganbayan over crimes and offenses committed 2. By receiving, directly or indirectly, any
by high-ranking public officers in relation to their commission, gift, share, percentage, kickbacks or
office; Section 90, R.A. 9165 is the special any other form of pecuniary benefit from any
law excluding from the Sandiganbayan's jurisdiction person and/or entity in connection with any
violations of R.A. 9165 committed by such public government contract or project or by reason of
officers. In the latter case, jurisdiction is vested upon the office or position of the public officer
the RTCs designated by the Supreme Court as drugs concerned;
court, regardless of whether the violation of R.A. 9165
3. By the illegal or fraudulent conveyance or
was committed in relation to the public officials'
office. (De Lima v. Guerrero, G.R. No. 229781, October disposition of assets belonging to the National
Government or any of its subdivisions, agencies
10, 2017)
or instrumentalities or government-owned-or-
controlled corporations and their subsidiaries;
Voting requirement
4. By obtaining, receiving or accepting directly or
All three members of a division shall deliberate on all indirectly any shares of stock, equity or any other
matters submitted for judgment, decision, final order form of interest or participation including
or resolution. promise of future employment in any business
enterprise or undertaking;
The concurrence of a majority of the members of a 5. By establishing agricultural, industrial or
division shall be necessary to render a judgment, commercial monopolies or other combinations
decision, or final order, or to resolve interlocutory or and/or implementation of decrees and orders
incidental motions. (R.A. 10660, Sec. 3) intended to benefit particular persons or special
interests; and
Mandatory suspension of a public officer against 6. By taking undue advantage of official position,
whom a valid information is filed authority, relationship, connection or influence to
unjustly enrich himself or themselves at the
It is now settled that Sec. 13, R.A. 3019, makes it expense and to the damage and prejudice of the
mandatory for the Sandiganbayan to suspend any Filipino people and the Republic of the
public officer against whom a valid information Philippines. (R.A. 7080, “An Act Defining and
charging violation of that law, or any offense involving
Penalizing the Crime of Plunder”)
fraud upon the government or public funds or
property is filed. (Bolastig v. Sandiganbayan, G.R. No.
110503, August 4, 1994)

Political Law
Non-applicability of prescription, laches and 1. the official has been elected for three consecutive
estoppel in criminal prosecution for the recovery terms for the same position; and
of ill-gotten wealth 2. he has fully served three consecutive terms.
(Lonzanida v. COMELEC, G.R. No. 135150, July 28,
The provision found in Sec. 15, Art. XI of the 1987 1999)
Constitution that "the right of the State to recover
properties unlawfully acquired by public officials or Rationale: To prevent the establishment of political
employees, from them or from their nominees or dynasties and to enhance the freedom of choice of the
transferees, shall not be barred by prescription, laches people (Borja, Jr. v. COMELEC, G.R. No. 133495, Sept. 3,
or estoppel," has already been settled in Presidential 1998).
Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto, G.R. No. 130140, where the Court held that The three-term limit does not apply whenever there is
the above cited constitutional provision "applies only an involuntary break. The Constitution does not
to civil actions for recovery of ill-gotten wealth, and require that the interruption or hiatus to be a full
NOT to criminal cases. (Presidential Ad Hoc Fact- term of three years. What the law requires is for an
Finding Committee On Behest Loans v. Desierto, G.R. No. interruption, break, or a rest period from a
135715, April 13, 2011) candidate’s term of office “for any length of time.”
(Dizon v. COMELEC, G.R. 182008, January 30, 2009)
N. TERM LIMITS
Voluntary renunciation
Term vs. Tenure
It is an act of surrender based on the surrenderee’s
TERM TENURE own freely exercised will; in other words, a loss of
title to office by conscious choice (Aldovino v.
The time during which the Represents the period COMELEC, G.R. No. 184836, December 23, 2009).
officer may claim to hold during which the
the office as a right, and incumbent actually holds NOTE: Voluntary renunciation of the office for any
fixes the interval after the office. length of time shall not be considered as an
which the several interruption in the continuity of his service for the full
incumbents shall succeed term for which he was elected (1987 Constitution, Art.
one another. X, Sec. 8).
It is not affected by It may be shorter than
Q: Is the preventive suspension of an elected
holding over of the term.
incumbent after expiration public official an interruption of his term of office
of the term for which he for purposes of the three-term limit rule under
was appointed or elected. Section 8, Article X of the Constitution and Section
43(b) of Republic Act No. 7160?
A: NO. Strict adherence to the intent of the three-term

NOTE: Term of office is different from the right to hold limit rule demands that preventive suspension should
office. The latter is the just and legal claim to hold and not be considered an interruption that allows an
enjoy the powers and responsibilities of the office elective official’s stay in office beyond three terms. A
(Casibang v. Aquino, G.R. No. L-38025, August 20, preventive suspension cannot simply be a term
1979). interruption because the suspended official continues
to stay in office although he is barred from exercising
Kinds of terms the functions and prerogatives of the office within the
suspension period. The best indicator of the
1. Term fixed by law; suspended official’s continuity in office is the absence
2. Term dependent on good behavior until reaching of a permanent replacement and the lack of the
retirement age; and authority to appoint one since no vacancy exists
3. Indefinite term, which terminates at the pleasure (Aldovino v. COMELEC, G.R. No. 184836, December 23,
of the appointing authority (Borres v. CA, G.R. No. 2009).
L-36845, August 21, 1998).
Hold-over
Three-Term Limit Rule
In the absence of an express or implied constitutional
The term of office of elective local officials, except or statutory provision to the contrary, an officer is
barangay officials, which shall be determined by law, entitled to hold office until his successor is elected or
shall be three years and no such official shall serve for appointed and has qualified (Lecaroz v.
more than three consecutive terms. (1987 Sandiganbayan, G.R. No. 130872, March 25, 1999).
Constitution, Art. X, Sec. 8)
Term limits of elective officers
For the three-term limit rule for elective local
government officials to apply, two conditions or 1. President – Six (6) years, without re-election;
requisites must concur, to wit:
179
XI. ADMINISTRATIVE LAW
2. Vice President – Six (6) years, with one re- 7. Includes the body of judicial doctrines on any of
election if consecutive; the above. (De Leon, Administrative Law: Text and
3. Senators – Six (6) years, with one re-election if Cases, p.3)
consecutive;
4. Representative – Three (3) years, with two re- Classifications:
elections if consecutive; and
5. Local Executive Officials – Three (3) years, with As to Source
two re-elections if consecutive, in the same Law that controls Law made by the
position administrative administrative
authorities authorities
XI. ADMINISTRATIVE LAW General regulations and
Constitution, statutes, particular
A. GENERAL PRINCIPLES judicial decisions, determinations;
Executive Orders, constitute under
Administrative Law Administrative Orders, delegations of power
etc. embodied in statutory
It is a branch of public law fixing the organization and administrative law, and
determines the competence of administrative imposing and constantly
authorities and indicates the individual remedies for expanding body of law.
the violation of the rights. [Nachura, Outline Reviewer
in Political Law, p. 493) As to Purpose
Adjective or Procedural Substantive
GR: The Revised Administrative Code is the principal Administrative Law Administrative Law
text that governs this branch of law. The Code, Establishes the Derived from same
however, does not cover the military as long as it procedure which an sources but contents are
deals with purely military affairs. They are governed agency must or may different in that the law
by the Articles of War. follow in the pursuit of establishes primary
its legal purpose. rights and duties.
XPN: If it deals with their relationship with the
civilians, still governed by the Administrative Code. As to Applicability
General Administrative Special/ Particular
Other institutions excluded:
Law Administrative Law
Part that is of general Part that pertains to
1. Board of Pardons and Parole;
nature and common to particular service;
2. State Universities and Colleges; and
all, or most, proceeds from the
3. Highly Urbanized Cities.
administrative agencies; particular statute
chiefly but not creating the individual
Administration
exclusively procedural agency.
law.
1. As an institution–It refers to the group or
aggregate of persons in whose hands the reins of
government are for the time being.
Kinds:
2. As a function –It pertains to the execution, in
1. Statutes setting up administrative authorities;
non-judicial matters, of the law or will of the
2. Body of doctrines and decisions dealing with the
State as expressed by competent authority.
creation, operation, and effect of determinations
(Nachura, ibid at 493)
and regulations of such administrative
authorities;
Scope:
3. Rules, regulations, or orders of such
administrative authorities in pursuance of the
1. Fixes the administrative operation and structure
purposes, for which administrative authorities
of the government;
were created or endowed; and
2. Executes or enforces that which is entrusted to
administrative authorities (all those public
e.g. Omnibus Rules Implementing the Labor Code,
officers and organs of the government charged
circulars of Central Monetary Authority.
with the amplification, application and execution
of the law);
4. Determinations, decisions, and orders of such
3. Governs public officers and creates
administrative authorities in the settlement of
administrative officers;
controversies arising in their particular field.
4. Provides remedies to those aggrieved by these
agencies;
e.g. Awards of NLRC with respect to money
5. Governs Judicial Review;
claims of employees. (Nachura, supra at 493)
6. Includes rules, regulations, orders and decisions
made by administrative authorities; and

Political Law
B. ADMINISTRATIVE AGENCIES It is any principal subdivision or unit of any
department. [Administrative Code, Sec. 2(8)]
Definition
Office
It is an organ of the government, other than a court
and the legislature, which affects the rights of private It refers to any major functional unit of a department
parties either through adjudication or rule making. or bureau including regional offices. It may also refer
(Nachura, Outline Reviewer in Political Law, p. 494) to any position held or occupied by individual
persons, whose functions are defined by law or
Interpretation of the powers of the administrative regulation [Administrative Code, Sec. 2(9)].
agencies
Creation, Abolition, and Reorganization
Administrative agencies have powers and functions
which may be administrative, investigatory, Creation and abolition of office
regulatory, quasi-legislative, or quasi-judicial or mix
of the five, as may be conferred by the constitution or The creation and abolition of public offices is
by the statute. They have in fine only such powers or primarily a legislative function (Eugenio v. CSC, G.R.
authority as are granted or delegated, expressly or No. 115863, March 31, 1995). However, the President
impliedly, by law. And in determining whether an may abolish an office either from a valid delegation
agency has certain powers, the inquiry should be from from Congress, or his inherent duty to faithfully
the law itself. But once ascertained as existing, the execute the laws (Biraogo v. Philippine Truth
authority given should be liberally construed. Commission of 2010, G.R. No. 192935, December 7,
(Soriano v. MTRCB, G.R. No. 165785, April 29, 2009) 2010).
Criterion Manner of creation
A body or agency is administrative where its function 1. Constitutional provision

is primarily regulatory even if it conducts hearings e.g., CSC, COMELEC, COA, CHR
and determines controversies to carry out its 2. Authority of law
regulatory duty. On its rule-making authority, it is 3. Legislative enactment (Nachura, supra at 494)
administrative when it does not have discretion to e.g., POEA, ECC
determine what the law shall be but merely
prescribes details for the enforcement of the law.
Reasons for the creation of administrative
(Nachura, supra at 494)
agencies
Instrumentality
1. Help unclog court dockets;
2. Meet the growing complexities of modern
It refers “to any agency of the National Government,
society; and
not integrated within the department framework,
3. Help in the regulation of ramified activities of a
vested with special functions or jurisdiction by law,
developing country.
endowed with some if not all corporate powers,
administering special funds and enjoying operational
Elements of a valid abolition of office
autonomy, usually through a charter. It includes
regulatory agencies, chartered institutions and
1. In good faith (good faith is presumed);
government-owned or controlled
2. Not for political or personal reasons; and
corporations.”(United Residents of Dominican Hills v.
3. Not in violation of law. (Roque v. Ericta, G.R. No. L-
Commission on the Settlement of Land Problems, G.R.
30244, September 28, 1973)
No. 135945, March 7, 2001)
NOTE: The Congress has the right to abolish an office
Agency
even during the term for which an existing incumbent
may have been elected EXCEPT when restrained by
It refers to any of the various units of the government,
the Constitution.
including a department, bureau, office,
instrumentality, or government-owned or controlled
Reorganization
corporations, or a local government or a distinct unit
therein. (Administrative Code, Sec.2).
Reorganization involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason
Department
of economy or redundancy of functions. It alters the
existing structure of government offices or the units
An executive department created by law.
therein, including the lines of control, authority and
[Administrative Code of 1987, Sec. 2(7)]
responsibility between them to make the bureaucracy
more responsive to the needs of the public clientele as
Bureau
authorized by law. (Pan v. Pena G.R. No. 174244,
February 13, 2009)
181
Circumstances that may be considered as (Biraogo v. The Philippine Truth Commission of 2010,
evidence of bad faith in a removal pursuant to G.R. No. 192935, December 7, 2010)
reorganization, thus warranting reinstatement or
reappointment Q: Is the creation of the PTC justified by the
President’s power of control?
1. Where there is a significant increase in the
number of positions in the new staffing pattern of A: NO. Control is essentially the power to alter or
the department or agency concerned; modify or nullify or set aside what a subordinate
2. Where an office is abolished and other officer had done in the performance of his duties and
performing substantially the same functions is to substitute the judgment of the former with that of
created; the latter. Clearly, the power of control is entirely
3. Where incumbents are replaced by those less different from the power to create public offices. The
qualified in terms of status of appointment, former is inherent in the Executive, while the latter
performance and merit; finds basis from either a valid delegation from
4. Where there is reclassification of offices in the Congress, or his inherent duty to faithfully execute the
department or agency concerned and the laws. (Biraogo v. The Philippine Truth Commission of
classified offices perform substantially the same 2010, ibid)
function as the original offices; and
5. Where the removal violates the order of Q: What then could be the justification for the
separation provided in Sec. 3 of R.A. 6656. President’s creation of the PTC?
(Cotiangco v. Province of Biliran, G.R. No. 157139,
October 19, 2011) A: The creation of the PTC finds justification under
Sec. 17, Art. VII of the Constitution imposing upon the
Q: President Aquino signed E.O. No. 1 establishing President the duty to ensure that the laws are
the Philippine Truth Commission of 2010 (PTC), faithfully executed. The President’s power to conduct
an ad hoc body with the primary task to investigations to aid him in ensuring the faithful
investigate reports of graft and corruption. execution of laws − in this case, fundamental laws on
Biraogo asserts that the PTC is a public office and public accountability and transparency − is inherent
not merely an adjunct body of the Office of the in the President’s powers as the Chief Executive. The
President. Thus, in order that the President may fact that the authority of the President to conduct
create a public office he must be empowered by investigations and create bodies to execute this power
the Constitution, a statute or an authorization is not explicitly mentioned in the Constitution or in
vested in him by law. He claims that Sec 31 of the statutes does not mean that he is bereft of such
Administrative Code of 1987, granting the authority.
President the continuing authority to reorganize
his office, cannot serve as basis for the creation of The Executive is given much leeway in ensuring that
a truth commission considering the aforesaid our laws are faithfully executed. The powers of the
provision merely uses verbs such as reorganize, President are not limited to those specific powers
transfer, consolidate, merge, and abolish. Insofar under the Constitution. One of the recognized powers
as it vests in the President the plenary power to of the President granted pursuant to this
reorganize the Office of the President to the extent constitutionally-mandated duty is the power to create
of creating a public office, Sec. 31 is inconsistent ad hoc committees. This flows from the obvious need
with the principle of separation of powers to ascertain facts and determine if the laws have been
enshrined in the Constitution and must be faithfully executed. It should be stressed that the
deemed repealed upon the effectivity thereof. purpose of allowing ad hoc investigating bodies to
Does the creation of the PTC fall within the ambit exist is to allow an inquiry into matters which the
of the power to reorganize as expressed in Sec. 31 President is entitled to know so that he can be
of the Revised Administrative Code? properly advised and guided in the performance of his
duties relative to the execution and enforcement of
A: NO. Reorganization refers to the reduction of the laws of the land. (Biraogo v. The Philippine Truth
personnel, consolidation of offices, transfer of any Commission of 2010, ibid)
function and/or agency under the Office of the
President to any other Department/Agency or vice NOTE: The SC, however, declared the creation of PTC
versa, or abolition thereof by reason of economy or as unconstitutional for violating the equal protection
redundancy of functions. This refers to situations clause.
where a body or an office is already existent but a
modification or alteration thereof has to be effected. Kinds of administrative bodies or agencies
The creation of an office is nowhere mentioned, much according to their purpose
less envisioned in said provision. To say that the PTC
is borne out of a restructuring of the Office of the 1. Those created to function in situations where the
President under Sec. 31 is a misplaced supposition, government offers gratuity, grant, or special
even in the plainest meaning attributable to the term privilege
‘restructure’ and ‘alteration of an existing structure.’ e.g., GSIS, SSS, PAO
Evidently, the PTC was not part of the structure of the
Office of the President prior to the enactment of E.O. 1.

Political Law
2. Those set up to function in situations where the of Administrative
government seeks to carry on certain functions of Remedies (DEAR).
government Does not require prior Requires prior notice
e.g., BIR, BOC, BOI notice and hearing and hearing (except
(except when the law when the law does not
3. Those set up in situations where the government requires it). require it).
performs business service for the public May be assailed in Appealed to the Court of
e.g., PNR, MWSS, NFA, NHA court through an Appeals via petition for
ordinary action. review (Rule 43).
4. Those set up to function in situations where the
government seeks to regulate businesses imbued Non-similarity of functions and powers of
with public interest administrative agencies
e.g., Insurance Commission, LTFRB, NTC
Not all administrative agencies perform the same
5. Those set up to function in situations where the functions or exercise the types of powers. While some
government seeks under the police power to act merely as investigative or advisory bodies, most
regulate private businesses and individuals administrative agencies have investigative, rule-
e.g., SEC, MTRCB making, and determinative functions, or at least two
of such functions.
6. Those agencies set up to function in situations
where the government seeks to adjust individual 1. RULE-MAKING POWER
controversies because of strong social policy
involved The exercise of delegated legislative power, involving
e.g., NLRC, ECC, SEC no discretion as to what the law shall be, but merely
the authority to fix the details in the execution or
C. POWERS OF ADMINISTRATIVE AGENCIES enforcement of a policy set out in the law itself.
(Nachura, Outline Reviewer in Political Law, p. 494)
Administrative power or function
It is the power to make rules and regulations which
Involves the regulation and control over the conduct results in delegated legislation that is within the
and affairs of individuals for their own welfare and confines of the granting statute and the doctrine of
the promulgation of rules and regulations to better non-delegability and separation of powers. (Holy
carry out the policy of the legislature or such as are Spirit Homeowners Association vs. Secretary Defensor,
devolved upon the administrative agency by the G.R. No. 163980, August 3, 2006)
organic law of its existence. (In re: Rodolfo U.
Manzano, A.M. No. 88-7-1861-RTC, October 5, 1988) Legislative vs. Quasi-legislative power
Powers of administrative agencies LEGISLATIVE QUASI-LEGISLATIVE

Determine what the law Determine how the law
1. Discretionary – The law imposes a duty upon a shall be shall be enforced.
public officer, and gives him the right to decide Cannot be delegated. Can be delegated.
how or when the duty shall be performed; and
2. Ministerial – One which is as clear and specific as Limitations to the exercise of quasi-legislative
to leave no room for the exercise of discretion in power
its performance.
1. Within the limits of the powers granted to
Basic powers of administrative agencies administrative agencies;
2. Cannot make rules or regulations which are
1. Quasi-legislative power or rule-making power; inconsistent with the provision of the
2. Quasi-judicial or adjudicatory power; and Constitution or statute;
3. Determinative power. 3. Cannot defeat the purpose of the statute;
4. May not amend, alter, modify, supplant, enlarge,
Quasi-legislative vs. Quasi-judicial power or limit the terms of the statute;
5. A rule or regulation must be uniform in
QUASI-LEGISLATIVE QUASI-JUDICIAL operation, reasonable and not unfair or
Operates on the future. Operates based on past discriminatory.
facts.
General application. Particular application Administrative rule
(applies only to the
parties involved). Any agency statement of general applicability, which
May be assailed in Only be challenged in implements or interprets a law fixes and describes
court without court with prior procedures in, or practice requirements of, an agency,
subscribing to the exhaustion of including its regulations. The term includes
Doctrine of Exhaustion administrative remedies. memoranda or statements concerning the internal
administration or management of an agency not
183
affecting the rights of, or procedure available to the agencies possess two kinds of powers, the quasi-
public. [Administrative Code of 1987, Sec. 2 (2)] legislative or rule-making power, and the quasi-
judicial or administrative adjudicatory power. The
Source of the power to promulgate administrative first is the power to make rules and regulations
rules and regulations resulting from a valid delegated legislation that is
within the confines of the granting statute and in
Derived from the legislature, by virtue of a valid accord with the doctrine of non-delegability and
delegation, either express or implied. separability of powers. The second is the power to
hear and determine questions of fact to which the
Doctrine of Subordinate Legislation legislative policy is to apply and to decide in
accordance with the standards laid down by the law
Power of administrative agency to promulgate rules itself in enforcing and administering the same law.
and regulations on matters within their own Petitioner had the explicit authority to fill in the
specialization. details as to how to carry out or effectively implement
the objectives of R.A. No. 7611 in protecting and
With the power of subordinate legislation, enhancing Palawan's natural resources consistent
administrative bodies may implement the broad with the SEP. In fact, the petitioner was expressly
policies laid down in a statute by “filling in” the details given the authority to impose penalties and sanctions
which the Congress may not have the opportunity or in relation to the implementation of the SEP and the
competence to provide. This is effected by their other provisions of R.A. No. 7611. (The Palawan
promulgation of supplementary regulations, which Council for Sustainable Development v. Ejercito Lim,
have the force and effect of law. (The Conference of G.R. No. 183173, August 24, 2016)
Maritime Manning Agencies, Inc. v. POEA, G.R. No.
114714, April 21, 1995) Q: Redmont filed on January 2, 2007 three (3)
separate petitions for the denial of Petitioner
Reason behind the delegation Narra Nickel's respective Mineral Production
Sharing Agreements (MPSAs) and/or Exploration
It is well established in this jurisdiction that, while the Permits (EPs) applications before the Panel of
making of laws is a non-delegable activity that Arbitrators (POA) of the DENR-MGB. Redmont's
corresponds exclusively to Congress, nevertheless the primary argument was that petitioners were all
latter may constitutionally delegate authority to controlled by their common majority stockholder,
promulgate rules and regulations to implement a MBMI Resources, Inc. (MBMI) - a 100% Canadian-
given legislation and effectuate its policies, for the owned corporation - and, thus, disqualified from
reason that the legislature often finds it impracticable being grantees of MPSAs and/or EPs.
(if not impossible) to anticipate and provide for the Meanwhile, Redmont separately sought the
multifarious and complex situations that may be met cancellation and/or revocation of the executed
in carrying the law into effect. All that is required is FTAA through a Petition filed before the Office of
that: the President (OP). Redmont asserted, among
others, that the FTAA was highly anomalous and
1. The regulation should be germane to the objects irregular, considering that petitioners and their
and purposes of the law; and mother company, MBMI, have a long history of
2. That the regulation be not in contradiction with it violating and circumventing the Constitution and
but conforms to the standards that the law other laws, due to their questionable activities in
prescribes. (People of the Philippines v. Exconde, the Philippines and abroad. The OP finding, inter
G.R. No. L-9820, August 30, 1957) alia, that petitioners misrepresented that they
were Filipino corporations qualified to engage in
mining activities, cancelled and/or revoked the
Q: Respondent was an operator of a domestic air
said FTAA, and, in turn, gave due course to
carrier primarily that of transporting live fish
Redmont's EP application. On appeal, the CA
from Palawan to fish traders. Petitioner is the affirmed the decision of OP. Whether the CA
government agency responsible for the
correctly affirmed on appeal the OP's cancellation
governance, implementation, and policy direction
and/or revocation of the FTAA?
of the Strategic Environment Plan (SEP) for
Palawan pursuant to which Administrative Order A: NO. Quasi-judicial or administrative adjudicatory
No. 00-05 was issued. Said Order provided that
power is the power of the administrative agency
only accredited domestic air carriers shall be
to adjudicate the rights of persons before it. The
allowed to operate as ‘common carriers’ licensed
OP’s cancellation and/or revocation of the FTAA is
under said rule. Respondent assails the validity of an exercise of a contractual right that is purely
A. O. No. 00-05 on the ground that it was issued in
administrative in nature , and thus, cannot be
excess of petitioner’s authority as an
treated as an adjudication. Being a government or
administrative agency. Was respondent’s
public contract, the FTAA is subject to fundamental
contention valid? contract principles, one of which is the principle
of mutuality of contracts which would definitely be
A: NO. Petitioner’s issuance of the assailed order was
violated if one were to accept the view that the
well within its statutory authority. Administrative
OP, a contracting party, can adjudicate on the

Political Law
contract’s own validity. Thus, absent the OP’s Corporation v. COA, G.R. No. 132593, June 25,
proper exercise of a quasi-judicial function, the CA 1999)
had no appellate jurisdiction over the case, and its
Decision is, perforce, null and void. (Narra Nickel NOTE: If not otherwise required by law, an
Mining And Development Corporation vs. Redmont agency shall, as far as practicable, publish or
Consolidated Mines Corporation, G.R. No. 202877, circulate notices of proposed rules and afford
December 09, 2015) interested parties the opportunity to submit
their views prior to the adoption of any rule.
a. KINDS OF ADMINISTRATIVE RULES AND [1987 Administrative Code, Administrative
REGULATIONS Procedure, Sec. 9(1)] (2000, 2009 BAR)
1. Supplementary or detailed legislation – Exceptions to the requirement of publication

pertains to rules and regulations that fix details
in the execution of a policy in the law, e.g. IRRs of a. Interpretative regulations;
the Labor Code. This is also called a legislative b. Internal regulations; and
rule or subordinate legislation; c. Letters of instructions. (Tañada v. Tuvera
G.R. No. L-63915, December 29, 1986)
2. Interpretative legislation – pertains to rules
and regulations construing or interpreting the 5. Necessity for notice and hearing
provisions of a statute to be enforced and they
are binding on all concerned until they are GR: An administrative body need not comply
changed, e.g. BIR Circulars; with the requirements of notice and hearing, in
the performance of its executive or legislative
3. Contingent legislation – made by an functions, such as issuing rules and regulations.
administrative authority on the existence of (Corona v. United Harbor Pilots Association of the
certain facts or things upon which the Philippines, G.R. No. 111963, December 12, 1997)
enforcement of the law depends and are issued
upon the happening of a certain contingency XPNs: The legislature itself requires it and
which the administrative body is given the mandates that the regulation shall be based on
discretion to determine; certain facts as determined at an appropriate
investigation. (Hon. Executive Secretary v.
4. Procedural; Southwing Heavy Industries, Inc., G.R. No.
5. Internal; and 164171, August 22, 2006)
6. Penal.
An administrative rule in the nature of
Administrative issuances according to their subordinate legislation is designed to
nature and substance: implement a law providing its details, and
before it is adopted there must be a hearing
1. Legislative Rule – It is in the matter of under the Administrative Code of 1987. Those
subordinate legislation, designed to implement a which are merely interpretative rules need not
comply with the hearing requirement. (CIR v. CA,
primary legislation by providing the details
G.R. No. 11976, August 26, 1996)
thereof; and
Additional requisites for administrative rules and
2. Interpretative rule – Provides guidelines to the regulations with penal sanctions
law which the administrative agency is in charge
of enforcing. (BPI Leasing v. CA, G.R. No. 127624, Requisites to be complied with:
November 18, 2003)
1. Law must declare the act punishable;
b. REQUISITES FOR VALIDITY 2. Law must define or fix the penalty; and
3. Rules must be published in the Official Gazette or
1. Issued under authority of law; in a newspaper of general circulation. (Hon.
2. Within the scope and purview of the law; Secretary Perez v. LPG Refillers Association of the
3. It must be reasonable; Philippines, G.R. No. 159149, June 26, 2006)
4. Publication in the Official Gazette or in a
newspaper of general circulation, as provided in Requisites for a valid delegation of quasi-
Executive Order No. 200 legislative or rule-making power
Required as a condition precedent to the 1. Completeness Test - The statute is complete in

effectivity of a law to inform the public of the itself, setting forth the policy to be executed by
contents of the law or rules and regulations the agency; and
before their rights and interests are affected by
the same. (Philippine International Trading
185
2. Sufficient Standard Test - Statute fixes a standard, execute or administer such statute. They are usually
mapping out the boundaries of the agency’s in the form of circulars, directives, opinions, and
authority to which it must conform. rulings.
It lays down a sufficient standard when it In the construction of a doubtful and ambiguous law,
provides adequate guidelines or limitations in the law the contemporaneous construction of those who are
to map out the boundaries of the delegate’s authority called upon to act under the law and were appointed
and prevent the delegation from running riot. To be to carry its provisions into effect (i.e., the practice and
sufficient, the standard must specify the limits of the interpretive regulations by officers, administrative
delegate’s authority, announce the legislative policy agencies, departmental heads, and other officials
and identify the conditions under which it is to be charged with the duty of administering and enforcing
implemented. (ABAKADA Guro Party List v. Purisima, a statute), is entitled to very great respect. (Lim Hoa
G.R. No. 166715, August 14, 2008) Ting v. Central Bank of the Philippines, G.R. No. L-
10666, September 24, 1958)
The administrative body may not make rules and
regulations which are inconsistent with the Effect of Administrative Interpretations to Courts
provisions of the Constitution or a statute, particularly
the statute it is administering or which created it, or The construction given to a statute by an
which are in derogation of, or defeat, the purpose of a administrative agency charged with the interpretation
statute. (Dagan v. Philippine Racing Commission G.R. and application of that statute should be accorded
No. 175220, February 12, 2009) great weight by the courts, unless such construction is
clearly shown to be in sharp conflict with the
Filing of copies of administrative rules and governing statute or the Constitution and other laws.
regulations before the UPLC (Nestle Philippines Inc. v. CA, G.R. No. 86738, November
13, 1991)
Each agency must file with the Office of the National
Administrative Register (ONAR) of the University of Administrative regulations enacted by administrative
the Philippines Law Center three certified copies of agencies to implement and interpret the law have the
every rule adopted by it. Administrative issuances force of law and enjoy the presumption of
which are not published or filed with the ONAR are constitutionality and legality until they are set aside
ineffective and may not be enforced. (Administrative with finality in an appropriate case by a competent
Code of 1987, Sec. 3; GMA v. MTRCB, G.R. No. 148579, court. (NASECORE v. MERALCO, G.R. No. 191150,
February 5, 2007) October 10, 2016)
However, not all rules and regulations adopted by 2. ADJUDICATORY POWER

every government agency are to be filed with the UP
Law Center. Only those of general or of permanent Power of administrative authorities to make
character are to be filed. According to the UP Law determinations of facts in the performance of their
Center’s guidelines for receiving and publication of official duties and to apply the law as they construe it
rules and regulations, “interpretative regulations and to the facts so found. It partakes the nature of judicial
those merely internal in nature, that is, regulating power, but exercised by a person other than a judge.
only the personnel of the administrative agency and
not the public,” need not be filed with the UP Law The proceedings partake of the character of judicial
Center. (The Board of Trustees of the GSIS v. Velasco, proceedings. Administrative body is normally granted
G.R. No. 170463, February 2, 2011) the authority to promulgate its own rules of
procedure, provided they do not increase, diminish or
Effectivity of administrative rules modify substantive rights, and subject to disapproval
by the Supreme Court. (Nachura, Outline Reviewer in
GR: Administrative rules take effect depending on the Political Law, p. 504)
date provided by it.
Unless expressly granted, administrative agencies are
XPN: If the administrative rule is silent on the matter bereft of quasi-judicial powers. The jurisdiction of
of its date of effectivity, it shall take effect after 15 administrative agencies is dependent entirely upon
days following the completion of their publication. the provisions of the statutes reposing power in them;
they cannot confer it upon themselves. (Taule v.
Authority of Administrative Officers to Interpret Santos, G.R. No. 90336, August 12, 1991)
the Law
While it is a fundamental rule that an administrative
Tasked to implement the law and authorized to agency has only such powers that are expressly
interpret it because they have the expertise to do so. granted to it by law, it is likewise a settled rule that an
administrative agency has also such powers as are
Contemporaneous Construction necessarily implied in the exercise of its express
powers. (Laguna Lake Development Authority v. CA,
The construction placed upon the statute by an G.R. No. 110120, March 16, 1994)
executive or administrative officer called upon to

Political Law
Limited jurisdiction of quasi-judicial agencies 2. by order or formal charge initiated by the court
motu proprio (Land Bank of the Philippines v.
An administrative body could wield only such powers Listana, ibid)
as are specifically granted to it by its enabling statute.
Its jurisdiction is interpreted strictissimi juris.
NOTE: In any contested case, the agency shall
Conditions for the Proper Exercise of Quasi- have the power to require the attendance of
Judicial Power witnesses or the production of books, papers,
documents and other pertinent data, upon request
1. Jurisdiction must be properly acquired by the of any party before or during the hearing upon
administrative body; and showing of general relevance. Unless otherwise
2. Due process must be observed in the conduct of provided by law, the agency may, in case of
the proceedings. disobedience, invoke the aid of the Regional Trial
Court within whose jurisdiction the contested case
Quasi-Judicial Power includes the following: being heard falls. The Court may punish
contumacy or refusal as contempt. (Administrative
1. Subpoena power Code of 1987, Book VII, Chapter 3, Sec. 13)
It is a process directed to a person requiring him or Classifications of Adjudicatory Powers

her to attend and to testify at the hearing or the trial
of an action, or at any investigation conducted by 1. Enabling powers – Permits the doing of an act
competent authority, or for the taking of his which the law undertakes to regulate and which
deposition. It may also require such person to bring would be unlawful without governmental orders.
with him or her any books, documents, or other things It is characterized by the grant or denial of
under his or her control, in which case it is called a permit or authorization.
subpoena duces tecum. (Rule 21, Sec. 1, 1997 Rules of e.g., Issuance of licenses to engage in a particular
Civil Procedure, as amended) business.
Administrative agencies may enforce subpoenas 2. Directing powers – Orders the doing or
issued in the course of investigations, whether or not performing of particular acts to ensure the
adjudication is involved, and whether or not probable compliance with the law and are often exercised
cause is shown and even before the issuance of a for corrective purposes.
complaint. It is not necessary, as in the case of a e.g., public utility commissions, powers of
warrant, that a specific charge or complaint of assessment under the revenue laws, reparations
violation of law be pending or that the order be made under public utility laws, and awards under
pursuant to one. It is enough that the investigation be workmen’s compensation laws, and powers of
for a lawfully authorized purpose. The purpose of the abstract determination such as definition-
subpoena is to discover evidence, not to prove a valuation, classification and fact finding.
pending charge, but upon to make one if the
discovered evidence so justifies. (Evangelista v. 3. Dispensing powers – Exempt from or relax a
Jarencio, G.R. No. L-29274, November 27, 1975) general prohibition, or authority to relieve from
an affirmative duty.
A subpoena meets the requirements for enforcement e.g., authority of zoning boards to vary provisions
if: of zoning ordinances, or the authority of the
a. The inquiry is within the authority of the Acceptance Board of the Philippine Army to
agency; relieve certain persons from military training.
b. The demand is not to indefinite; and
c. The information is reasonably relevant. 4. Summary powers – Apply compulsion or force
(Evangelista v. Jarencio, ibid) against person or property to effectuate a legal
purpose without a judicial warrant to authorize
2. Contempt power such action.
e.g., Abatement of nuisance, summary restraint,
Quasi-judicial agencies that have the power to cite levy of property of delinquent taxpayers
persons for indirect contempt can only do so by
initiating them in the proper RTC. It is not within their 5. Equitable powers – The power to determine the
jurisdiction and competence to decide the indirect law upon a particular state of facts that has the
contempt cases. These matters are still within the right to, and must, consider and make proper
province of the Regional Trial Courts. (Land Bank of application of the rules of equity.
the Philippines v. Listana, G.R. No. 152611, August 5, e.g., Power to appoint a receiver, power to issue
2003) injunctions
Two ways of charging a person with indirect 6. Examining powers – This is also called as
contempt: investigatory power. Requires production of
books, papers, etc., and the attendance of
1. Through a verified petition; witnesses and compelling the testimony.
187
a. ADMINISTRATIVE DUE PROCESS place of their direct testimony. (Lastimoso v. Asayo,
G.R. No. 154243, December 4, 2007)
Nature of administrative proceedings
Effect of non-observance of notice and hearing
It is summary in nature.
As a rule, it will invalidate the administrative
Inapplicability of technical rules of procedure and proceedings. A failure to comply with the
evidence in administrative proceedings requirements may result in a failure to acquire
jurisdiction.
The technical rules of procedure and of evidence
prevailing in courts of law and equity are not NOTE: Right to notice may be waived.
controlling in administrative proceedings to free
administrative boards or agencies from the Necessity of Notice and Hearing
compulsion of technical rules so that the mere
admission of matter which would be deemed A hearing may take place after the deprivation occurs.
incompetent in judicial proceedings would not What the law prohibits is not the absence of previous
invalidate an administrative order. notice but the absolute absence thereof and the lack of
opportunity to be heard.
Cardinal requirements of due process in
administrative proceedings (1994 BAR) NOTE: There has been no denial of due process if any
irregularity in the premature issuance of the assailed
1. Right to a hearing which includes the right to decision has been remedied by an order giving the
present one’s case and submit evidence in petitions the right to participate in the hearing of the
support thereof; MR. The opportunity granted by, technically, allowing
2. The tribunal must consider the evidence petitioners to finally be able to file their comment in
presented; the case, resolves the procedural irregularity
3. The decision must be supported by evidence; previously inflicted upon petitioners. (Nasecore v.
4. Such evidence must be substantial; ERC, G.R. No. 190795, July 6, 2011)
5. The decision must be rendered on the evidence
presented at the hearing or at least contained in Exceptions to the requirement of notice and
the record, and disclosed to the parties affected; hearing
6. The tribunal or body or any of its judges must act
on its own independent consideration of the law 1. Urgency of immediate action;
and facts of the controversy in arriving at a 2. Tentativeness of administrative action;
decision; 3. Grant or revocation of licenses or permits to
7. The board or body should render decision in such operate certain businesses affecting public order
a manner that parties can know the various or morals;
issues involved and the reasons for the decision 4. Summary abatement of nuisance per se which
rendered. (Ang Tibay v. CIR, G.R. No. L-46496, affects safety of persons or property;
February 27, 1940) 5. Preventive suspension of public officer or
employee facing administrative charges;
NOTE: The essence of due process in administrative 6. Cancellation of a passport of a person sought for
proceedings is the opportunity to explain one’s side or criminal prosecution;
seek a reconsideration of the action or ruling 7. Summary proceedings of distraint and levy upon
complained of. As long as the parties are given the property of a delinquent taxpayer;
opportunity to be heard before judgment is rendered, 8. Replacement of a temporary or acting appointee;
the demands of due process are sufficiently met. What and
is offensive to due process is the denial of the 9. Right was previously offered but not claimed.
opportunity to be heard. (Flores v. Montemayor, G.R.
No. 170146, June 6, 2011) Inapplicability of the right to counsel in
administrative inquiries
Trial-type hearing not required
The right to counsel which may not be waived, unless
Due process in an administrative context does not in writing and in the presence of counsel, as
require trial-type proceedings similar to those in recognized by the Constitution, is a right of a suspect
courts of justice. Where opportunity to be heard in a custodial investigation. It is not an absolute right
either through oral arguments or through pleadings is and may, thus, be invoked or rejected in criminal
accorded, there is no denial of procedural due proceeding and, with more reason, in an
process. The requirements are satisfied where the administrative inquiry. (Lumiqued v. Exevea, G.R No.
parties are afforded fair and reasonable opportunity 117565, November 18, 1997)
to explain their side of the controversy at hand. It is
not violative of due process when an administrative Quantum of proof required in administrative
agency resolves cases based solely on position papers, proceedings
affidavits, or documentary evidence submitted by the
parties as affidavits of witnesses which may take the

Political Law
Substantial evidence – that amount of relevant The doctrine of res judicata applies only to judicial or
evidence that a reasonable mind might accept as quasi-judicial proceedings and not to the exercise of
adequate to support a conclusion. purely administrative functions. Administrative
proceedings are non-litigious and summary in nature;
b. ADMINISTRATIVE APPEAL AND REVIEW hence, res judicata does not apply. (Nasipit Lumber
Company, Inc. v. NLRC, G.R. No. 54424, August 31, 1989)
Administrative appeal
In administrative law, a quasi-judicial proceeding
It includes the review by a higher agency of decisions involves (a) taking and evaluating evidence; (b)
rendered by an administrative agency, commenced by determining facts based upon the evidence presented;
petition of an interested party. and (c) rendering an order or decision supported by
the facts proved. The exercise of quasi-judicial
NOTE: Under the 1987 Administrative Code, functions involves a determination, with respect to
administrative appeals from a final decision of an the matter in controversy, of what the law is; what the
agency are taken to the Department Head, unless legal rights and obligations of the contending parties
otherwise provided by law or executive order. are; and based thereon and the facts obtaining, the
adjudication of the respective rights and obligations of
Administrative review the parties. (Ligtas v. People, G.R. No. 200751, August
17, 2015, PER, J. LEONEN)
A superior officer or department head, upon his or her
own volition, may review the decision of an Two concepts of res judicata:
administrative agency or that of a subordinate’s
decision pursuant to the power of control. 1. Bar by previous judgment
It is, however, subject to the caveat that a final and There is “bar by previous judgment” when, as
executory decision is not included within the power of between the first case where the judgment was
control, and hence can no longer be altered by rendered and the second case that is sought to be
administrative review. barred, there is identity of parties, subject matter, and
causes of action. In this instance, the judgment in the
Different kinds of administrative appeal and first case constitutes an absolute bar to the second
review action. (Ligtas v. People, ibid)
1. Inheres in the relation of administrative superior 2. Conclusiveness of judgment

to administrative subordinate;
If a particular point or question is in issue in the
2. Statutes which provide for determination to be
second action, and the judgment will depend on the
made by a particular officer or body subject to
determination of that particular point or question, a
appeal, review or redetermination by another
former judgment between the same parties will be
officer or body in the same agency or in the same
final and conclusive in the second if that same point or
administrative system;
question was in issue and adjudicated in the first suit.
3. The statute makes or attempts to make a court a Identity of cause of action is not required but merely
part of the administrative scheme by providing in identity of issue. (Ligtas v. People, ibid.)
terms or effect that the court, on review of the
action of an administrative agency; Elements of res judicata:
4. The statute provides that an order made by a
division of a commission or board has the same 1. The judgment sought to bar the new action must
force and effect as if made by the subject to a be final;
rehearing by the commission; 2. It must have been rendered by a court having
5. The statute provides for an appeal to an officer jurisdiction over the subject matter and the
on an appeal to the head of the department or parties;
agency; 2. The disposition of the case must be a judgment
on the merits; and
6. Statutes which provide for appeal at the highest
3. There must be identity of parties, subject matter,
level namely, the president. (De Leon,
and causes of action (ibid.)
Administrative Law: Text and Cases (2010) page
311)
NOTE: Should identity of parties, subject matter, and
causes of action be shown in the two cases, then res
Enforcement of Administrative Decisions
judicata in its aspect as a “bar by prior judgment”
would apply. If as between the two cases, only identity
1. As provided for by law; or
of parties can be shown, but not identical causes of
2. Through the court’s intervention. action, then res judicata as “conclusiveness of
judgment” applies. (ibid.)
c. ADMINISTRATIVE RES JUDICATA
Exceptions to the Non-Applicability of Res Judicata
Non-applicability of the doctrine of res judicata in Administrative Proceedings
189
1. Naturalization proceedings or those involving Investigatory power
citizenship and immigration;
2. Labor relations; and Power to inspect, secure, or require the disclosure of
3. Decisions affecting family relations, personal information by means of accounts, records, reports,
status or condition, and capacity of persons. statements and testimony of witnesses. It is implied
and not inherent in administrative agencies.
NOTE: It is well settled that findings of fact of quasi-
judicial agencies, such as the COA, are generally Power to issue subpoena not inherent in
accorded respect and even finality by this Court, if administrative bodies
supported by substantial evidence, in recognition of
their expertise on the specific matters under their Administrative bodies may summon witnesses and
jurisdiction. (Reyna v. COA, G.R. No. 167219, February require the production of evidence only when duly
8, 2011) allowed by law, and always only in connection with
the matter they are authorized to investigate.
3. FACT-FINDING, INVESTIGATIVE, LICENSING AND
RATE-FIXING POWERS Power to cite a person in contempt not inherent in
administrative bodies
Fact-finding power
It must be expressly conferred upon the body, and
1. Power to declare the existence of facts which call additionally, must be used only in connection with its
into operation the provisions of a statute; and quasi-judicial as distinguished from its purely
2. Power to ascertain and determine appropriate administrative or routinary functions.
facts as a basis for procedure in the enforcement
of particular laws. NOTE: If there is no express grant, the agency must
invoke the aid of the RTC under Rule 71 of the Rules
NOTE: The mere fact that an officer is required by law of Court.
to inquire the existence of certain facts and to apply
the law thereto in order to determine what his official Q: May administrative agencies issue warrants of
conduct shall be and the fact that these acts may affect arrest or administrative searches?
private rights do not constitute an exercise of judicial
powers. (Lovina v. Moreno, G.R. No. L-17821, November A: GR: NO. Under the 1987 Constitution, only a judge
21, 1963) may issue warrants.
Exceptions to the rule that findings of facts of XPN: In cases of deportation of illegal and desirable
administrative agencies are binding on the courts aliens, an arrest ordered by the President or his duly
authorized representatives, in order to carry out a
1. Findings are vitiated by fraud, imposition, or final decision of deportation, is valid. (Salazar v.
collusion; Achacoso, G.R. No. 81510, March 14, 1990)
2. Procedure which led to factual findings is
irregular; Licensing power
3. Palpable errors are committed;
4. Factual findings not supported by evidence; The action of an administrative agency in granting or
5. Grave abuse of discretion, arbitrariness, or denying, or in suspending or revoking, a license,
capriciousness is manifest; permit, franchise, or certificate of public convenience
6. When expressly allowed by statute; and and necessity. (Sañado v. CA, G.R. No. 108338, April 17,
7. Error in appreciation of the pleadings and in the 2007)
interpretation of the documentary evidence
presented by the parties. License
Fact-finding quasi-judicial body Includes the whole or any part of any agency’s permit,
certificate, passport, clearance, approval, registration,
A fact-finding quasi-judicial body (e.g., Land charter, membership, statutory exemption or other
Transportation Franchising and Regulatory Board) form of permission, or regulation of the exercise of a
whose decisions (on questions regarding certificate of right or privilege. [1987 Administrative Code,
public convenience) are influenced not only by the Administrative Procedure, Sec. 2(10)]
facts as disclosed by the evidence in the case before it
but also by the reports of its field agents and Licensing
inspectors that are periodically submitted to it, has
the power to take into consideration the result of its It includes agency process involving the grant,
own observation and investigation of the matter renewal, denial, revocation, suspension, annulment,
submitted to it for decision, in connection with other withdrawal, limitation, amendment, modification or
evidence presented at the hearing of the case. conditioning of a license. [1987 Administrative Code,
(Pantranco South Express, Inc. v Board of Administrative Procedure, Sec. 2(11)]
Transportation, G.R. No. L-49664, November 22, 1990)

Political Law
NOTE: Except in cases of willful violation of pertinent Requirements for the delegation of the power to
laws, rules and regulations or when public security, ascertain facts to be valid
health, or safety requires otherwise, no license may be
withdrawn, suspended, revoked or annulled without The law delegating the power to determine some facts
notice and hearing. [1987 Administrative Code, or state of things upon which the law may take effect
Administrative Procedure, Sec. 17(2)] or its operation suspended must provide the
standard, fix the limits within which the discretion
Nature of an administrative agency’s act if it is may be exercised, and define the conditions therefor.
empowered by a statute to revoke a license for Absent these requirements, the law and the rules
non-compliance or violation of agency regulations issued thereunder are void, the former being an
undue delegation of legislative power and the latter
Where a statute empowers an agency to revoke a being the exercise of rule-making without legal basis.
license for non-compliance with or violation of agency (U.S. v. Ang Tang Ho, G.R. No. L-17122, February 27,
regulations, the administrative act is of a judicial 1992)
nature, since it depends upon the ascertainment of the
existence of certain past or present facts upon which a Standard required on delegated power to fix rates
decision is to be made and rights and liabilities
determined. (Sañado v. CA, supra) It is required that the rate be reasonable and just.
(American Tobacco Co. v. Director of Patents, G.R. No. L-
Rate 26803, October 14, 1975)
It means any charge to the public for a service open to In any case, the rates must both be non-confiscatory
all and upon the same terms, including individual or and must have been established in the manner
joint rates, tolls, classification or schedules thereof, as prescribed by the legislature. Even in the absence of
well as communication, mileage, kilometrage and an express requirement as to reasonableness, this
other special rates which shall be imposed by law or standard may be implied. A rate-fixing order, though
regulation to be observed and followed by a person. temporary or provisional it may be, is not exempt
[1987 Administrative Code, Administrative Procedure, from the procedural requirements of notice and
Sec. 2(3)] hearing when prescribed by statute, as well as the
requirement of reasonableness. (Philippine
Rate-fixing power Communications Satellite Corporation v. NTC, G.R. No.
84818, December 18, 1989)
It is the power usually delegated by the legislature to
administrative agencies for the latter to fix the rates Re-delegating power to fix rates is prohibited
which public utility companies may charge the public.
The power delegated to an administrative agency to
NOTE: The power to fix rates is essentially legislative fix rates cannot, in the absence of a law authorizing it,
but may be delegated. (Philippine Inter-Island v. CA, be delegated to another. This is expressed in the
G.R. No. 100481, January 22, 1997) maxim, potestas delagata non delegari potest.
(Kilusang Mayo Uno Labor Center v. Garcia, Jr., G.R. No.
The legislature may directly provide for these rates, 115381, December 23, 1994)
wages, or prices. But while the legislature may deal
directly with these subjects, it has been found more POWER TO FIX RATES POWER TO FIX RATE
advantageous to place the performance of these EXERCISED AS A EXERCISED AS A QUASI-
functions in some administrative agency. The need for LEGISLATIVE JUDICIAL FUNCTION
dispatch, for flexibility and technical know-how is FUNCTION
better met by entrusting the rate-fixing to an agency Rules and/or rates laid Rules and the rate
other than the legislature itself. (Cortes, 1963) down are meant to apply imposed apply
to all enterprises. exclusively to a particular
Rate-fixing procedure party.
Prior notice and hearing Prior notice and hearing
The administrative agencies perform this function to the affected parties is are essential to the
either by issuing rules and regulations in the exercise not a requirement, validity of such rates. But
of their quasi-legislative power or by issuing orders except where the an administrative agency
affecting a specified person in the exercise of its quasi- legislature itself requires may be empowered by
judicial power. it. law to approve
provisionally, when
NOTE: In the fixing of rates, no rule or final order demanded by urgent
shall be valid unless the proposed rates shall have public need, rates of
been published in a newspaper of general circulation public utilities without a
at least two weeks before the first hearing thereon. hearing.
[1987 Administrative Code, Administrative Procedure,
Sec. 9(2)] (2000, 2009 BAR) D. JUDICIAL REVIEW
191
It involves the re-examination or determination by contrary conclusion, the Court will not hesitate to
the courts in the exercise of their judicial power in an reverse the factual findings.” However, the exception
appropriate case instituted by a party aggrieved does not apply in this case (Orais v. Almirante, G.R. No.
thereby as to whether the questioned act, rule, or 181195, June 10, 2013).
decision has been validly or invalidly issued or
whether the same should be nullified, affirmed or Doctrine of Ripeness for Review (2001 BAR)
modified.
It is similar to that of exhaustion of administrative
NOTE: The mere silence of the law does not remedies except that it applies to the rule-making
necessarily imply that judicial review is unavailable. power and to administrative action which is
embodied neither in rules and regulations nor in
Requisites of judicial review of administrative adjudication or final order.
action
Purpose of the Doctrine of Ripeness of Review
1. Principle of finality of administrative action -
Administrative action must have been completed; 1. To prevent the courts, through avoidance of
and premature adjudication, from entangling
2. Principle of exhaustion of administrative remedies themselves in abstract disagreements over
- Administrative remedies must have been administrative policies; and
exhausted. 2. To protect the agencies from judicial interference
until an administrative decision has been
Limitations on judicial review formalized and its effects felt in a concrete way
by the challenging parties. (Abbott Laboratories v.
1. Final and executory decisions cannot be made the Gardner, 387 U.S. 136, 1967)
subject of judicial review;
2. Administrative acts involving a political question Application of the Doctrine of Ripeness of Review
are beyond judicial review, except when there is
an allegation that there has been grave abuse of 1. When the interest of the plaintiff is subjected to
discretion; and or imminently threatened with substantial injury;
3. Courts are generally bound by the findings of fact 2. If the statute is self-executing;
of an administrative agency. 3. When a party is immediately confronted with the
problem of complying or violating a statute and
NOTE: Courts will not render a decree in advance of there is a risk of criminal penalties; or
administrative action. Such action would be rendered 4. When plaintiff is harmed by the vagueness of the
nugatory. statute.
It is not for the court to stop an administrative officer Two tests to determine whether or not a
from performing his statutory duty for fear that he controversy is ripe for adjudication
will perform it wrongly.
1. Fitness of the issue for judicial decision; and
Q: Orais filed with the Office of the Ombudsman a 2. Hardship to the parties of withholding court
Complaint for corruption and grave misconduct consideration. (Abbott Laboratories v. Gardner,
against his superior, Dr. Almirante, for the ibid.)
anomalies committed using her position as
Veterinary Quarantine Officer-Seaport. The Office Questions reviewable by the courts
of the Ombudsman ruled in favor of Almirante and
it ordered that the case be dismissed for lack of 1. Questions of fact
substantial basis. The CA held that decisions of the
Ombudsman in cases absolving the respondent of GR: Courts will not disturb the findings of
the charge are deemed final and unappealable, administrative agencies acting within the
pursuant to the Rules of Procedure of the Office of parameters of their own competence, special
the Ombudsman. Is the CA correct? knowledge, expertise, and experience. The courts
ordinarily accord respect if not finality to factual
A: YES. Where the respondent is absolved of the findings of administrative tribunals.
charge, and in case of conviction where the penalty
imposed is public censure or reprimand, suspension XPN: If findings are not supported by substantial
of not more than one month, or a fine equivalent to evidence.
one-month salary, the Ombudsman’s decision shall be
final, executory, and unappealable. However, these 2. Questions of Law – Administrative decisions may
decisions of administrative agencies by law are still be appealed to the courts independently of
“subject to judicial review if they fail the test of legislative permission. It may be appealed even
arbitrariness, or upon proof of grave abuse of against legislative prohibition because the
discretion, fraud or error of law, or when such judiciary cannot be deprived of its inherent
administrative or quasi-judicial bodies grossly power to review all decisions on questions of law.
misappreciate evidence of such nature as to compel a

Political Law
3. Mixed (law and fact) – When there is a mixed 5. Where the question involved is purely legal and
question of law and fact and the court cannot will ultimately have to be decided by the courts
separate the elements to see clearly what and of justice;
where the mistake of law is, such question is 6. Where judicial intervention is urgent;
treated as question of fact for purposes of review 7. When its application may cause great and
and the courts will not ordinarily review the irreparable damage;
decision of the administrative tribunal. 8. Where the controverted acts violate due process;
9. When the issue of non-exhaustion of
1. DOCTRINE OF PRIMARY ADMINISTRATIVE
administrative remedies has been rendered
JURISDICTION
moot;
Doctrine of Primary Jurisdiction or Doctrine of
10. When there is no other plain, speedy and
adequate remedy;
Prior Resort
11. When strong public interest is involved; and
Under the principle of primary jurisdiction, courts 12. In quo warranto proceedings. (The Province of
cannot or will not determine a controversy involving Aklan v. Jody King Construction and Development
question within the jurisdiction of an administrative Corp., G.R. Nos. 197592 & 202623, November
body prior to the decision of that question by the 27, 2013)
administrative tribunal where the:
Raising the issue of primary jurisdiction
1. Question demands administrative determination
requiring special knowledge, experience and The court may motu proprio raise the issue of primary
services of the administrative tribunal; jurisdiction and its invocation cannot be waived by
2. Question requires determination of technical and the failure of the parties to argue it, as the doctrine
intricate issues of a fact; exists for the proper distribution of power between
3. Uniformity of ruling is essential to comply with judicial and administrative bodies and not for the
purposes of the regulatory statute administered. convenience of the parties. In such case the court may:
NOTE: In such instances, relief must first be obtained 1. Suspend the judicial process pending referral of
in administrative proceeding before a remedy will be such issues to the administrative body for its
supplied by the courts even though the matter is review; or
within the proper jurisdiction of a court. The judicial 2. If the parties would not be unfairly
process is accordingly suspended pending referral of disadvantaged, dismiss the case without
the claim to the administrative agency for its view. prejudice. (Euro-Med Laboratories Phil. v.
Province of Batangas, G.R No. 148106, July 17,
Rationale: 2006)
1. To take full advantage of administrative Applicability of the Doctrine of Primary

expertness; and Jurisdiction
2. To attain uniformity of application of regulatory
laws which can be secured only if determination In recent years, it has been the jurisprudential trend
of the issue is left to the administrative body. to apply this doctrine to cases involving matters that
demand the special competence of administrative
Instances where the doctrine finds no application agencies even if the question involved is also judicial
in character. It applies where a claim is originally
1. By the court's determination, the legislature did cognizable in the courts, and comes into play
not intend that the issues be left solely to the whenever enforcement of the claim requires the
initial determination of the administrative body; resolution of issues which, under a regulatory scheme,
2. The issues involve purely questions of law; and have been placed within the special competence of an
3. Courts and administrative bodies have administrative body; in such case, the judicial process
concurrent jurisdiction. is suspended pending referral of such issues to the
administrative body for its view. (Villaflor v. Court of
Exceptions to the Doctrine of Primary Jurisdiction Appeals, G.R. No. 95694, October 9, 1997)
1. Where there is estoppel on the part of the party Q: A civil case for the collection of sum of money
invoking the doctrine; was filed by X Company against the province of
Batangas before the RTC. After the petitioner’s
2. Where the challenged administrative act is
presentation of evidence, the province of Batangas
patently illegal, amounting to lack of jurisdiction;
moved for the dismissal of the case on the ground
3. Where there is unreasonable delay or official
that it is the Commission on Audit which has
inaction that will irretrievably prejudice the
primary jurisdiction over the matter for it
complainant;
involves transactions with the province which was
4. Where the amount involved is relatively small so governed by the Local Government Code
as to make the rule impractical and oppressive; provisions and COA rules and regulations on
supply and property management in local
193
governments. Is the contention of the province of issue writs of execution or garnishment against the
Batangas correct? Government or any of its subdivisions, agencies and
instrumentalities to enforce money judgments. It is
A: YES. It is the COA and not the RTC which has settled jurisprudence that upon determination of
primary jurisdiction to pass upon petitioner’s money State liability, the prosecution, enforcement or
claim against respondent local government unit. Such satisfaction thereof must still be pursued in
jurisdiction may not be waived by the parties’ failure accordance with the rules and procedures laid down
to argue the issue nor active participation in the in P.D. No. 1445, otherwise known as the Government
proceedings. The doctrine of primary jurisdiction Auditing Code of the Philippines which pertains to
holds that if a case is such that its determination COA’s primary jurisdiction to examine, audit and
requires the expertise, specialized training and settle all claims of any sort due from the Government
knowledge of an administrative body, relief must first or any of its subdivisions, agencies and
be obtained in an administrative proceeding before instrumentalities. Rejection of the claim will authorize
resort to the courts is had even if the matter may well the claimant to elevate the matter to the Supreme
be within their proper jurisdiction. It applies where a Court on certiorari and in effect, sue the State thereby.
claim is originally cognizable in the courts and comes (University of the Philippines v. Dizon, G.R. No. 171182,
into play whenever enforcement of the claim requires August 23, 2012)
the resolution of issues which, under a regulatory
scheme, have been placed within the special 2. DOCTRINE OF EXHAUSTION OF
competence of an administrative agency. In such a ADMINISTRATIVE REMEDIES
case, the court in which the claim is sought to be
enforced may suspend the judicial process pending It calls for resorting first to the appropriate
referral of such issues to the administrative body for administrative authorities in the resolution of a
its view or, if the parties would not be unfairly controversy falling under their jurisdiction. Such
disadvantaged, dismiss the case without prejudice. administrative decision must first be appealed to the
(Euro-Med Laboratories Phil. Inc. v. Province of administrative superiors up to the highest level before
Batangas, G.R. No. 148106, July 17, 2006) the same may be elevated to the courts of justice for
review.
Q: Petitioner university contracted the services of
Stern Builders Corporation for the construction Premature invocation of court intervention is fatal to
and renovation of its buildings in UP Los Banos. In one’s cause of action. Exhaustion of administrative
an action filed by Stern Builder against petitioner, remedies is a prerequisite for judicial review; it is a
the RTC rendered a favorable judgment and condition precedent which must be complied with.
granted the motion for execution filed therewith
by Stern Builders. Consequently, the sheriff served Rationale:
notices of garnishment on the petitioner’s
depository banks. Petitioner filed an urgent 1. To enable the administrative superiors to correct
motion to quash the notices of garnishment; and a the errors committed by their subordinates;
motion to quash the writ of execution on the 2. Courts should refrain from disturbing the
ground that government funds and properties findings of administrative bodies in deference to
could not be seized by virtue of writs of execution the doctrine of separation of powers;
or garnishment except in pursuance of an 3. Courts should not be saddled with the review of
appropriation law or other specific statutory administrative cases;
authority. However, RTC, through respondent 4. Judicial review of administrative cases is usually
Judge, authorized the release of the garnished effected through special civil actions which are
funds of petitioner. CA upheld RTC’s judgment and available only if there is no other plain, speedy,
the issuance of the writ of garnishment of and adequate remedy; and,
petitioner’s funds. Was the appellate court correct 5. To avail of administrative remedy entails lesser
in sustaining RTC’s jurisdiction to issue the writ of expenses and provides for a speedier disposition
garnishment against petitioner? of controversies.
A: NO. The CA erred in ruling that petitioner’s funds Exceptions to the application of the doctrine
could be the proper subject of a writ of execution or (1991, 2000, 2004 BAR)
garnishment. The settlement of the monetary claim
was still subject to the primary jurisdiction of the COA
despite the final decision of the RTC having already 1. Violation of due process;
2. When there is estoppel on the part of the
validated the claim. The funds of petitioner are
government funds that are public in character, administrative agency concerned;
including any interest accruing from the deposit of 3. When the issue involved is a purely legal
such funds in any banking institution, which question;
constitute a "special trust fund," the disbursement of 4. When there is irreparable injury;
which should always be subject to auditing by the 5. When the administrative action is patently illegal
COA. As such, the private claimants had no alternative amounting to lack or excess of jurisdiction;
except to first seek the approval of the COA of their
monetary claim. Trial judges should not immediately

Political Law
6. When the respondent is a Department Secretary does not preclude in all cases a party from seeking
whose acts as an alter ego of the President bears judicial relief, cases where its observance has been
the implied and assumed approval of the latter; disregarded require a strong showing of the
7. When the subject matter is a private land case inadequacy of the prescribed procedure and of
proceedings; impending harm. (Merida Water District v. Bacarro,
8. When it would be unreasonable; G.R. No. 165993, September 30, 2008)
9. When no administrative review is provided by
law; Q: Deputy Ombudsman Katerina Sanchez was
10. When the rule does not provide a plain, speedy, dismissed by the Office of the President (OP) on
and adequate remedy; the ground of betrayal of public trust and a
11. When the issue of non-exhaustion of disciplinary proceeding against Special
administrative remedies has been rendered Prosecutor Miranda Ramos is pending before the
moot; OP. For this reason, Sanchez and Ramos
12. When there are circumstances indicating the challenged the constitutionality of Section 8(2) of
urgency of judicial intervention; R.A. 6770 or The Ombudsman Act of 1989
13. When it would amount to a nullification of a regarding the President’s disciplinary jurisdiction
claim; and over a deputy ombudsman and a special
14. Where the rule on qualified political agency prosecutor. The Supreme Court rendered its
applies. (Laguna CATV Network v. Maraan, G.R. decision upholding the constitutionality of the
No. 139492, November 19, 2002) said law and ordered the reinstatement of
Sanchez. As regards Ramos, the Court ruled that
Effect of non-exhaustion of administrative the disciplinary proceeding against her should be
remedies continued because Section 8(2) of R.A. No. 6770 is
not unconstitutional. Only the OP, through the OSG
Failure to observe the doctrine of exhaustion of moved for the reconsideration of the Court’s
administrative remedies does not affect the ruling. What then is the effect of the absence of
jurisdiction of the Court. The only effect of non- motion for reconsideration on the part of Sanchez
compliance with this rule is that it will deprive the and Ramos?
complainant of a cause of action, which is a ground for
a motion to dismiss. If not invoked at the proper time, A: NONE. The omission of the filing of a motion for
this ground is deemed waived and the court can take reconsideration poses no obstacle for the Court’s
cognizance of the case and try it. (Republic v. review of its ruling on the whole case since a serious
Sandiganbayan, G.R. Nos. 112708-09, March 29, 1996) constitutional question has been raised and is one of
the underlying bases for the validity or invalidity of
Q: Alicia Water District (ALWAD), a GOCC that the presidential action. If the President does not have
operates water utility services conducted a public any constitutional authority to discipline a Deputy
hearing for the purpose of increasing the water Ombudsman and/or a Special Prosecutor in the first
rate. Subsequently, they received a letter from the place, then any ruling on the legal correctness of the
Local Water Utilities Administration (LWUA) OP’s decision on the merits will be an empty one. In
confirming the proposed water rates. ALWAD other words, since the validity of the OP’s decision on
issued a resolution implementing a water rate the merits of the dismissal is inextricably anchored on
increase of ₱90 for the first ten cubic meters of the final and correct ruling on the constitutional issue,
water consumption. Because of this, consumers the whole case – including the constitutional issue –
filed a Petition for Injunction against the remains alive for the Court’s consideration on motion
petitioner before the RTC alleging that ALWAD for reconsideration. (Emilio A. Gonzales III v. Office of
violated LOI 700 by implementing a rate increase the President/Wendell Bareras-Sulit v. Atty. Paquito N.
greater than 60% of current rate and failing to Ochoa, Jr., G.R. No. 196231/G.R. No. 196232, January 28,
conduct public hearing for the imposed rate of 2014)
₱90. ALWAD filed a Motion to Dismiss on the
ground of failure to exhaust administrative Doctrine of Primary Jurisdiction vs. Doctrine of
remedies under PD 198 as amended. One of the Exhaustion of Administrative Remedies
respondents then questioned the legality of the
water rate increase before the National Water DOCTRINE OF
DOCTRINE OF
Resources Board (NWRB). RTC denied ALWAD’s EXHAUSTION OF
PRIMARY
Motion to Dismiss. On appeal, CA affirmed the ADMINISTRATIVE
JURISDICTION
RTC. Does RTC have jurisdiction over the matter? REMEDIES
Both deal with the proper relationships between the
A: YES. The failure to exhaust administrative remedy courts and administrative agencies.
does not affect RTC’s jurisdiction. Non-exhaustion of Case is within the Claim is cognizable in the
administrative remedies only renders the action concurrent jurisdiction first instance by an
premature, that the cause of action is not ripe for of the court and an administrative agency
judicial determination. It is incumbent upon the party administrative agency alone.
who has an administrative remedy to pursue the same but the determination
to its appropriate conclusion before seeking judicial of the case requires the
intervention. Although the doctrine of exhaustion technical expertise of
195
XII. ELECTION LAW
the administrative has determined some question. (Danilo A. Lihaylihay

agency. vs. Treasurer of the Philippines, et al., G.R. No.
192223, July 23, 2018, as penned by J. LEONEN)
Although the matter is Judicial interference is
within the jurisdiction withheld until the 3. DOCTRINE OF FINALITY OF ADMINISTRATIVE
of the court, it must administrative. process ACTION
yield to the jurisdiction has been completed.
of the administrative It provides that no resort to courts will be allowed
agency. unless administrative action has been completed and
there is nothing left to be done in the administrative
NOTE: The general rule is that before a party may structure.
seek the intervention of the court, he should first avail
of all the means afforded him by administrative Instances where the doctrine finds no application
processes. The issues which administrative agencies
are authorized to decide should not be summarily 1. Grant of relief to preserve the status quo pending
taken from them and submitted to a court without further action by the administrative agency;
first giving such administrative agency the 2. Essential to the protection of the rights asserted
opportunity to dispose of the same after due from the injuries threatened;
deliberation. 3. Administrative officer assumes to act in violation
of the Constitution and other laws;
Q: Danilo A. Lihaylihay identified himself as an 4. Order is not reviewable in any other way and the
informant under R.A. No. 2338. He sent two (2) complainant will suffer great and obvious
letters to the former head of the BIR-PCGG Task damage if the order is carried out;
Force concerning information on former 5. Interlocutory order affects the merits of a
President Marcos' ill-gotten wealth. Further, controversy;
Lihaylihay wrote to then Department of Finance 6. Order made in excess of power, contrary to
Secretary Margarito B. Teves and Treasurer of the specific prohibition in the statute governing the
Philippines Roberto C. Tan demanding his agency and thus operating as a deprivation of a
entitlement to 25% informer's reward. Without right assured by the statute; and
waiting for Secretary Teves' and Treasurer Tan's 7. When review is allowed by statutory provisions.
official actions on his letters, Lihaylihay filed a
Petition for Mandamus and Damages, in which he
insisted on his entitlement to informer's rewards. XII. ELECTION LAW
Is the filing of the petition proper?
A. SUFFRAGE
A: NO. The availability of a more basic recourse ahead
of a Petition for Mandamus before this Court similarly Suffrage is the right and obligation of qualified
demonstrates that petitioner failed to exhaust citizens to vote in the election of certain local and
administrative remedies. Under the doctrine of national officers and in the determination of questions
exhaustion of administrative remedies, recourse submitted to the people. It includes within its scope
through court action cannot prosper until after all election, plebiscite, initiative, and referendum.
such administrative remedies have first been (Nachura, 2014)
exhausted. Non-observance of the doctrine of
exhaustion of administrative remedies results in lack Right of suffrage not absolute
of cause of action. (Lihaylihay v. Tan, G.R. No,
192223, July 23, 2018, as penned by J. LEONEN) The exercise of the right of suffrage is subject to
existing substantive and procedural requirements
In cases involving specialized disputes, the practice embodied in our Constitution, statute books, and
has been to refer the same to an administrative other repositories of law. (Akbayan-Youth vs.
agency of special competence in observance of the COMELEC, G.R. No. 147066, March 26, 2001)
doctrine of primary jurisdiction. The Court has
ratiocinated that it cannot or will not determine a Scope of Suffrage
controversy involving a question which is within the
jurisdiction of the administrative tribunal prior to the 1. Plebiscite – The electoral process by which an
resolution of that question by the administrative initiative on the Constitution is approved or
tribunal, where the question demands the exercise of rejected by the people.
sound administrative discretion requiring the special
knowledge, experience and services of the 2. Initiative - The power of the people to propose
administrative tribunal to determine technical and amendments to the Constitution or to propose
intricate matters of fact, and a uniformity of ruling is and enact legislations through election called for
essential to comply with the premises of the the purpose. [R.A. 6735, The Initiative and
regulatory statute administered. The objective of the Referendum Act, Sec. 3(a)]
doctrine of primary jurisdiction is to guide a court in
determining whether it should refrain from exercising a. Initiative on the Constitution;
its jurisdiction until after an administrative agency b. Initiative on statutes; or

Political Law
c. Initiative on local legislation. Election is the means by which people choose their
officials for a definite and fixed period and to whom
3. Referendum – The power of the electorate to they entrust for the time being the exercise of the
approve or reject a piece of legislation through an powers of government. (Nachura, 2016)
election called for the purpose.
Components of an election
a. Referendum on statutes; or
b. Referendum on local laws. 1. Choosing or selecting candidates to public office
by popular vote;
4. Recall – The mode of removal of an elective 2. Holding of electoral campaign;
public officer by the people after 1 year of 3. Conducting of the polls;
assuming the office and not later than 1-year 4. Listing of votes;
before- the end of his term of office. 5. Casting and receiving the ballots from the voters;
6. Counting the ballots;
5. Plebiscite – The electoral process by which an 7. Making the election returns; and
initiative on the Constitution is approved or 8. Proclaiming the winning candidates
rejected by the people.
Kinds of elections
6. Initiative - The power of the people to propose
amendments to the Constitution or to propose 1. Regular election – It is an election participated in
and enact legislations through election called for by those who possess the right of suffrage, not
the purpose. [R.A. 6735, The Initiative and otherwise disqualified by law, and is registered
Referendum Act, Sec. 3(a)] voters.
a. Initiative on the Constitution; 2. Special election –It is held when there is failure of
b. Initiative on statutes; or election on the scheduled date of regular election
c. Initiative on local legislation. in a particular place or to fill a vacancy in office
before the expiration of the term for which the
7. Referendum – The power of the electorate to incumbent was elected.
approve or reject a piece of legislation through an
election called for the purpose. Rules on construction of election laws
a. Referendum on statutes; or CONSTRUCTION OF ELECTION LAW

b. Referendum on local laws. Laws for conduct of Before the election:
elections Mandatory
8. Recall – The mode of removal of an elective After the election:
public officer by the people after 1 year of Directory
assuming the office and not later than 1-year
before the end of his term of office. Laws for Mandatory and strictly
Candidates construed
Election Procedural rules Liberally construed in
favor of ascertaining the
Election is the means by which people choose their will of the electorate
officials for a definite and fixed period and to whom
they entrust for the time being the exercise of the Election period
powers of government. (Nachura, 2016)
GR: The period of election starts at 90 days before and
Suffrage is the right and obligation of qualified ends 30 days after the election date pursuant to Sec. 9,
citizens to vote in the election of certain local and Art. IX-C of the Constitution and Sec. 3 of B.P. 881,
national officers and in the determination of questions otherwise known as the Omnibus Election Code
submitted to the people. It includes within its scope (OEC).
election, plebiscite, initiative and referendum.
(Nachura, 2014) XPN: Under these same provisions, the COMELEC is
not precluded from setting a period different from
Right of suffrage not absolute that provided thereunder. (Aquino vs. COMELEC, G.R.
No. 211789-90, March 17, 2015)
The exercise of the right of suffrage is subject to
existing substantive and procedural requirements 1. QUALIFICATION AND DISQUALIFICATION OF
embodied in our Constitution, statute books, and VOTERS
other repositories of law. (Akbayan-Youth vs.
COMELEC, G.R. No. 147066, March 26, 2001) Qualifications for the exercise of suffrage
Election 1. Filipino citizenship;

2. At least 18 years of age;
3. Resident of the Philippines for at least one year;
197
XII. ELECTION LAW
4. Resident of the place where he proposes to vote Registration
for at least six months immediately preceding the
election; and Registration is the act of accomplishing and filing a
5. Not otherwise disqualified by law. (Art. V, 1987 sworn application for registration by a qualified voter
Constitution, Sec. 1) before the election officer of the city or municipality
wherein he resides and including the same in the
NOTE: These qualifications are continuing book of registered voters upon approval by the
requirements. Congress may not add qualifications Election Registration Board. [R.A. 8189, Voter’s
but can provide for procedural requirements and Registration Act of 1996, Sec. 3(a)] It does not confer
disqualifications. However, the disqualifications must the right to vote; it is but a condition precedent to the
not amount to qualifications. exercise of the right. Registration is a regulation, not a
qualification. (Yra vs. Abano, G.R. No. 30187, November
Residence and domicile 15, 1928)
In election cases, the Court treats domicile and Double-registrant

residence as synonymous terms. Both import not only
an intention to reside in a fixed place but also It pertains to any person who, being a registered
personal presence in that place, coupled with conduct voter, registers anew without filing an application for
indicative of such intention (Pundaodaya vs. cancellation of his previous registration. [OEC, Art.
COMELEC, G.R. No. 179313, September 17, 2009). XXII, Sec. 261(y)(5)]
Effect of transfer of residence Double registrants are still qualified to vote provided
that COMELEC has to make a determination on which
Any person, who transfers residence solely by reason registration is valid, and which is void. COMELEC laid
of his occupation, profession or employment in down the rule in Minute Resolution No. 00-1513 that
private or public service, education, work in military while the first registration of any voter subsists, any
or naval reservations, etc., shall not be deemed to subsequent registration thereto is void ab initio.
have lost his original residence. [OEC, Art. XII, Sec. (Maruhom vs. COMELEC, G.R. No. 179430, July 27,
117(2); Asistio vs. Aguirre, G.R. No. 191124, April 27, 2009)
2010]
Q: Shanti filed a petition for the cancellation of the
Establishing a new domicile COC of Xander for Mayor of South Upi alleging that
Xander was not a registered voter in the
To establish a new domicile of choice, personal Municipality of South Upi since Allen failed to sign
presence in the place must be coupled with conduct his application for registration, thus, the unsigned
indicative of this intention. (Jalover vs. Osmeña, G.R. application for registration has no legal effect. In
No. 209286, September 23, 2014) refutation, Xander asseverated that his failure to
sign his application for registration did not affect
Disqualifications for the exercise of suffrage the validity of his registration since he possesses
the qualifications of a voter set forth in the
1. Sentenced by final judgment to suffer Omnibus Election Code as amended by Sec. 9 of
imprisonment for not less than one year, unless R.A. 8189. Should Allen be disqualified?
granted a plenary pardon or granted amnesty;
A: YES. R.A. 8189 (The Voter’s Registration Act of
2. Conviction by final judgment of any of the 1996) specifically provides that an application for
following: registration shall contain specimen signatures of the
applicant as well as his or her thumbprints, among
a. Crime involving disloyalty to the others. The evidence shows that Allen failed to sign
government; very important parts of the application, which refer to
b. Violation against national security; or the oath which Xander should have taken to validate
c. Firearms laws and swear to the veracity of the contents appearing in
the application for registration. Plainly, from the
NOTE: The right to vote is reacquired upon foregoing, the irregularities surrounding Xander’s
expiration of five years after service of sentence application for registration eloquently proclaims that
referred to in the two preceding items. he did not comply with the minimum requirements of
R.A. 8189. This leads to only one conclusion: Xander,
3. Insanity or incompetence as declared by not having demonstrated that he duly accomplished
competent authority. [OEC, Art. XII, Sec. 118 (c)] an application for registration, is not a registered
voter. Hence, he must be disqualified to run for Mayor.
NOTE: These are the same grounds for (Gunsi, Sr. vs. COMELEC, G.R. No. 168792, February 23,
disqualification to register as a voter under Sec. 11 of 2009)
R.A. 8189, Voter’s Registration Act of 1996.
Illiterate and disabled voters
2. REGISTRATION AND DEACTIVATION OF VOTERS

Political Law
Any illiterate person may register with the assistance provides a positive identification of an individual such
of the Election Officer or any member of an accredited as voice, photograph, fingerprint, signature, iris,
citizen’s arms. The application for registration of a and/or such other identifiable features." (Kabataan
physically disabled person may be prepared by any Partylist vs. COMELEC, G.R. No. 189868, December 16,
relative within the fourth civil degree of 2009)
consanguinity or affinity or by the Election Officer or
any member of an accredited citizen’s arm using the Book of voters
data supplied by the applicant. The fact of illiteracy or
disability shall be so indicated in the application (R.A. Classified as permanent whereby each precinct shall
8189, Sec. 14). have a permanent list of all registered voters residing
within the territorial jurisdiction of the precinct.
NOTE: R.A. 9369 (The Poll Automation Law) now
defines a disabled voter as “a person with impaired Grounds for alteration
capacity to use the Automated Election System”
[Sec.2(1)]. 1. Deactivation/reactivation;
2. Exclusion/ inclusion
Kinds of registration system 3. Cancellation of registration in case of death;
4. Annulment of book of voters;
1. Continuing; and 5. New voters; and
2. Computerized. 6. Transfer of residence.
System of continuing registration Deactivation
GR: It is a system where the application of It is the removal from the registration records from
registration of voters shall be conducted daily in the the precinct books of voters and places the same,
office hours of the election officer during regular properly marked and dated in indelible ink, in the
office hours. inactive file after entering the cause of deactivation.
XPN: No registration shall be conducted during the Grounds for deactivation

period starting 120 days before a regular election and
90 days before a special election. (R.A. 8189, Sec. 8) 1. Any person who has been sentenced by final
judgment to suffer imprisonment for not less
Q: Kabataan Party-List assailed the than one year, such disability not having been
constitutionality of R.A. 10367, which directs removed by plenary pardon or amnesty;
COMELEC to implement a mandatory biometrics
registration system for new voters and those NOTE: The right to vote may be automatically
registered voters whose biometrics have not been reacquired upon expiration of five years after
captured shall submit themselves for validation. service of sentence as certified by the clerk of
In compliance, COMELEC implemented rules and court.
regulations prescribing the procedure for
validation, deactivation, and reactivation of
voters’ registration records (VRRs). Kabataan 2. Any person who has been adjudged by a final
Party-List claimed that R.A. 10367 is judgment by a competent court or tribunal of
unconstitutional because biometric validation is having caused/committed any crime involving
not different from the unconstitutional disloyalty to the duly constituted government
requirement of literacy and property because such as rebellion, sedition, violation of the anti-
mere non-validation already absolutely curtails subversion and firearm laws, or any crime
the exercise of the right of suffrage through against national security, unless restored to his
deactivation. Is R.A. 10367 unconstitutional? full civil and political rights in accordance with
law;
A: NO. The Court ruled that the right to vote is not a
natural right but is a right created by law. Suffrage is a NOTE: The right to vote may be regained
privilege granted by the State to such persons or automatically upon expiration of five years after
classes as are most likely to exercise it for the public service of sentence.
good. A registration requirement rises to the level of a
literacy, property or other substantive requirement as
contemplated by the Framers of the Constitution - 3. Any person declared by competent authority to
that is, one which propagates a socio-economic be insane or incompetent unless such
standard which is bereft of any rational basis to a disqualification has been subsequently removed
person's ability to intelligently cast his vote and to by a declaration of a proper authority that such
further the public good - the same cannot be struck person is no longer insane or incompetent;
down as unconstitutional. Court definitively 4. Any person who did not vote in the two
characterized registration as a form of regulation and successive preceding regular elections as shown
not as a qualification for the right of suffrage – by their voting records. For this purpose, regular
“biometrics refers to a quantitative analysis that elections do not include SK elections;
199
XII. ELECTION LAW
5. Any person whose registration has been ordered the list. (R.A.
excluded by the Court; 8189, Sec. 34)
6. Any person who has lost his Filipino citizenship.
[R.A. 8189, Sec. 27 (f)] Res judicata not applicable
The proceedings for the exclusion or inclusion of

3. INCLUSION AND EXCLUSION PROCEEDINGS
voters in the list of voters are summary in character.
Except for the right to remain in the list of voters or
Inclusion proceedings
for being excluded therefrom for the particular
election in relation to which the proceedings had been
Any person whose application for registration has
held, a decision in an exclusion or inclusion
been disapproved by the Board or whose name has
proceeding, even if final and unappealable, does not
been stricken out from the list may file with the court
acquire the nature of res judicata. It does not operate
a petition to include his name in the permanent list of
as a bar to any further action that a party may take
voters in his precinct at any time but not within 105
concerning the subject passed upon in the proceeding.
days prior to a regular election or 75 days prior to a
Thus, a decision in an exclusion proceeding would
special election.
neither be conclusive on the voter’s political status,
nor bar subsequent proceedings on his right to be
Exclusion proceedings
registered as a voter in any other election. (Domino vs.
COMELEC, G.R. No. 134015, July 19, 1999)
Any registered voter, representative of a political
party or the Election Officer, may file with the court a
Voter using fake address not excluded
sworn petition for the exclusion of a voter from the
permanent list of voters giving the name, address and
A citizen cannot be disenfranchised for the flimsiest of
the precinct of the challenged voter at any time but
reasons. Only on the most serious grounds, and upon
not within 100 days prior to a regular election or 65
clear and convincing proof, may a citizen be deemed
days before special election.
to have forfeited this precious heritage of freedom.
(Asistio vs. Aguirre, G.R. No. 191124, April 27, 2010)
Jurisdiction
4. LOCAL AND OVERSEAS ABSENTEE VOTING
1. MTC – original and exclusive;
2. RTC – appellate jurisdiction; and Local absentee voting
3. SC – appellate jurisdiction over RTC on question
of law. It refers to a system of voting whereby government
officials and employees, including members of the
Who may file, period of filing; and grounds Armed Forces of the Philippines (AFP), and the
Philippine National Police (PNP), media practitioners
Inclusion Exclusion including their technical and support staff who are
Who 1. Any private 1. Any registered duly registered voters, are allowed to vote for the
may person whose voter in the city or national positions in places where they are not
file application was municipality. (OEC, registered voters but where they are temporarily
disapproved by Sec. 142) assigned to perform election duties on election day.
the Election 2. Representative [COMELEC Resolution 9637, Sec. 1(a), February 13,
Registration of political party 2013.]
Board. 3.Election officer
2. Those whose (R.A. 8189, Sec.39). Overseas Voting
names were 4. COMELEC
stricken out from The process by which qualified citizens of the
the list of voters. Philippines abroad exercise their right to vote. [R.A.
(OEC, Sec. 139) 10590, Sec. 3(k), amending R.A. 9189, Sec. 3]
3. COMELEC
Period Any time except Anytime except100 1. Coverage
for 105 days before days before a
filing regular election regular election or Qualified citizens of the Philippines may vote for
or 75 days before 65 days before a President, Vice-President, Senators and Party-List
a special election special election Representatives, as well as in all national
(COMELEC (COMELEC referenda and plebiscites. (R.A. 10590, Sec. 4,
Resolution No. Resolution No. amending R.A. 9189)
8820). 9021).
Ground 1. Application for 1. Not qualified for 2. Qualifications
s registration has possessing
been disapproved disqualification; a. Filipino citizens abroad;
by the board; or 2. Flying voters; or b. At least 18 years of age on the day of elections;
2. Name has been 3. Ghost voters. and
stricken outfrom,

Political Law
c. Not otherwise disqualified by law. nominates and supports certain of its leaders and
members as candidates for public office.
3. Disqualifications
It is a national party when its constituency is spread
a. Those who have lost their Filipino over the geographical territory of at least a majority of
citizenship in accordance with Philippine the regions. It is a regional party when its
laws; constituency is spread over the geographical territory
b. Those who have expressly renounced their of at least a majority of the cities and provinces
Philippine citizenship and who have pledged comprising the region. [R.A 7941, Sec. 3(c)]
allegiance to a foreign country, except those
who have reacquired or retained their Sectoral Party
Philippine citizenship under R.A. 9225;
c. Those who have committed and are It is an organized group of citizens belonging to any of
convicted in a final judgment by a Philippine the sectors enumerated in Section 5 hereof whose
court or tribunal of an offense punishable by principal advocacy pertains to the special interest and
imprisonment of not less than one year, such concerns of their sector. (R.A 7941, Sec. 3[d])
disability not having been removed by
plenary pardon or amnesty: Provided, Sectoral Organization
however, that any person disqualified to
vote under this subsection shall It is a group of citizens or a coalition of groups of
automatically acquire the right to vote upon citizens who share similar physical attributes or
the expiration of five years after service of characteristics, employment, interests or concerns.
sentence; and (R.A 7941, Sec. 3[e])
d. Any citizen of the Philippines abroad
previously declared insane or incompetent Coalition
by competent authority in the Philippines or
abroad, as verified by the Philippine It is an aggrupation of duly registered national,
embassies, consulates or Foreign Service regional, sectoral parties or organizations for political
establishments concerned, unless such and/or election purposes. (R.A 7941, Sec. 3[f])
competent authority subsequently certifies
that such person is no longer insane or 1. JURISDICTION OF COMELEC OVER POLITICAL
incompetent (R.A. 10590, Sec. 4, amending PARTIES
R.A. 9189).
In Palmares vs. Commission on Elections, to which the
5. DETAINEE VOTING assailed Resolution made reference and which
involved the Nacionalista Party, the Court held that
Detainee voting (either through the special polling the COMELEC has jurisdiction over the issue of
place inside jails or escorted voting) may be availed of leadership in a political party. Under the Constitution,
by any registered detainee whose registration is not the COMELEC is empowered to register political
transferred/deactivated/cancelled/deleted. (Sec. 1 of parties. [Sec. 2(5), Article IX-C] Necessarily, the power
Resolution No. 9371, March 6, 2012, COMELEC.) to act on behalf of a party and the responsibility for
the acts of such political party must be fixed in certain
*See Resolution No. 9371 dated March 6, 2012 persons acting as its officers. In the exercise of the
power to register political parties, the COMELEC must
B. POLITICAL PARTIES determine who these officers are. Consequently, if
there is any controversy as to leadership, the
Party-List System COMELEC may, in a proper case brought before it,
resolve the issue incidental to its power to register
A mechanism of proportional representation in the political parties. (Laban ng Demokratikong Pilipino vs.
election of representatives to the House of COMELEC, G.R. No. 161265, February 24, 2004)
Representatives from national, regional and sectoral
parties or organizations or coalitions thereof 2. REGISTRATION OF POLITICAL PARTIES
registered with the Commission on Elections
(COMELEC). Component parties or organizations of a Purpose of Registration
coalition may participate independently provided the
coalition of which they form part does not participate 1. To acquire juridical personality;
in the party-list system. [R.A 7941, Sec. 3[a]] 2. To qualify for subsequent accreditation;
3. To entitle it to rights and privileges granted to
Political Party political parties (Sec. 61, B.P. Blg. 881); and
4. To participate in the party-list system (Sec. 5, R.A.
An organized group of citizens advocating an ideology 7941)
or platform, principles and policies for the general
conduct of government and which, as the most Registration of Political Parties
immediate means of securing their adoption, regularly
201
XII. ELECTION LAW
Any organized group of persons seeking registration 2. It advocates violence or unlawful means to seek
as a national or regional political party may file with its goal;
the Commission a verified petition attaching thereto 3. It is a foreign party or organization;
its constitution and by-laws, platform or program of 4. It is receiving support from any foreign
government and such other relevant information as government, foreign political party, foundation,
may be required by the Commission. The Commission organization, whether directly or through any of
shall, after due notice and hearing, resolve the petition its officers or members or indirectly through
within ten days from the date it is submitted for third parties for partisan election purposes;
decision.
5. It violates or fails to comply with laws, rules or
regulations relating to elections;
No religious sect shall be registered as a political
party and no political party which seeks to achieve its 6. It declares untruthful statements in its petition;
goal through violence shall be entitled to 7. It has ceased to exist for 1 year; or
accreditation. (Sec. 61, B.P. Blg. 881) 8. It fails to participate in the last 2 preceding
elections or fails to obtain at least 2% of the votes
Registration under the Party-List system cast under the party-list system in the 2
preceding elections for the constituency in which
Any organized group of persons may register as a it has registered. (R.A 7941, Sec. 6)
party, organization or coalition for purposes of the
party-list system by filing with the COMELEC not later C. CANDIDACY
than ninety (90) days before the election a petition
verified by its president or secretary stating its desire Candidate
to participate in the party-list system as a national,
regional or sectoral party or organization or a Refers to any person aspiring for or seeking an
coalition of such parties or organizations, attaching elective public office, who has filed a Certificate of
thereto its constitution, by-laws, platform or program Candidacy (COC) by himself or through an accredited
of government, list of officers, coalition agreement political party, aggroupment or coalition of parties.
and other relevant information as the COMELEC may [OEC, Sec. 79(a)].
require: Provided, That the sectors shall include labor,
peasant, fisherfolk, urban poor, indigenous cultural Any person may thus file a COC on any day within the
communities, elderly, handicapped, women, youth, prescribed period for filing a COC, yet that person
veterans, overseas workers, and professionals. shall be considered a candidate, for purposes of
determining one’s possible violations of election laws,
The COMELEC shall publish the petition in at least two only during the campaign period. (Penera vs.
(2) national newspapers of general circulation. COMELEC, G.R. No. 181613, November 25, 2009; R.A.
9369, Poll Automation Law, Sec. 15)
The COMELEC shall, after due notice and hearing,
resolve the petition within fifteen (15) days from the 1. QUALIFICATIONS AND DISQUALIFICATIONS OF
date it was submitted for decision but in no case not CANDIDATES
later than sixty (60) days before election. (R.A 7941,
Sec. 5) Qualifications of Candidates
Groups which cannot be registered as Political I. National level
Parties
A. For President and Vice-President
1. Religious denominations and sects; 1. Natural-born citizen of the Philippines;
2. Those which seek to achieve their goals through 2. At least 40 years old on the day of the
violence or unlawful means; election;
3. Those which refuse to uphold and adhere to the 3. Able to read and write;
Constitution; or 4. Registered voter; and
4. Those supported by foreign governments (1987 5. Resident of the Philippines for at least10
Constitution, Sec. 2(5), Art. IX-C) years immediately preceding the day of the
election. (1987 Constitution, Art. VII, Sections
Refusal and/or Cancellation of Registration 2 & 3)
The COMELEC may, motu propio or upon verified B. For Senator
complaint of any interested party, refuse or cancel, 1. Natural-born citizen of the Philippines;
after due notice and hearing, the registration of any 2. At least 35 years old on the day of the
national, regional or sectoral party, organization or election;
coalition on any of the following grounds: 3. Able to read and write;
4. Registered voter; and
1. It is a religious sect or denomination,
5. Resident of the Philippines for not less than
organization or association, organized for
two years immediately preceding the day of
religious purposes;
the election. (1987 Constitution, Art. VI, Sec.
3)

Political Law
II. Local level Notwithstanding, he frequently visited Uyugan,
Batanes during his vacation from work in Canada.
A. For District Representatives Where is his residence for the purpose of
1. Natural-born citizen of the Philippines; elections?
2. Registered voter in the district in which he
shall be elected; A: CANADA. In Coquilla vs. COMELEC, the SC ruled
3. Resident of the same district for a period not that naturalization in a foreign country may result in
less than one year immediately preceding an abandonment of domicile in the Philippines. This
the day of the election; holds true in Caballero's case as permanent resident
4. Able to read and write; and status in Canada is required for the acquisition of
5. At least 25 years old on the day of the Canadian citizenship. Hence, Caballero had effectively
election. (1987 Constitution, Art. VI, Sec. 6) abandoned his domicile in the Philippines and
transferred his domicile of choice in Canada. His
B. For Governor, Vice Governor, Mayor, Vice-Mayor, frequent visits to Uyugan, Batanes during his vacation
Punong Barangay and Sangguniang Members from work in Canada cannot be considered as waiver
(1994, 2005 BAR) of such abandonment. (Caballero vs. COMELEC, G.R.
No. 209835, September 22, 2015)
1. Citizen of the Philippines;
2. Registered voter in the barangay, Grounds for disqualification (1994, 1999, 2010
municipality, city, or province or, in the case BAR)
of a member of the Sangguniang
Panlalawigan, Sangguniang Panlungsod, or 1. Declared as incompetent or insane by competent
Sangguniang Bayan, the district where he authority;
intends to be elected; 2. Convicted by final judgment for subversion,
3. Resident therein for at least one year insurrection, rebellion, or any offense for which
immediately preceding the day of the he has been sentenced to a penalty of 18 months
election; imprisonment;
4. Able to read and write Filipino or any other 3. Convicted by final judgment for a crime involving
local language or dialect. (R.A. 7160 Local moral turpitude;
Government Code of the Philippines, Sec. 39) 4. Election offenses under Sec. 261 of the OEC;
NOTES: 5. Committing acts of terrorism to enhance
candidacy;
1. Congress may not add to qualifications for 6. Spending in his election campaign an amount in
elective officials provided in the Constitution; and excess of that allowed;
2. Qualifications prescribed by law are continuing 7. Soliciting, receiving, or making prohibited
requirements and must be possessed for the contributions;
duration of the officer’s active tenure. (Frivaldo 8. Not possessing qualifications and possessing
vs. COMELEC, G.R. No. 87193, June 23, 1989) disqualifications under the Local Government
Code;
Purpose of the residency requirement 9. Sentenced by final judgment for an offense
involving moral turpitude or for an offense
The minimum requirement under our Constitution punishable by one year or more of imprisonment
and election laws for the candidates' residency in the within two years after serving sentence;
political unit they seek to represent has never been 10. Removed from office as a result of an
intended to be an empty formalistic condition. It administrative case;
carries with it a very specific purpose: to prevent 11. Convicted by final judgment for violating the oath
“stranger[s] or newcomer[s] unacquainted with the of allegiance to the Republic;
conditions and needs of a community” from seeking 12. Dual citizenship (more specifically, dual
elective offices in that community. (Jalover vs. Osmeña, allegiance);
G.R. No. 209286, September 23, 2014) 13. Fugitives from justice in criminal or non-political
cases here or abroad;
Registered property as residency proof 14. Permanent residents in a foreign country or
those who have acquired the right to reside
The fact that a candidate has no registered property abroad and continue to avail of the same right;
under his name in the locality wherein he seeks to be 15. Insane or feeble-minded;
elected does not belie his actual residence therein 16. Nuisance candidate;
because property ownership is not among the 17. Violation of Sec. 73 OEC with regard to COC; or
qualifications required of candidates for local election. 18. Violation of Sec. 78 on material
It is enough that he should live in the locality, even in misrepresentation in the COC.
a rented house or that of a friend or relative. (Jalover
vs. Osmeña, ibid.) Effect of an unsworn renunciation of foreign
citizenship
Q: Caballero was a natural-born Filipino who had
Uyugan, Batanes as his domicile of origin. He later Failure to renounce foreign citizenship in accordance
worked in Canada and became a Canadian citizen. with the exact tenor of Sec. 5(2) of R.A. 9225 renders a
203
XII. ELECTION LAW
dual citizen ineligible to run for and thus hold any Provisions of the election law on certificates of
elective public office. (Sobejana-Condon vs. COMELEC, candidacy are mandatory in terms. However, after the
G.R. No. 198742, August 10, 2012) elections, they are regarded as directory to give effect
to the will of the electorate. (Saya-Ang, Sr. vs.
Q: Joseph Dimapilis was elected as Punong COMELEC, G.R. No. 155087, November 28, 2003)
Barangay of Brgy. Pulung Maragul in October
2010 and in 2013 he ran for re-election for the Purpose
same position and won. When he filed his COC, he
declared under oath that he is eligible for the 1. To enable the voters to know, at least 60 days
office that he seeks to be elected. A petition for before the regular election, the candidates among
Disqualification was filed against Dimapilis on the whom they have to choose; and
ground that he was barred from running in an 2. To avoid confusion and inconvenience in the
election since he was suffering from the accessory tabulation of the votes cast. (Miranda vs. Abaya,
penalty of perpetual disqualification to hold G.R. No. 136351, July 28, 1999)
public office as a consequence of his dismissal
from service as then Kagawad of Brgy. Pulung Filing COC on the tenure of incumbency
Maragul in an order dated November 10, 2009 by
the Ombudsman. Is Dimapilis barred to run due to 1. As to appointive official – He/she is considered
his misrepresentation he committed in his COC? ipso facto RESIGNED from his office upon the
filing of his COC and such resignation is
A: YES, because of the material misrepresentation and irrevocable. (OEC, Sec. 66) (2002 BAR);
a COC is a formal requirement for eligibility to public 2. As to elective official – It has no effect. The
office. A person intending to run for office must not candidate shall continue to hold office, whether
only possess the required qualifications for the he is running for the same or a different position.
position for which he intends to run but must also (Fair Elections Act, Sec. 14, expressly repealed B.P.
possess none of the grounds for disqualification under 881, Sec. 67)
the law. In this case Dimapilis was found guilty of
Grave Misconduct and its penalty is perpetual Q: Do the deemed-resigned provisions which are
disqualification from holding public office and the applicable to appointive officials and not to
COMELEC has the legal duty to enforce and elective officials violate the equal protection
administer laws relative to the conduct of an election clause of the Constitution?
and under Sec. 78 of the OEC the COMELEC has the
legal duty to cancel the COC of anyone who is A: NO. Substantial distinctions clearly exist between
suffering from the penalty of special disqualification elective officials and appointive officials. The former
to run for public office by virtue of final judgment. occupy their office by virtue of the mandate of the
(Dimapilis vs. COMELEC, G.R. NO. 227158, April 18, electorate. They are elected to an office for a definite
2017) term and may be removed therefrom only upon
stringent conditions. On the other hand, appointive
2. FILING OF CERTIFICATES OF CANDIDACY officials hold their office by virtue of their designation
thereto by an appointing authority. Some appointive
a. EFFECT OF FILING officials hold their office in a permanent capacity and
are entitled to security of tenure while others serve at
No person shall be eligible for any elective public the pleasure of the appointing authority. (Quinto vs.
office unless he files a sworn certificate of candidacy COMELEC, G.R. 189698, December 1, 2009)
within the period fixed herein. (OEC, Sec. 73)
Effect of filing two certificates of candidacy
The certificate of candidacy (COC) shall be filed by the
candidate personally or by his duly authorized It disqualifies the person to run for both elective
representative at any day from the commencement of positions. (OEC, Sec. 73).
the election period but not later than the day before
the beginning of the campaign period. In cases of However, before the expiration of the period for the
postponement or failure of election, no additional filing of COC, the person who has filed more than one
certificate of candidacy shall be accepted except in certificate of candidacy may declare under oath the
cases of substitution of candidates. (OEC,Sec. 75) office for which he desires to be eligible and cancel
the COC for the other office or office/s. A person who
A COC is a candidate’s best evidence of statutory has filed a certificate of candidacy may, prior to
eligibility to be elected for an elective post. It is the election, withdraw the same. The filing of a
document which formally accords upon a person the withdrawal certificate of candidacy shall not affect
status of a candidate. (Tagolino vs. HRET and Lucy whatever civil, criminal, or administrative liabilities as
Torres-Gomez, G.R. No. 202202, March 19. 2013) candidate may have incurred (COMELEC Resolution
8678, Sec. 1).
NOTE: A COC may be amended before the elections,
even after the date of its filing. b. SUBSTITUTION AND WITHDRAWAL OF
CANDIDATES

Political Law
Substitution be validly substituted. (Tagolino vs. HRET and Lucy
Torres-Gomez, G.R. No. 202202, March 19. 2013)
An official candidate of a duly registered political
party or coalition who dies, withdraws, or is Q: James was a candidate for Vice Mayor in the
disqualified for any cause after the last day for the First Order City. His Certificate of Nomination and
filing of COCs may be substituted by a candidate Acceptance (CONA) was signed by his party’s
belonging to, and nominated by, the same political chapter president Lorena. It appears, however,
party or coalition. that his chapter president was not authorized by
their national party leader to sign James’ CONA.
No substitute shall be allowed for any independent So, COMELEC considered him an independent
candidate. candidate instead of being a candidate by his
party. Subsequently, James’ party submitted proof
The substitute for a candidate, who died or is that Romualdez was authorized to sign James’
disqualified by final judgment, may file a COC up to CONA. Few days after filing his COC, James died
mid-day of Election Day; Provided that, the substitute due to a heart attack. Marcelina, James’ wife, filed
and the one being substituted have the same her COC to substitute her deceased husband.
surnames. James, despite his demise, received twice as many
votes as Winston, James’ rival for the position.
If the death or disqualification should occur between Winston then questioned the substitution of
the day before the election and mid-day of Election Marcelina saying that an independent candidate
Day, the substitute candidate may file a COC with any cannot be substituted. COMELEC agreed with
Board of Election Inspectors, Election Officers, Winston. Marcelina sought to reverse COMELEC’s
Provincial Election Supervisor, or Regional Election decision before the SC. Who should the SC favor?
Director, as the case may be, in the political
subdivision where such person is a candidate, or in A: Marcelina. Petitioner’s deceased husband’s name
the case of a candidate for President, Vice-President remained on the ballot notwithstanding his death
or Senator, with the Law Department; Provided that, even before the campaign period for the local
the substitute and the substituted candidate have the elections began on March 29, 2013. Yet, he received
same surnames. (COMELEC Resolution 9984, August almost twice the number of votes as the second
18, 2015) placer, private respondent, in a decisive victory. Since
the people could not have possibly meant to waste
Requisites for valid substitution their votes on a deceased candidate, we conclude that
petitioner was the undisputed choice of the electorate
1. The substitute must belong to the same party or as Vice Mayor on the apparent belief that she may
coalition; and validly substitute her husband. That belief was not
2. The deceased disqualified or withdrawn contradicted by any official or formal ruling by the
candidate must have duly filed a valid COC. COMELEC prior to the elections.
NOTE: The second requisite is a condition sine
The late submission of the authority to sign the CONA
qua non. (Tagolino vs. HRET and Lucy Torres-
to the COMELEC was a mere technicality that cannot
Gomez, G.R. No. 202202, March 19, 2013)
be used to defeat the will of the electorate in a fair and
honest election. Non-compliance with formal
Q: Raphael and Angelo filed their COCs for the requirements laid down in election laws when not
position of Mayor of Lucena City. Angelo filed a used as a means for fraudulent practice will be
petition to disqualify Raphael, alleging that considered a harmless irregularity. Allowing the
Raphael still filed his COC despite knowing that he belated submission of the authority to sign CONAs will
had exceeded the 3-term limit as Mayor of Lucena not result in the situation proscribed by Section 77 of
City. COMELEC First Division disqualified Raphael. the Omnibus Election Code – that an independent
Marian, the wife of Raphael, filed her own COC in candidate will be invalidly substituted. In the case at
substitution of her husband, Raphael. Can Marian bar, neither the COMELEC nor private respondent
validly substitute her husband? contended the deceased was not in fact a bona fide
member of his party. The record is bereft of any
A: NO. A disqualified candidate may only be allegation that the authority was inexistent, forged or
substituted if he had a valid COC in the first place in any way defective. The only issue was that it was
because, if the disqualified candidate did not have a not submitted within the prescribed deadline (Engle
valid and seasonably filed COC, he is and was not a vs. COMELEC, G.R. No. 215995, January 19, 2016).
candidate at all. If a person was not a candidate, he
cannot be substituted under Sec. 77 of the OEC. If we Stray votes
were to allow the so-called "substitute" to file a "new"
and "original" COC beyond the period for the filing In case of valid substitutions after the official ballots
thereof, it would be a crystalline case of unequal have been printed, the votes cast for the substituted
protection of the law. Thus, there was no valid candidates shall be considered as stray votes but shall
candidate for Marian to substitute due to Raphael’s not invalidate the whole ballot. For this purpose, the
ineligibility. The existence of a valid COC is therefore a official ballots shall provide spaces where the voters
condition sine qua non for a disqualified candidate to may write the name of the substitute candidates if
205
XII. ELECTION LAW
they are voting for the latter: Provided, however, that electoral process into mockery by filing certificates of
if the substitute candidate of the same family name, candidacy at the last minute and delaying resolution
this provision shall not apply. [R.A. 9006 (Fair of any petition to declare them as nuisance
Elections Act), Sec. 12] candidates, until elections are held and the votes
counted and canvasses. (Celestino Martinez vs. HRET,
No Candidate, No Substitution G.R. No. 189034, January 11, 2010)
Sec. 77, OEC requires that there be a candidate in Effect of voting a nuisance candidate
order for substitution to take place. Thus, if a person’s
COC had been denied due course to and/or cancelled The votes cast for a nuisance candidate are not stray
under Sec. 78, OEC, he or she cannot be validly but counted in favor of the bona fide candidate. (Dela
substituted in the electoral process. Stated differently, Cruz vs. COMELEC, G.R. No. 192221, November 13,
since there would be no candidate to speak of under a 2012)
denial of due course to and/or cancellation of a COC
case, then there would be no candidate to be Ministerial Duty of Comelec to Receive Certificates
substituted. (Tagolino vs. HRET and Lucy Torres-
Gomez, G.R. No. 202202, March 19. 2013) GR: The COMELEC shall have the ministerial duty to
receive and acknowledge receipt of the COCs;
c. NUISANCE CANDIDATES Provided, that said certificates are under oath and
contain all the required data and in the form
Any registered candidate for the same office may file a prescribed by the Commission. (OEC, Sec. 7; Cerafica
petition to declare a duly registered candidate as a vs. COMELEC, G.R. No. 205136, December 2, 2014)
nuisance candidate, personally or through duly
authorized representative with COMELEC, within five XPNs: COMELEC may go beyond the face of the COC in
days from the last day of filing of COC. [R.A. 6646 (The the following:
Electoral Reforms Law of 1987), Sec. 5]
1. Nuisance candidates (OEC, Sec. 69);
Grounds 2. Petition to deny due course or to cancel a COC
(OEC, Sec. 78); or
The COMELEC may motu proprio or upon verified 3. Filing of a disqualification case on any of the
petition refuse to give due course to or cancel a grounds enumerated in Sec. 68, OEC.
certificate of candidacy if shown that it was filed to:
d. EFFECT OF DISQUALIFICATION OF CERTIFICATE
1. Put the election process in mockery or disrepute; OF CANDIDACY
2. Cause confusion among the voters by the
similarity of the names of the registered Any candidate who has been declared by final
candidates; or judgment to be disqualified shall not be voted for, and
3. Clearly demonstrate that the candidate has no the votes cast for him shall not be counted.
bona fide intention to run for the office for which Nevertheless, if for any reason, a candidate is not
the COC has been filed and thus prevent a faithful declared by final judgment before an election to be
determination of the true will of the electorate. disqualified and he is voted for and receives the
(OEC, Sec. 69) winning number of votes in such election, his
violation of the provisions of the preceding sections
Power of COMELEC shall not prevent his proclamation and assumption to
office. (OEC, Sec. 72)
GN: The COMELEC may, motu proprio or upon verified
petition of an interested party, refuse to give due D. CAMPAIGN
course to or cancel a COC upon showing of the above-
stated circumstances. (OEC, Sec. 69) Election Campaign
XPN: The COMELEC cannot motu proprio deny due Also known as “partisan political activity." This refers
course to or cancel an alleged nuisance candidate’s to an act designed to promote the election or defeat of
certificate of candidacy without providing the a particular candidate or candidates to a public office
candidate his opportunity to be heard. (Timbol vs. which shall include: (F-H-M-Pub-Sol)
COMELEC, G.R. No. 206004, February 24, 2015)
1. Forming organizations, associations, clubs,
Reason for the prohibition of Nuisance Candidates committees or other groups of persons for the
purpose of soliciting votes and/or undertaking
The prohibition against nuisance candidates is aimed any campaign for or against a candidate;
precisely at preventing uncertainty and confusion in 2. Holding political caucuses, conferences, meetings,
ascertaining the true will of the electorate. Thus, in rallies, parades, or other similar assemblies, for
certain situations, final judgments declaring a the purpose of soliciting votes and/or
nuisance candidate should effectively cancel the COC undertaking any campaign or propaganda for or
filed by such candidates as of election day. Otherwise, against a candidate;
potential nuisance candidates will continue to put the

Political Law
3. Making speeches, announcements or the government or any of its divisions,
commentaries, or holding interviews for or subdivisions or instrumentalities, including
against the election of any candidate for public GOCCs
office; 5. Grantees, within 1 year prior to the date of the
4. Publishing or distributing campaign literature or election, of loans or other accommodations in
materials designed to support or oppose the excess of P100,000 by the government or any of
election of any candidate; or its divisions, subdivisions or instrumentalities
5. Directly or indirectly soliciting votes, pledges or including GOCCs
support for or against a candidate. [OEC, Sec. 79 6. Educational institutions which have received
[b]] grants of public funds amounting to no less than
P100,000
1. PREMATURE CAMPAIGNING 7. Officials or employees in the Civil Service, or
members of the Armed Forces of the Philippines
Premature Campaigning 8. Foreigners and foreign corporations, including
foreign governments (Sec. 95 and 96, B.P. Blg.
This means electioneering conducted before the 881)
official campaign period.
3. LAWFUL AND PROHIBITED ELECTION
Premature Campaigning no longer an offense PROPAGANDA
The Court, in granting the motion for reconsideration Lawful Election Propaganda
of Rosalinda Penera, held that, “In line in Sec. 15 of
Republic Act No. 8436, as amended, which provides Lawful election propaganda shall include:
that "any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the 1. Pamphlets, leaflets, cards, decals, stickers or
campaign period," does not mean that the acts other written or printed materials of a size
constituting premature campaigning can only be not more than eight and one-half inches in
committed, for which the offender may be width and fourteen inches in length;
disqualified, during the campaign period. 2. Handwritten or printed letters urging voters
to vote for or against any particular
A candidate is liable for an election offense only for candidate;
acts done during the campaign period, not before. The 3. Cloth, paper or cardboard posters, whether
law is clear as daylight — any election offense that framed or posted, with an area exceeding two
may be committed by a candidate under any election feet by three feet, except that, at the site and
law cannot be committed before the start of the on the occasion of a public meeting or rally, or
campaign period. (Penera vs. COMELEC, G.R. No. in announcing the holding of said meeting or
181613, November 25, 2009) rally, streamers not exceeding three feet by
eight feet in size, shall be allowed: Provided,
2. PROHIBITED CONTRIBUTIONS That said streamers may not be displayed
except one week before the date of the
No contribution for purposes of partisan political meeting or rally and that it shall be removed
activity shall be made directly or indirectly by any of within seventy-two hours after said meeting
the following: or rally; or
4. All other forms of election propaganda not
1. From Public or private financial institutions prohibited by this Code as the Commission
may authorize after due notice to all
XPNs: interested parties and hearing where all the
a. The financial institutions are legally in interested parties were given an equal
the business of lending money; opportunity to be heard: Provided, That the
b. The loan is made in accordance with Commission's authorization shall be
laws and regulations; and published in two newspapers of general
c. The loan is made in the ordinary course circulation throughout the nation for at least
of business. twice within one week after the authorization
has been granted. (OEC, Sec. 82)
2. Natural and juridical persons operating a public
utility or in possession of or exploiting any Prohibited Forms of Election Propaganda
natural resources of the nation.
3. Natural and juridical persons who hold contracts It shall be unlawful:
or sub-contracts to supply the government or any
of its divisions, subdivisions or instrumentalities, 1. To print, publish, post or distribute any poster,
with goods or services or to perform pamphlet, circular, handbill, or printed matter
construction or other works. urging voters to vote for or against any candidate
4. Grantees of franchises, incentives, exemptions, unless they bear the names and addresses of the
allocations or similar privileges or concessions by
207
XII. ELECTION LAW
printer and payor as required in Section 84 day of the election, file in duplicate with the offices of
hereof; the Commission.
2. To erect, put up, make use of, attach, float or
display any billboard, tinplate-poster, balloons GR: No person elected to any public offices shall enter
and the like, of whatever size, shape, form or upon the duties of his office until he has filed the
kind, advertising for or against any candidate or statement of contributions and expenditures herein
political party; required. The same prohibition shall apply if the
political party which nominated the winning
3. To purchase, manufacture, request, distribute or candidate fails to file the statement required.
accept electoral propaganda gadgets, such as
pens, lighters, fans of whatever nature,
XPN: Candidates for elective barangay office who
flashlights, athletic goods or materials, wallets,
failed to file its SOCE will only be charged for
shirts, hats, bandanas, matches, cigarettes and administrative offense wherein offenders shall be
the like, except that campaign supporters
liable to pay an administrative fine ranging from One
accompanying a candidate shall be allowed to
thousand pesos (P1,000.00) to Thirty thousand pesos
wear hats and/or shirts or T-shirts advertising a
(P30,000.00), in the discretion of the Commission.
candidate; (R.A. 7166, Sec. 14)
4. To show or display publicly any advertisement or
propaganda for or against any candidate by E. BOARD OF ELECTION INSPECTORS AND BOARD
means of cinematography, audio-visual units or OF CANVASSERS
other screen projections except telecasts which
may be allowed as hereinafter provided; and Composition:
5. For any radio broadcasting or television station
to sell or give free of charge airtime for campaign 1. Chairman
and other political purposes except as authorized 2. Poll clerk
in this Code under the rules and regulations 3. Two members – each representing two
promulgated by the Commission pursuant accredited political parties
thereto.
NOTE: 1 and 2 must be public school teachers,
priority to be given to civil service eligible. (OEC, Sec.
NOTE: Any prohibited election propaganda gadget or
164)
advertisement shall be stopped, confiscated or torn
down by the representative of the Commission upon
Powers:
specific authority of the Commission. (OEC, Sec. 85)
1. Conduct the voting and counting of votes in their
4. LIMITATIONS ON EXPENSES
respective polling places;
2. Act as deputies of the Commission in the
For Candidates:
supervision and control of the election in the
polling places wherein they are assigned, to
1. President and Vice President – Ten pesos
assure the holding of the same in a free, orderly
(P10.00) and honest manner; and
2. Other candidates – Three Pesos (P3.00) 3. Perform such other functions prescribed by this
3. A candidate without any political party and Code or by the rules and regulations promulgated
without support from any political party - Five by the Commission. (OEC, Sec. 168)
Pesos (P5.00).
Board of canvassers
NOTE: For, other candidates, every voter currently
There shall be a Board of Canvassers each
registered in the constituency where he filed his
municipality, city, province and legislative district in
certificate of candidacy.
Metro Manila. (COMELEC Resolution 3848, Sec. 1)
For Political Parties: Five pesos (P5.00) for every
1. COMPOSITION
voter currently registered in the constituency or
constituencies where it has official candidates. (R.A.
7166, Sec. 13) Composition of the Board of Canvassers (BOC)
Municipal BOC
5. STATEMENT OF CONTRIBUTIONS AND
EXPENDITURES (SOCE)
1. Election Officer or representative of COMELEC –
Statement of Contributions and Expenditures Chairman;
(SOCE) 2. Municipal Treasurer – Vice-chairman; and
3. District School Supervisor, or in his absence, the
It is a full, true and itemized statement of all most senior Principal of the school district –
contributions and expenditures in connection with Member. (COMELEC Resolution 3848, Sec. 3)
the election. Every candidate and treasurer of the
political party shall, within thirty (30) days after the

Political Law
City BOC due notice and hearing, not later than 15 days before
the election.
1. City Election Supervisor or a lawyer of the
COMELEC – Chairman; In addition, the COMELEC may motu proprio or upon
2. City Prosecutor – Vice-Chairman; and verified petition refuse to give due course to or cancel
a COC if show that it was filed: (Put-Ca-No)
3. Division Superintendent of Schools – Member
1. Put the election process in mockery or disrepute;
In cities with more than one Election Officer, the 2. Cause confusion among the voters by the
COMELECE shall designate which Election Officer to similarity of the names of the registered
act as Chairman. (COMELEC Resolution 3848, Sec. 4) candidates; or
3. Clearly demonstrate that the candidate has no
Provincial BOC bona fide intention to run for the office for which
the COC has been filed and thus prevent a faithful
1. Provincial Election Supervisor or a lawyer of the determination of the true will of the electorate.
COMELEC – Chairman; (OEC, Sec. 69)
2. Provincial Prosecutor – Vice-Chairman; and
3. Division Superintendent of Schools – Member. 2. PETITION FOR DISQUALIFICATION
(COMELEC Resolution 3848, Sec. 5)
It is the remedy against any candidate who does not
District BOC for the Legislative Districts of Metro possess all the qualifications required by the
Manila Constitution or law, or who commits any act declared
by law to be grounds for disqualification. (COMELEC
1. Lawyer of the COMELEC – Chairman; Rules of Procedure, Rule 25, Sec. 1)
2. A ranking Prosecutor in the district to be
appointed by the COMELEC in consultation with Time of filing the petition for disqualification
the Secretary of the Department of Justice – Vice-
Chairman; and The petition for disqualification may be filed any day
3. Most senior District School Supervisor in the after the last day for filing of certificates of candidacy,
district to be appointed by the COMELEC in but not later than the date of proclamation. (COMELEC
consultation with Secretary of the Department of Rules of Procedure, Rule 25, Sec. 3)
Education – Member. (COMELEC Resolution 3848,
Sec. 6) Nature of the proceedings
2. POWERS The petition is heard summarily. (COMELEC Rules of

Procedure, Rule 25, Sec. 4) However, the COMELEC
Powers of the Board cannot disqualify a candidate without hearing and
affording him opportunity to adduce evidence to
The Board shall have full authority to keep order support his side and taking into account such
within the canvassing room or hall including its evidence.
premises and enforce obedience to its lawful orders. If
any person shall refuse to obey any lawful order of the Final and executory judgment
Board or shall conduct himself in such disorderly
manner as to disturb or interrupt its proceedings, the A decision or resolution is deemed final and executory
Board may order in writing a peace officer/soldier to if, in case of a division ruling, no motion for
take such person into custody until adjournment of reconsideration is filed within the reglementary
the meeting. In the absence of any peace officer, any period, or in cases of rulings of the Commission en
other competent and able person deputized by the banc, no restraining order is issued by the Supreme
Board in writing, may execute such order. (COMELEC Court within five days from receipt of the decision or
Resolution 3848, Sec. 17) resolution. (2013 COMELEC Rules of Procedure, Rule
23, Sec. 8, as amended by COMELEC Resolution No.
F. REMEDIES AND JURISDICTION IN ELECTION 9523)
LAW
Grounds for disqualification
1. PETITION NOT TO GIVE DUE COURSE TO OR
CANCEL A CERTIFICATE OF CANDIDACY 1. Any person who has been declared by competent
authority insane or incompetent, or has been
A verified petition seeking to deny due course to a sentenced by final judgment for subversion,
certificate of candidacy may be filed by any person insurrection, rebellion, or for any offense for
exclusively on the ground that material which he has been sentenced to a penalty of more
representation contained therein as required is false. than 18 months or for a crime involving moral
turpitude (OEC, Sec. 12);
The petition may be filed not later than 25 days from
the time of filing of the COC, and shall be decided, after
209
XII. ELECTION LAW
2. Any candidate who, in action or protest in which 5. Submission of recommendation to Commission en
he is a party, is declared by final decision guilty of banc – The Law Department shall terminate the
or found by COMELEC of having: preliminary investigation within 30 days from
receipt of the referral and shall submit its study,
a. Given money or other material report and recommendation to the Commission
consideration to influence, induce or corrupt en banc within five days from the conclusion of
the voters of public officials performing the preliminary investigation. If it makes a prima
electoral functions; facie finding of guilt, it shall submit with such
b. Committed acts of terrorism to enhance his study the Information for filing with the
candidacy; appropriate court.
c. Spent in his election campaign an amount in
excess of the allowed; Remedy if petition for disqualification is
d. Solicited, received or made any contribution unresolved on election day
prohibited under the Omnibus Election
Code; and The petitioner may file a motion with the division or
e. Violated any of Sections 80, 83, 85, 86 and Commission en banc where the case is pending, to
261, paragraphs d, e, k, v, and cc, suspend the proclamation of the candidate concerned,
subparagraph 6. (OEC, Sec. 68) provided that the evidence for the grounds to
disqualify is strong. For this purpose, at least three
3. Any person who is a permanent resident of or an days prior to any election, the Clerk of the
immigrant to a foreign country, unless said Commission shall prepare a list of pending cases and
person has waived his status as permanent furnish all Commissioners copies of said the list.
resident or immigrant of a foreign country. (OEC,
Sec. 68) If a candidate with an existing and pending petition to
disqualify is proclaimed winner, the Commission shall
NOTE: R.A. 9225 expressly provides for the continue to resolve the said petition. (COMELEC Rules
conditions before those who re-acquired Filipino of Procedure, Rule 25, Sec. 5, as amended by COMELEC
citizenship may run for a public office in the Resolution 9523, September 25, 2012).
Philippines.
Petition to deny due course to or cancel COC vs.
(See earlier discussion on the grounds for petition for disqualification
disqualification under Candidacy for a longer list.)
PETITION TO DENY
PETITION FOR
Rules on disqualification cases DUE COURSE TO OR
DISQUALIFICATION
CANCEL COC
1. Complaint filed before election – The Commission Based on a statement of Premised on Sec. 12 of
shall determine whether the acts complained of a material OEC, or Sec. 40 of the LGC.
have in fact been committed. If so, the COMELEC representation in the
shall order the disqualification of the respondent said certificate that is
candidate. false.
The person whose A person who is
2. Complaint not resolved before election – COMELEC certificate is cancelled or disqualified under Sec. 68
may motu propio or on motion of any of the denied due course under is merely prohibited to
parties refer the complaint to the Law Sec. 78 is not treated as a continue as a candidate.
Department of the Commission. candidate at all, as if he
never filed a COC.
3. Complaint filed after election and proclamation of A person whose COC has A candidate who is
winner – The complaint shall be dismissed. been denied due course disqualified under Sec. 68
or cancelled under Sec. can be validly substituted
NOTE: The complaint shall be referred for 78 cannot be substituted under Sec. 77 of the OEC
preliminary investigation to the Law Department. because he is never because he remains a
considered as candidate. candidate until
4. Complaint filed after election but before disqualified.
proclamation of winner – The complaint shall be
dismissed. 3. FAILURE OF ELECTION, CALL OF SPECIAL
ELECTION
NOTE: The complaint shall be referred for
preliminary investigation to the Law Department. Grounds for failure of elections
If the Law Department makes a prima facie
finding of guilt and the corresponding Failure of elections may be declared in the following
information has been filed with the trial court, cases:
the complainant may file a petition for
suspension of the proclamation of the 1. The election in any polling place has not been
respondent. held on the date fixed on account of force

Political Law
majeure, violence, terrorism, fraud, or other 1. Verified petition by 1. Verified petition by
analogous causes; any interested any interested person
2. The election in any polling place had been person or motu proprio by
suspended before the hour fixed by law for the 2. Due Notice; and COMELEC en banc
closing of the voting on account of force majeure, 3. Hearing. 2. Due notice; and
violence, terrorism, fraud, or other analogous 3. Hearing.
causes; and
3. After the voting and during the preparation and
transmission of the election returns or canvass As to effects
thereof such election results in failure to elect on
account of force majeure, violence, terrorism, 1. Declaration of 1. Election is
fraud or analogous causes. (Banaga, Jr. vs. Failure of elections; postponed; and
COMELEC, G.R. No. 134696, July 31, 2000) and 2. Conduct elections
2. Holding of reasonably close to
NOTE: There is failure of elections only when the will continuation of elections not held,
of the electorate has been muted and cannot be elections reasonably but not later than 30
ascertained. (Benito vs. COMELEC, G.R. No. 134913, Jan. close to election not days from cessation
19, 2001) held, but not later of cause.
than 30 days from
Requisites for declaration of failure of elections cessation of cause.
The following requisites must concur: Q: Ted and Barney both ran for the position of
representative of the first district of Northern
1. No voting has taken place in the precincts Samar. Ted won while Barney placed second.
concerned on the date fixed by law, or even if Barney filed an election protest before the HRET
there was voting, the election nonetheless against Ted, alleging terrorism committed by the
resulted in a failure to elect; and supporters of Ted before, during, and after the
2. The votes cast would affect the results of the elections. Barney prayed for the annulment of
election. Ted’s election. Ted argued that HRET has no
jurisdiction over the protest on the premise that
Power to declare a failure of election annulment of election returns on the ground of
terrorism is akin to a declaration of failure of
The COMELEC en banc has the original and exclusive elections which is under the exclusive jurisdiction
jurisdiction to hear and decide petitions for of COMELEC. Is Ted correct?
declaration of failure of election or for annulment of
election results. (R.A. 7166, Sec. 4) A: NO. The power of the HRET to annul elections
differs from the power granted to the COMELEC to
Failure of Elections vs. Postponement of Elections declare failure of elections. The Constitution no less,
grants the HRET with exclusive jurisdiction to decide
FAILURE OF POSTPONEMENT OF all election contests involving the members of the
ELECTIONS ELECTIONS House of Representatives, which necessarily includes
As to cause those which raise the issue of fraud, terrorism or
Any serious cause of: other irregularities committed before, during or
after the elections. To deprive the HRET the
a. Force Majeure prerogative to annul elections would undermine its
b. Violence constitutional fiat to decide election contests. The
c. Terrorism phrase “election, returns and qualifications” should be
d. Loss or destruction of election paraphernalia interpreted in its totality as referring to all matters
e. Other analogous cases affecting the validity of the contestee's title.
Consequently, the annulment of election results is but
As to Definition a power concomitant to the HRET's constitutional
mandate to determine the validity of the contestee's
Failure to elect and Serious impossibility to title. (Abayon vs. HRET, G.R. No. 223032, May 3, 2016)
affect results of have free and orderly
elections. elections. 4. PRE-PROCLAMATION CONTROVERSY
As to when the grounds must exist
Pre-proclamation controversy refers to any question
Grounds may occur any Grounds must exist
pertaining to or affecting the proceedings of the BOC,
time before before voting.
which may be raised by any candidate or by any
proclamation.
registered political party or coalition of political
As to procedure parties, or by any accredited and participating party
list group, before the Board or directly with the
COMELEC. (COMELEC Resolution No. 8804, Rule 3, Sec.
1)
211
XII. ELECTION LAW
Purpose b. Questions affecting the composition or
proceedings of the BOC (COMELEC Res. No.
To ascertain winners in the elections on basis of 8804, March 22, 2010,Rule 3,Sec. 1); and
election returns duly authenticated by the board of
inspectors and admitted by the BOC. (Abella vs. NOTE: However, this does not preclude the
Larrazabal, G.R. No. 87721-30, December 21, 1989) authority of the appropriate canvassing
body, motu proprio or upon written
Q: Sao was an official candidate for Municipal complaint of an interested person, to correct
Mayor. Que ran for the same position. Sao alleged manifest errors in the certificate of canvass
to have witnessed an anomalous activity that or election before it. (R.A. 9369, Sec. 38)
affected the integrity of several election returns
(ER). During the canvassing, Sao sought for the c. Determination of the authenticity and due
exclusion of the contested ERs on the grounds of execution of certificates of canvass as
massive fraud, illegal proceedings, provided in Sec. 30 of R.A. 7166, as amended
tampered/falsified and obviously manufactured by R.A. 9369.
returns. He alleged that the oral objections were
timely made, and the written petition for Petition 2. No pre-proclamation cases are allowed in case of
for Exclusion was filed with the Municipal Board barangay election. (R.A. 6679, Sec. 9)
of Canvassers (MBOC). Were the allegations raised
by Sao on the contested ERs proper in a pre- Issues that may be raised (1996 BAR)
proclamation controversy?
1. Illegal composition or proceedings of the board
A: NO. The unsubstantiated issues raised by Sao were of election canvassers;
not proper for a pre-proclamation controversy. Pre- 2. Canvassed election returns are either:
proclamation controversy is summary in character a. Incomplete;
which must be promptly decided. Hence, the BOC will b. Contain material defects;
not investigate allegations of irregularity that are not c. Appear to be tampered with or falsified; or
apparent on the face of ERs that appear otherwise d. Contain discrepancies in the same returns
authentic and duly accomplished. The Court found or in authentic copies;
that there is absolutely no indication that the
contested ERs were falsified or tampered with. Claims 3. The election returns were:
that contested ERs are obviously manufactured or a. Prepared under duress, threats, coercion,
falsified must be evident from the face of the said intimidation; or
documents. As such, there was no valid ground to b. Obviously manufactured or not authentic;
delay the proclamation, since the unsubstantiated
issued raised by Sao were not proper for a pre- 4. Substituted or fraudulent returns in controverted
proclamation controversy. (Sao vs. COMELEC, G.R. No. polling places were canvassed, the results of
182221, February 2, 2010) which materially affected the standing of the
aggrieved candidate(s); or
Jurisdiction 5. Manifest errors in the Certificates of Canvass or
Election Returns. (R.A. 7166, Sec. 15; Chavez vs.
COMELEC has exclusive jurisdiction over pre- COMELEC, G.R. No. 16277, August 31, 2004)
proclamation cases. It may order, motu proprio or
upon written petition, and after due notice and NOTE: The enumeration is restrictive and exclusive.
hearing the partial or total suspension of the (Suhuri vs. COMELEC, G.R. No. 181869, October 2, 2009)
proclamation of any candidate-elect or annul partially
or totally any proclamation, if one has been made, as Issues that cannot be raised
the evidence shall warrant. (OEC, Sec. 242)
1. Appreciation of ballots, as this is performed by
Nature and execution of judgment the BEI at the precinct level and is not part of the
proceedings of the BOC (Sanchez vs. COMELEC,
It shall be heard summarily by the COMELEC. Its G.R. No. 78461, August 12, 1987);
decision shall be executory after five days from
receipt by the losing party, unless otherwise ordered. 2. Technical examination of the signatures and
thumb marks of voters (Matalam vs. COMELEC,
When a pre-proclamation controversy not G.R. No. 123230, April 18, 1997);
allowed (2008 BAR) 3. Prayer for re-opening of ballot boxes (Alfonso vs.
COMELEC, G.R. No. 107847, June 2, 1994);
1. For the positions of President, Vice President, 4. That the padding of the List of Voters may
Senator and Member of House of Representatives constitute fraud, or that the BEI may have
(R.A. 7166, Sec. 15); and fraudulently conspired in its preparation; vote-
buying and terrorism (Ututalum vs. COMELEC,
XPNs: G.R. No. 84843-44, January 22, 1990);
a. Correction of manifest errors;

Political Law
5. Challenges directed against the BEI (Ututalum vs. candidate is about to be, or has already been
COMELEC, G.R. No. 84843-44, January 22, proclaimed on the basis thereof.
1990); and
6. Fraud, terrorism and other illegal electoral The COMELEC is required to hear the petition
practices. These are properly within the office of immediately and the ballots may be ordered to be
election contests over which electoral tribunals manually recounted to verify the manifest errors or
have sole, exclusive jurisdiction. (Loong vs. alleged variance.
COMELEC, G.R. No. 93986, December 22, 1992)
NOTE: The filing of a petition to annul or suspend the
Effect of filing of pre-proclamation controversy proclamation shall suspend the running of the period
within which to file an election protest or quo
1. The period to file an election contest shall be warranto proceedings.
suspended during the pendency of the pre-
proclamation contest in the COMELEC or the 5. ELECTION PROTEST
Supreme Court;
2. The right of the prevailing party in the pre- Post-election disputes
proclamation contest to the execution of
COMELEC’s decision does not bar the losing party These are disputes which arise or are instituted after
from filing an election contest; and proclamation of winning candidates and which issues
3. Despite the pendency of a pre-proclamation pertain to the casting and counting of votes (election
contest, the COMELEC may order the protests), or to the eligibility or disloyalty of the
proclamation of other winning candidates whose winning candidates (quo warranto).
election will not be affected by the outcome of the
controversy. Nature and purpose of an election contest
Termination of pre-proclamation cases It is a special summary proceeding the object of which
is to expedite the settlement of controversies between
GR: Pre-proclamation cases are terminated at the candidates as to who received the majority of legal
beginning of term of the officers. (R.A. 7166, Sec. 16) votes.
XPNs: NOTE: Statutes providing for election contests are to
be liberally construed to the end that the will of the
1. When based on evidence, COMELEC determines people in the choice of public officers may not be
that petition is meritorious; defeated by mere technical objections. It is imperative
2. The SC in a petition for certiorari issues a that his claim be immediately cleared not only for the
contrary order; or benefit of the winner but for the sake of public
3. The case is not a pre-proclamation case. interest, which can only be achieved by brushing aside
(Peñaflorida vs. COMELEC, G.R. No. 125950, technicalities of procedure which protract and delay
November 18, 1997) the trial of an ordinary action. (Vialogo vs. COMELEC,
G.R. No. 194143, October 4, 2011)
Q: Is the COMELEC precluded from exercising
powers over pre proclamation controversies Where election protests can be filed
when the Electoral Tribunal acquires jurisdiction?
1. COMELEC – The sole judge of all contests relating
A: GR: YES. COMELEC is precluded from exercising to elections, returns, and qualifications of all
powers over pre-proclamation controversies when elective regional, provincial and city officials
the Electoral Tribunal acquires jurisdiction. (reviewable by SC under Rule 64 using Rule 65);
XPNs: NOTE: Decisions of COMELEC en banc are
1. BOC was improperly constituted; appealable to SC (2001 BAR)
2. Proclamation was null and void;
3. Quo warranto is not the proper remedy; 2. Presidential Electoral Tribunal (PET) – Against
4. What was filed was a petition to annul a the President and Vice President;
proclamation, and not a quo warranto or election 3. SET – Against a senator;
protest; and 4. HRET –Against a representative;
5. Election contest expressly made without 5. RTC – Over contests for municipal officials which
prejudice to pre-proclamation controversy or it may be appealed to COMELEC; and
was made ad cautelam. 6. MeTC or MTC – For barangay officials which may
be appealed to COMELEC.
Petition to annul or suspend the proclamation
Grounds for the filing of election protests (F-Vo-T-
It is a remedy where there is a manifest error on the Pre-M-Un-D-O)
face of the transmitted returns or variance of results
from the election returns and COC, and a winning 1. Fraud;
2. Vote-buying;
213
XII. ELECTION LAW
3. Terrorism; 1. That public interest is involved or the will of the
4. Presence of flying voters; electorate;
5. Misreading or misappreciation of ballots; 2. The shortness of the remaining portion of the
6. Disenfranchisement of voters; term of the contested office; or
7. Unqualified members of board of election 3. The length of time that the election contest has
inspector; and been pending. (Ramas vs. COMELEC, G.R. No.
8. Other election irregularities. 130831. February 10, 1998)
NOTE: Pendency of election protest is not a sufficient NOTE: If instead of issuing a preliminary injunction in
basis to enjoin the protestee from assuming office. place of a TRO, a court opts to decide the case on its
merits with the result that it also enjoins the same
Content of an election protest acts covered by its TRO, it stands to reason that the
decision amounts to a grant of preliminary injunction.
It must be initiated by filing a protest that must Such injunction should be deemed in force pending
contain the following allegations: any appeal from the decision. The view that execution
pending appeal should still continue notwithstanding
1. The protestant is a candidate who duly filed a a decision of the higher court enjoining such
COC and was voted for in the election; execution—does not make sense. It will render quite
2. The protestee has been proclaimed; and inutile the proceedings before such court. (Panlilio vs.
3. The petition was filed within 10 days after the COMELEC, G.R. No. 184286, February 26, 2010)
proclamation. (Miro vs. COMELEC, G.R. No. L-
57574, April 20, 1983) Best pieces of evidence in an election contest
Effect if the protestant accepts a permanent 1. Ballots are the best and most conclusive evidence
appointment in an election contest where the correctness of
the number of votes of each candidate is involved
Acceptance of a permanent appointment to a regular (Delos Reyes vs. COMELEC, G.R. No. 170070,
office during the pendency of his protest is an February 28, 2007); and
abandonment of the electoral protest. The same is 2. Election returns are the best evidence when the
true if a protestant voluntarily sought election to an ballots are lost, destroyed, tampered or fake.
office whose term would extend beyond the expiry
date of the term of the contested office, and after Right to withdraw
winning the said election, took her oath and assumed
office and there after continuously serves it. The A protestant has the right to withdraw his protest or
reason for this is that the dismissal of the protest drop polling places from his protest. The protestee, in
would serve public interest as it would dissipate the such cases, has no cause to complain because the
aura of uncertainty as to the results of the presidential withdrawal is the exclusive prerogative of the
election, thereby enhancing the all-to crucial political protestant.
stability of the nation during this period of national
recovery. (Santiago vs. Ramos, P.E.T. Case No. 001, 6. QUO WARRANTO
February 13, 1996)
Quo warranto proceeding for an elective office
In assuming the office of Senator, one has effectively
abandoned or withdrawn this protest. Such Quo warranto refers to an election contest relating to
abandonment or withdrawal operates to render moot the qualifications of an elective official on the ground
the instant protest. Moreover, the dismissal of this of (1) ineligibility or (2) disloyalty to the Republic
protest would serve public interest as it would of the Philippines. The issue is whether respondent
dissipate the aura of uncertainty as to the results of possesses all the qualifications and none of the
the election. (Legarda vs. De Castro, PET case no. 003, disqualifications prescribed by law. (A.M. No. 07-4-15-
January 18, 2008) SC, May 15, 2007)
Requisites for an execution pending appeal in Jurisdiction
election protest cases
WHERE TO GOVERNMENT POSITIONS
1. It must be upon motion by the prevailing party
FILE
with notice to the adverse party;
Appropriate Congressman-elect, Senator-elect,
2. There must be “good reasons” for the said
electoral President-elect and VP-elect
execution; and
tribunals
3. The order granting the said execution must state
created by the
the good reasons. (Navarosa vs. COMELEC, G.R.
Constitution.
No. 157957, September 18, 2003)
Regional, provincial or city officials
“Good reasons” COMELEC
A combination of two or more of the following:

Political Law
Municipal officials and barangay A: NO. The Court has invariably held that once a
officials winning candidate has been proclaimed, taken his
MTCs oath, and assumed office as a Member of the HOR, the
COMELEC's jurisdiction over election contests relating
to his election, returns, and qualifications ends, and
the HRET's own jurisdiction begins. Here, Jeninah, the
Election protest vs. Quo warranto case under the
winning candidate cannot be considered a Member of
OEC (2001, 2006 BAR)
the HOR because, primarily, he has not yet assumed
office. To repeat what has earlier been said, the term
BASI ELECTION QUO WARRANTO
of office of a Member of the HOR begins only “at noon
S PROTEST (2009 BAR)
on the 30th day of June next following their election.”
By a losing By any voter who is a
Thus, until such time, the COMELEC retains
candidate for the registered voter in
jurisdiction. (Reyes vs. COMELEC, G.R. No. 207264, June
Who same office for the constituency
25, 2013)
may which the winner where the winning
file filed his COC. candidate sought to
be disqualified ran for XIII. LOCAL GOVERNMENTS
office.
Who received the Whether the A. AUTONOMOUS REGIONS AND THEIR RELATION
majority or plurality candidate who was TO THE NATIONAL GOVERNMENT
of the votes which proclaimed and
were legally cast? elected should be
Autonomous Regions
Issue disqualified because
/s Whether there were of ineligibility or
Provinces, cities, municipalities, and geographical
irregularities in the disloyalty to the
areas sharing common and distinctive historical and
conduct of the Philippines.
cultural heritage, economic and social structures, and
election which
other relevant characteristics. (Sec. 15, Art. X, 1987
affected its results.
Constitution)
Effect of filing an election protest or a petition for Autonomous region is a form of local government
quo warranto
The inclusion of autonomous regions in the
Generally, it bars the subsequent filing of a pre- enumeration of political subdivisions of the State
proclamation controversy or a petition to annul under the heading "Local Government" indicates quite
proclamation. It also amounts to the abandonment of clearly the constitutional intent to consider
one filed earlier, thus, depriving the COMELEC of the autonomous regions as one of the forms of local
authority to inquire into and pass upon the title of the governments. (Kida vs. Senate, G.R. No. 196271,
protestee or the validity of his proclamation. Once the February 28, 2012)
competent tribunal has acquired jurisdiction over an
election protest or a petition for quo warranto, all Constitution mandates the creation of
questions relative thereto will have to be decided in autonomous regions only in Muslim Mindanao
the case itself and not in another proceeding. and Cordilleras
(Villamor vs. COMELEC, G.R. No. 169865, July 21, 2006)
There shall be created autonomous regions in Muslim
Q: In March 2013, COMELEC First Division issued a Mindanao and in the Cordilleras within the
resolution cancelling Jeninah’s COC on the ground framework of the Constitution and the national
that she is not a citizen of the Philippines because sovereignty as well as territorial integrity of the
of her failure to comply with the requirements of Republic of the Philippines. (Sec. 15, Art. X, 1987
the Citizenship Retention and Re-acquisition Act Constitution)
of 2003. On April 8, 2013, Jeninah filed an MR
claiming that she is a natural-born Filipino citizen, The Congress shall enact an organic act for each
but it was denied by COMELEC on May 14 for lack autonomous region. The organic act shall define the
of merit and declared it final and executory. basic structure of government for the region
Jeninah, however, was proclaimed the winner of consisting of the executive department and legislative
the May 2013 elections, and took her oath of office assembly, both of which shall be elective and
but is yet to assume office on June 30, 2013. representative of the constituent political units. The
Jeninah contends that COMELEC lost jurisdiction organic acts shall likewise provide for special courts
pursuant to Sec. 17, Art. 6 of the 1897 Constitution with personal, family, and property law jurisdiction
which states that HRET has the exclusive consistent with the provisions of this Constitution and
jurisdiction to be the “sole judge of all contests national laws. (Sec. 18, Art. X, 1987 Constitution)
relating to the election, returns and
qualifications” of the Members of the HOR. Is the NOTE: As of now (2019), there is only one
contention of Jeninah correct? autonomous region created -- the Autonomous Region
in Muslim Mindanao (ARMM). Several attempts have
215
XIII. LOCAL GOVERNMENTS
been made in the Cordilleras to create an autonomous Within its territorial jurisdiction and subject to the
region but has repeatedly failed. provisions of this Constitution and national laws, the
organic act of autonomous regions shall provide for
The sole province of Ifugao cannot validly and legally legislative powers over:
constitute the Cordillera Autonomous Region. Article
II, Sections 1 and 2 of R.A. 6766 provides that 1. Administrative organization;
Cordillera Autonomous Region is to be administered 2. Creation of sources of revenues;
by the Cordillera government consisting of the 3. Ancestral domain and natural resources;
Regional Government and local government unit. It 4. Personal, family, and property relations;
can be gleaned that Congress never intended that a 5. Regional urban and rural planning development;
single province may constitute the autonomous 6. Economic, social, and tourism development;
region. Otherwise, we would be faced with the absurd 7. Educational policies;
situation of having two sets of officials, a set of 8. Preservation and development of the cultural
provincial officials and another set of regional officials heritage; and
exercising their executive and legislative powers over 9. Such other matters as may be authorized by law
exactly the same small area. (Ordillo vs. COMELEC, G.R. for the promotion of the general welfare of the
No. 93054, December 4, 1990) people of the region. (Sec. 20, Art. X, 1987
Constitution)
Organic Law for the Bangsamoro Autonomous
Region in Muslim Mindanao (R.A. 11054) Local police responsible for peace and order but
national government responsible for defense and
R.A. No. 11054 abolished ARMM and placed instead security
the Bangsamoro Autonomous Region in Muslim
Mindanao (BARMM). It also created the Bangsamoro The preservation of peace and order within the
Government which has exclusive powers over some regions shall be the responsibility of the local police
matters including budgeting, administration of justice, agencies which shall be organized, maintained,
agriculture, disaster risk reduction and management, supervised, and utilized in accordance with applicable
ancestral domains, human rights, local government laws. The defense and security of the regions shall be
units, public works, social services, tourism, and trade the responsibility of the National Government. (Sec.
and industry. 21, Art. X, 1987 Constitution)
In relation to the National Government, Section 1, B. PUBLIC CORPORATIONS

Article V of R.A. No. 11054 states that “all powers,
functions, and responsibilities not granted by the
Constitution or by national law to the Bangsamoro Concept
Government shall be vested in the National
It is one that is created by the State, either by general
Government.”
or special act, for purpose of administration of local
government or rendering service for public interest.
Also, Section 1, Article VI thereof provides that the
President shall exercise general supervision over the
NOTE: The mere fact that a corporation has been
Bangsamoro Government to ensure that laws are
created by a special law does not necessarily qualify it
faithfully executed. The President may suspend the
as a public corporation. (Philippine Society for the
Chief Minister for a period not exceeding six (6)
Prevention of Cruelty to Animals vs. Commission on
months for willful violation of the Constitution,
Audit, G.R. No. 169752, September 25, 2007)
national laws, or this Organic Law.
1. PUBLIC CORPORATIONS DISTINGUISHED FROM
On the aspect of intergovernmental relations, an
GOVERNMENT-OWNED OR CONTROLLED
intergovernmental relations body was created to CORPORATIONS
coordinate and resolve issues on intergovernmental
relations through regular consultation and continuing Government-Owned or Controlled Corporations
negotiation in a non-adversarial manner. (GOCCS)
President exercises general supervision GOCCs refers to any agency organized as a stock or
nonstock corporation, vested with2 functions relating
The President shall exercise general supervision over to public needs whether governmental or proprietary
autonomous regions to ensure that the laws are in nature, and owned by the Government of the
faithfully executed. (Sec. 16, Art. X, 1987 Constitution) Republic of the Philippines directly through its
instrumentalities either wholly or, where applicable
Limitation of powers and functions of autonomous as in the case of stock corporations, to the extent of at
regions least 51% of its capital stock. (Section 2(13), Executive
Order No. 292)
All powers, functions, and responsibilities not granted
by the Constitution or by law to the autonomous Public corporations vs. GOCCs
regions shall be vested in the National Government.
(Sec. 17, Art. X, 1987 Constitution) BASIS PUBLIC GOCCs

Political Law
CORPORATIONS relationship to the

By the State, By Congress or by government or
Who creates either by general incorporators any of its
act or special act departments or
By legislation By special offices. (Boy
charters specific Scouts of the
How Philippines v. COA,
to each GOCC or
created G.R. 177131, June
under the
Corporation Code 7, 2011)
Formed and Owned by the
organized for the government 2. CLASSIFICATIONS OF PUBLIC CORPORATIONS
government of a directly or
portion of the through its a. QUASI-CORPORATIONS
Ownership State instrumentalities
either wholly, or Quasi-corporations are private corporations that
the extent of at render public service, supply public wants and pursue
least 51% of its other exemplary objectives. The fact that a private
capital stock corporation is impressed with public interest does not
Political Organized either make the entity a public corporation.
subdivisions of as stock or non-
the State which stock The true criterion whether a corporation is public or
possess corporations private is found in the totality of the relation of the
substantial corporate to the State. It is public if it is created by the
control over their Vested by law latter’s own agency or instrumentality, otherwise, it is
own affairs with a legal private. (Philippine Society for the Prevention of
personality Cruelty to Animals vs. Commission on Audit, G.R. No.
They are separate and 169752, September 25, 2007)
Nature and autonomous in distinct from
Status the sense that those acting for NOTE: Water districts are not really corporations.
they are given and, in their They have no incorporators, stockholders, or
more powers, behalf, and, in members, who have the right to vote for directors,
authority, general, from the amend the articles of incorporation or by-laws, pass
responsibilities, people resolution, or otherwise perform such other acts as
and resources. comprising it are authorized to stockholders or members of
(Alvarez v. (MIAA v. CA, G.R. corporations by the Corporation Code. (Marilao Water
Guingona, Jr., G.R. No. 155650, July Consumers Associations, Inc. vs. IAC, G.R. No. 72807,
No. 118303, 20, 2006) September 9, 1991)
January 31, 1996)
Formed and Performance of b. MUNICIPAL CORPORATIONS
organized for functions relating
purposes of to public needs ii. ELEMENTS
administration of whether
Purpose
the local governmental or 1. Legal creation or incorporation
government and proprietary in 2. Corporate name by which artificial personality or
for the greater nature legal entity is known and which all corporation
good and welfare acts are done
Public 1. must be 3. Inhabitants constituting the population who are
corporations are established for invested with the political and corporate powers
not subject to the the common which are executed through duly constituted
tests of ownership good; and officers and agents
or control and 4. Place or territory within which the local civil
economic 2. must meet the government and corporate functions are
viability. test of economic exercised. (Martin, Pub. Corp., 1971)
viability (1987
They are subject Constitution, Art. ii. NATURE AND FUNCTIONS
Conditions to a different XII, Sec. 16)
criteria relating to Two-fold character of a municipal corporation
their public
purposes or 1. Government - the municipal corporation is an
interests or agent of the State for the government of the
constitutional territory and the inhabitants within the municipal
policies and limits. The municipal corporation exercises by
objectives and delegation a part of the sovereignty of the State.
their
administrative
217
2. Private - the municipal corporation acts in a 2. Comment to be made by the city council
similar category as a business corporation 3. Compliance with the indicators, namely: income,
performing functions not strictly government or population, and land area
political. The municipal corporation stands for the 4. Sponsorship or law to be in the halls of Congress
community in the administration of local affairs 5. Comment from Land Management Bureau,
which is wholly beyond the sphere of the public Department of Finance, and Philippine Statistics
purposes for which its governmental powers are Authority
conferred. 6. Conduct of a plebiscite to be done 120 days from
the creation of the LGU
BASIS QUASI- MUNICIPAL 7. Election of officers
CORPORATION CORPORATION 8. Oath taking of all winning candidates
Created as an A body politic
agency of the and corporate Indicators
State for a entity endowed
As to narrow and with powers to 1. Income - It must be sufficient based on
nature limited purpose be exercised by it acceptable standards, to provide for all essential
in conformity government facilities and services and special
with law functions commensurate with the size of its
Has no personal Has dual population, as expected of the LGU concerned.
or private functions: 2. Population - It shall be determined as the total
interests to be number of inhabitants within the territorial
subserved, but is 1. Public or jurisdiction of the LGU concerned.
simply required governmental – 3. Land Area - It must be contiguous, unless it
by the State to do by acting as an comprises of two or more islands or is separated
some public agent of the State by an LGU independent of the other property
work for the identified by metes and bounds with technical
(Concurring government of descriptions and sufficient to provide for such
Opinion of Justice the territory and basic services and facilities to meet the
Feliciano in its inhabitants requirements of its populace.
Fontanilla v.
Maliaman, G.R. 2. Private or LAND INCOME POPULATION
Nos. L-55963 & proprietary – by AREA (SQ. (MILLION (THOUSANDS)
As to
61045, February acting as an agent KM) PHP)
function
27, 1991) of the community
in the Province 2,000 20 250
administration of
local affairs. As City 150 *HUC - 150
such, it acts as a 100
separate entity *CC - 50
for its own
purposes, and not Munici- 50 2.5 25
a subdivision of pality
the State. (Bara
Lidasan v. Barangay 2 none 2
COMELEC, G.R. contiguous
No. L-28089, territory
October 25, 1967)
*HUC – Highly Urbanized City; CC – Component City
iii. REQUISITES FOR CREATION, CONVERSION,
DIVISION, MERGER, OR DISSOLUTION NOTE: Compliance with the foregoing indicators shall
be attested by the Department of Finance, National
A local government unit may be created, divided, Statistics Office, and Land Management Bureau of the
merged, abolished or its boundaries substantially DENR.
altered either by law enacted by Congress in the case
of a province, city, municipality or any other political Rules
subdivision of or by ordinance passed by the
Sangguniang Panlalawigan or Sangguniang The Congress may not delegate to the President the
Panlungsod concerned in the case of a barangay power to create local government units, because the
located within its territorial jurisdiction, subject to power to create local government units is lodged
such limitations and requirements prescribed in the exclusively in Congress. (Pelaez vs. Auditor General,
Code. (Section 6, Local Government Code) G.R. No. L-23825, December 24, 1965)
Requisites for creation of Local Government Units The plebiscite should be conducted in the entire unit
and not only in the break-away unit (Tan vs.
1. Petition to be filed by residents COMELEC, G.R. No. 73155, July 11, 1986)

Political Law
The 120-day requirement is only permissive and not for the performance of certain functions from the
mandatory because of the publication requirement central government to the LGUs. It has been said that
insofar as the passage of a law creating a local devolution is indispensable to decentralization.
government unit is concerned. (Cawaling vs. Because of this, there is no question that the law
COMELEC, G.R. No. 146319, October 26, 2001) favors devolution. (Mangune vs. Ermita, G.R. No.
182604, September 27, 2016)
There is no need to conduct a plebiscite in a legislative
re-apportionment because there is actually no change Decentralization of administration
in the nomenclature of the LGU (Bagabuyo vs.
COMELEC, G.R. No. 176970, December 8, 2008)
There is decentralization of administration when the
central government delegates administrative powers
COMELEC cannot abolish a local government unit
to political subdivisions in order to broaden the base
because in this case the “ghost precinct” does not
of government power and in the process make local
necessarily mean that it should be abolished, since it
governments more responsive and more accountable
does not cease to function. It is just that there are no
and ensure their fullest development as self-reliant
inhabitants or voters at present. (Sultan Usman
communities and make them more effective partners
Sarangani vs. COMELEC, G.R. No. 135927, June 26,
in the pursuit of national development and social
2000)
progress.
Q: Are the voters of a city which used to be a
component city of a province entitled to vote in a Decentralization of administration is the delegation
plebiscite for the division of said province, even of administrative powers to the local government
after the city has been converted into a highly unit in order to broaden the base of governmental
urbanized city (HUC)? powers. (Limbona v. Mangelin, G.R. No. 80391,
February 29, 1989)
A: NO. HUCs, as conceptualized in our local
government laws, are essentially cities that have
attained a level of population growth and economic Decentralization of power
development which the legislature has deemed On the other hand, decentralization of power involves
sufficient for devolution of governmental powers as abdication of political power in favor of local
self-contained political units. As such, these cities are government units declared to be autonomous. This is
intended to function as first-level political and termed as devolution. (The Local Government Code
administrative subdivisions in their own right, on par Revisited 2011 Ed., p. 8, Aquilino Pimentel, Jr.)
with provinces. For this reason, Article X, Section 12
of the Constitution provides that “cities that are highly
urbanized, as determined by law, x x x shall be Decentralization of power is the abdication by the
national government of governmental powers.
independent of the province.” This constitutionally
(Limbona v. Mangelin, G.R. No. 80391, February 29,
mandated independence from provincial units is
1989)
explicitly declared in Section 29 of the Local
Government Code and manifests itself throughout
said code in three forms: first, exclusion from Congress on its control to the Local Government
participation in provincial elections; second, direct Units
Presidential supervision over HUCs and their local
chief executives; and third, other special distinctions The basic relationship between the national
provided in the Code. Hence, it can no longer be legislature and the local government units has not
considered as a “political unit directly affected” by the been enfeebled by the new provisions in the
proposed division of the province; and perforce, the Constitution strengthening the policy of local
qualified voters of the HUC are properly excluded autonomy. Without meaning to detract from that
from the coverage of the plebiscite. (Del Rosario vs. policy, we here confirm that Congress retains control
COMELEC, G.R. No. 247610, March 20, 2020). of the local government units although in significantly
reduced degree now than under our previous
C. PRINCIPLE OF LOCAL AUTONOMY Constitutions. The power to create still includes the
power to destroy. The power to grant still includes the
power to withhold or recall. By and large, however,
The principle of local autonomy essentially means the national legislature is still the principal of the local
decentralization. Autonomy is either: government units, which cannot defy its will or
modify or violate it. (Lina v. Paño, G.R. No. 129093,
1. Decentralization of administration; or August 30, 2001)
2. Decentralization of power.
Decentralization Q: In 2008, the DSWD launched the "Pantawid

Pamilyang Pilipino Program" (4Ps). This
Decentralization is the devolution of national government intervention scheme "provides cash
administration, not power, to local governments. One grant to extreme poor households to allow the
form of decentralization is devolution, which involves members of the families to meet certain human
the transfer of powers, responsibility. and resources development goals." A Memorandum of
219
Agreement executed by the DSWD with each agents of the national are proprietary in nature
participating LGU outlines in detail the obligation government, LGUs but which they can
of both parties during the intended five-year exercise governmental perform for the benefit of
implementation. Congress, for its part, sought to powers. their constituents.
ensure the success of the 4Ps by providing it with
funding. Does this encroach upon the local
autonomy of the LGUs? e.g. Under Philippine laws, the City of Manila is a
political body corporate and as such is endowed with
the faculties of municipal corporations to be exercised
A: NO. The purpose of the delegation is to make by and through its city government in conformity with
governance more directly responsive and effective at law, and in its proper corporate name. It may sue and
the local levels. But to enable the country to develop be sued, and contract and be contracted with. Its
as a whole, the programs and policies effected locally powers are twofold in character-public, governmental
must be integrated and coordinated towards a or political on the one hand, and corporate, private and
common national goal. Thus, policy-setting for the proprietary on the other. Governmental powers are
entire country still lies in the President and Congress. those exercised in administering the powers of the state
While the Local Government Code charges the LGUs to and promoting the public welfare and they include the
take on the functions and responsibilities that have legislative, judicial, public and political. Municipal
already been devolved upon them from the national powers on the one hand are exercised for the special
agencies on the aspect of providing for basic services benefit and advantage of the community and include
and facilities in their respective jurisdictions, the those which are ministerial, private and corporate. (City
same law provides a categorical exception of cases of Manila v. Intermediate Appellate Court, G.R. No. 71159,
involving nationally-funded projects, facilities, November 15, 1989)
programs and services. The national government is,
thus, not precluded from taking a direct hand in the
formulation and implementation of national Local Fiscal Autonomy
development programs especially where it is
implemented locally in coordination with the LGUs Fiscal autonomy means that local governments have
concerned. (Pimentel, Jr. vs. Executive Secretary Ochoa, the power to create their own sources of revenue in
G.R. No. 195770, July 17, 2012) addition to their equitable share in the national taxes
released by the national government, as well as the
Presidential Power of General Supervision power to allocate their resources in accordance with
their own priorities. It extends to the preparation of
The president’s power over LGUs is limited to their budgets, and local officials in turn have to work
supervision, not control. within the constraints thereof. They are not
formulated at the national level and imposed on local
The president exercises “general supervision” over governments, whether they are relevant to local
the LGUs, but only to “ensure that local affairs are needs and resources or not. Further, a basic feature of
administered according to law.” It means “overseeing local fiscal autonomy is the constitutionally mandated
or the authority of an officer to see that the automatic release of the shares of local governments
subordinate officer perform their duties. If the in the national internal revenue. (Province of Batangas
subordinate officers fail or neglect to fulfill their v. Romulo, G.R. No. 152774, May 27, 2004)
duties, the official may take such action or steps as
prescribed by law to make them perform their duties. Automatic release of LGU shares
(The Local Government Code Revisited, 2011 Ed., p. 14,
Aquilino Pimentel Jr.)
The shares of the LGUs in the central government
taxes and in the proceeds of natural resources within
Dual Personality of LGUs their territories shall be automatically and directly
released to them. (The Local Government Code
LGUs have a dual personality: political and corporate. Revisited 2011 Ed., p. 129, Aquilino Pimentel Jr.)
Being political units of government and as agents of the
national government, LGUs exercise governmental NOTE: A “no report, no release” policy may not be
powers. On the other hand, as a corporate entity, they validly enforced against offices vested with fiscal
exercise powers which are proprietary in nature but autonomy such as Constitutional Commissions and
which they can perform for the benefit of their local governments. The automatic release provision
constituencies. (The Local Government Code Revisited found in the Constitution means that these local
2011 ed., p. 62, Aquilino Pimentel, Jr.) government units cannot be required to perform any
act to receive the “just share” accruing to them from
LOCAL GOVERNMENT UNITS PERSONALITY the national coffers. (Civil Service Commission v.
Department of Budget and Management, G.R. No.
(DUAL IN NATURE) 158791, July 22, 2005)
Political Corporate
Being political units of as a corporate entity, they
government and as exercise powers which

Political Law
D. POWERS OF LOCAL GOVERNMENT UNITS accomplished and not duly oppressive (Due
Process Clause)
Powers of LGUs: (PETaL) 3. Exercisable only within the territorial limits of the
LGU, except for protection of water supply (LGC,
1. Police Power Sec. 16)
2. Eminent Domain 4. Must not be contrary to the Constitution and the
3. Taxation laws.
4. Legislative Power
NOTE: There must be a concurrence of a lawful subject
1. GENERAL WELFARE CLAUSE and lawful method. (Lucena Grand Central v. JAC, G.R. No.
148339 February 23, 2005)
Nature of general welfare clause or police power
Tests when police power is invoked as the rationale
The police power of the LGU is not inherent. LGUs for the valid passage of an ordinance
exercise the police power under the general welfare
clause (LGC, Sec. 16) 1. Rational relationship test – An ordinance must pass
the requisites as discussed above.
General welfare clause
2. Strict scrutiny test – The focus is on the presence of
compelling, rather than substantial, governmental
LGUs shall exercise powers that are necessary, interest and on the absence of less restrictive
appropriate, or incidental for its efficient and effective means for achieving that interest. (Fernando v. St.
governance, and those which are essential to the Scholastica’s College, G.R. No. 161107, March 12,
promotion of general welfare. Within their respective 2013)
territorial jurisdiction, LGUs shall ensure and support,
among other things, the preservation and enrichment of
culture, promote health and safety, enhance the right of Q: The Sangguniang Panlungsod of Davao City
the people to a balanced ecology, encourage and support enacted an ordinance imposing a ban against
the development of appropriate and self-reliant aerial spraying as an agricultural practice by all
scientific and technological capabilities, improve public agricultural entities within Davao City. Pursuant
morals, enhance economic prosperity and social justice, to the ordinance, the ban against aerial spraying
promote full employment among its residents, maintain would be strictly enforced three months
peace and order, and preserve the comfort and thereafter. The Pilipino Banana Growers and
convenience of their inhabitance. (R.A. 7160, Sec. 16) Exporters Association, Inc. (PBGEA) filed a
petition in the RTC to challenge the
constitutionality of the ordinance, alleging that
Two branches of the General Welfare Clause the ordinance exemplified the unreasonable
exercise of police power and violated the equal
protection clause. The RTC declared that the
1. General Legislative Power – authorizes the
ordinance is valid and constitutional saying that
municipal council to enact ordinances and
the City of Davao had validly exercised police
make regulations not repugnant to law, as may
be necessary to carry into effect and discharge power under the General Welfare Clause of the
Local Government Code and that the ordinance
the powers and duties conferred upon the
was consistent with the Equal Protection Clause.
municipal council by law.
On appeal, however, the CA reversed the
judgment of the RTC. Is the ordinance valid?
2. Police Power Proper – authorizes the
municipality to enact ordinances as may be
necessary and proper for the health and safety, A: NO. Requiring the respondents and other affected
prosperity, morals, peace, good order, comfort, individuals to comply with the consequences of the
and convenience of the municipality and its ban within the three-month period under pain of
inhabitants, and for the protection of their penalty like fine, imprisonment and even cancellation
property (Rural Bank of Makati v. Municipality of business permits would definitely be oppressive as
of Makati, July 2, 2004). to constitute abuse of police power.
Requisites/limitations for the proper exercise of The ordinance violated the equal protection clause.
the police power (PREN) The imposition of the ban is too broad because the
ordinance applies irrespective of the substance to be
1. The interests of the public generally, as aerially applied and irrespective of the agricultural
distinguished from those of a particular class, activity to be conducted. Such imposition becomes
require the interference of the state (Equal unreasonable inasmuch as it patently bears no
Protection Clause) relation to the purported inconvenience, discomfort,
2. The means employed are reasonably necessary health risk and environmental danger which the
for the attainment of the object sought to be ordinance seeks to address. The burden will now
221
become more onerous to various entities, including One such piece of legislation is the LGC, which
those with no connection whatsoever to the intended authorizes city and municipal governments, acting
purpose of the ordinance. (Mosqueda vs. Pilipino through their local chief executives, to issue demolition
Banana Growers & Exporters Assoc., G.R. No. 189185 & orders. Under existing laws, the office of the mayor is
189305, August 16, 2016) given powers not only relative to its function as the
executive official of the town; it has also been endowed
with authority to hear issues involving property rights
Ministerial duty of the Local Chief Executive
of individuals and to come out with an effective order
or resolution thereon. Pertinent herein is Sec. 444
The LGC imposes upon the city mayor, to “enforce all (b)(3)(vi) of the LGC, which empowered the mayor to
laws and ordinances relative to the governance of the order the closure and removal of illegally constructed
city.” As the chief executive of the city, he has the duty establishments for failing to secure the necessary
to enforce an ordinance as long as it has not been permits.
repealed by the Sanggunian or annulled by the courts.
He has no other choice. It is his ministerial duty to do
In the case at bar, Boracay West Cove admittedly failed
so. (Social Justice Society v. Atienza, Jr., G.R. No. 156052,
to secure the necessary permits, clearances, and
March 7, 2007)
exemptions before the construction, expansion, and
operation of Boracay West Cove’s hotel in Malay,
Abatement of nuisance without judicial Aklan. To recall, Boracay West Cove declared that the
proceeding application for zoning compliance was still pending
with the office of the mayor even though construction
and operation were already ongoing at the same time.
The abatement of nuisance without judicial
As such, it could no longer be denied that it openly
proceedings applies to nuisance per se or those which
violated Municipal Ordinance 2000-131. (Aquino v.
affect the immediate safety of persons and property
Municipality of Malay, Aklan, G.R. No. 211356,
and may be summarily abated under the undefined
September 29, 2014)
law of necessity. (Tayaban v. People, G.R. No. 150194,
March 6, 2007)
NOTE: Based on law and jurisprudence, the office of
the mayor has quasi-judicial powers to order the
The LGUs have no power to declare a particular thing
closing and demolition of establishments. This power
as a nuisance unless such a thing is a nuisance per se;
granted by the LGC, is not the same power devolved in
nor can they effect the extrajudicial abatement of a
favor of the LGU under Sec. 17 (b)(2)(ii), which is
nuisance per accidens. Those things must be resolved
subject to review by the DENR. The fact that the
by the courts in the ordinary course of law. (AC
building to be demolished is located within a
Enterprises, Inc. v. Frabelle Properties Corp., G.R. No.
forestland under the administration of the DENR is of
166744, November 2, 2006)
no moment, for what is involved herein, strictly
speaking, is not an issue on environmental protection,
Q: The Mayor of Malay, Aklan ordered through conservation of natural resources, and the
Executive Order No. 10 the demolition of the maintenance of ecological balance, but the legality or
Boracay West Cove Resort and Hotel without first illegality of the structure. Rather than treating this as
conducting judicial proceedings on the ground that an environmental issue then, focus should not be
the said hotel was built on a "no build zone" as diverted from the root cause of this debacle-
demarcated in Municipal Ordinance 2000-131. The compliance. (Aquino v. Municipality of Malay, Aklan,
owner of the Boracay West Cove imputed grave supra.)
abuse of discretion on the part of the Mayor. Is the
owner correct?
Powers deemed implied in the power to grant
permits and licenses
A: NO. Generally, LGUs have no power to declare a
particular thing as a nuisance unless such a thing is a
Power to issue licenses and permits include power to
nuisance per se. Despite the hotel’s classification as a
revoke, withdraw, or restrict through the imposition
nuisance per accidens, however, the Court still found in
of certain conditions. However, the conditions must be
this case that the LGU may nevertheless properly order
reasonable and cannot amount to an arbitrary
the hotel’s demolition. This is because, in the exercise
interference with the business. (Acebedo Optical
of police power and the general welfare clause,
Company, Inc. v. CA, G.R. No. 100152, March 31, 2000)
property rights of individuals may be subjected to
restraints and burdens in order to fulfill the objectives
of the government. Object of the permit requirement
Otherwise stated, the government may enact The object of the permit requirement is the proper
legislation that may interfere with personal liberty, supervision of the enumerated businesses, trades, or
property, lawful businesses and occupations to occupation.
promote the general welfare.
NOTE: The issuance of permits and licenses is a

Political Law
function of the local chief executive. located between the front monument line and the
building line of commercial and industrial
establishments and educational and religious
Q: Acebedo Optical Company applied with the
institutions. Is the ordinance valid?
Office of the City Mayor of Iligan for a business
permit. The City Mayor issued such permit subject
to special conditions that the company cannot put A: NO. It has long been settled that the State may not,
up an optical clinic but only a commercial store; it under the guise of police power, permanently divest
cannot examine patients and prescribe glasses; owners of the beneficial use of their property solely to
and it cannot sell eyeglasses without a preserve or enhance the aesthetic appearance of the
prescription from an independent optometrist. community. Compelling the respondents to construct
Samahan ng Optometrist ng Pilipinas lodged a their fence in accordance with the assailed ordinance
complaint against Acebedo for violating the is, thus, a clear encroachment on their right to
conditions which resulted in the revocation of its property, which necessarily includes their right to
permit. Did the City Mayor have the authority to decide how best to protect their property. (Fernando v.
impose special conditions in the grant of the St. Scholastica's College, G.R. No. 161107, March 12,
business permit? 2013)
A: NO. Police power is essentially regulatory in nature Q: Can the City Mayor of Manila validly take
and the power to issue license or grant business custody of several women of ill repute and deport
permits, if for a regulatory purpose, is within the them as laborers without knowledge and consent
ambit of this power. This power necessarily includes to the said deportation?
the power to revoke and to impose conditions.
However, the power to grant or issue licenses or
A: NO. One can search in vain for any law, order, or
business permits must always be exercised in
regulation, which even hints at the right of the Mayor
accordance with law, with utmost observance of the
of the city of Manila or the chief of police of that city
rights of all concerned to due process and equal
to force citizens of the Philippine Islands — and these
protection of the law. What is sought by Acebedo from
women despite their being in a sense lepers of society
the City Mayor is a permit to engage in the business of
are nevertheless not chattels but Philippine citizens
running an optical shop. It does not purport to seek a
protected by the same constitutional guaranties as
license to engage in the practice of optometry. A
are other citizens — to change their domicile from
business permit is issued primarily to regulate the
Manila to another locality. (Villavicencio v. Lukban,
conduct of business and the City Mayor cannot,
G.R. No. L-14639, March 25, 1919)
through the issuance of such permit, regulate the
practice of a profession. Such a function is within the
exclusive domain of the administrative agency Q: May an LGU require customers to fill out a
specifically empowered by law to supervise the prescribed form stating personal information such
profession, in this case the Professional Regulations as name, gender, nationality, age, address, and
Commission and the Board of Examiners in occupation before they could be admitted to a
Optometry. (Acebedo Optical Company Inc. v. Court of motel, hotel, or lodging house?
Appeals, G.R. No. 100152, March 31, 2000)
A: YES. The Ordinance was enacted precisely to
NOTE: However, certain professions may be affected minimize certain practices hurtful to public morals
by the exercise of police power. An ordinance in such as the increase in the rate of prostitution,
Manila was held not to regulate the practice of adultery, and fornication in Manila traceable in great
massage, much less restrict the practice of such part to the existence of motels, which "provide a
profession. Instead, the end sought to be obtained was necessary atmosphere for clandestine entry, presence,
to prevent the commission of immorality under the and exit" and thus become the "ideal haven for
practice of prostitution in an establishment prostitutes and thrill-seekers". Precisely it was
masquerading as a massage clinic where the intended to curb the opportunity for the immoral or
operation thereof offers to massage superficial parts legitimate use to which such premises could be and
of the bodies of customers for hygienic or aesthetic are being devoted. (Ermita-Malate Hotel and Motel
purposes. (Physical Therapy Organization of the Operations Association v. City Mayor of Manila, G.R. No.
Philippines v. Municipal Board of Manila, G.R. No. L- L-24693, July 31, 1967)
10488, August 30, 1957)
Q: Mayor Lim signed into law, City Ordinance
Q: The Sangguniang Panlungsod of Marikina City 7774, which prohibits short time admission in
enacted an ordinance “Regulating the Construction hotels, motels, lodging houses, pension houses,
of Fences and Walls in the City of Marikina”. The and similar establishments in the City of Manila to
ordinance provided, among others, that fences protect public morals. Pursuant to the above
should not be more than 1 meter and fences in policy, short-time admission and rate, wash-up
excess of 1 meter shall be 80% see-thru. It further rate or other similarly concocted terms, are
provided that in no case shall walls and fences be hereby prohibited in hotels, motels, inns, lodging
built within the five-meter parking area allowance houses, pension houses and similar
223
establishments in the City of Manila. Petitioners allowed to construct his wall up to the edge of the
argued that the Ordinance is unconstitutional and property line, thereby creating a space under the
void since it violates the right to privacy and the first floor. In effect, property owners relinquish the
freedom of movement; it is an invalid exercise of use of the space as an arcade for pedestrians
police power; and it is an unreasonable and instead of using the property for their own
oppressive interference in their business. Is the purposes.
ordinance valid?
Subsequently, Justice Gancayo sought to be
A: NO. Individual rights may be adversely affected exempted from the application of the ordinance to
only to the extent that may fairly be required by the which the City Council responded favorably in his
legitimate demands of public interest or public favor.
welfare. However well-intentioned the Ordinance
may be, it is in effect an arbitrary and whimsical
MMDA then sent a notice of demolition to Justice
intrusion into the rights of the establishments as well
Gancayco alleging that a portion of his building
as their patrons. The Ordinance needlessly restrains
violates the National Building Code in relation to
the operation of the businesses of the petitioners as
the ordinance. Is the Ordinance a valid exercise of
well as restricting the rights of their patrons without
police power in regulating the use of property in a
sufficient justification. The Ordinance rashly equates
business zone?
wash rates and renting out a room more than twice a
day with immorality without accommodating
innocuous intentions. (White Light Corp., v. City of A: YES. In the exercise of police power, property rights
Manila, G.R. No. 122846, January 20, 2009). of individuals may be subject to restraints and burdens
in order to fulfill the objectives of the government.
Property rights must bow down to the primacy of
Q: The Sangguniang Panlungsod of Pasay City
police power because it must yield to the general
passed an ordinance requiring all disco pub owners
welfare. It is clear that the objective of the ordinance
to have all their hospitality girls tested for the AIDS
were the health and safety of the city and its
virus. Both disco pub owners and the hospitality
inhabitants. At the time the ordinance was passed,
girls assailed the validity of the ordinance for being
there was no national building code, thus there was no
violative of their constitutional rights to privacy
law which prohibits the city council from regulating the
and to freely choose a calling or business. Is the
construction of buildings, arcades and sidewalks in
ordinance valid? Explain.
their jurisdiction. (Gancayco v. City Government of
Quezon City, G.R. No. 177807, Oct. 11, 2011)
A: YES. The ordinance is a valid exercise of police
power. The right to privacy yields to certain paramount
Q: Rivera was found washing her clothing near the
rights of the public and defers to the exercise of police
Santolan pumping station near Boso-Boso dam.
power. The ordinance is not prohibiting the disco pub
Rivera’s act of washing clothing interfered with
owners and the hospitality girls from pursuing their
the purity of the water which was supplied to
calling or business but is merely regulating it. (Social
Manila by the Santolan pumping station. She was
Justice Society v. Dangerous Drugs Board, G.R. No.
charged with violation of Sec. 4(f) of Ordinance
157870, Nov. 3, 2008)
No. 149 which prohibited washing of garments in
the waters of any river or water course. Manila’s
This ordinance is a valid exercise of police power, municipal board adopted the same section by
because its purpose is to safeguard public health. virtue of the Acts of the Philippine Commission
(Beltran v. Secretary of Health, G.R. No. 133640, and was authorized to purify the source of water
November 25, 2005) supply as well as the drainage area of such water
supply. Rivera contented that the municipal court
of the City of Manila and the Court of First Instance
NOTE: Municipal corporations cannot prohibit the
of the City of Manila had no jurisdiction to try her
operation of night clubs. They may be regulated, but
for the crime committed. Does the CFI of Manila
not prevented from carrying on their business. (Dela
have jurisdiction over the offense, considering
Cruz v. Paras, G.R. Nos. L-42571-72, July 25, 1983)
that the washing of clothes was in the Mariquina
River?
Q: The Quezon City Council issued Ordinance 2904
which requires the construction of arcades for
A: YES. Boundaries usually mark the limit for the
commercial buildings to be constructed in zones
exercise of the police powers by the municipality.
designated as business zones in the zoning plan of
However, in certain instances – the performance of
Quezon City, along EDSA. However, at the time the
police functions, the preservation of public health and
ordinance was passed there was yet no building
acquisition of territory for water supply – the
code passed by the legislature. Thus, the regulation
municipality is granted police power beyond its
of the construction of the buildings are left to the
boundaries. The Santolan pumping station is a part of
discretion of the LGUs. Under this ordinance, the
the public water supply of Manila with water taken
city council required that the arcade is to be
from that part of the Mariquina River, in the waters of
created in a way that building owners are not
which Rivera washed clothes. Public water supply is

Political Law
not limited to water supply owned and controlled by a employment, and to travel at night from school or
municipal corporation, but should be construed as work. However, even with those safeguards, the
meaning a supply of water for public and domestic Navotas Ordinance and, to a greater extent, the Manila
use, furnished or to be furnished from water works. Ordinance still do not account for the reasonable
The provisions of the Ordinance No. 149 would be exercise of the minors' rights of association, free
meaningless and absurd if made applicable only to the exercise of religion, rights to peaceably assemble, and
Santolan pumping station and not to that part of the of free expression, among others. The exceptions
Mariquina River immediately above it and from which under the Manila Ordinance are too limited, and thus,
the pumping station draws water for the use of the unduly trample upon protected liberties.
inhabitants of the City of Manila. (Rivera v. Campbell,
G.R. No. L-11119, March 23, 1916)
The Navotas Ordinance is apparently more protective
of constitutional rights than the Manila Ordinance;
Q: Following the campaign of President Duterte to nonetheless, it still provides insufficient safeguards:
implement a nationwide curfew for minors, First, although it allows minors to engage in school or
Navotas City and the City of Manila started to church activities, it hinders them from engaging in
strictly implement their curfew ordinances on legitimate non-school or non-church activities in the
minors through police operations. streets or going to and from such activities; thus, their
freedom of association is effectively curtailed. It bears
stressing that participation in legitimate activities of
The Manila Ordinance cites only four (4)
organizations, other than school or church, also
exemptions, namely: (a) minors accompanied by
contributes to the minors' social, emotional, and
their parents, family members of legal age, or
intellectual development, yet, such participation is not
guardian; (b) those running lawful errands such
exempted under the Navotas Ordinance. Second,
as buying of medicines, using of
although the Navotas Ordinance does not impose the
telecommunication facilities for emergency
curfew during Christmas Eve and Christmas day, it
purposes and the like; (c) night school students
effectively prohibits minors from attending traditional
and those who, by virtue of their employment, are
religious activities (such as simbang gabi) at night
required in the streets or outside their residence
without accompanying adults, xxx. This legitimate
after 10:00 p.m.; and (d) those working at night.
activity done pursuant to the minors' right to freely
exercise their religion is therefore effectively
For its part, the Navotas Ordinance provides more curtailed. Third, the Navotas Ordinance does not
exceptions, to wit: (a) minors with night classes; accommodate avenues for minors to engage in
(b) those working at night; (c) those who attended political rallies or attend city council meetings to
a school or church activity, in coordination with a voice out their concerns in line with their right to
specific barangay office; (d) those traveling peaceably assemble and to free expression. (SPARK,
towards home during the curfew hours; (e) those Et. al. vs. Quezon City, GR No. 225442, August 08, 2017)
running errands under the supervision of their
parents, guardians, or persons of legal age having
Q: The City of Manila passed a Curfew Ordinance
authority over them; (f) those involved in
on minors which imposes several penalties for
accidents, calamities, and the like. It also exempts
violators. Petitioners argue that the Curfew
minors from the curfew during these specific
Ordinance is unconstitutional because it
occasions: Christmas eve, Christmas day, New
contravenes RA 9344's express command that no
Year's eve, New Year's day, the night before the
penalty shall be imposed on minors for curfew
barangay fiesta, the day of the fiesta, All Saints'
violations. Is petitioners’ contention proper?
and All Souls' Day, Holy Thursday, Good Friday,
Black Saturday, and Easter Sunday.
A:YES. The Manila Ordinance is in conflict with the
clear language of Section 57-A of RA 9344, as
Petitioners argue that the Curfew Ordinances are
amended, and hence, invalid.
unconstitutional because they deprive minors of
the right to liberty and the right to travel without
substantive due process. Are said ordinances The law does not prohibit the enactment of
valid? regulations that curtail the conduct of minors, when
the similar conduct of adults are not considered as an
offense or penalized (i.e., status offenses). Instead,
A: The Manila and Navotas Ordinances are not valid.
what it prohibits is the imposition of penalties on
While rights may be restricted, the restrictions must
minors for violations of these regulations.
be minimal or only to the extent necessary to achieve
Consequently, the enactment of curfew ordinances on
the purpose or to address the State's compelling
minors, without penalizing them for violations
interest.
thereof, is not violative of Section 57-A.
The Manila and Navotas Ordinances are not narrowly
drawn in that their exceptions are inadequate and
therefore, run the risk of overly restricting the As worded, the prohibition in Section 57-A is clear,
minors' fundamental freedoms. To be fair, both categorical, and unambiguous. It states that no
ordinances protect the rights to education, to gainful penalty shall be imposed on children for violations of
juvenile status offenses. Thus, for imposing the
225
sanctions of reprimand, fine, and/or imprisonment on No. 148339 February 23, 2005)
minors for curfew violations, portions of Section 4 of
the Manila Ordinance directly and irreconcilably
Other Limitations for the Exercise of Police Power
conflict with the clear language of Section 57-A of RA
9344, as amended, and hence, invalid. (SPARK, Et. al.
vs. Quezon City, GR No. 225442, August 08, 2017) The local government unit can regulate the operation of
cable television only when it encroaches on public
properties, such as the use of public streets, rights of
Q: The Sanggunian of Cagayan De Oro enacted
ways, the founding of structures, and the parceling of
Ordinance No. 3353 prohibiting the issuance of
large region. Beyond these parameters, its acts, such as
business permits and cancelling existing business
the grant of the franchise to Spacelink, would be ultra
permits for the operation of casinos; and
vires. (Zoomzat vs. People, G.R. No. 135535, February 14,
Ordinance No. 3375-93, prohibiting the operation
2005)
of a casino. Z assailed the validity of the
ordinances on the ground that both violated P.D.
1869 which permits the operation of casinos, The power to regulate as an exercise of police power
centralized and regulated by PAGCOR. However, does not include the power to impose fees for revenue
the Sanggunian contended that pursuant to the purposes. Fees for regulatory purposes may only be of
LGC they have the police power to prohibit the sufficient amount to include the expenses of issuing the
operations of casinos for the general welfare. Was license and the cost of the necessary inspection or
there a valid exercise of police power? police surveillance, taking into account not only the
expense of direct regulation but also incidental
expenses. (American Mail Line vs. City of Basilan, G.R.
A: NO. P.D. 1869 creating the PAGCOR expressly
No. L-12647, May 31, 1961)
authorized it to centralize and regulate all games of
chance including casinos. This has not been amended
by the LGC which empowers LGUs to prevent or 2. EMINENT DOMAIN
suppress only those forms of gambling prohibited by
law. Casino gambling is, however, authorized under Definition
P.D. 1869. This decree has the status of a statute that
cannot be annulled or amended by a mere ordinance.
PAGCOR can set up casinos with or without the The right of a government or its agent to expropriate
consent of the host local government. (Magtajas v. private property for public use, in exchange for just
Pryce Properties and PAGCOR, G.R. No. 111097, July 20, compensation.
1994)
NOTE: Local government units have no inherent
Contempt Powers power of eminent domain. Local governments can
exercise such power only when expressly authorized
by the Legislature. By virtue of the Local Government
Although the Sanggunian of a municipality may Code, Congress conferred upon local government
exercise certain powers under the General Welfare units the power to expropriate. (Masikip v. City of
Clause, citing nonmembers of the Sanggunian for Pasig, G.R. No. 136349, January 23, 2006)
contempt or issuing subpoena to compel non-members
to attend public hearings or investigation is not one of
them. Strictly speaking, the power of eminent domain
delegated to an LGU is in reality not eminent but
“inferior”. The national legislature is still the principal
Requisites/limitations for the proper exercise of of the LGUs, and the latter cannot go against the
the police power (PREN) principal’s will or modify the same (Beluso v.
Municipality of Panay, G.R. No. 153974, August 7,
1. The interests of the public generally, as 2006).
distinguished from those of a particular class,
require the interference of the state (Equal Requisites for the valid exercise of the power of
Protection Clause) eminent domain (OPCO)
2. The means employed are reasonably necessary for
the attainment of the object sought to be
accomplished and not duly oppressive (Due 1. An Ordinance is enacted by the local legislative
Process Clause) council authorizing the local chief executive, in
3. Exercisable only within the territorial limits of the behalf of the LGU, to exercise the power of
LGU, except for protection of water supply (LGC, eminent domain or pursue expropriation
Sec. 16) proceeding over a particular private
4. Must not be contrary to the Constitution and the property.
laws.
NOTE: LGU cannot authorize an expropriation
of private property through a mere resolution
NOTE: There must be a concurrence of a lawful subject of its lawmaking body. A resolution will not
and lawful method. (Lucena Grand Central v. JAC, G.R.

Political Law
suffice as it is a mere declaration of the tax declaration.
sentiment or opinion of the lawmaking body on a
specific matter that is temporary in nature. (Holy
NOTE: The advance deposit required under Section 19
Trinity Realty and Development Corporation vs.
of the LGC constitutes an advance payment only in the
Dela Cruz, G.R. No. 200454, October 22, 2014)
event the expropriation prospers. Such deposit also has
a dual purpose: as pre-payment if the expropriation
2. It must be for Public use, purpose, or welfare
succeeds and as indemnity for damages if it is
or for the benefit of the poor or landless
dismissed. This advance payment, a prerequisite for
the issuance of a writ of possession, should not be
NOTE: Property already devoted to public use
confused with payment of just compensation for the
may not be taken for another public use. (City
taking of property even if it could be a factor in
of Manila v. Chinese Community of Manila, G.R.
eventually determining just compensation. If the
No. L-14355, October 31, 1919)
proceedings fail, the money could be used to indemnify
the owner for damages. (City of Manila v. Alegar
3. There must be payment of just Compensation
Corporation, G.R. No. 187604, June 25, 2012)
NOTE: Just compensation is defined as the full
and fair equivalent of the property taken from Upon compliance, the issuance of writ of possession
its owner by the expropriator. The measure is becomes ministerial. (City of Iloilo v. Legaspi, G.R. No.
not the taker's gain, but the owner's loss. It is 154614, Nov. 25, 2004)
upon the payment of just compensation to be
determined as of the date of the taking of the
Phases of expropriation proceedings
property or the filing of the complaint,
whichever came first (NTC v. Oroville, G.R. No.
223366) 1. The determination of the authority of the
plaintiff to exercise the power of eminent
4. A valid and definite Offer has been previously domain and the propriety of its exercise in the
made to the owner of the property sought to be context of the facts involved in the suit.
expropriated, but said offer was not accepted.
(Municipality of Paranaque v. V.M. Realty
NOTE: It ends with an order, if not dismissal of
Corporation, G.R. No. 127820. July 20, 1998)
action, of condemnation declaring that the
plaintiff has a lawful right to take the property
NOTE: The Supreme Court held “the burden is on
sought to be condemned, for the public use or
the LGU to prove its compliance with the
purpose described in the complaint, upon the
mandatory requirement of a valid and definite offer
payment of just compensation to be
to the owner of the property before its filing of its
determined as of the date of the filing of the
complaint for expropriation. Failure to prove
complaint.
compliance with the mandatory requirement will
result in the dismissal of the complaint.
An order of dismissal, if this be ordained,
Due process requirements in eminent domain would be a final one, since it finally disposes
(W-PRP) of the action and leaves nothing more to be
done by the Court on the merits. The order of
condemnation shall be a final one, as the Rules
1. Offer must be in Writing specifying:
expressly state, in the proceedings before the
2. Property sought to be acquired Trial Court, no objection to the exercise of the
3. The reason for the acquisition right of condemnation (or the propriety thereof)
4. The price offered shall be filed or heard.
NOTE: If owner accepts offer, a contract of sale will be 2. The determination by the RTC of the just
executed. If owner accepts but at a higher price, local compensation for the property sought to be taken.
chief executive shall call a conference for the purpose
of reaching an agreement on the selling price; If
agreed, contract of sale will be drawn. (Implementing This is done by the Court with the assistance of
Rules and Regulations of LGC, Art. 35) not more than three (3) commissioners. The
order fixing the just compensation on the
basis of the evidence before, and findings of, the
Elements for an authorized immediate entry commissioners would be final. It would finally
dispose of the second stage of the suit and
1. Filling of a complaint for expropriation which is leave nothing more to be done by the Court
sufficient in form and substance regarding the issue. (Brgy. San Roque, Talisay,
Cebu v. Hrs. of Francisco Pastor, G.R. No. 138896,
2. Deposit of the amount equivalent to fifteen June 20, 2000)
percent (15%) of the fair market value of the
property to be expropriated based on its current
227
NOTE: LGU’s prolonged occupation of private shift the burden to the LGU concerned. To
property without the benefit of expropriation deprive respondents of their property instead of
proceedings entitles the landowner to damages. (City compelling the subdivision owner to comply with his
of Iloilo v. Judge Contreras-Besana, G.R. No. 168967, obligation under the law is an abuse of the power of
February 12, 2010) eminent domain and is patently illegal. Worse,
the expropriation will actually benefit the
subdivision’s owner who will be able to
Satisfaction of “public use” requirement
circumvent his commitment to provide road
access to the subdivision in conjunction with his
In case only a few could actually benefit from the development permit and license to sell from the
expropriation of the property, the same does not Housing and Land Use Regulatory Board, and also
diminish its public use character. It is simply not be relieved of spending his own funds for a right-of-
possible to provide for all at once, land and shelter, way. (Barangay Sindalan v. CA G.R. No. 150640, March
for all who need them. Corollary to the expanded 22, 2007)
notion of public use, expropriation is not anymore
confined to vast tracts of land and landed estates. It is
Q: Municipality of Panay issued resolutions
therefore of no moment that the land sought to be
authorizing the municipal government through the
expropriated is less than half a hectare only. Through
Mayor to initiate expropriation proceedings. A
the years, the public use requirement in eminent
petition for expropriation was filed by the
domain has evolved into a flexible concept, influenced
Municipality of Panay. Petitioners are the owners
by changing conditions. Public use now includes the
of parcels of land which are going to be
broader notion of indirect public benefit or
expropriated by the LGU. Petitioners argue that
advantage including in particular, urban land reform
such expropriation was based only on a resolution
and housing. (Philippine Columbian Association v.
and not on an ordinance contrary to Sec. 19 of LGC.
Panis, G.R. No. L-106528, Dec. 21, 1993)
Is the exercise of eminent domain by the
Municipality of Panay valid?
NOTE: The passage of R.A. 7279, the “Urban
Development and Housing Act of 1992” introduced a
A: NO. The LGC expressly requires an ordinance for
limitation on the size of the land sought to be
the purpose of expropriation, and a resolution which
expropriated for socialized housing. The law
merely expresses the sentiment of the municipal
expressly exempted “small property owners” from
council will not suffice. As respondent's expropriation
expropriation of their land for urban land reform.
in this case was based merely on a resolution, such
(City of Mandaluyong v. Aguilar, G.R. No. 137152, Jan.
expropriation is clearly defective. While the Court is
29, 2001)
aware of the constitutional policy promoting local
autonomy, the court cannot grant judicial sanction to
Satisfaction of “genuine necessity” requirement an LGU's exercise of its delegated power of eminent
domain in contravention of the very law giving it such
power. [Beluso v. Municipality of Panay (Capiz), G.R. No.
The right to take private property for public
153974, Aug. 7, 2006]
purposes necessarily originates from “the necessity”
and the taking must be limited to such necessity. In
City of Manila v. Chinese Community of Manila, it is Q: Spouses Yusay owned a parcel of land, half of
held that necessity must be of a public character. which they used as their residence, and the rest
Moreover, the ascertainment of the necessity must they rented out to nine other families. Allegedly,
precede or accompany and not follow the taking of the land was their only property and only source
the land. In City of Manila v. Arellano Law College, the of income. The Sangguniang Panlungsod of
necessity within the rule that the particular Mandaluyong City adopted a resolution
property to be expropriated must be necessary, authorizing the City Mayor to take the necessary
does not mean an absolute, but only a reasonable or legal steps for the expropriation of the land of the
practical necessity, such as would combine the spouses for the purpose of developing it for low
greatest benefit to the public with the least cost housing for the less privileged but deserving
inconvenience and expense to the condemning city inhabitants. The spouses then filed a petition
party and the property owner consistent with for certiorari and prohibition in the RTC, praying
such benefit. (Masikip v. City of Pasig, G.R. No. 136349, for the annulment of the Resolution due to its
Jan. 23, 2006) being unconstitutional, confiscatory, and without
force and effect. The City countered that the
Resolution was a mere authorization. Hence, the
Q: May LGUs expropriate a property to provide a
suit of the spouses was premature. Will the
right-of-way to residents of a subdivision?
petition for certiorari and prohibition prosper?
A: NO. Considering that the residents who need a

A: NO. Certiorari did not lie against the Sangguniang
feeder road are all subdivision lot owners, it is the
Panlungsod, which was not a part of the Judiciary
obligation of the subdivision owner to acquire a right-
settling an actual controversy involving legally
of-way for them. However, the failure of the
demandable and enforceable rights when it adopted
subdivision owner to provide an access road does not

Political Law
Resolution No. 552, but a legislative and policy- owner of the building or house. X filed a written
making body declaring its sentiment or opinion. request for a permit to construct a building on a
Furthermore, the remedy of prohibition was not parcel of land adjacent to their gasoline station.
called for, considering that only a resolution The request was denied because the proposed
expressing the desire of the Sangguniang Panlungsod building would destroy the view or beauty of the
to expropriate the petitioners’ property was issued. It public plaza. X proceeded with the construction of
was premature for the petitioners to mount any the building without a permit because his former
judicial challenge, for the power of eminent domain house was destroyed by a typhoon. X was charged
could be exercised by the City only through the filing and convicted of violating the Ordinance for
of a verified complaint in the proper court. Before the having constructed a building that destroys the
City as the expropriating authority filed such verified view of the public plaza without a mayor’s permit.
complaint, no expropriation proceeding could be said Is the ordinance valid?
to exist. Until then, the petitioners as the owners
could not also be deprived of their property under the
A: NO. The ordinance is unreasonable and oppressive,
power of eminent domain. (Spouses Antonio and Fe v.
in that it operates to permanently deprive appellants
CA, G.R. No. 156684, April 6, 2011)
of the right to use their own property; hence, it
oversteps the bounds of police power, and amounts to
Q: Petitioner Himlayang Pilipino filed a petition to a taking of appellants’ property without just
annul an ordinance which provides that at least compensation. But while property may be regulated
6% of the total area of every private cemetery in the interest of the general welfare and, in its
shall be set aside for charity burial grounds of pursuit, the State may prohibit structures offensive to
deceased paupers. Petitioner alleged that the sight, the State may not, under the guise of police
ordinance is an invalid exercise of the power of power, permanently divest owners of the beneficial
eminent domain as they were not paid just use of their property and practically confiscate them
compensation. However, the City government of solely to preserve or assure the aesthetic appearance
Quezon City argued that the ordinance is an of the community. To legally achieve that result, the
exercise of police power, hence, just municipality must give the owners just
compensation is not necessary. Is the ordinance compensation and an opportunity to be heard. The
valid? Ordinance was beyond the authority of said
municipality to enact, and is therefore null and void.
(People v. Fajardo, G.R No. L-12172, Aug. 29, 1958)
A: NO. The power to regulate does not include the
power to prohibit. A fortiori, the power to regulate
does not include the power to confiscate. The Q: The Philippine Tourism Authority sought the
ordinance in question not only confiscates but also expropriation of 282 hectares of rolling
prohibits the operation of a memorial park cemetery. land situated in Barangay Alubog and Babag, Cebu
There is no reasonable relation between the setting City, under an express authority to acquire by
aside of at least 6% of the total area of a private purchase or by any other means any private land
cemeteries for charity burial grounds of deceased within the tourism zone. Petitioner contended
paupers and the promotion of health, morals, good that the taking was not for public use and that
order, safety, or the general welfare of the people. there is no specific constitutional provision
authorizing the taking of private property for
tourism purposes. Is the contention valid?
Section 9 of the assailed Ordinance is not a mere
police regulation but an outright confiscation. It is not
an exercise of police power but eminent domain. It A: NO. Expropriation by the PTA under P.D. 564 of
deprives a person of his private property without due land owned by the local government for promotion of
process of law and without payment of just tourism is a valid exercise of the State’s power of
compensation. Instead of building or maintaining a eminent domain. The concept of public use is not
public cemetery for this purpose, the city passes the limited to traditional purposes. Here, as elsewhere,
burden to private cemeteries. Police power does not the idea that “public use” is strictly limited to clear
involve the taking or confiscation of property with the cases of “use by the public” has been discarded. The
exception of few cases where there is a necessity to State’s power of eminent domain extends to the
confiscate private property in order to destroy it for expropriation of land for tourism purposes although
the purpose of protecting the peace and order and of this specific objective is not expressed in the
promoting the general welfare. (Quezon City v. Ericta, Constitution. The policy objectives of the framers can
G.R. No. L-34915, June 24, 1983) be expressed only in general terms such as social
justice, local autonomy, conservation and
development of the national patrimony public
Q: The municipal council of Baao, Camarines Sur,
interest, and general welfare, among others. (Heirs of
passed an ordinance providing that any person
Ardona v. Reyes, G.R. No. G.R No. L-60549, Oct. 26,
who will construct or repair a building should,
1983)
before doing such, obtain a written permit from
the Municipal Mayor and if said building destroys
the view of the Public Plaza or occupies any public Q: Spouses Hipolito are the registered owners of a
property, it shall be removed at the expense of the parcel of land in Santa Ana, Manila. They applied
229
for permission to erect a strong-material authorities may perceive to be undesirable activities
residential building on the lot. For more than 40 or enterprise using the power to tax as "a tool for
days, the city engineer took no action. Wherefore, regulation”. (Basco v. Philippine Amusements and
Hipolito wrote him a letter manifesting his Gaming Corporation, G.R. No. 91649, May 14, 1991)
readiness to pay the fee and to comply with
existing ordinances governing the issuance of
Q: The President, through A.O. 372, ordered
building permits. The engineer declined to issue
the withholding of 10% of the LGUs' IRA "pending
the permit as according to the Urban
the assessment and evaluation by the
Commission’s Adopted Plan for the Sta. Ana, the
Development Budget Coordinating Committee of
streets will be widened to the respective widths of
the emerging fiscal situation" in the country. Is the
22-m. and 10 m and will affect the proposed
A.O. valid?
building. Was the engineer correct in not issuing
the permit?
A: NO. A basic feature of local fiscal autonomy is the
automatic release of the shares of LGUs in the
A: NO. The refusal of the city engineer to issue a national internal revenue. This is mandated by no
building permit to private landowners constitutes less than the Constitution. The LGC specifies further
taking when there is no law or ordinance requiring that the release shall be made directly to the LGU
private land owners to conform to the proposed concerned within five days after every quarter of
widening of the street approved by the Urban the year and “shall not be subject to any lien or
Commission. Where the City has not expropriated the holdback that may be imposed by the national
strip of land affected by the proposed widening of the government for whatever purpose.” As a rule, the
street, inasmuch as there is no legislative authority to term "shall" is a word of command that must be given
establish a building line, the denial of this permit a compulsory meaning. The provision is, therefore,
would amount to taking of private property for public imperative. (Pimentel Jr. v. Aguirre, G.R. No. 132988, July
use under the power of eminent domain without 19, 2000)
following the procedure prescribed for the exercise of
such power. The city engineer required to issue the Q: In 1993, Cebu City imposed amusement taxes
building permit upon payment of the fees. (Hipolito v. under Sec. 140 of the LGC and passed “Revised
City of Manila, G.R No. L-3887, Aug. 21, 1950) Omnibus Tax Ordinance of the City of Cebu.” Secs.
NOTE: Private property already devoted to public use 42 and 43, Chapter XI of the city ordinance requires
can still be a subject of expropriation by Congress but proprietors, lessees or operators of theatres,
not by LGUs. cinemas, concert halls, circuses, boxing stadia, and
other places of amusement, to pay an amusement
tax equivalent to 30% of the gross receipts of
3. TAXING POWER
admission fees. Meanwhile, R.A. 9167 was enacted
on June 7, 2002 creating the Film Development
Nature of the power of taxation of LGUs Council of the Philippines (FDCP). Secs 13 and 14 of
R.A. 9167 provided for the tax treatment of certain
Although the power to tax is inherent in the State, the graded films — film producers were to be entitled
same is not true for the LGUs to whom the power to an incentive equivalent to the amusement tax
must be delegated by Congress and must be exercised imposed and collected by the cities, subject to
within the guidelines and limitations that Congress various rates depending on the grade of their film,
may provide. (Geron v. Pilipinas Shell, G.R. No. 18763, to be remitted to the FDCP. FDCP had sent demand
July 8, 2015) letters for unpaid amusement tax reward with five
percent surcharge for each month of delinquency
due to the producers. The proprietors and cinema
ARMM’s taxing power operators refused to remit the amounts while Cebu
City insisted on its claim on the amounts in
The ARMM has the legislative power to create question. Then, Cebu City filed a petition for
sources of revenues within its territorial jurisdiction declaratory relief before RTC, Branch 14, asking it
and subject to the provisions of the 1987 Constitution to declare Secs. 13 and 14 of R.A. 9167 invalid and
and national laws. [1987 Constitution, Art. X, Sec. 20(2)] unconstitutional. Colon Heritage Corporation filed
a similar petition before the RTC Branch 5, seeking
to declare Sec. 14 unconstitutional. The RTC
Q: Can the local governments tax national declared Secs. 13 and 14 of R.A. 9167
government instrumentalities? unconstitutional. The RTC said what R.A. 9167
seeks to accomplish is the segregation of
A: NO. Sec. 133 of the LGC states that “unless amusement taxes raised and collected by Cebu City
otherwise provided in the Code, local governments and its subsequent transfer to FDCP. This, it said, is
cannot tax national government instrumentalities. a confiscatory measure where the national
This doctrine emanates from the “supremacy” of government extracts money from the local
National government over local governments. government’s coffers and transfers it to the FDCP, a
Otherwise, mere creatures of the State can defeat private agency, which in turn, will award the
National policies thru extermination of what local money to private persons, film producers, for

Political Law
having produced graded films. Is the RTC correct? except if there is unmanageable public sector
deficit.
A: YES. Under R.A. 9167, covered LGUs still have the
power to levy amusement taxes, albeit at the end of Q: Mandanas, et al, allege that the insertion by
the day, they will derive no revenue therefrom. The Congress of the words internal revenue in the
same, however, cannot be said for FDCP and the phrase national taxes found in Section 284 of the
producers of graded films since the amounts thus LGC caused the diminution of the base for
levied by the LGUs which should rightfully accrue to determining the just share of the LGUs, and should
them, they being the taxing authority-will be going to be declared unconstitutional as it contravened
their coffers. As a matter of fact, it is only through the Section 6, Article X of the 1987 Constitution. Is
exercise by the LGU of said power that the funds to be limiting the LGU’s IRA to national internal revenue
used for the amusement tax reward can be raised. taxes contrary to the Constitution?
Without said imposition, the producers of graded films
will receive nothing from the owners, proprietors and
lessees of cinemas operating within the territory of the A: YES. Section 6, Article X the 1987 Constitution
covered LGU. textually commands the allocation to the LGUs of a
just share in the national taxes. Carrying out the
Taking the resulting scheme into consideration, it is provision’s mandate, Congress enacted Section 284,
apparent that what Congress did in this instance was Title III (Shares of Local Government Units in the
not to exclude the authority to levy amusement taxes Proceeds of National Taxes), of the LGC which says,
from the taxing power of the covered LGUs, but to “Section 284. Allotment of Internal Revenue Taxes. -
earmark, if not altogether confiscate, the income to be Local government units shall have a share in the
received by the LGU from the taxpayers in favor of and national internal revenue taxes x x x”
for transmittal to FDCP, instead of the taxing authority.
This is in clear contravention of the constitutional The phrase national internal revenue taxes engrafted
command that taxes levied by LGUs shall accrue in Section 284 is undoubtedly more restrictive than
exclusively to said LGU and is repugnant to the power the term national taxes written in Section 6. As such,
of LGUs to apportion their resources in line with their Congress has actually departed from the letter of the
priorities. 1987 Constitution stating that national taxes should
be the base from which the just share of the LGU
It is a basic precept that the inherent legislative powers comes. Such departure is impermissible.
of Congress, broad as they may be, are limited and
confined within the four walls of the Constitution. It is clear from the foregoing clarification that the
Accordingly, whenever the legislature exercises its exclusion of other national taxes like customs duties
power to enact, amend, and repeal laws, it should do so from the base for determining the just share of the
without going beyond the parameters wrought by the LGUs contravened the express constitutional edict in
organic law. Section 6, Article X the 1987 Constitution. (Mandanas
v. Ochoa, G.R. No. 199802, July 3, 2018)
In the case at bar, through the application and
enforcement of Sec. 14 of R.A. 9167, the income from 3. Equitable share in the proceeds of the utilization
the amusement taxes levied by the covered LGUs did and development of the national wealth within
not and will under no circumstance accrue to them, not their areas. (1987 Constitution Art. X, Sec. 7)
even partially, despite being the taxing authority (ES)
therefor. Congress, therefore, clearly overstepped its
plenary legislative power, the amendment being
violative of the fundamental law's guarantee on local Principles governing exercise of taxing and
autonomy. (Film Development Council of the Philippines revenue-sharing powers of LGUs (UE- NoPriv –
v. Colon Heritage Realty Corporation, G.R. No. 203754, 1-T)
June 16, 2015)
1. Taxation shall be Uniform in each LGU
Main sources of revenues of LGUs (TFC-IRA-ES) 2. Taxes, fees, charges and other impositions shall
be Equitable and based as far as practicable on
the taxpayer’s ability to pay; it shall be levied and
1. Taxes, fees, and charges. (1987 Constitution Art. collected only for public purpose; it must not be
X, Sec. 5) (TFC) unjust, excessive, oppressive, or confiscatory; it
2. Internal Revenue Allotment (IRA) - Just share in must not be contrary to law, public policy,
the national taxes which shall be automatically national economic policy, or restraint of trade;
released to them. (1987 Constitution Art. X, Sec. 3. The collection of local taxes, fees, charges and
6) other impositions shall in no case be let to any
private person. (NoPriv)
4. The revenue collected shall inure solely
NOTE: The current sharing is 40% local and (solely-1) to the benefit of, and be subject to
60% national. The share cannot be reduced
disposition by, the local government unit,
unless specifically provided therein.
231
5. Each local government unit shall, as far as the taxing powers of LGUs.
practicable, evolve a progressive system of
Taxation. (LGC, Sec. 130) Requirements for a valid tax ordinance (PUJ-NO)
Principles governing financial affairs, 1. The tax is for a public purpose;

transactions and operations of LGUs 2. The rule on uniformity of taxation is observed;
3. Either the person or property taxed is within the
jurisdiction of the government levying the tax; and
1. No money shall be paid out of the local treasury 4. In the assessment and collection of certain kinds
except in pursuance of an appropriation of taxes, notice and opportunity for hearing are
ordinance or law; provided. (Pepsi-Cola Bottling Co. v. Municipality
2. Local government funds and monies shall be of Tanauan, G.R. No. L-31156, February 27, 1976)
spent solely for public purposes;
3. Local revenue is generated only from sources Publication Requirements
expressly authorized by law or ordinance, and
collection thereof shall at all times be 1. Two modes of apprising the public of a new
acknowledged properly; ordinance according to Sec. 43 of the Local Tax
4. All monies officially received by a local Code (Allied Thread vs. City of Manila, G.R. No. L-
government officer in any capacity or on any 40296, November 21, 1984)
occasion shall be accounted for as local funds,
unless otherwise provided; a. By means of publication in a newspaper of
5. Trust funds in the local treasury shall not be paid general circulation, or
out except in the fulfillment of the purpose for
b. By means of posting of copies in the local
which the trust was created or the funds
legislative hall or premises and two other
received; conspicuous places within the territorial
6. Every officer of the LGU whose duties permit or jurisdiction of the local government.
require the possession or custody of local funds
shall be properly bonded, and such officer
shall be accountable and responsible for 2. Within 10 days after the approval, certified true
said funds and for the safekeeping copies of all provincial, city and municipal
thereof in conformity with the provisions of ordinances of revenue measures shall be
law; published in full for 3 consecutive days in a
newspaper of local circulation. Provided, however,
7. Local governments shall formulate sound that in provinces, cities, and municipalities where
financial plans and local budgets shall be based there are no newspapers of local circulation, the
on functions, activities, and projects in terms of
same may be posted in at least 2 conspicuous and
expected results;
accessible places.
8. Local budget plans and goals shall, as far as
practicable, be harmonized with national
development plans, goals and strategies in order Procedural requirements for a valid revenue
to optimize the utilization of resources and to ordinance
avoid duplication in the use of fiscal and physical
resources. 1. A prior public hearing on the measure to be
9. Local budgets shall operationalize approved local conducted according to the prescribed rules.
development plans;
10. LGUs shall ensure that their respective budgets NOTE: An ordinance levying taxes, fees or
incorporate the requirements of their charges shall not be enacted without any prior
component units and provide for equitable public hearing conducted for the purpose.
allocation of resources among these component (Figuerres v. CA, G.R. No. 119172, March 25,
units; 1999)
11. National planning shall be based on local
planning to ensure that the needs and 2. Publication of the tax ordinance, within 10 days
aspirations of the people as articulated by the after their approval, for 3 consecutive days in a
LGUs in their respective local development newspaper of local circulation, provided that in
plans are considered in the formulation of provinces, cities, and municipalities where there
budgets of national line agencies or offices; are no newspapers of local circulation, the same
12. Fiscal responsibility shall be shared by all those may be posted in at least two (2) conspicuous
exercising authority over the financial affairs, and publicly accessible places.
transactions and operations of LGUs; and
13. The LGU shall endeavor to have a balanced budget NOTE: If the tax ordinance or revenue
in each fiscal year of operation. (LGC, Sec. 305) measure contains penal provisions as
authorized in Art. 280of this Rule, the gist of such
tax ordinance or revenue measure shall be
NOTE: The general principles on taxation also apply to published in a newspaper of general circulation

Political Law
within the province where the sanggunian concede the legality or justice of the claim or his duty to
concerned belongs. (IRR of LGC, Art. 276) pay it, or that he disputes the amount demanded; the
object being to save his right to recover or reclaim the
amount, which right would be lost by his acquiescence.
Effectivity of tax ordinance
Thus, taxes may be paid under "protest". (Black’s Law
Dictionary)
In case the effectivity of any tax ordinance or
revenue measure falls on any date other than the Requisites of a valid tax protest in a LGU (PAP)
beginning of the quarter, the same shall be
considered as falling at the beginning of the next
1. Taxpayer first pays the taxes
ensuing quarter and the taxes, fees, or charges due
2. There shall be annotation on the tax receipts the
shall begin to accrue therefrom. (IRR of LGC, Art. 276)
words "paid under protest".
3. The protest in writing must be filed within thirty
Q: The Province of Palawan passes an ordinance (30) days from payment of the tax to the
requiring all owners/operators of fishing vessels provincial, city treasurer or municipal treasurer,
that fish in waters surrounding the province to in the case of a municipality within Metropolitan
invest ten percent (10%) of their net profits from Manila Area, who shall decide the protest within
operations therein in any enterprise located in sixty (60) days from receipt. (LGC, Sec. 252)
Palawan. NARCO Fishing Corp., a Filipino
corporation with head office in Navotas, Metro NOTE: A claim for tax exemption, whether full or
Manila, challenges the ordinance as partial, does not deal with the authority of local
unconstitutional. Decide. (1991 BAR) assessor to assess real property tax, but merely raises a
question of reasonableness of correctness of such
assessment, which requires compliance with Sec. 252
A: The ordinance is invalid. The ordinance was
of the LGC. (Camp John Hay Development Corporation v.
apparently enacted pursuant to Art. X, Sec. 7 of the
Constitution, which entitles local governments to an Central Board of Assessment Appeals, G.R. No. 169234,
October 2, 2013)
equitable share in the proceeds of the utilization and
development of the national wealth within their
respective areas. However, this should be made Remedies available to the LGUs to enforce the
pursuant to law. A law is needed to implement this payment of taxes (PLAJ)
provision and a local government cannot constitute
itself unto a law. In the absence of a law, the 1. Imposing penalties (surcharges and penalty
ordinance in question is invalid. interest) in case of delinquency (LGC, Sec. 168)
2. Availing local government’s liens (LGC, Sec. 173)
Authority to determine the legality or 3. Administrative action through distraint of goods,
propriety of a local tax ordinance or revenue chattels, and other personal property [LGC,
measure Sec. 174(a)]
4. Judicial action [LGC, Sec. 174(b)]
It is the Secretary of Justice who shall determine
Community tax
questions on the legality and constitutionality of
ordinances or revenue measures.
It is a poll or capitation tax which is imposed upon
person who resides within a specified territory.
Such questions shall be raised on appeal within thirty
days from the effectivity thereof to the Secretary of
Justice who shall render a decision within sixty days Exempted from the payment of community tax
from the date of receipt of the appeal.
1. Diplomatic and consular representatives;
NOTE: Such appeal shall not have the effect of 2. Transient visitors when their stay in the
suspending the effectivity of the ordinance and the Philippines does not exceed 3 months (LGC, Sec.
accrual and payment of the tax, fee, or charge levied 159)
therein: Provided, finally, that within thirty days after
receipt of the decision or the lapse of sixty days Real property taxes
without the Secretary of Justice acting upon the
appeal, the aggrieved party may file appropriate
These are directly imposed on privilege to use real
proceedings with a court of competent jurisdiction
property such as land, building, machinery, and other
(RTC). (LGC, Sec. 187)
improvements, unless specifically exempted.
Tax Protest
Q: After the effectivity of LGC, Bayantel was
granted by Congress a legislative franchise with
It is a formal statement, usually in writing, made by a
tax exemption privileges which partly reads:
person who is called upon by public authority to pay a
“the grantee, its successors or assigns shall be
sum of money, in which he declares that he does not
liable to pay the same taxes on their real estate,
233
buildings and personal property, exclusive of 1. Permanent Closure
this franchise, as other persons or corporations a. No permanent closure of any local road,
are now or hereafter may be required by law to street, alley, park or square shall be effected
pay.” This provision existed in the company’s unless there exists a compelling reason or
franchise prior to the effectivity of the LGC. sufficient justification.
Quezon City then enacted an ordinance
b. When necessary, an adequate substitute for
imposing a real property tax on all real
the public facility that is subject to closure
properties located within the city limits and
shall be provided. No freedom park shall be
withdrawing all exemptions previously granted.
closed permanently without provision for its
Among properties covered are those owned by the
transfer or relocation to a new site.
company. Bayantel asserts that its properties are
exempt from tax under its franchise. Is Bayantel c. No such way or place shall be permanently
correct? closed without making provisions for the
maintenance of a public system.
d. A property permanently withdrawn from
A: YES. The properties are exempt from taxation. The
public use may be used or conveyed for any
grant of taxing powers to local governments under
purpose for which other real property
the Constitution and the LGC does not affect the power
belonging to property may be lawfully used
of Congress to grant tax exemptions.
or conveyed.
e. Ordinance must be approved by at least 2/3
The term "exclusive of the franchise" is interpreted to of all members of the Sanggunian. (Article
mean properties actually, directly and exclusively 44, Implementing Rules and Regulations)
used in the radio and telecommunications business.
The subsequent piece of legislation which reiterated
the phrase “exclusive of this franchise” found in the 2. Temporary Closure
previous tax exemption grant to the company is an a. During fiestas for a period not exceeding 9
express and real intention on the part of the Congress days
to once again remove from the LGC’s delegated b. During agricultural or industrial fairs or
taxing power, all of the company’s properties that are expositions for a period as may be
actually, directly and exclusively used in the pursuit of determined to be necessary and reasonable
its franchise. (The City Government of Quezon City, et al.,
c. When public works, projects, or activities
v. Bayan Telecommunications, Inc., G.R. No. 162015,
are being undertaken, for a period as may be
March 6, 2006)
determined necessary for the safety,
security, health or welfare of the public or
Elements so that the President may interfere in when such closure is necessary to facilitate
local fiscal matters completion of the projects or activities
d. An LGU may temporarily close and regulate
1. An unmanaged public sector deficit of the the use of any local street, road,
national government; thoroughfare, or public place where
2. Consultations with the presiding officers of the shopping malls, Sunday market, flea or night
Senate and the House of Representatives and the market, or shopping areas may be
presidents of the various local leagues; established and where goods, merchandise,
3. And the corresponding recommendation of the foodstuff, commodities, or articles of
secretaries of the Department of Finance, commerce may be sold and dispensed to the
Interior and Local Government, and Budget and general public
Management (Pimentel, Jr. v. Aguirre, G.R. No. e. No national or local road, alley, park, or
132988, July 19, 2000). square shall be temporarily closed for
athletic, cultural, or civic activities not
4. CLOSURE AND OPENING OF ROADS officially sponsored, recognized, or approved
by the LGU. (Article 45, Implementing Rules
and Regulations)
An LGU may, pursuant to an ordinance, permanently
or temporarily close or open any local road, alley,
park, or square falling within its jurisdiction. 5. LEGISLATIVE POWER
In the case of permanent closure, such ordinance must Nature of local legislative powers
be approved by at least 2/3 of all members of the
sanggunian, and when necessary, an adequate It is a fundamental principle that municipal
substitute for the public facility that is subject to ordinances are inferior in status and subordinate to
closure is provided. (Section 21, Local Government the laws of the State. An ordinance in conflict with a
Code) state law of general character and statewide
application is universally held to be invalid. In every
Kinds power to pass ordinances given to a municipality,
there is an implied restriction that the ordinances

Political Law
shall be consistent with the general law. (Batangas Vice-mayor
CATV v. Court of Appeals, G.R. No. 138810, September 4. Barangay - Sangguniang barangay - Punong
29, 2004) Barangay
NOTE: The presiding officer shall vote only to break a tie
NOTE: The rule against undue delegation of [Sec. 49(a) LGC]
legislative powers applies to LGUs. In the case of
Villegas v. Tsai Pao Ho (G.R. No. 29646, October 10, In the absence of the regular presiding officer or his
1978), a city ordinance was declared void because it inability to preside at the sanggunian session, the
constituted undue delegation of legislative power to members present and constituting a quorum shall elect
the Mayor. The ordinance did not lay down any from among themselves a temporary presiding officer.
standard to guide the Mayor in the exercise of his [LGC, Sec. 49(b); Gamboa v. Aguirre, G.R. No. 134213, July
discretion in the issuance or denial of an alien 20, 1999]
employment permit.
Q: May an incumbent Vice-Governor, acting as

The Sanggunian governor, continue to preside over the sessions of
the Sangguniang Panlalawigan (SP)? If not, who
A sanggunian is a collegial body. Legislation, which may preside in the meantime?
is the principal function of the sanggunian, requires
the participation of all its members so that they A: NO. A Vice-Governor who is concurrently an acting
may not only represent the interests of their governor is actually a quasi-governor. For purposes of
respective constituents but also help in the making exercising his legislative prerogatives and powers, he
of decisions, by voting upon every question put is deemed a non-member of the SP for the time being.
upon the body. (Zamora v. Caballero, G.R. No. Being the Acting Governor, the Vice-Governor cannot
147767, January 14, 2004) continue to simultaneously exercise the duties of the
latter office, since the nature of the duties of the
NOTE: A petition for certiorari filed against a provincial Governor call for a full-time occupant to
Sangguniang Panlungsod assailing the legality of an discharge them. Such is not only consistent with but
ordinance will not lie since the Sanggunian is not a also appears to be the clear rationale of the new Code
tribunal, board or officer exercising judicial or wherein the policy of performing dual functions in
quasi-judicial functions. (Liga ng mga Barangay both offices has already been abandoned.
National v. City Mayor of Manila, G.R. No. 154599,
January 21, 2004) The creation of a temporary vacancy in the office of
the Governor creates a corresponding temporary
No power to subpoena and hold persons in vacancy in the office of the Vice-Governor whenever
contempt (1993 BAR) the latter acts as Governor by virtue of such
temporary vacancy. The continuity of the Acting
Governor’s (Vice-Governor) powers as presiding
The contempt power and the subpoena power officer of the SP is suspended so long as he is in such
cannot be deemed implied in the delegation of capacity.
certain legislative functions to local legislative
bodies. These cannot be presumed to exist in favor
of the latter and must be considered an exception to Under Sec. 49(b), “in the event of the inability of the
Sec. 4 of B.P. Blg. 337 which provides for liberal regular presiding officer to preside at the sanggunian
rules of interpretation in favor of local autonomy. session, the members present and constituting a
Since the existence of these powers poses a quorum shall elect from among themselves a
potential derogation of individual rights, the law temporary presiding officer”. (Gamboa v. Aguirre, G.R.
cannot be liberally construed to have impliedly No. 134213, July 20, 1999)
granted such powers to local legislative bodies. The
intention of the people, through their Quorum in the sanggunian
representatives, to share these powers with the
local legislative bodies must clearly appear in
pertinent legislation. (Negros Oriental II Electric Quorum is defined as the number of members of a
Cooperative Inc., v. Sangguiang Panlungsod ng body which when legally assembled in their proper
Dumaguete, G.R. No. L-72492, November 5, 1987) places, will enable the body to transact its proper
business or that number which makes a lawful body
and gives it power to pass upon a law, ordinance or
Local legislative bodies and their presiding any valid act. ‘Majority’, when required to constitute a
officers quorum, means the number greater than half or more
than half of any total.
1. Province - Sangguniang Panlalawigan - Vice-
governor Q: What is the number that would determine the
2. City - Sangguniang Panlungsod- City Vice – mayor quorum of our sanggunian that has a total
3. Municipality - Sangguniang bayan - Municipal
235
membership of eleven (11) including the vice- [LGC, Sec. 53 (b)(c)]
mayor?
Fixing of Sessions
A: The Sangguniang Bayan is composed of eight (8)
regular members, the Liga ng mga Barangay President Regular Sessions - By resolution on the 1st day of the
and the SK Federation President as ex-officio session immediately following the election of its
members, and the Vice-Mayor as Presiding Officer. members
The total membership in a sanggunian bayan,
therefore, is eleven (11). Special Sessions - When public interest so demands,
special session may be called for by the chief executive
or by a majority vote members of sanggunian.
Relative thereto, Section 53 of the Local Government
Code of 1991 provides that a majority of all the
members of the sanggunian who have been elected NOTE: The minimum number of regular sessions shall
and qualified shall constitute a quorum to transact be once a week for the sangguniang panlalawigan,
official business. "Majority" has been defined in sangguniang panlungsod, and sangguniang bayan, and
Santiago vs. Guingona, et al. (G.R. No. 134577, 18 twice a month for the sangguniang barangay. [LGC, Sec.
November 1998) as that which is greater than half of 52 (a)]
the membership of the body.
Guidelines in the conduct of a sanggunian session
Following the said ruling, since the total membership
of the sanggunian being 11, 11 divided by 2 will give
1. It shall be open to public, unless it is a closed-
us a quotient of 5.5. Let it be noted however that a
door session
fraction cannot be considered as one whole vote, since
2. No two sessions, regular or special, may be held
it is physically and legally impossible to divide a
in a single day
person or even his vote into a fractional part.
3. Minutes of the session be recorded and each
Accordingly, we have to go up to the next whole
sanggunian shall keep a journal and record of its
number, which is 6.
proceedings which may be published upon
resolution of the sanggunian concerned.
In this regard, 6 is more than 5.5 and therefore, more 4. In case of special sessions:
than one-half of the total membership of the
sangguniang bayan in conformity with the a. Written notice to the members must be
jurisprudential definition of the term majority. served personally at least 24 hours before
the special session is held
b. Unless otherwise concurred in by 2/3 votes
Thus, the presence of 6 members shall already
of the sanggunian members present,
constitute a quorum in the sangguniang bayan for it to
there being no quorum, no other matters
conduct official sessions. (DILG Opinion No. 46-2007
may be considered at a special session
and La Carlota City et al, v. Atty. Rex Rojo, G.R. No.
except those stated inthe notice (LGC, Sec. 52).
181367, April 24, 2012)
Q: On its first regular session, may the

Procedures to be taken by the presiding officer if sanggunian transact business other than the
there is a question on quorum matter of adopting or updating its existing rules or
procedure?
Should there be a question of quorum raised during a
session, the presiding officer shall: A: YES. There is nothing in the language of the LGC
that restricts the matters to be taken up during the
1. Immediately proceed to call the roll of the first regular session merely to the adoption or
members and updating of the house rules. (Malonzo v. Zamora, G.R.
2. Announce the results [LGC, Sec. 53 (a)] No. 137718, July 27, 1999)
Procedures to be taken by the presiding officer if a. REQUISITES FOR VALID ORDINANCE

there is no quorum
Ordinance
The presiding officer may:
1. Declare a recess until such time that quorum is As a municipal statute, It is a rule of conduct or of
constituted action, laid down by the municipal authorities that
2. Compel immediate attendance of the members must be obeyed by the citizens. It is drafted, prepared,
who are absent without justifiable cause promulgated by such authorities for the information of
3. Declare the session adjourned for lack of quorum all concerned, under and by virtue of powers conferred
and no business shall be transacted if there is still upon them by law. (United States v. Pablo Trinidad, G.R.
no quorum despite enforcement of attendance No. L-3023, January 16, 1907)

Political Law
Requisites for a valid ordinance [not-CUPPUn-Gen] Veto of the Local Chief Executive (1996, 2005
BAR)
1. Must not contravene the constitution and any
statute The Local Chief Executive may veto the ordinance
2. Must not be unfair or oppressive only once on the ground that the ordinance is ultra
3. Must not be partial or discriminatory vires and prejudicial to public welfare. The veto must
4. Must not prohibit, but may regulate trade be communicated to the sanggunian within:
5. Must not be unreasonable
6. Must be general in application and Consistent
1. 15 days for a province
with public policy. (Magtajas v. Pryce Properties
2. 10 days for a city or municipality (LGC, Secs. 54
Corporation, Inc., July 20, 1994)
and 55)
NOTE: The mere fact that there is already a general
NOTE: While “to veto or not to veto involves the
statute covering an act or omission is insufficient to
exercise of discretion,” a mayor exceeded his/her
negate the legislative intent to empower the
authority in an arbitrary manner when he/she vetoes
municipality to enact ordinances with reference to
a resolution where there exist sufficient municipal
the same act or omission under the ‘general welfare
funds from which the salary of the officer could be
clause’ of the Municipal Charter (United States v.
paid. The Mayor’s refusal in complying with the
Pascual Pacis, G.R. No. 10363, September 29, 1915).
directive of the Director of the Bureau of Local
Government that the salary could be provided for is
Ordinance vs. Resolution
oppressive. (Pilar v. Sangguniang Bayan of Dasol,
Pangasinan, G.R. No. 63216, March 12, 1984)
ORDINANCE RESOLUTION
Law Merely a declaration of the Items that the local chief executive can veto (A-LP-
sentiment or opinion of a ML)
lawmaking body on a
specific matter
1. Item/s of an appropriation ordinance.
General and permanent Temporary in nature 2. Ordinance/resolution adopting local
character development plan and public investment
Third reading is GR: Third is reading not program
necessary for an necessary 3. Ordinance directing the payment of money or
ordinance creating liability (LGC, Sec. 55)
NOTE: Ordinances enacted by the sangguniang

GR: Third reading is not necessary in resolution
barangay shall, upon approval by a majority of all
its members be signed by the punong barangay.
XPN: Unless decided otherwise by a majority of all the The latter has no veto power.
Sanggunian members. (Roble Arrastre, Inc. v. Villaflor,
G.R. No. 128509, August 22, 2006)
Approval of ordinances
NOTE: It has been held that even where the statute or

1. By affixing the signature of the local chief
municipal charter requires the municipality to act by
executive on each and every page thereof if he
an ordinance, if a resolution is passed in the manner
approves the same
and with the statutory formality required in the
2. By overriding the veto of the local chief
enactment of an ordinance, it will be binding and
executive by 2/3 vote of all members of the
effective as an ordinance. Such resolution may
sanggunian if the local chief executive vetoed
operate regardless of the name by which it is called.
the same(LGC, Sec. 54)
(Favis v. City of Baguio, G.R. No. L-29910, April 25,
1969)
NOTE: A sanggunian may provide for a vote
requirement different (not majority vote) from that
Three readings of an ordinance allowed in one prescribed in the LGC for certain (but not all)
day ordinances as in amending a zoning ordinance. (Casino
v. Court of Appeals, G.R. No. 91192, Dec. 2, 1991)
There is nothing in the LGC which prohibits the three
readings of a proposed ordinance from being held in Effectivity of ordinance or resolution
just one session day. It is not the function of the
courts to speculate that the councilors were not given
GR: After 10 days from the date a copy is posted in a
ample time for reflection and circumspection before
bulletin board at the entrance of the capitol or city,
the passage of the proposed ordinance by conducting
municipal or barangay hall and in at least 2
three readings in just one day. (Malonzo v. Zamora,
conspicuous spaces. [LGC, Sec. 59 (a)]
G.R. No. 137718, July 27, 1999)
237
XPN: Unless otherwise stated in the ordinance invalid on the city or
or resolution [LGC, Sec. 59 (a)]. (grounds) sangguniang municipal
panlungsod or ordinance.
sangguniang Effect:
Effect of the enforcement of a disapproved
pangbayan (LGC, Barangay
ordinance or resolution
Sec. 56) ordinance is
suspended
It shall be a sufficient ground for the suspension or until such time
dismissal of the official or employee (LGC, Sec. 58). as the revision
called is
Ordinances requiring publication for its effected (LGC,
effectivity Sec. 57)
1. Ordinances that carry with them penal sanctions b. LOCAL INITIATIVE AND REFERENDUM
[LGC, Sec. 59 (c)]
2. Ordinances and resolutions passed by highly Initiative: The legal process whereby the registered
urbanized and independent component cities voters of LGU may directly propose, enact or amend any
[LGC, Sec. 59 (d)] ordinance (LGC, Sec. 120)
Review of ordinances or resolutions (2009 BAR)

Referendum: The legal process whereby the
registered voters of the LGU may approve, amend or
COMPONENT reject any ordinance enacted by the sanggunian (R.A.
CITIES AND BARANGAY 7160, Sec. 126)
BASIS MUNICIPAL ORDINANCES
ORDINANCES OR
RESOLUTIONS NOTE: Local initiative includes not only ordinances but
also resolutions as its appropriate subjects (Garcia v.
Sangguniang Sangguniang COMELEC, G.R. 111230, September. 30, 1994).
As to Who Panlalawigan Panlungsod or
Reviews Sangguniang
Bayan Limitations on local initiative
As to When Within 3 days Within 10 days
copies of after approval after its 1. It shall not be exercised for more than once a
ordinance enactment year.
or reso- 2. It shall extend only to subjects or matters which
lutions be are within the legal powers of the sanggunian to
forwarded enact.
Within 30 days Within 30 days 3. If at any time before the initiative is held, the
after the receipt; after the sanggunian concerned adopts in toto the
receipt. proposition presented and the local chief
executive approves the same, the initiative shall
1. Examine, or be canceled. However, those against such action
2. Transmit to the may, if they so desire, apply for initiative in the
provincial attorney manner herein provided. (LGC, Sec. 124)
or provincial
prosecutor. Procedure in conducting local initiative
As to Period If it is transmitted,
to examine the provincial
1. Number of voters who should file petition with
attorney or
the Sanggunian concerned:
prosecutor must
submit his
a. Province and cities – not less than
comments or
1000 registered voters
recommendations
b. Municipality – at least 100 registered
within 10 days
voters
from receipt of the
c. Barangay – at least 50 registered voters
document.
If no action has If no action has 2. The sanggunian concerned has 30 days to act on
As to When been taken within been taken the petition. If the sanggunian does not take any
declared 30 days after within 30 days favorable action, the proponents may invoke the
valid submission. after powers of initiative, giving notice to sanggunian.
submission.
As to When If it is beyond the If inconsistent 3. Proponents will have the following number of
declared powerconferred with the law or days to collect required number of signatures

Political Law
a. Provinces and cities – 90 days conversion. Governor Yuri asserts that all the
b. Municipalities – 60 days registered voters of the entire province of Laguna
c. Barangay – 30 days should participate in the plebiscite, because when
the LGC speaks of the “qualified voters therein,” it
4. Signing of petition in a public place, before the means all the voters of all the political units affected
election registrar or his designated by such conversion, and that includes all the voters
representatives, in the presence of a of the entire province. He argues that the income,
representative of the proponent and of the population and area of Laguna will reduce. Who,
sanggunian concerned. between Mayor Xenon and Governor Yuri, is
correct? Explain your answer. (2016 BAR)
5. Date of initiative is set by COMELEC if the
required number of signatures has been obtained
A: Governor Yuri is correct. All the registered voters of
(LGC, Sec. 122)
the Province of Laguna should be included in the
plebiscite as the conversion of the City of Malumanay
Effectivity of proposition into a highly urbanized city will adversely affect the
Province of Laguna and its residents. Not only will it
If the proposition is approved by a majority of the reduce the province’s territory, once the City of
votes cast, it will take effect 15 days after certification Malumanay becomes a highly urbanized city, the
by the COMELEC. If it fails to obtain said number of Province will no longer share in the taxes collected by
votes, the proposition is considered defeated. (LGC, Sec. the City of Malumanay. Thus, to limit the plebiscite to the
123). voters of the City of Malumanay would nullify the
principle of majority rule. (Umali v. Commission on
Elections, G.R. No. 203974. April 22, 2014)
Rule of COMELEC over local referendum
6. ULTRA VIRES ACTS

The local referendum shall be held under the control
and direction of the COMELEC within
Ultra vires contracts
a. Provinces and cities – 60 days
b. Municipalities – 45 days
c. Barangay – 30 days Ultra vires contracts are those which (EII-SR):
The COMELEC shall certify and proclaim the results of 1. Are entered into beyond the express, implied or
the said referendum (LGC, Sec. 126) inherent powers of the LGU; and
2. Do not comply with the substantive
Rule on repeal, modification and amendment of an requirements of law e.g., when expenditure of
ordinance or proposition approve through an public funds is to be made, there must be an
initiative and referendum actual appropriation and certificate of availability
of funds. (Land Bank of the Philippines v.
Cacayuran, G.R. No. 191667, April 17, 2013)
Any proposition or ordinance approved through an
initiative and referendum shall not be repealed,
NOTE: Ultra Vires contracts are null and void and
modified or amended by the sanggunian within 6
cannot be ratified or validated.
months from the date of approval thereof.
Instance when a defective municipal contract

It may be amended, modified or repealed within 3 years
may be ratified
thereafter by a vote of ¾ of all its members (LGC, Sec.
125)
Ratification of defective municipal contracts is
possible only when there is non-compliance with
NOTE: In case of barangays, the period shall be 18
the requirements of authority of the officer entering
months after the approval thereof. (LGC, Sec. 125)
into the contract and/or conformity with the formal
requisites of a written contract as prescribed by law.
Q: A law converted the component city of Ratification may either be expressed or implied.
Malumanay, Laguna into a highly urbanized city. The
Local Government Code (LGC) provides that the
NOTE: An act attended only by an irregularity, but
conversion “shall take effect only after it is approved
remains within the municipality’s power, is
by the majority of votes cast in a plebiscite to be held
considered as an ultra vires act subject to ratification
in the political units directly affected.”
and/or validation.
Before the COMELEC, Mayor Xenon of Malumanay

Examples:
City insists that only the registered voters of the city
should vote in the plebiscite because the city is the
only political unit directly affected by the 1. Those entered into by the improper department,
239
board, officer of agent. Thereafter, Ong, a member of the City Council,
2. Those that do not comply with the formal questioned the lack of ratification by the City
requirements of a written contract e.g., the Council of the contracts, among others. Should all
Statute of Frauds. (Land Bank of the Philippines v. the documents pertaining to the purchase of the
Cacayuran, supra.) lots bear the ratification by the City Council of
Calamba?
Contracts entered into by a local chief executive
may be subject to constructive ratification A: NO. Sec. 22(c), LGC, provides: (c) Unless otherwise
provided in this Code, no contract may be entered into
A loan agreement entered into by the provincial by the local chief executive in behalf of the LGU
governor without prior authorization from the without prior authorization by the sanggunian
Sangguniang Panlalawigan is unenforceable. The concerned. Clearly, when the local chief executive
Sanggunian’s failure to impugn the contract’s validity enters into contracts, the law speaks of prior
despite knowledge of its infirmity is an implied authorization or authority from the Sangguniang
ratification that validates the contract. (Ocampo III v. Panlungsod and not ratification. It cannot be denied
People, G.R. No. 156547-51 & 156382-85, February 4, that the City Council issued Res. 280 authorizing
2008) Mayor Tiama to purchase the subject lots.
Doctrine of estoppel does not apply against a NOTE: As aptly pointed out by the Ombudsman,
municipal corporation to validate an invalid ratification by the City Council is not a condition sine
contract qua non for a mayor to enter into contracts. With the
resolution issued by the Sangguniang Panlungsod, it
cannot be said that there was evident bad faith in
The doctrine of estoppel cannot be applied as against a purchasing the subject lots. The lack of ratification
municipal corporation to validate a contract which it alone does not characterize the purchase of the
has no power to make, or which it is authorized to properties as one that gave unwarranted benefits to
make only under prescribed conditions, within Pamana or Prudential Bank or one that caused undue
prescribed limitations, or in a prescribed mode or injury to Calamba City. (Vergara v. Ombudsman, G.R.
manner, although the corporation has accepted the No. 174567, March 12, 2009)
benefits thereof and the other party has fully
performed its part of the agreement, or has expended
large sums in preparation for performance. A reason Competitive or Public Bidding
frequently assigned for this rule is that to apply the
doctrine of estoppel against a municipality in such a Refers to a method of procurement which is open to
case would be to enable it to do indirectly what it participation by any interested party and which
cannot do directly. (In Re: Pechueco Sons Company v. consists of the following processes: advertisement,
Provincial Board of Antique, G.R. No. L-27038, Jan. 30, pre-bid conference, eligibility screening of
1970) prospective bidders, receipt and opening of bids,
evaluation of bids, post-qualification, and award of
Authority to negotiate and secure grants contract. [R.A. 9184, IRR, Sec 5 (h)]
The local chief executive may, upon authority of Requirement of public bidding
the sanggunian, negotiate and secure financial grants
or donations in kind, in support of the basic services In the award of government contracts, the law requires
or facilities enumerated under Sec. 17 of LGC, from competitive public bidding. It is aimed to protect the
local and foreign assistance agencies without public interest by giving the public the best possible
necessity of securing clearance or approval from advantages thru open competition. It is a mechanism
any department, agency, or office of the national that enables the government agency to avoid or
government or from any higher LGU; Provided, that preclude anomalies in the execution of public
projects financed by such grants or assistance with contracts. (Garcia v. Burgos, G.R. No. 124130, June 29,
national security implications shall be approved by 1998)
the national agency concerned (LGC, Sec. 23)
Failure of bidding (OOO-NU)

Q: The City Council of Calamba issued several
resolutions authorizing Mayor Tiama to negotiate
with landowners within the vicinity of Barangays When any of the following occurs:
Real, Halang, and Uno, for a new city hall site and 1. There is only one offeror
to purchase several lots and to execute, sign and 2. When all the offers are non-complying or
deliver the required documents. Mayor Tiama unacceptable. (Bagatsing v. Committee on
then entered into MOA, Deed of Sale, Deed of Privatization, G.R. No. 112399, July 14, 1995)
Mortgage, and Deed of Assignment.
7. CORPORATE POWERS

Political Law
Beginning of Corporate Existence Suability is not the same as liability
When a new local government unit is created, its

It is a categorical statement that LGUs do not enjoy
corporate existence shall commence upon the
absolute and unqualified immunity from suits.
election and qualification of its chief executive
Therefore, an LGU’s suability is something that is
and a majority of the members of its sanggunian,
recognized but their liability is subject to evidence.
unless some other time is fixed therefor by the
(The Local Government Code Revisited 2011 Ed., p144,
law or ordinance creating it. (Sec 14, LGC)
Aquilino Pimentel, Jr.)
NOTE: Qualification means that they are able to
take oath under the said office. Governmental vs. proprietary functions
Corporate powers of the LGU:

If the injury is caused in the course of the performance
of a governmental function or duty, no recovery, as a
Every LGU, as a corporation, shall have the
rule, can be had from the municipality unless there is
following powers to:
an existing statute on the matter, nor from its officers
so long as they performed their duties honestly and in
1. Have continuous succession in its corporate good faith or that they did not act wantonly and
name; - in order to be able to act as a juridical maliciously.
entity and exercise such corporate powers
granted to a local government, it must first
have a corporate name. With respect to proprietary functions, the settled rule
2. Sue and be sued; - it must have the power to is that a municipal corporation can be held liable to
sue and be sued otherwise it cannot securely third persons ex contractu or ex delicto.
enter into transactions in the performance of
its functions NOTE: There can be no hard and fast rule for purposes
3. Have and use a corporate seal; - of determining the true nature of an undertaking or
function of a municipality; the surrounding
NOTE: Local government units may continue circumstances of a particular case are to be considered
using, modify, or change their existing and will be decisive. The basic element, however
corporate seals: Provided, That newly beneficial to the public the undertaking may be, is that
established local government units or those it is governmental in essence; otherwise the function
without corporate seals may create their own becomes private or proprietary in character.
corporate seals which shall be registered (Municipality of Malasiqui v. Heirs of Fontanilla, G.R. No.
with the Department of the Interior and Local L-29993, October 23, 1978)
Government: Provided, further, That any
change of corporate seal shall also be
registered as provided hereon. (Sec 22(b), Liabilities of LGUs (1994, 2009 BAR)
LGC)
1. LGUs and their officials are not exempt from
4. Acquire and convey real or personal property; liability arising from death or injury to persons
a municipal corporation, in connection with or damage to property. (LGC, Sec. 24)
its powers may acquire property in its
governmental and proprietary powers. 2. LGUs shall be liable for damages for the death of,
5. Enter into contracts; or injuries suffered by, any person by reason of
6. Exercise such other powers as are granted to the defective condition of roads, streets, bridges,
corporations, subject to the limitations public buildings, and other public works under
provided in the 1991 LGC and other laws their control or supervision. (New Civil Code, Art.
(Section 22, 1991 LGC). 2189)
8. LIABILITY OF LGUs NOTE: LGU is liable even if the road does not
belong to it as long as it exercises control or
Every local government unit, as a corporation, shall supervision over the said roads.
have the power to sue and be sued. [LGC, Sec. 22, (a)
(2)] 3. The State is responsible in like manner when it
acts through a special agent; but not when the
LGUs have the power to sue and be sued. Because of damage has been caused by the official to whom
the statutory waiver, LGUs are not immune from suit. the task done properly pertains. In which case,
(Agra, Amicus Imperiorum Locorum, 2016) Art. 2180 shall be applicable. [New Civil Code,
Article 2180 (6)]
Local government units and their officials are not 4. When a member of a city or municipal police
exempt from liability for death or injury to persons or force refuses or fails to render aid or protection
damage to property. (LGC, Sec. 24) to any person in case of danger to life or
241
property, such peace officer shall be primarily connote an enforceable obligation. Some specific
liable for damages and the city or municipality principle or situation of which equity takes
shall be subsidiarily responsible therefor. (New cognizance must be the foundation of the claim.
Civil Code, Art.34) The principle of liability rests upon the theory
that the obligation implied by law to pay does not
Sources of municipal liability (VoLConT) originate in the unlawful contract but arises from
considerations outside it. The measure of
recovery is the benefit received by the municipal
1. Liability arising from violation of law
corporation. The province cannot set up the plea
that the contract was ultra vires and still retain
NOTE: Liability arising from violation of law such benefits. (Province of Cebu v. IAC,ibid.)
as closing municipal streets without
indemnifying persons prejudiced thereby, non-
payment of wages to its employees due to lack of Tort liability of LGUs
funds or other causes or its refusal to abide a
temporary restraining order may result in 1. LGU-engaged in governmental function– Not
contempt charge and fine. liable
2. Liability for contracts XPN: Unless it’s expressly made liable by a

statute or its officers acted wantonly or
maliciously. (Torio v. Fontanilla, G.R. No. L-
NOTE:
29993, October 23, 1978)
a. LGU is liable provided that the contract is
intra vires or it is ultra vires that is only 2. LGU-engaged in proprietary function– Liable
attended by irregularities, which does not
preclude ratification or the application of the
Q: A collision between a passenger jeepney, sand
doctrine of estoppel.
and gravel truck, and a dump truck driven by
Monte and owned by the Municipality of San
If it is ultra vires, which are entered into
Fernando occurred which resulted to the death of
beyond the express, implied or inherent
Jessica, a passenger of the jeepney. The heirs of
powers of the local government unit or do not
Jessica instituted an action for damages against
comply with the substantive requirements of
the Municipality. Is the municipality liable for the
law they are not liable.
tort committed by its employee?
b. A private individual who deals with a
municipal corporation is imputed with A: NO. The driver of the dump truck was performing
CONSTRUCTIVE knowledge of the extent duties or tasks pertaining to his office – he was on his
of the power or authority of the municipal way to get a load of sand and gravel for the repair of
corporation to enter into contracts. San Fernando's municipal streets. The municipality
cannot be held liable for the tort committed by its
3. Liability for tort regular employee, who was then engaged in the
discharge of governmental functions. The death of the
NOTE: They may be held liable for torts arising passenger –– tragic and deplorable though it may be –
from the performance of their private and – imposed on the municipality no duty to pay
proprietary functions under the principle of monetary compensation. (Municipality of San
respondent superior. (City of Manila v. Fernando v. Hon. Firme, G.R. No. L-52179, April 8, 1991)
Intermediate Court of Appeals 179 SCRA 428)
Q: The Municipality of Malasiqui authorized the
Doctrine of Implied Municipal Liability celebration of town fiesta by way of a resolution
and appropriated an amount for the construction
of 2 stages. One of the members of the group to
A municipality may become obligated, upon an perform a play during the fiesta was Fontanilla.
implied contract, to pay the reasonable value of the Before the dramatic part of the play was reached,
benefits accepted or appropriated by it as to which it the stage collapsed, and Fontanilla was pinned
has the general power to contract. The doctrine of underneath resulting to his death. The heirs of
implied municipal liability has been said to apply to all Fontanilla filed a complaint against the
cases where money or other property of a party is Municipality. Is the municipality liable?
received under such circumstances that the general
law, independent of express contract, implies an
obligation upon the municipality to do justice with A: YES. The town fiesta was an exercise of a private or
respect to the same. (Province of Cebu v. IAC, G.R. proprietary function of the municipality. Holding a
No. 72841, January 29, 1987) fiesta, even if the purpose is to commemorate a
religious or historical event of the town, is in essence
an act for the special benefit of the community and
NOTE: The obligation of a municipal corporation not for the general welfare of the public performed in
upon the doctrine of an implied contract does not

Political Law
pursuance of a policy of the state. No governmental or referred to the Sangguniang Bayan or the
public policy of the state is involved in the celebration Sangguniang Panlungsod;
of a town fiesta. (Municipality of Malasiqui v. Heirs of 2. Municipalities within the same province to the
Fontanilla, G.R. No. L-29993, Oct. 23, 1978) Sangguniang Panlalawigan and
3. Municipalities or component cities of different
provinces are jointly referred to the sanggunians
Q: X was elected as Vice Mayor of Dasol,
concerned.
Pangasinan. The Sangguniang Bayan adopted
Resolution No. 1 which increased the salaries of
The same rule mentioned in paragraph (c) is followed
the Mayor and Municipal Treasurer to P18,636 and
when the boundary disputes involve a component city
P16,044 per annum respectively. However, the
or municipality, on the one hand, and a highly
Resolution did not provide for an increase in salary
urbanized city on the other, or between or among
of the Vice Mayor despite the fact that such
highly urbanized cities. (The Local Government Code
position is entitled to an annual salary of P16,044.
Revisited 2011 Ed., p. 275-276, Aquilino Pimentel, Jr)
X questioned the failure of the Sangguniang Bayan
to appropriate an amount for the payment of his
salary. The Sangguniang Bayan increased his Procedure for Settling Boundary Disputes
salary and enacted a Resolution No. 2
appropriating an amount as payment of the unpaid
Article 17, Rule III of the Rules and Regulations of the
salaries. However, the Resolution was vetoed by
LGC outlines the procedures governing boundary
the respondent mayor. Can X avail of damages due
disputes, which succinctly includes the filing of the
to the failure of the respondents to pay him his
proper petition, and in case of failure to amicably settle,
lawful salary?
a formal trial will be conducted and a decision will be
rendered thereafter. An aggrieved party can appeal the
A: YES. The Mayor alone should be held liable and not decision of the sanggunian to the appropriate RTC.
the whole Sanggunian Bayan. Respondent Mayor (Calanza v. PICOP, G.R. No. 146622, April 24, 2009)
vetoed the Resolution without just cause. While "to
veto or not to veto involves the exercise of discretion"
Boundary disputes between and among
as contended by respondents, respondent Mayor,
municipalities in the same province may be filed
however, exceeded his authority in an arbitrary
immediately with the Regional Trial Court. (2009
manner when he vetoed the resolution since there are
BAR)
sufficient municipal funds from which the salary of the
petitioner could be paid.
The statement that boundary disputes between and
among municipalities in the same province may be
Respondent Mayor’s refusal, neglect or omission in
rued immediately with the Regional Trial Court is false.
complying with the directives of the Provincial Budget
Under Section 118 of the Local Government Code, they
Officer and the Director of the Bureau of Local
should be referred for settlement to the sangguniang
Government that the salary of X be provided for and
panlalawigan. (Municipality of Sta. Fe v. Municipality of
paid the prescribed salary rate, is reckless and
Aritao, G.R. No. 140474, September 21, 2007)
oppressive, hence, by way of example or correction for
the public good, respondent Mayor is liable personally
to the petitioner for exemplary or corrective damages. Said rules and regulations state the following:
(Pilar v. Sangguniang bayan ng Dasol, Pangasinan,G.R.
No. 63216, March 12, 1984) 1. Filing of petition - The sanggunian concerned may
initiate action by filing a petition, in the form of a
resolution, with the sanggunian having
9. SETTLEMENT OF BOUNDARY DISPUTES
jurisdiction over the dispute.
2. Contents of petition - The petition shall state the
Boundary Dispute
grounds, reasons or justifications therefore.
3. Documents attached to petition (CMT-CDO) - The
When a portion or the whole of the territorial area of petition shall be accompanied by:
an LGU is claimed by two or more LGUs.
a. Duly authenticated copy of the law or
statute creating the LGU or any other
Jurisdictional Responsibility for Settlement of document showing proof of creation of
Boundary Dispute the LGU;
b. Provincial, city, municipal, or barangay
map, as the case may be, duly certified
Generally, the rule is to settle boundary disputes
by the LMB.
between and among LGUs amicably. Specifically,
c. Technical description of the boundaries
boundary disputes involving the LGUs are referred for
settlement to the sanggunians concerned. For example, of the LGUs concerned;
d. Written certification of the provincial,
those involving:
city, or municipal assessor, as the case
may be, as to territorial jurisdiction over
1. Barangays within one municipality or city are the disputed area according to records in
243
custody; A: Since Passi is an independent component city,
e. Written declarations or sworn while Duenas is a municipality, the procedure in
statements of the people residing in the Section 118 of the Local Government Code does not
disputed area; and apply to them. Since there is no law providing for the
f. Such other documents or information as jurisdiction of any court or quasi-judicial agency over
may be required by the sanggunian the settlement of their boundary dispute, the
hearing the dispute. Regional Trial Court has jurisdiction to adjudicate it.
Under Section 19 (6) of the Judiciary
4. Answer of adverse party - Upon receipt by the Reorganization Act, the Regional Trial Court has
sanggunian concerned of the petition together exclusive original jurisdiction in all cases not within
with the required documents, the LGU or LGUs the exclusive jurisdiction of any court or quasi-
complained against shall be furnished copies judicial agency. (Municipality of Kananga v. Madron,
thereof and shall be given fifteen (15) working G.R. No. 141375. April 30, 2003)
days within which to file their answers.
2.) The Sangguniang Bayan of the Municipality of
5. Hearing - Within five (5) working days after Santa, Ilocos Sur passed Resolution No. 1
receipt of the answer of the adverse party, the authorizing its Mayor to initiate a petition for the
sanggunian shall hear the case and allow the expropriation of a lot owned by Christina as site for
parties concerned to present their respective its municipal sports center. This was approved by
evidences. the Mayor. However, the Sangguniang
6. Joint hearing - When two or more sanggunians Panlalawigan of Ilocos Sur disapproved the
jointly hear a case, they may sit en banc or Resolution as there might still be other available
designate their respective representatives. Where lots in Santa for a sports center. Nonetheless, the
representatives are designated, there shall be an Municipality of Santa, through its Mayor, filed a
equal number of representatives from each complaint for eminent domain. Christina opposed
sanggunian. They shall elect from among this on the following grounds:
themselves a presiding officer and a secretary. In
case of disagreement, selection shall be by (a) The Municipality of Santa has no power to
drawing lot. expropriate;
7. Failure to settle - In the event the sanggunian fails
to amicably settle the dispute within sixty (60) (b) Resolution No. 1 has been voided since the
days from the date such dispute was referred Sangguniang Panlalawigan disapproved it for being
thereto, it shall issue a certification to the effect arbitrary; and
and copies thereof shall be furnished the parties
concerned. (c) The Municipality of Santa has other and better
lots for that purpose. Resolve the case with
8. Decision - Within sixty (60) days from the date the reasons. (2005 BAR)
certification was issued, the dispute shall be
formally tried and decided by the sanggunian A: a) The Municipality of Santa has the power to
concerned. Copies of the decision shall, within expropriate for the power of eminent domain is
fifteen (15) days from the promulgation thereof, granted by the LGC to all local government units.
be furnished the parties concerned, DILG, local However, the Code requires an ordinance and not a
assessor, COMELEC, NSO, and other NGAs resolution for the exercise of the power of eminent
concerned. domain. (Heirs of Alberto Suguitan v. City of
9. Appeal - Within the time and manner prescribed Mandaluyong, GR No. 135087, March 14, 2000)
by the Rules of Court, any party may elevate the
decision of the sanggunian concerned to the b) The Sangguniang Panlalawigan of Ilocos Sur was
proper Regional Trial Court having jurisdiction without the authority to disapprove Resolution No. 1
over the dispute by filing therewith the for the Municipality of Santa clearly has the power to
appropriate pleading, stating among others, the exercise the right of eminent domain. The provincial
nature of the dispute, the decision of the board’s disapproval of any resolution, ordinance, or
sanggunian concerned and the reasons for order must be premised specifically upon the fact that
appealing therefrom. The Regional Trial Court such resolution, ordinance, or order is outside the
shall decide the case within one (1) year from the scope of the legal powers conferred by law. (Moday v.
filing thereof. Decisions on boundary disputes CA, GR No. 107916, February 20, 1997)
promulgated jointly by two (2) or more
sangguniang panlalawigans shall be heard by the c) The limitations on the power of eminent domain are
Regional Trial Court of the province, which first that the use must be public, compensation must be
took cognizance of the dispute. made and due process of law must be observed. The
necessity of exercising eminent domain must be
genuine and of a public character. Government may not
Q: 1.) There was a boundary dispute between
capriciously choose what private property should be
Dueñas, a municipality, and Passi, an independent
taken. Should it be proven that better lots exist suited
component city, both of the same province. State
for the purpose of expropriation, the complaint for
how the two local government units should settle
eminent domain should be dismissed. (Moday v CA, GR
their boundary dispute.

Political Law
No. 107916, February 20, 1997) 2. Office of the Mayor
10. LOCAL OFFICIALS a. Vice-Mayor; in his absence,

b. Highest ranking Sanggunian member; in
a. VACANCIES AND SUCCESSION case of the permanent disability of
highest ranking Sanggunian member,
Vacancy c. Second highest ranking Sanggunian
member
Absence should be reasonably construed to mean
‘effective’ absence, that is, one that renders the officer 3. Office of the Vice Governor or Vice-Mayor
concerned powerless, for the time being, to discharge
the powers and prerogatives of his/her office. There is a. Highest ranking Sanggunian member; in
no vacancy whenever the office is occupied by a legally case of the permanent disability of
qualified incumbent. A sensu contrario, there is a highest ranking Sanggunian member,
vacancy when there is no person lawfully authorized to
assume and exercise at present the duties of the office.
(Gamboa, Jr. v. Aguirre, G.R. No. 134213, July 20, 1999) NOTE: The highest ranking municipal
councilor’s succession to the office of vice-
Classes of vacancies in the elective post mayor cannot be considered a voluntary
renunciation of his office as councilor, since
1. Permanent it occurred by operation of law. (Montebon v.
2. Temporary COMELEC, G.R. No. 180444, April 8, 2008)
Permanent Vacancy (HAQDRVP) 4. Office of the Punong Barangay
Arises when an elected local official: a. Highest ranking Sanggunian

member; in case of the permanent
1. Fills a higher vacant office; or disability of highest ranking
2. Refuses to assume office; or Sanggunian member,
3. Fails to qualify; or b. Second highest ranking Sanggunian
4. Dies; or member
5. Removed from office; or
6. Voluntarily resigns; or NOTE: For purposes of succession, ranking
7. Permanently incapacitated to discharge the in the Sanggunian shall be determined on
functions of his office. (LGC, Sec. 44) the basis of the proportion of the votes
obtained by each winning candidate to the
Temporary Vacancy: total number of registered voters in each
district in the immediately preceding local
Arises when an elected official is temporarily election. [LGC, Sec. 44 (d)(3)]
incapacitated to perform his duties due to legal or
physical reason such as: (P-Lea-T-S) B. In case automatic succession is not applicable and
there is vacancy in the membership of the
1. Physical sickness; sanggunian, it shall be filled up by appointment in the
2. Leave of absence; following manner:
3. Travel abroad; or
4. Suspension from office. (LGC, Sec. 46) 1. The President, through the Executive
Secretary, shall appoint the political nominee
Filling of vacancy of the local chief executive for the
sanggunian panlalawigan and panlungsod
1. Automatic succession of highly urbanized cities and independent
2. By appointment (LGC, Sec. 45) component cities [LGC, Sec. 45 (a)(1)]
Rules of succession in case of permanent vacancies 2. The Governor shall appoint the political
(1995, 1996, 2002 BAR) nominees for the sangguniang panlungsod of
component cities and the sangguniang
A. In case of permanent vacancy in: bayan concerned [LGC, Sec. 45 (a)(2)]
1. Office of the Governor 3. The city or municipal mayor shall appoint the
recommendation of the sangguniang
a. Vice-Governor; in his absence, barangay concerned [LGC, Sec. 45 (a)(3)]
b. Highest ranking Sanggunian member; in
case of the permanent disability of GR: The successor (by appointment) should come
highest ranking Sanggunian member, from the same political party as the sanggunian
c. Second highest ranking Sanggunian member whose position has become vacant.
member
245
XPN: In the case of vacancy in the Sangguniang Sangguniang Bayan. Navarro belonged to the same
barangay. political party as that of Tamayo.
NOTE: The reason for the rule is to maintain the Respondents argue that it was the former vice-
party representation as willed by the people in the mayor Aquino who created the permanent
election. vacancy in the Sanggunian and thus, the appointee
must come from the former vice mayor’s political
Q: R was elected as Municipal Councilor for three party. Petitioners, however, contend that it was
(3) consecutive terms. Before the end of the third the elevation of Tamayo to the position of vice-
term, Vice Mayor S died, rendering his post vacant. mayor which resulted in a permanent vacancy and
Since R was the highest-ranking Municipal thus, the person to be appointed to the vacated
Councilor, he assumed the office of the Vice Mayor. position should come from the same political
One of his constituents, T, assailed R’s assumption party as that of Tamayo, in this case Navarro. Are
of office, arguing that elections should have been the respondents correct?
conducted to fill the vacancy following the death
of Vice Mayor S. A: NO. With the elevation of Tamayo to the position of
Vice-Mayor, a vacancy occurred in the Sanggunian
(a) Is T’s contention correct? Explain. that should be filled up with someone who should
belong to the political party of petitioner Tamayo.
(b)Assuming that R validly assumed S’s post, at Under Sec 44 of the LGC, a permanent vacancy arises
the end of R’s term as Vice Mayor, may he run, when an elective official fills a higher vacant office,
once more, for the position of Municipal refuses to assume office, fails to qualify, dies, is
Councilor? Or is he proscribed to do so under the removed from office, voluntarily resigns, or is
Local Government Code? Explain. (2019 BAR) otherwise permanently incapacitated to discharge the
functions of his office. Sec 45 (b) of the same law
A: (a) NO, T’s contention is incorrect. Under the rule provides that “only the nominee of the political party
on succession of elective officials, if a permanent under which the Sanggunian member concerned has
vacancy occurs in the office of the vice-mayor, the been elected and whose elevation to the position next
highest ranking sanggunian member or, in case of his higher in rank created the last vacancy in the
permanent inability, the second highest sanggunian Sanggunian shall be appointed in the manner herein
member, shall become the vice-mayor. (Sec. 44, LGC) provided. The appointee shall come from the political
party as that of the Sanggunian member who caused
(b) YES, he may run again for the position of the vacancy…”The term “last vacancy” is thus used in
Municipal Councilor. If the official runs again for the Sec. 45(b) to differentiate it from the other vacancy
same position prior to his assumption of the higher previously created. The term “by no means” refers to
office, his succession to said position is by operation the vacancy in the No. 8 position which occurred with
of law and is considered involuntary severance or the elevation of 8th placer to the 7th position in the
interruption. (Abundo Sr. v. COMELEC, G.R. No. 201716, Sanggunian. Such construction will result in
January 8, 2013) absurdity. (Navarro v. CA, G.R. No. 141307, March 28,
2001)
Hold-over status
NOTE: In case of vacancy in the representation of the
In case of failure of elections involving barangay youth and the barangay in the Sanggunian, it shall be
officials, the incumbent officials shall remain in office filled automatically by the official next in rank of the
in a hold-over capacity pursuant to R.A. 9164. (Adap v. organization concerned. [LGC, Sec. 45(d)]
COMELEC, G.R. No. 161984, February 21, 2007)
Rules on temporary vacancies (2002 BAR)
The “last vacancy” in the Sanggunian
1. In case of temporary vacancy of the post of the
It refers to the vacancy created by the elevation of the governor, city or municipal mayor, or punong
member formerly occupying the next higher in rank, barangay (leave of absence, travel abroad, and
which in turn also had become vacant by any of the suspension): the vice- governor, city or
causes enumerated. municipal vice mayor, or the highest ranking
sangguniang barangay shall automatically
Q: In the 1997 local elections Calimlim was elected exercise the powers and perform the duties
as Mayor, Aquino as Vice-Mayor and Tamayo as and functions of the local chief executive
the highest-ranking member of the Sanggunian. In concerned. Such automatic exercise means that
1999, Mayor Calimlim died, thus Vice-Mayor they no longer have to be appointed to the
Aquino succeeded him as Mayor. Accordingly, the position by anyone.
highest-ranking member of the Sanggunian,
Tamayo, was elevated to the position of the Vice- NOTE:
Mayor. Since a vacancy occurred in the
Sangguniang Bayan by the elevation of petitioner GR: The acting Governor or Mayor cannot
Tamayo to the office of the Vice-Mayor, Governor exercise the power to appoint, suspend or
Agbayani appointed Navarro as Member of the dismiss employees.

Political Law
XPN: If the period of temporary incapacity itself, work to interrupt the incumbent official’s
exceeds 30 working days. continuity of service.
5. Preventive suspension is not a term-interrupting
2. If travelling outside his jurisdiction but within the event as the elective officer’s continued stay and
country for a period not exceeding 3 days, the local entitlement to the office remain unaffected during
chief executive may designate in writing the the period of suspension, although he is barred
officer-in-charge of their respective offices. The from exercising the functions of his office during
OIC cannot exercise the power to appoint, this period.
suspend or dismiss employee.
6. When a candidate is proclaimed as winner for an
If no designation was made, then the vice elective position and assumes office, his term is
governor, vice mayor, or in his absence, the interrupted when he loses in an election protest
highest-ranking member of the sanggunian is and is ousted from office, thus disenabling him
authorized to assume the office on the 4th day of from serving what would otherwise be the
absence of the local chief executive. unexpired portion of his term of office had the
protest been dismissed (Lonzanida and Dizon).
3. If the local chief executive’s travel exceeds 3 days, The break or interruption need not be for a full
the vice governor or vice mayor, or in his absence, term of three years or for the major part of the 3-
the highest ranking sanggunian member assumes year term; an interruption for any length of time,
the office of the local chief executive. provided the cause is involuntary, is sufficient to
break the continuity of service.
Termination of temporary incapacity 7. When an official is defeated in an election protest
and said decision becomes final after said official
1. Upon submission to the appropriate had served the full term for said office, then his
sanggunian of a written declaration by the local loss in the election contest does not constitute an
chief executive concerned that he has reported interruption since he has managed to serve the
back to office, if the temporary incapacity was due term from start to finish. His full service, despite
to: the defeat, should be counted in the application of
term limits because the nullification of his
a. Leave of absence; proclamation came after the expiration of the
b. Travel abroad; and term. (Abundo v. COMELEC, G.R. No. 201716, Jan. 8,
c. Suspension 2013)
2. Upon submission by the local chief executive of

b. DISCIPLINE
the necessary documents showing that the legal
causes no longer exist, if the temporary
i. ELECTIVE OFFICIALS
incapacity was due to legal reasons[LGC, Sec.
46(b)].
a. GROUNDS FOR DISCIPLINE
Rules on consecutiveness of terms and/or
involuntary interruption: An elective local official may be disciplined, suspended,
or removed from office on any of the following
1. When a permanent vacancy occurs in an elective grounds:
position and the official merely assumed the
position pursuant to the rules on succession under 1. Disloyalty to the Republic of the Philippines
the LGC, then his service for the unexpired portion 2. Culpable Violation of the Constitution
of the term of the replaced official cannot be 3. Dishonesty, oppression, misconduct in office,
treated as one full term as contemplated under the gross negligence, or dereliction of duty.
subject constitutional and statutory provision that 4. Commission of any offense involving moral
service cannot be counted in the application of any turpitude, or an offense punishable by at least
term limit. If the official runs again for the same prision mayor
position he held prior to his assumption of the 5. Abuse of authority
higher office, then his succession to said position is 6. Unauthorized absence for fifteen (15) consecutive
by operation of law and is considered an working days, except in the case of members of
involuntary severance or interruption. sangguniang panlalawigan, sangguniang
panglungsod, sangguniang bayan, and
3. An elective official, who has served for three sangguniang barangay
consecutive terms and who did not seek the 7. Application for, or acquisition of, foreign
elective position for what could be his fourth term, citizenship or residence or the status of an
but later won in a recall election, had an immigrant of another country
interruption in the continuity of the official’s 8. Such other grounds as may be provided by the
service. For, he had become in the interim, i.e., Local Government Code and other laws. (LGC, Sec.
from the end of the 3rd term up to the recall 60)
election, a private citizen.
4. The abolition of an elective local office due to the b. JURISDICTION
conversion of a municipality to a city does not, by
247
An elective local official may be removed from office on time of termination of the case. [Local Government
any of the grounds enumerated above only by an order Code, Sec.6 (b)]
from the proper court. The Office of the President does
not have any power to remove elected officials, since 90-day Ban
such power is exclusively vested in the proper courts
as expressly provided for in the last paragraph of Sec. No preventive suspension shall be imposed within
60 of the the LGC. (Salalima v. Guingona, G.R. No. ninety (90) days immediately prior to any local
117589-92, May 22, 1996) election. If the preventive suspension has been
imposed prior to the 90-day period immediately
Filing of a verified complaint preceding a local election, it shall be deemed
automatically lifted upon the start of aforesaid period.
WHERE TO FILE RESPONDENT LOCAL (A.O. No. 23, s.1992, Rule 6, Sec.2)
OFFICIAL
Office of the President Any elective official of a d. REMOVAL
Province, HUC, ICC, or
CC. Removal imports the forcible separation of the
Sangguniang Any elective official of a incumbent before the expiration of his term and can be
Panlalawigan, Decision Municipality done only for causes as provided by law. (Dario v.
may be appealed to the Mison, G.R. No. 81954, Aug. 8, 1989)
OP
Sangguniang Panlungsod Any elective barangay NOTE: The unjust removal or non-compliance with the
or Bayan. Decision is official prescribed procedure constitutes reversible error and
final and executory this entitled the officer or employee to reinstatement
with back salaries and without loss of seniority rights.
c. PREVENTIVE SUSPENSION
Grounds for Removal of Elective Local Officials
Preventive Suspension
NOTE: See grounds for disciplinary measures
Preventive suspension may be imposed at any time
after the issues are joined, when the evidence of guilt is Q: Does the Sangguniang Panglungsod and
strong, and given the gravity of the offense, there is Sanggunian Bayan have the power to remove
great probability that the continuance in office of the elective officials?
respondent could influence the witnesses or pose a
threat to the safety and integrity of the records and A: NO. The most extreme penalty that the Sangguniang
other evidence. (Local Government Code, Sec.63) Panlungsod or Sangguniang Bayan may impose on the
erring elective barangay official is suspension; if it
Officials who may impose preventive suspension deems that the removal of the official from service is
(PGM): warranted, then it can resolve that the proper charges
be filed in court. (Sangguniang Barangay of Don
1. By the President, if the respondent is an elective Mariano Marcos v. Martinez, G.R. No. 170626, March 3,
official of a province, a highly urbanized or an 2008)
independent component city;
2. By the Governor, if the respondent is an elective e. ADMINISTRATIVE APPEAL
official of a component city or municipality; or
3. By the Mayor, if the respondent is an elective See discussion under administrative law, adjudicatory
official of the barangay (Local Government Code, power
Sec.63)
f. DOCTRINE OF CONDONATION
NOTE: Any single preventive suspension of local
elective officials shall not extend beyond sixty (60) See discussion of Condonation under Liabilities of a
days. Several administrative cases filed against the Public Officer
elective official shall only result to preventive
suspension not beyond ninety (90) days. (Local ii. APPOINTIVE OFFICIALS
Government Code, Sec.6; Miranda v Sandiganbayan, G.R.
No. 154098 July 25, 2005) Authorities with Disciplinary Authority over
Appointive Officials
Expiration of Preventive Suspension
1. Department Heads – the heads of agencies and
Within 120 days, the proceedings shall be terminated. instrumentalities have jurisdiction to investigate
The suspended elective official shall be deemed and decide matters involving disciplinary action
reinstated in office without prejudice to the against officers and employees;
continuation of the proceedings against him, unless the
delay of the proceedings is due to his fault, neglect, or 2. Office of the Ombudsman - The Office of the
request, other than the appeal duly filed, the duration Ombudsman has the authority and jurisdiction to
of such delay shall not be counted in computing the exercise disciplinary authority over appointive

Political Law
officials, except impeachable officers (Alejandro v need for supplemental legislation to authorize the
Office of the Ombudsman, G.R. No. 173121 April 03, COMELEC to conduct recall elections for 2014.
2013). Considering that there is an existing line item
appropriation for the conduct of recall elections in the
3. Civil Service Commission (CSC) – as the central 2014 GAA, we see no reason why the COMELEC is
personnel agency of the government, CSC has the unable to perform its constitutional mandate to
disciplinary authority to hear and decide cases “enforce and administer all laws and regulations
involving appointive officials. relative to the conduct of xxx recall.” Should the funds
appropriated in the 2014 GAA be deemed insufficient,
Preventive Suspension of Appointive Local then the COMELEC Chairman may exercise his
Officials and Employees authority to augment such line item appropriation
from the COMELEC’s existing savings, as this
The local chief executives may preventively suspend augmentation is expressly authorized in the 2014
for a period not exceeding sixty (60) days, any GAA. Resolution No. 9864 is therefore partially
subordinate official or employee under his authority reverse and set aside insofar as it directed the
pending investigation if the charge against the said suspension of any and all proceedings in the recall
official or employee involves dishonesty, oppression petition. (Goh v. Bayron, G.R No. 212584, November 25,
or grave misconduct or neglect of performance of 2014)
duty, or if there is reason to believe that respondent is
guilty of the charges which would warrant his Ground for recall
removal from service (Local Government Code, Sec.
85). The only ground for recall of local government
officials is loss of confidence. It is not subject to
11. RECALL judicial inquiry. The Court ruled that ‘loss of
confidence’ as a ground for recall is a political
question. (Garcia v. COMELEC, G.R. No. 111511, Oct. 5,
It is a mode of removal of a public officer, by the
1993)
people, before the end of his term. The people’s
prerogative to remove a public officer is an incident of
Recall initiation
their sovereign power, and in the absence of
constitutional restraint, the power is implied in all The Recall of any elective provincial, city, municipal or
governmental operations. (Garcia v. COMELEC, G.R. No. barangay official shall be commenced by a petition of
111511, Oct. 5, 1993) a registered voter in the LGU concerned and
supported by the registered voters in the LGU
NOTE: All expenses incident to recall elections shall
concerned during the election in which the local
be borne by the COMELEC. For this purpose, the
official sought to be recalled was elected subject to
annual General Appropriations Act (GAA) shall
the following percentage requirements:
include a contingency fund at the disposal of the
COMELEC for the conduct of recall elections (LGC, Sec.
1. At least twenty-five percent (25%) in the case
75)
LGUs with a voting population of not more
than twenty thousand (20,000);
Q: Goh filed before the COMELEC a recall petition
against Mayor Bayron due to loss of trust and 2. At least twenty percent (20%) in the case of
confidence. On 1 April 2014, the COMELEC LGUs with a voting population of at least
promulgated Resolution No. 9864 which found the twenty thousand(20,000) but not more than
recall petition sufficient in form and substance but seventy-five thousand (75,000): Provided, That in
suspended the funding of any and all recall no case shall the required petitioners be less
elections until the resolution of the funding issue. than five thousand (5,000);
Petitioner submits that the same is a grave 3. At least fifteen percent (15%) in the case of
abdication and wanton betrayal of the LGUs with a voting population of at least
constitutional mandate of the COMELEC and a seventy-five thousand (75,000) but not more
grievous violation of the sovereign power of the than three hundred thousand (300,000):
people. What Resolution Nos. 9864 and 9882 have Provided, however, That in no case shall the
given with one hand (the affirmation of the required number of petitioners be less than
sufficiency of the Recall Petition), they have taken fifteen thousand(15,000); and
away with the other (the issue of lack funding). 4. At least ten percent (10%) in the case of LGUs
The COMELEC suspended the holding of a recall with a voting population of over three hundred
election supposedly through lack of funding. Did thousand (300,000):Provided, however, that in
the COMELEC gravely abuse its discretion when it no case shall the required petitioners be less
suspended the recall election? than forty-five thousand (45,000) (LGC, Sec. 70,
as amended by RA 9244)
A: YES. The COMELEC committed grave abuse of
discretion in issuing Resolution Nos. 9864 and 9882.
The 2014 GAA provides the line item appropriation to NOTE: By virtue of RA 9244, Secs. 70 and 71 of the
allow the COMELEC to perform its constitutional LGC were amended, and the Preparatory Recall
mandate of conducting recall elections. There is no Assembly has been eliminated as a mode of
249
instituting recall of elective local government officials. the next election?
3. Can Governor Peralta refuse to run in the recall
All pending petitions for recall initiated through election and instead resign from his position as
the Preparatory Recall Assembly shall be considered governor?
dismissed upon the effectivity of RA 9244. (Approved
February 19, 2004) A:
Recall process 1. The candidate who received the highest number of

votes in the recall will succeed Governor Peralta
1. Petition of a registered voter in the LGU (LGC, Sec. 72)
concerned, supported by percentage of 2. Governor Peralta can run again as governor. He
registered voters during the election in which the did not fully serve his third term, because he lost in
local official sought to be recalled was elected. the recall election. His third term should not be
2. Within 15 days after filing, COMELEC must certify included in computing the three-term limit.
the sufficiency of the required number of (Lonzanida v. COMELEC, G.R. No. 135150, July 28,
signatures. 1999)
3. Governor Peralta cannot refuse to run in the recall
NOTE: Failure to obtain required number election. He is automatically considered as duly
automatically nullifies petition. registered candidate (LGC, Sec. 71)
3. Within 3 days of certification of sufficiency, He is also not allowed to resign. The elective official
COMELEC shall provide the official sought to be sought to be recalled shall not be allowed to resign
recalled with copy of petition and shall cause its while the recall process is in progress. (LGC, Sec. 73)
publication for three consecutive weeks in a
national newspaper and a local newspaper of Limitations on recall (2008 BAR)
general circulation. Petition must also be posted
for 10 to 20 days at conspicuous places (LGC, 1. Any elective local official may be the subject
Sec. 70 (b)(2), as amended by RA 9244) of a recall election only once during his term of
office for loss of confidence; and
NOTE: Protest should be filed at this point and
ruled with finality within 15 days after filing. 2. No recall shall take place within one (1) year
from the date of the official’s assumption to
4. COMELEC verifies and authenticates the office or one (1) year immediately preceding
signature a regular election (LGC, Sec. 74)
5. COMELEC announces acceptance of candidates.
6. COMELEC sets election within 30 days after the The Supreme Court held that the term recall referred to
filing of the resolution or petition for recall in in the one-year time bar rule refers to the recall election
the case of barangay/city/municipality, and 45 and not the preliminary proceeding to initiate recall. It is
days in the case of provincial officials. Officials clear that the initiation of recall proceeding is not
sought to be recalled are automatic candidates prohibited within the one-year period provided in
(LGC, Secs. 70 & 71) Section 74 (b) of the LGC. (Claudio v. COMELEC, G.R. No.
140560. May 4, 2000)
NOTE: The official or officials sought to be recalled
shall automatically be considered as duly NOTE: The one-year time bar will not apply where
registered candidate or candidates to the pertinent the local official sought to be recalled is a mayor
positions and, like other candidates, shall be and the approaching election is a barangay
entitled to be voted upon (LGC, Sec. 71) election. (Angobung v. COMELEC, G.R. No. 126576,
March 5, 1997)
Effectivity of Recall
Q: Sec. 74 of the LGC provides that “no recall
The recall of an elective local official shall be effective shall take place within one year immediately
only upon the election and proclamation of a successor preceding a regular local election.” What does the
in the person of the candidate receiving the highest term “regular local election,” as used in this
number of votes cast during the election on recall. section, mean?
Should the official sought to be recalled receive the A: Referring to an election where the office held by
highest number of votes, confidence in him is thereby the local elective official sought to be recalled will be
affirmed, and he shall continue in office (LGC, Sec. 72) contested and filled by the electorate. (Paras v.
COMELEC, G.R. No. 123169, Nov. 4, 1996)
Q: Governor Peralta was serving his third term
when he lost his governorship in a recall election. Q. Will it be proper for the COMELEC to act on
a petition for recall signed by just one person?
1. Who shall succeed Governor Peralta in his
office as Governor? A: NO. A petition for recall signed by just one person is
2. Can Governor Peralta run again as governor in in violation of the statutory 25% minimum

Political Law
requirement as to the number of signatures provision and of the circumstances surrounding its
supporting any petition for recall. (Angobung v. formulation impresses upon us the clear intent to
COMELEC, G.R. No. 126576, March 5, 1997) make term limitation a high priority constitutional
objective whose terms must be strictly construed and
12. TERM LIMITS which cannot be defeated by, nor sacrificed for, values
of less than equal constitutional worth.
Term of office of an elected local official
The words of R.A. No. 9716 plainly state that the new
Three (3) years starting from noon of June 30 Second District is to be created, but the Third District is
following the election or such date as may be to be renamed. The rationale behind reapportionment
provided by law, except that of elective barangay is the constitutional requirement to achieve equality of
officials, for maximum of 3 consecutive terms in the representation among the districts. The aim of
same position (LGC, Sec. 43) legislative apportionment is to equalize population and
voting power among districts. The basis for districting
The term of office of Barangay and Sangguniang shall be the number of the inhabitants of a city or a
Kabataan elective officials, by virtue of RA 9164 and province and not the number of registered voters
RA 10742, is three (3) years. therein. Naval’s ineligibility to run, by reason of
violation of the three-term limit rule, does not
NOTE: The objective of imposing the three-term limit undermine the right to equal representation of any of
rule is to “avoid the recall of a single person the districts in Camarines Sur. With or without him, the
accumulating excess power over a particular territorial renamed Third District, which he labels as a new set of
jurisdiction as a result of a prolonged stay in the same constituents, would still be represented, albeit by
office”. another eligible person. (Naval v. COMELEC, G.R. No.
207851, July 8, 2014)
For a three-term rule to apply, the local official must
have fully served the term and been elected through Q: Atty. G. ran for Governor of the Province of
regular election. Pampanga, while his close friend, Atty. M, ran for
Mayor of the Municipality of Guagua, Pampanga.
Q: From 2004 to 2007 and 2007 to 2010, Naval had They both won convincingly. Eventually, the losing
been elected as a Board Member of the candidates timely filed election protests. The losing
Sangguniang Panlalawigan for the Second District, gubernatorial candidate, Mr. A, filed his protest
Province of Camarines Sur. On October 12, 2009, before the Regional Trial Court of Pampanga (RTC),
the President approved R.A. No. 9716, which whereas the losing mayoralty candidate, Mr. B,
reapportioned the legislative districts in filed his protest before the Municipal Trial Court of
Camarines Sur. 8 out of 10 towns were taken from Guagua, Pampanga (MTC). What are the term limits
the old Second District to form the present Third for the positions of Atty. G and Atty. M? (2019 BAR)
District. The present Second District is composed
of the two remaining towns, Gainza and Milaor, A: The term of office of both positions is 3 years and for
merged with five towns from the old First District. not more than 3 consecutive terms in the same
In the 2010 elections, Naval once again won as position (Sec. 43, LGC)
among the members of the Sanggunian, Third
District. He served until 2013. In the 2013 Term limit of Barangay officials
elections, Naval ran anew and was re-elected as
Member of the Sanggunian, Third District. Nelson The term of office of barangay officials was fixed at
Julia was likewise a Sanggunian Member candidate three years under R.A. 9164 (19 March 2002).
from the Third District in the 2013 elections. He Further, Sec.43 (b) provides that "no local elective
filed before the COMELEC a Verified Petition to official shall serve for more than three (3) consecutive
Deny Due Course or to Cancel COC of Naval. Julia terms in the same position. The Court interpreted this
posited that Naval had fully served for three section referring to all local elective officials without
consecutive terms as a member of the Sanggunian, exclusions or exceptions. (COMELEC v. Cruz, G.R. No.
irrespective of the district he had been elected 186616, Nov. 20, 2009)
from. Allowing Naval to run as a Sanggunian
member for the fourth time is violative of the NOTE: Voluntary renunciation of the office for any
inflexible three-term limit rule. Is Julia correct? length of time shall not be considered as an
interruption in the continuity of service for the full
A: YES. As worded, the constitutional provision fixes term for which the elective official concerned was
the term of a local elective office and limits an elective elected. (Sec 43(b), LGC; see previous discussion on
official’s stay in office to no more than three Abundo v. COMELEC, infra.)
consecutive terms. The “limitation” under this first
branch of the provision is expressed in the negative—
“no such official shall serve for more than three
consecutive terms.” This formulation—no more than
three consecutive terms—is a clear command
suggesting the existence of an inflexible rule. This
examination of the wording of the constitutional
251
XIV. NATIONAL ECONOMY AND PATRIMONY
XIV. NATIONAL ECONOMY AND PATRIMONY Exception to the Regalian Doctrine
When there is an existing native title to land or

Goals of the National Economy ownership of land by Filipinos by virtue of possession
under a claim of ownership since time immemorial
The following are the goals of the national economy: and independent of any grant from the Spanish
Crown. (Cariño v. Insular Government, GR No. 2869,
1. A more equitable distribution of opportunities, March 25, 1907)
income and wealth;
2. Sustained increase in the amount of goods and Any land that should have been in the possession of
services produced by the nation for the benefit of an occupant and of his predecessors in interest since
the people; and time immemorial, for such possession would justify
3. An expanding productivity as the key to raising the presumption that the land had never been part of
the quality of life for all, especially, the the public domain or that it had been a private
underprivileged. (Sec. 1, Art. XII, 1987 property even before the Spanish conquest. (Oh Cho v.
Constitution) Director of Lands, Gr No. L-48321, August 31, 1946)
How the State may attain the goals of the national Constitutionality of RA 8371 “Indigenous Peoples’
economy Rights Act” (IPRA Law)
The State shall promote industrialization and full The Regalian Doctrine does not negate native title to
employment based on sound agricultural lands held in private ownership since time
development and agrarian reform, through industries immemorial and independent of any grant from the
that make full and efficient use of human and natural Spanish Crown. IPRA recognizes the right of
resources, and which are competitive in both ownership of Indigenous Cultural Communities or
domestic and foreign markets. However, the State Indigenous Peoples (ICCs/IPs) to their ancestral
shall protect Filipino enterprises against unfair domains and ancestral lands on the basis of native
foreign competition and trade practices. (Sec. 1, Art. title. (Cruz v. Sec. of DENR, GR No. 135385, December 6,
XII, 1987 Constitution) 2000)
REGALIAN DOCTRINE NOTE: The constitutionality of the law was deemed

upheld only because the votes were equally divided 7
Regalian Doctrine to 7. Hence, the necessary majority was not obtained.
Accordingly, pursuant to Rule 56, Sec. 7 of the Rules of
All lands of whatever classification and other natural Civil Procedure, the petition was dismissed.
resources not otherwise appearing to be clearly
within private ownership belong to the State. The Native Title
State is the source of any asserted right to ownership
of land and charged with the conservation of such Native title refers to pre-conquest rights to lands and
patrimony. (Republic v. Raneses, GR No. 189970, June domains which, as far back as memory reaches, have
02, 2014; Sec. of DENR v. Yap, GR No. 167707, October been held under a claim of private ownership by
8, 2008) ICCs/IPs, have been public lands and are thus
indisputably presumed to have been held that way
Jura Regalia since before the Spanish Conquest. [Sec. 3(l), Chapter
II, RA 8371]
Under the concept of jura regalia, private title to land
must be traced to some grant, express or implied, Ancestral Domain
from the Spanish Crown or its successors, the
American Colonial government, and thereafter, the All areas generally belonging to ICCs/IPs comprising
Philippine Republic. Title to land must emanate from lands, inland waters, coastal areas, and natural
some source for it cannot be issue forth from resources therein, held under a claim of ownership,
nowhere. occupied and possessed by ICCs/IPs, by themselves or
through their ancestors, communally or individually
Jura regalia simply means that the State is the original since time immemorial, continuously to the present,
proprietor of all lands and, as such, is the general except when interrupted by war, force majeure or
source of all private titles. (Agcaoili, 2015) displacement by force, deceit, stealth or as a
consequence of government projects or any other
Regalian Doctrine is embodied in the Constitution voluntary dealings with government and/or private
individuals or corporations. [Sec. 3(a), Chapter II, RA
All lands of the public domain, waters, minerals, coal, 8371]
petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests, or timber, wildlife, Q: In 1958, President Garcia issued a Presidential
flora and fauna, and other natural resources are Proclamation reserving hectare of lands of the
owned by the State. With the exception of agricultural public domain in Musuan Bukidnon, as a school
lands, all other natural resources shall not be site for Central Mindanao University. In 2003,
alienated. (Sec. 2, Art. XII, 1987 Constitution) President Arroyo issued a Presidential

Political Law
Proclamation taking hectares from CMU’s for another 25 years; (1987 Constitution, Art.
registered lands for distribution to indigenous XII, Sec. 3)
peoples and cultural communities. CMU filed a
petition to declare the proclamation 4. Certain areas of investment: reserved for Filipino
unconstitutional. Decside. citizens or entities with 60% owned by Filipinos,
although Congress may provide for higher
A: The lands by their character have become percentage; (1987 Constitution, Art. XII, Sec. 10)
inalienable from the moment President Garcia 5. In the grant of rights, privileges and concessions
dedicated them for CMUs use. They have ceased to be covering the national economy and patrimony,
alienable public lands. Besides, Sec. 56 of IPRA State shall give preference to qualified Filipinos;
provides that property rights within the ancestral and (1987 Constitution, Art. XII, Sec. 10)
domains already existing and/or vested upon its 6. Franchise, certificate or any other form of
effectivity shall be recognized and respected. In this authorization for the operation of a public utility;
case, ownership over the subject lands had been only to Filipino citizens or entities with 60%
vested in CMU as early as 1958. Consequently, owned by Filipinos. (1987 Constitution, Art. XII,
transferring the lands in 2003 to the indigenous Sec. 11)
peoples around the area is not in accord with IPRA.
(CMU v. Exec. Secretary, GR No. 184869, September 21, NOTE: Such franchise, etc., shall neither be
2010) exclusive, nor, for a period longer than 50 years,
and subject to amendment, alteration or repeal
NATIONALIST AND CITIZENSHIP REQUIREMENT by Congress. All executive and managing officers
PROVISIONS must be Filipino citizens.
Filipinized activities as provided in Art. XII of the
Constitution Q: President Estrada signed into law RA 8762, also
known as the Retail Trade Liberalization Act of
1. Co-production, joint venture, or production 2000. It expressly repealed R.A. 1180, which
sharing agreement for exploration, development absolutely prohibited foreign nationals from
and utilization (EDU) of natural resources: engaging in the retail trade business. R.A. 8762
now allows them to do under special categories.
Several members of the House of Representatives
GR: Filipino citizens or entities with 60% filed a petition assailing the constitutionality of
capitalization owned by Filipino citizens. RA 8762. They mainly argue that it violates the
mandate of the 1987 Constitution for the State to
develop a self-reliant and independent national
XPN: For large-scale EDU of minerals, petroleum
economy effectively controlled by Filipinos. Is the
and other mineral oils, the President may enter
Retail Trade Liberalization Act of 2000
into agreements with foreign-owned
constitutional?
corporations involving technical or financial
agreements only. (1987 Constitution, Art. XII, Sec.
A: YES. While Sec. 19, Art. II of the 1987 Constitution
2) (2019 BAR)
requires the development of a self-reliant and
independent national economy effectively controlled
State may also directly exploit its natural by Filipino entrepreneurs, it does not impose a policy
resources in either of two ways: of Filipino monopoly of the economic environment.
The objective is to simply prohibit foreign powers or
interests from maneuvering our economic policies
a. State may set up its own company to and ensure that Filipinos are given preference in all
engage in the exploitation of natural areas of development. It does not rule out the entry of
resources. foreign investments, goods, and services. While it
b. State may enter into a financial or does not encourage their unlimited entry into the
technical assistance agreement country, it does not prohibit them either. In fact, it
(“FTAA”) with private companies who allows an exchange on the basis of equality and
act as contractors of the State (La reciprocity, frowning only on foreign competition that
Bugal-B’laan v. DENR Sec., G.R. No. is unfair. (Espina v. Zamora, G.R. No.
127882, January 27, 2004). 143855, September 21, 2010)
2. Use and enjoyment of nation’s marine wealth An alien may not acquire property by virtue of a
within the territory: Exclusively for Filipino purchase made by him and his Filipino wife (1994,
citizens; (1987 Constitution, Art. XII, Sec. 2) 1998, 2002, 2009 BAR)
3. Alienable lands of the public domain:
a. Only Filipino citizens may acquire not more The fundamental law prohibits the sale to aliens of
than 12 hectares by purchase, homestead or residential land. Sec. 7, Art. XII ordains that, "Save in
grant, or lease not more than 500 hectares. cases of hereditary succession, no private land shall be
b. Private corporations may lease not more transferred or conveyed except to individuals,
than 1000 hectares for 25 years renewable corporations, or associations qualified to acquire or
253
hold lands of the public domain." Thus, assuming that Also known as the The method by which the
it was his intention that the lot in question be “liberal test”; This percentage of Filipino
purchased by him and his wife, he acquired no right provides that shares equity in a corporation is
whatever over the property by virtue of that belonging to computed, in cases where
purchase; and in attempting to acquire a right or corporations or corporate shareholders
interest in land, vicariously and clandestinely, he partnerships at least are present, by
knowingly violated the Constitution; the sale as to him 60% of the capital of attributing the
was null and void. which is owned by nationality of the second
Filipino citizens shall be or even subsequent tier
He had and has no capacity or personality to question considered of Philippine of ownership to
the subsequent sale of the same property by his wife nationality. determine the nationality
on the theory that in so doing he is merely exercising This does not scrutinize of the corporate
the prerogative of a husband in respect of conjugal further the ownership of shareholder.
property. To sustain such a theory would permit the Filipino Thus, to arrive at the
indirect controversion of the constitutional shareholdings. actual Filipino ownership
prohibition. If the property were to be declared and control in a
conjugal, this would accord to the alien husband a not corporation, both the
insubstantial interest and right over land, as he would direct and indirect
then have a decisive vote as to its transfer or shareholdings in the
disposition. This is a right that the Constitution does corporation are
not permit him to have. (Cheeseman v. IAC, G.R. No. determined.
74833, January 21, 1991) Primary test (but it may Applies only when the
be combined with the 60-40 Filipino-foreign
A. EXPLORATION, DEVELOPMENT, AND Grandfather Rule) ownership is in doubt or
UTILIZATION OF NATURAL RESOURCES where there is reason to
believe that there is non-
Exploration, development and utilization of compliance with the
natural resources (2015 BAR) provisions of the
Constitution on the
Only Filipino citizens and corporations or associations nationality restriction.
at least sixty percent (60%) of whose capital is owned
by Filipino citizens are qualified to take part in
exploration, development and utilization of natural NOTE: “Doubt” does not refer to the fact that the
resources (1987 Constitution, Art. XII, Sec. 2). apparent Filipino ownership of the corporation’s
equity falls below the 60% threshold. Rather, it refers
Since natural resources, except agricultural resources to various indicia that the "beneficial ownership" and
that cannot be alienated, they can be explored, "control" of the corporation do not in fact reside in
developed, or utilized by: Filipino shareholders but in foreign stakeholders.
1. Direct undertaking of activities by the State Circumstances that compelled the application of
2. Co-production, joint venture, or production the Grandfather Rule in Narra Nickel Mining v.
sharing agreements with the State and all under Redmont Consolidated Mines
the full control and supervision of the State
(Miners Association v. Factoran, G.R. No. 98332, 1. The three mining corporations had the same
January 16, 1995). 100% Canadian owned foreign investor;
2. The similar corporate structure and shareholder
NOTE: However, as to marine wealth, only Filipino composition of the three corporations;
citizens are qualified. This is also true of natural 3. A major Filipino shareholder within the
resources in rivers, bays, lakes and lagoons, but with corporate layering did not pay any amount with
allowance for cooperatives. (1987 Constitution, Art. respect to its subscription; and
XII, Sec. 2, pars. 2 and 3) 4. The dubious act of the foreign investor in
conveying its interests in the mining
Control Test and Grandfather Rule (2015 BAR) corporations to another domestic corporation.
In Narra Nickel Mining and Development Corporation NOTE: Corporate layering is valid insofar as it does
v. Redmont Consolidated Mines Corporation, G.R. No. not intend to circumvent the Filipino ownership
195580, January 28, 2015 (Resolution), these two tests requirement of the Constitution. (Narra Nickel Mining
were discussed by the Supreme Court in determining and Development Corporation v. Redmont Consolidated
whether or not Narra Nickel Mining and Development Mines Corporation, G.R. No. 195580, April 21, 2014)
Corporation Tesoro Mining and Development, Inc.,
and McArthur Mining, Inc. complied with the Filipino Validity of service contract entered into by the
ownership requirement, thus, entitled to Mineral State with a foreign-owned corporation
Production Sharing Agreements (MPSAs).
Subject to the strict limitations in the last two
CONTROL TEST GRANDFATHER RULE paragraphs of Sec. 2 Art. XII, financial and technical

Political Law
agreements are a form of service contract. These Thus, only Filipino citizens or corporations at least
service contracts may be entered into only with 60% of whose capital is Filipino owned are qualified
respect to minerals, petroleum, and other mineral oils. to acquire a franchise, certificate, or authorized to
The grant of such service contracts is subject to operate a public utility.
several safeguards, among them:
Operation v. Ownership of Public Utilities
1. That the service contract be crafted in
accordance with a general law setting standard The Constitution requires a franchise for the
of uniform terms, conditions and requirements; operation of a public utility. However, it does not
require a franchise before one can own the facilities
Ratio: To attain certain uniformity in provisions needed to operate a public utility.
and avoid the possible insertion of terms
disadvantageous to the country. Delegation of authority to grant franchise
2. President be the signatory for the government; GR: Under the Constitution, Congress has the
and authority to grant a public utility franchise
Ratio: Before an agreement is presented to the XPN: In case of valid delegation of legislative
President for signature, it will have been vetted authority to some administrative agencies to issue
several times over at different levels to ensure franchises of certain public utilities.
that it conforms to law and can withstand public
scrutiny. Franchise requirement before one can operate a
public utility (1994 BAR)
3. President reports the executed agreement to
Congress within 30 days. The Constitution, in no uncertain terms, requires a
franchise for the operation of a public utility.
Ratio: To give that branch of government an However, it does not require a franchise before one
opportunity to look over the agreement and can own the facilities needed to operate a public
interpose timely objections, if any. (La Bugal utility so long as it does not operate them to serve the
B’laan v. DENR, G.R. No. 127882, December 1, public.
2004)
Sec. 11, Art. XII provides that, “No franchise,
B. FRANCHISES, AUTHORITY, AND CERTIFICATES certificate or any other form of authorization for the
FOR PUBLIC UTILITIES operation of a public utility shall be granted except to
citizens of the Philippines or to corporations or
associations organized under the laws of the
Public Utility Philippines at least 60% of whose capital is owned by
such citizens, nor shall such franchise, certificate or
A "public utility" is a business or service engaged in authorization be exclusive character or for a longer
regularly supplying the public with some commodity period than 50 years…” (Tatad v. Garcia, G.R. No.
or service of public consequence such as electricity, 114222, April 6, 1995).
gas, water, transportation, telephone or telegraph
service. (Sec. 13, CA No. 146; National Power Exclusivity of a public utility franchise
Corporation v. CA, GR No. 112702, September 26, 1997)
A franchise to operate a public utility is not an
Public utilities are privately owned and operated
exclusive private property of the franchisee. Under
businesses whose services are essential to the general
the Constitution, no franchisee can demand or acquire
public. They are enterprises which specially cater to
exclusivity in the operation of a public utility. Thus, a
the needs of the public and conduce to their comfort
franchisee cannot complain of seizure or taking of
and convenience. As such, public utility services are
property because of the issuance of another franchise
impressed with public interest and concern. (Kilusang
to a competitor (Pilipino Telephone Corp. v. NTC, G.R.
Mayo Uno Labor Center v. Garcia, LTFRB, GR No.
No. 138295, August 28, 2003).
115381, December 23, 1994)
Foreigners who own substantial stockholdings in
Operation of a Public Utility
a corporation, engaged in the advertising
industry, cannot sit as a treasurer of said
No franchise, certificate, or any other form of
corporation (1989 BAR)
authorization for the operation of a public utility shall
be granted except to citizens of the Philippines or to
A treasurer of the corporation is an executive and
corporations or associations organized under the laws
managing officer. The advertising industry is
of the Philippines at least sixty per centum of whose
impressed with public interest, and shall be regulated
capital is owned by such citizens, nor shall such
by law for the protection of consumers and promotion
franchise, certificate, or authorization be exclusive in
of the general welfare. The participation of foreign
character or for a longer period than fifty years. (Sec.
investors in the governing body of entities in such
11, Art. XII, 1987 Constitution)
industry shall be limited to their proportionate share
255
in the capital thereof, and all the executive and Alliance of Agribusinesses in the Philippines
managing officers of such entities must be citizens of (AAP), an organization of domestic companies,
the Philippines. [Art. XVI, Sec 11 (2), 1987 Constitution] assailed the Board’s approval of the ABC’s
applications for registration for being violative of
Ownership requirement the constitutional provisions against foreign
ownership of enterprises in industries imbued
1. Advertising- 70% of their capital must be owned with public interest. Is the contention of AAP
by Filipino citizens [Art. XVI, Sec. 1(2)] correct?
2. Mass Media- must be wholly owned by Filipino
citizens [Art. XVI, Sec. 11(1)] A. NO. The Constitution does not prohibit foreign
3. Educational institutions- 60% of their capital ownership of industries in the Philippines, save for
must be owned by Filipino citizens [Art. XIV, Sec. certain industries, such as advertising, public utilities,
4(2)] mass media, educational institutions, ownership of
private lands, and the exploration, development, and
Interpretation of the term “capital” as used in Sec. utilization of natural resources. The Foreign
11, Art. XII in determining compliance with the Investments Act of 1991 declares that as much as
ownership requirement 100% foreign ownership in domestic enterprises may
be allowed, except for industries in the negative list.
Refers only to shares of stock entitled to vote in the In this regard, the Board does not place
election of directors, and only to common shares and “agriculture/agribusiness and fishery” in the negative
not to the total outstanding capital stock comprising lists for a number of years already. Thus, agribusiness,
both common and non-voting preferred shares. not being a nationalized or partly nationalized
industry, may be made the subject of foreign
Considering that common shares have voting rights investment. (National Federation of Hog Farmers,
which translate to control, as opposed to preferred Inc. v. Board of Investments, et al, G.R. No. 205835,
shares which usually have no voting rights, the term June 23, 2020, as penned by J. LEONEN)
"capital" in Sec. 11, Art. XII of the Constitution refers
only to common shares. However, if the preferred C. ACQUISITION, OWNERSHIP AND TRANSFER OF
shares also have the right to vote in the election of PUBLIC AND PRIVATE LANDS
directors, then the term "capital" shall include such
preferred shares because the right to participate in Imperium vs. Dominium
the control or management of the corporation is
exercised through the right to vote in the election of IMPERIUM DOMINIUM
directors. In short, the term "capital" in Sec. 11, Art.
The power to govern The capacity of the State
XII of the Constitution refers only to shares of stock
possessed by the State to own or acquire
that can vote in the election of directors (Gamboa v. which is embraced in properties.
Sec. of Finance, G.R. No. 176579, June 28, 2011).
sovereignty.
NOTE: The Constitution expressly declares as State
Classification of Lands of Public Domain (A-F-Mi-
policy the development of an economy “effectively
N)
controlled” by Filipinos. Consistent with such State
policy, the Constitution explicitly reserves the
1. Agricultural;
ownership and operation of public utilities to
2. Forest or timber;
Philippine nationals, who are defined in the Foreign
3. Mineral lands; and
Investments Act of 1991 as Filipino citizens, or
4. National parks (Sec. 3, Art. XII, 1987 Constitution)
corporations or associations at least 60% of whose
capital with voting rights belong to Filipinos (Gamboa
Conversion of Public Land to Private Land
v. Sec. of Finance, ibid.).
Before any land may be converted to alienable and
State Take-Over of Business Affected with Public
disposable land, there must be a positive act from the
Interest; Requisites
government. Unless and until the land is released in
an official proclamation, it may not form part of the
The State may take over or direct the operation of any
disposable agricultural lands of the public domain.
privately owned public utility or business affected
(Sunbeam v. CA, GR No. L-50464, January 29, 1990)
with public interest provided that:
There must be an express declaration by the State that
1. There is national emergency;
the public dominion property is no longer intended
2. The public interest so requires; and
for public service or the development of the national
3. Under reasonable terms prescribed by it. (Sec. 17,
wealth or that the property has been converted into
Art. XII, 1987 Constitution)
patrimonial. Without such express declaration, the
property, even if classified as alienable or disposable,
Q. Charoen, a foreign-owned company engaged in
remains property of the public dominion, pursuant to
agribusiness, applied for registration with the
Article 420(2), and thus incapable of acquisition by
Board of Investments (Board) as a new producer
prescription. It is only when such alienable and
in the swine, poultry, and fishery industries. The
disposable lands are expressly declared by the State

Political Law
to be no longer intended for public service or for the to circumvent the prohibition by paying money to a
development of the national wealth that the period of Philippine landowner in exchange for a devise of a
acquisitive prescription can begin to run. Such piece of land. (Ramirez v. Ramirez, GR No. L-27952,
declaration shall be in the form of a law duly enacted February 15, 1982)
by Congress or a Presidential Proclamation in cases
where the President is duly authorized by law. (Heirs Natural-born citizens who lost their citizenship
of Mario Malabanan v. Republic of the Philippines, GR
No. 179987, April 29, 2009) Any natural-born citizen of the Philippines who has
lost his Philippine citizenship and who has the legal
Purchase or grant capacity to enter into a contract under Philippine laws
may be a transferee of a private land up to a
Public land is acquired from the government either by maximum area of one thousand square meters, in the
purchase or by grant. (Oh Cho v. Director of Lands, GR case of urban land, or one hectare in the case of rural
No. L-48321, August 31, 1946) land, to be used by him as his residence. (Sec. 2, BP
185)
Prescription
Religious Corporations can own lands
Public land held by a possessor, personally or through
his predecessors-in-interest, openly, continuously and A corporation sole by the nature of its incorporation is
exclusively for the prescribed statutory period is vested with the right to purchase and hold real estate
converted to private property by the mere lapse of property. It need not therefore be treated as an
completion of said period, ipso jure. The land ipso jure ordinary private corporation because whether or not
ceases to be of the public domain and becomes private it be so treated as such, the Constitutional provision
property. (Director of Lands v. IAC, GR No. 73002, involved will, nevertheless, be not applicable. (Sec.
December 29, 1986) 113, BP 68; Republic v. IAC, GR No. 75042, November
29, 1988)
Two (2) kinds of prescription by which
Patrimonial Property may be acquired Religious associations controlled by non-Filipinos
cannot own lands
1. Ordinary – possession for at least 10 years, in
good faith and with just title The Constitution makes no exception in favor of
2. Extraordinary – possession for at least 30 years, religious associations restricting the acquisition of
regardless of good faith or just title public agricultural lands and other natural resources
to corporations or associations at least sixty per
There must be an express declaration that the centum of the capital of which is owned by such
property is no longer intended for public service or citizens. To permit religious associations controlled
development of national wealth. Without such by non-Filipinos to acquire agricultural lands would
declaration, the property, even if classified as be to drive the opening wedge to revive alien religious
alienable and disposable, remains property of the land holdings in this country. (Register of Deeds v. Ung
State, and thus, may not be acquired by prescription. Siu Si Temple, GR No. L-6776, May 21, 1955)
(Malabanan v. Republic, GR No. 179987, April 29, 2009)
Aliens and alien-owned corporations may lease
Disposition of private lands or holding of lands of private lands
the public domain
The maximum period allowable for the duration of
No private land shall be transferred or conveyed leases of private lands to aliens or alien-owned
except to individuals, corporations or associations corporations, associations, or entities not qualified to
qualified to acquire or hold lands of the public acquire private lands in the Philippines shall be
domain. (Sec. 7, Art. XII, 1987 Constitution) twenty-five (25) years, renewable for another period
of twenty-five (25) years upon mutual agreement of
Exceptions: both lessor and lessee. (Sec. 1, PD 471)
1. By hereditary succession; Foreign nationals can own condominium units

2. Former natural-born citizens of the Philippines
who has lost his Philippine citizenship; They can own Philippine real estate through the
3. Condominium units purchase of condominium units or townhouses
4. Those acquired by Americans while the Parity constituted under the Condominium principle with
Right Agreement was still in effect. Condominium Certificates of Title as long as the alien
interest in such corporation does not exceed the limits
Hereditary succession; Intestate succession imposed by existing laws. (Sec. 5, RA 4726)
This means foreigners who inherit through intestate It expressly allows foreigners to acquire
succession. It does not extend to testate succession condominium units and shares in condominium
for otherwise the Constitutional prohibition will be corporations up to not more than 40% of the total and
for naught and meaningless. Any alien would be able outstanding capital stock of a Filipino-owned or
controlled corporation. As long as the 60% of the
257
members of this Condominium Corporation are nullify the examination results obtained by the
Filipino, the remaining members can be foreigners. examinees. (PRC v. De Guzman, GR No. 144681, June 21,
(Jacobus Bernhard Hulst v. PR Builders, Inc., GR No. 2004)
156364, September 25, 2008)
Requirement for Foreigners to Practice of
D. PRACTICE OF PROFESSIONS Medicine in the Philippines
A foreign citizen is required to submit competent and

Practice of Profession in the Philippines
conclusive documentary evidence, confirmed by the
GR: The practice of all professions in the Philippines Department of Foreign Affairs (DFA), showing that his
shall be limited to Filipino citizens. (Sec. 14, Art. XII, country’s existing laws permit citizens of the
1987 Constitution) Philippines to practice medicine under the same rules
and regulations governing citizens thereof. (Board of
XPN: Save in cases prescribed by law. Medicine v. Yasuyuki Ota, GR No. 166097, July 14, 2008;
Sec. 9, RA No. 2382 “Medical Act of 1959”)
Reciprocity Clause
Q: Yasuyuki Ota, a Japanese national residing in
The principle of reciprocity states that favors, the Philippines, graduated from Bicol Christian
benefits, or penalties that are granted by one state to College of Medicine with a degree of Doctor of
the citizens or legal entities of another, should be Medicine. He filed an application to take the
returned in kind. medical board examinations in order to obtain a
license. He submitted the Medical Practitioners
In this regard, a foreigner may practice profession in Law of Japan duly authenticated by the Consul
the Philippines if there is a reciprocity provision General of the Philippine Embassy to Japan. After
provided in laws regulating a profession. passing the board exams, the Board of Medicine
denied Ota’s request for a license to practice
Regulation of the Practice of Medicine medicine in the Philippines on the ground that no
reciprocity can be found in the law of Japan as
It is long established rule that a license to practice there are no Filipinos who can possibly practice
medicine is a privilege or franchise granted by the there. Ota filed a petition for mandamus against
government. However, the power to regulate the the Board. Decide.
exercise of a profession or pursuit of an occupation
cannot be exercised by the State or its agents in an A: I will grant the mandamus. It is enough that the
arbitrary, despotic, or oppressive manner. (PRC v. De laws in the foreign country permit a Filipino to get
Guzman, GR No. 144681, June 21, 2004) license and practice therein. Requiring respondent to
prove first that a Filipino has already been granted
Q: Graduates of Fatima College of Medicine passed license and is actually practicing therein unduly
the Physician Licensure Exam in 1993 conducted expands the requirements provided for under the
by the Board of Medicine. The Board observed Medical Act. It merely requires a foreign citizen to
that the grades of 79 successful examinees from submit competent and conclusive documentary
the said college in the most difficult subjects were evidence, confirmed by the Department of Foreign
unusually and exceptionally high. The PRC asked Affairs (DFA), showing that his country’s existing laws
the NBI to investigate the irregularity. The NBI permit citizens of the Philippines to practice medicine
found that the questionable passing rate of Fatima under the same rules and regulations governing
examinees leads to the conclusion that they citizens thereof. (Board of Medicine v. Yasuyuki Ota, GR
gained early access to the test questions. The No. 166097, July 14, 2008; Sec. 9, RA No. 2382 “Medical
Board issued a resolution withholding the Act of 1959”)
registration as physicians of all the examinees
from Fatima College of Medicine. The examinees Practice of Law
filed a special civil action for mandamus against
the Board of Medicine praying that they be Only Filipino citizens may be admitted to the
ordered to administer the physician’s oath and to Philippine bar and therefore, practice law. (Rule 138,
enter their names in the rolls of the PRC. Will the Rules of Court)
action of the examinees prosper?
Filipino citizenship is a continuing requirement
A: NO. For mandamus to prosper, there must be for practice of law
showing that the Board has a clear legal duty, not
involving discretion. Section 20 of the Medical Act of Filipino citizenship is a requirement for admission to
1959 provides that the Board of Medicine shall sign the bar and is, in fact, a continuing requirement for
and issue certificates of registration to those who the practice of law. The loss thereof means
have satisfactorily complied with the requirements of termination of the petitioner’s membership in the bar;
the Board. Gleaned from the Resolution issued by the ipso jure the privilege to engage in the practice of law.
Board, the licensing authority apparently did not find (In Re: Petition to Re-Acquire the Privilege to Practice
that the respondents "satisfactorily passed" the Law in the Philippines, Epifanio B. Muneses, BM No.
licensure examinations. The Board instead sought to 2112, July 24, 2012)

Political Law
Reacquisition of Filipino Citizenship to Practice restraint of trade or unfair competition shall be
Law allowed. (Art. XII, Sec. 19, 1987 Constitution)
A Filipino lawyer who becomes a citizen of another Test on whether there is unlawful machination or
country and later re-acquires his Philippine combination in restraint of trade
citizenship under RA No. 9225, remains to be a
member of the Philippine Bar. However, the right to Whether under the particular circumstances of the
resume the practice of law is not automatic. A person case and the nature of the particular contract
who intends to practice his profession in the involved, such contract is, or is not, against public
Philippines must apply with the proper authority for interest. (Avon v. Luna, G.R. No. 153674, Dec. 20, 2006)
license or permit to engage in such practice. (Petition
for Leave to Resume Practice of Law, Benjamin M. NOTE: The phrase “unfair foreign competition and
Dacanay, BM No. 1678, December 17, 2007) trade practices” is not to be understood in a limited
legal and technical sense, but in the sense of anything
E. ORGANIZATION AND REGULATION OF that is harmful to Philippine enterprises. At the same
CORPORATIONS, PRIVATE AND PUBLIC time, however, the intention is not to protect local
inefficiency. Nor is the intention to protect local
Proscription on Congress to Create Private industries from foreign competition at the expense of
Corporations the consuming public.
The congress shall not, except by general law, provide Essence of the provision
for the formation, organization, or regulation of
private corporations. (Sec. 16, Art. XII, 1987 Sec. 19 is anti-trust in history and spirit. Only
Constitution) competition which is fair can release the creative
forces of the market. Competition is thus the
Rationale for the proscription underlying principle of Section 19, Article XII.
The proscription is to prevent the pressure of special The objective of anti-trust law is ‘to assure a
interests upon the law-making body in the creation of competitive economy based upon the belief that
corporations or in the regulation of the same. To through competition, producers will strive to satisfy
permit the law-making body by special law to provide consumer wants at the lowest price with the sacrifice
for the organization, formation, or regulation of of the fewest resources. Additionally, there is reliance
private corporations would be in effect to offer to it upon “the operation of the ‘market’ system (free
the temptation in many cases to favor certain groups, enterprise) to decide what shall be produced, how
to the prejudice of others or to the prejudice of the resources shall be allocated in the production process,
interests of the country. (Philippine Society for the and to whom various products will be distributed. The
Prevention of Cruelty to Animals v. COA, GR No. 169752, market system relies on the consumer to decide what
September 25, 2007) and how much shall be produced, and on competition,
among producers who will manufacture it. (Energy
Creation of GOCCs Regulatory Board v. CA G.R. No. 113079, April 20, 2001)
GOCC may be created or established by special Regulation of monopolies

charters in the interest of the common good and
subject to the test of economic viability. (Sec. 16, Art. Monopolies are not per se prohibited by the
XII, 1987 Constitution) Constitution. It may be permitted to exist to aid the
government in carrying on an enterprise or to aid in
NOTE: See extensive discussion of GOCCs under the interest of the public. However, because
Public Corporations. monopolies are subject to abuses that can inflict
severe prejudice to the public, they are subjected to a
F. MONOPOLIES, RESTRAINT OF TRADE, AND higher level of State regulation than an ordinary
UNFAIR COMPETITION business undertaking. (Agan, Jr. v. PIATCO, G.R. No.
155001, May 5, 2003)
Monopoly
Allowance of contracts requiring exclusivity
A privilege or peculiar advantage vested in one or
more persons or companies, consisting in the Contracts requiring exclusivity are not per se void.
exclusive right (or power) to carry on a particular Each contract must be viewed vis-à-vis all the
business or trade, manufacture a particular article, or circumstances surrounding such agreement in
control the sale of a particular commodity. (Agan, Jr. v. deciding whether a restrictive practice should be
PIATCO, G.R. No. 155001, May 5, 2003) prohibited as imposing an unreasonable restraint on
competition. (Avon v. Luna, G.R. No. 153674, December
State policy regarding monopolies 20, 2006)
The State shall regulate or prohibit monopolies when Free enterprise clause vs. Police Power of the
the public interest so requires. No combination in State
259
XV. SOCIAL JUSTICE AND HUMAN RIGHTS
Although the Constitution enshrines free enterprise as 6. Women
a policy, it nevertheless reserves to the Government 7. Role and Rights of People’s Organization
the power to intervene whenever necessary for the 8. Human rights
promotion of the general welfare, as reflected in Secs.
6 and 19 of Art. XII. (Assoc. of Phil. Coconut Desiccators Factors which must be weighed in regulating the
v. Phil. Coconut Authority, G.R. No. 110526, February relations between workers and employers
10, 1998)
1. The right of labor to its just share in the fruits of
XV. SOCIAL JUSTICE AND HUMAN RIGHTS production.
2. The right of enterprises to reasonable returns of
investments, and to expansion and growth. [1987
Constitutional mandate Constitution, Art XIII, Sec. 3, par. (4)]
Congress shall give highest priority to the enactment
Provisions of the 1987 Constitution on women
of measures that protect and enhance the right of all
people to human dignity, reduce social, economic, and
1. The State shall equally protect the life of the
political inequalities and remove cultural inequities
mother and the life of the unborn from
by equitably diffusing wealth and political power for
conception. (1987 Constitution, Art. II, Sec. 12)
the common good. (Sec. 1, Art. XIII, 1987 Constitution)
2. The State recognizes the role of women in nation-
building and shall ensure the fundamental
The promotion of social justice shall include the
equality before the law of women and men. (1987
commitment to create economic opportunities based
Constitution, Art. II, Sec. 14)
on freedom of initiative and self-reliance. (Sec. 2, Art.
3. The State shall protect working women by
XIII, 1987 Constitution)
providing safe and healthful working conditions,
A. CONCEPT OF SOCIAL JUSTICE taking into account their maternal functions, and
such faculties and opportunities that will
enhance their welfare and enable them to realize
Social justice their full potential in the service of the nation.
(1987 Constitution, Art. XIII, Sec. 14)
Social justice is "neither communism, nor despotism,
nor atomism, nor anarchy," but the humanization of Consultation requirement before urban and rural
laws and the equalization of social and economic dwellers can be relocated
forces by the State so that justice in its rational and
objectively secular conception may at least be No resettlement of urban or rural dwellers shall be
approximated. Social justice means the promotion of undertaken without adequate consultation with them
the welfare of all the people, the adoption by the and the communities where they are to be relocated
Government of measures calculated to insure [1987 Constitution, Art. XIII, Sec. 10 (2)]
economic stability of all the competent elements of
society, through the maintenance of a proper People’s organizations
economic and social equilibrium in the interrelations
of the members of the community, constitutionally, People’s organizations are bona fide associations of
through the adoption of measures legally justifiable, citizens with demonstrated capacity to promote the
or extra-constitutionally, through the exercise of public interest and with identifiable leadership,
rowers underlying the existence of all governments membership and structure. [Art. XIII, Sec. 15 (2), 1987
on the time-honored principle of salus populi est Constitution]
suprema lex. (Calalang vs. Williams, G.R. No. 47800,
December 2, 1940) The State shall respect the role of independent
people’s organizations to enable the people to pursue
Social justice does not champion division of property and protect, within the democratic framework, their
or equality of economic status; what it and the legitimate and collective interests and aspirations
Constitution do guaranty are equality of opportunity, through peaceful and lawful means. [Art. XIII, Sec.15
equality of political rights, equality before the law, (1), 1987 Constitution]
equality between values given and received on the
basis of efforts exerted in their production. (Guido v. Agrarian Reform
Rural Progress Administration, G.R. No. L-2089, October
31, 1949) It refers to the redistribution of lands, regardless of
crops or fruits produced, to farmers and regular
Aspects of human life covered by Article XIII farmworkers who are landless, irrespective of
(HUWSHARL) tenurial arrangement, to include the totality of factors
and support services designed to lift the economic
1. Social Justice and Human Rights status of the beneficiaries and all other arrangements
2. Labor alternative to the physical redistribution of lands,
3. Agrarian and Natural Resources Reform such as production or profit-sharing, labor
4. Urban Land Reform and Housing administration, and the distribution of shares of
5. Health stocks, which will allow beneficiaries to receive a just

Political Law
share of the fruits of the lands they work. [R.A. 6657, Obligations of States on economic, social and
Comprehensive Agrarian Reform Law of 1988, Sec. cultural rights
3(a)]
The obligations of States in relation to economic,
Right of Retention under Agrarian Reform social and cultural rights are expressed differently
from treaty to treaty. The International Covenant on
The right of retention is a constitutionally guaranteed Economic, Social and Cultural Rights requires States
right, which is subject to qualification by the “to take steps” to the maximum of their available
legislature. It serves to mitigate the effects of resources to achieve progressively the full realization
compulsory land acquisition by balancing the rights of of economic, social and cultural rights. The Covenant
the landowner and the tenant and by implementing also requires States to guarantee the enjoyment of
the doctrine that social justice was not meant to economic, social and cultural rights without
perpetrate an injustice against the landowner. discrimination and to ensure the equal right of men
(Delfino v. Anasao, G.R. No. 197486, September 10, and women to the enjoyment of these rights. Other
2014) treaties or constitutions word obligations differently
and even include specific actions that States must
B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS take, such as the adoption of legislation or the
promotion of these rights in public policies. (Office of
Economic, social and cultural rights (ESCR) the United Nations High Commissioner for Human
Rights, Frequently Asked Questions on Economic, Social
Economic, social and cultural rights are those human and Cultural Rights)
rights relating to the workplace, social security, family
life, participation in cultural life, and access to Q: Do economic, social and cultural rights make
housing, food, water, health care and education. people dependent on welfare?
(Sarmiento, Human Rights Law/Human Rights Culture,
2013) A: NO. One of the principal objectives of human rights
law is to empower individuals so that they have the
The ESCR include the rights to adequate food and capacity and the freedom to live a life in dignity.
housing, to education, to health, to social security, to economic, social and cultural rights require much
take part in cultural life, to water and sanitation, and more than the provision of social assistance, including
to work. (Office of the United Nations High the dismantling of social barriers that obstruct the full
Commissioner for Human Rights, Frequently Asked participation of everyone in economic and social life.
Questions on Economic, Social and Cultural Rights) (Office of the United Nations High Commissioner for
Human Rights, Frequently Asked Questions on
ESCR is interlinked with civil and political rights Economic, Social and Cultural Rights)
Economic, social and cultural rights are part of the C. COMMISSION ON HUMAN RIGHTS
body of human rights law. They are also often
referred to as second generation human rights. These Commission on Human Rights (CHR)
rights are deeply intertwined with civil and political
rights, which are first generation rights. (Karel Vasak, It is an independent National Human Rights
Human Rights, 1977) Institution (NHRI) created under the 1987 Philippine
Constitution, established on 05 May 1987 by virtue of
For example, the right to speak freely means little Executive Order No. 163.
without a basic education, the right to vote means
little if you are suffering from starvation. Similarly, Mandate of CHR
the right to work means little if you are not allowed to
meet and assemble in groups to discuss work The Commission is mandated to conduct
conditions. investigations on human rights violations against
marginalized and vulnerable sectors of the society,
Source of ESCR involving civil and political rights.
The primary international legal source of economic, Q: If CHR is created by the 1987 Constitution, is it
social and cultural rights is the “International a constitutional commission?
Covenant on Economic, Social and Cultural Rights”
but few socio-economic rights were already A: NO. The creation of CHR may be constitutionally
recognized under the “Universal Declaration on mandated, but it is not, in the strict sense, a
Human Rights.” constitutional commission. Article IX of the 1987
Constitution, plainly entitled "Constitutional
NOTE: It should be noted that various national laws Commissions," identifies only the Civil Service
and international treaties had already codified many Commission, the Commission on Elections, and the
of the human rights we now call economic, social and Commission on Audit. The mandate for the creation of
cultural rights prior to the adoption of the Universal the CHR is found in Section 17 of Article XIII of the
Declaration of Human Rights in 1948. 1987 Constitution on Human Rights. (CHR Employees
Association vs. CHR, G.R. No. 155336 July 21, 2006)
261
XV. SOCIAL JUSTICE AND HUMAN RIGHTS
The CHR, although admittedly a constitutional In addition, the Constitution states that a majority of
creation is, nonetheless, not included in the genus of the abovementioned officials must be members of the
offices accorded fiscal autonomy by either Philippine Bar. [Art. XII, Sec.17 (2), 1987 Constitution]
constitutional or legislative fiat. (CHR Employees’
Association vs. CHR, G.R. No. 155336, November 25, Q: Informal settlers and vendors have put up
2004) structures in an area intended for a People's Park,
which are impeding the flow of traffic in the
Fiscal autonomy of CHR is limited adjoining highway. Mayor Cruz gave notice for the
structures to be removed, and the area vacated
Fiscal autonomy granted to the respondent by the within a month, or else, face demolition and
1987 Constitution and the Administrative Code of ejectment. The occupants filed a case with the
1987 shall be limited only to the automatic and Commission on Human Rights (CHR) to stop the
regular release of its approved annual appropriations. Mayor's move. The CHR then issued an order to
desist against Mayor Cruz with warning that he
The 1987 Constitution extends to respondent a would be held in contempt should he fail to
certain degree of fiscal autonomy through the comply with the desistance order. When the
privilege of having its approved annual allotted time lapsed, Mayor Cruz caused the
appropriations released automatically and regularly. demolition and removal of the structures.
However, it withholds from respondent fiscal Accordingly, the CHR cited him for contempt. Is
autonomy, in its broad or extensive sense, as granted the CHR empowered to declare Mayor Cruz in
to the Judiciary, constitutional commissions, and the contempt? Does it have contempt powers at all?
Office of the Ombudsman. (CHR Employees Association
vs. CHR, G.R. No. 155336 July 21, 2006) A: NO. CHR does not possess adjudicative functions
and therefore, on its own, is not empowered to
1. POWERS AND FUNCTIONS OF CHR declare mayor in contempt for issuing the “order to
desist”. However, under the 1987 Constitution, the
Investigatory powers CHR is constitutionally authorized, in the exercise of
its investigative functions, to "adopt its operational
The CHR has the power to investigate all forms of guidelines and rules of procedure and cite for
human rights violations involving civil and political contempt for violations thereof in accordance with the
rights and monitor the compliance by the government Rules of Court." Accordingly, the CHR, in the course of
with international treaty obligations on human rights. an investigation, may only cite or hold any person in
(Sec. 18, Art. XIII, 1987 Constitution) contempt and impose the appropriate penalties in
accordance with the procedure and sanctions
CHR cannot prosecute provided for in the Rules of Court. (Cariño v. CHR, G.R.
No. 96681, Dec. 2, 1991)
In essence, The Commission’s power is only
investigative. It has no prosecutorial power. For Absence of compulsory powers
prosecution, it must rely on the executive department.
The CHR may not issue writs of injunction or
CHR has no adjudicatory powers restraining orders against supposed violators of
human rights to compel them to cease and desist from
The Constitution clearly and categorically grants to continuing their acts complained of. (Export
the Commission the power to investigate all forms of Processing Zone Authority v. CHR, GR No. 101476, April
human rights violations involving civil and political 14, 1992)
rights. To investigate is not to adjudicate or adjudge.
(Cariño v. CHR, G.R. No. 96681, Dec. 2, 1991) As to its contempt powers, the CHR is constitutionally
authorized to "adopt its operational guidelines and
2. COMPOSITION AND QUALIFICATIONS OF rules of procedure and cite for contempt for violations
MEMBERS OF THE CHR thereof in accordance with the Rules of Court." That
power to cite for contempt, however, should be
understood to apply only to violations of its adopted
The CHR is composed of a chairman and four
operational guidelines and rules of procedure
Members, who shall be appointed by the President for
essential to carry out its investigatory powers. (Simon,
a term of seven years. The qualifications for the
Jr. v. CHR, G.R. No.100150, January 5, 1994)
chairman and commissioners are as follows: (Nat-35-
Not-Bar)
Q: In order to implement a big government flood
control project, the Department of Public Works
1. A natural-born citizen of the Philippines;
and Highways (DPWH) and a local government
2. At least 35 years of age at the time of their
unit (LGU) removed squatters from the bank of a
appointment; and
river and certain esteros for relocation to another
3. Must not have been a candidate for any elective
place. Their shanties were demolished. The CHR
position preceding their appointment.
conducted an investigation and issued an order
for the DPWH and the LGU to cease and desist
from effecting the removal of the squatters on the

Political Law
ground that the human rights of the squatters property or building, may be the subject of a cease
were being violated. The DPWH and the LGU and desist order when it adversely affects the
objected to the order of the CHR. background view, vista, or sightline of a heritage
property or building. Thus, the law cannot apply to
Resolve which position is correct. Reasons. the Torre de Manila condominium project. (Knights of
Rizal v. DMCI Homes, G.R. No. 213948, April 25, 2017)
A: The position of the Department of Public Works
and Highways and of the local government unit is A. ACADEMIC FREEDOM
correct. As held in Export Processing Zone Authority
v. Commission on Human Rights, 208 SCRA 125
Academic freedom shall be enjoyed in all institutions
(1992), no provision in the Constitution or any law
of higher learning. (Sec. 5 (2), Art. XIV, 1987
confers on the Commission on Human Rights
Constitution)
jurisdiction to issue temporary restraining orders or
writs of preliminary injunction. The Commission on Academic freedom of institutions of higher learning is
Human Rights has no judicial power. Its powers are a freedom granted to “institutions of higher learning”
merely investigatory. which is thus given a “wide sphere of authority
certainly extending to the choice of students.” If such
XVI. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, institution of higher learning can decide who can and
CULTURE AND SPORTS who cannot study in it, it certainly can also determine
on whom it can confer the honor and distinction of
being its graduates. Thus, a university can validly
Arts and Culture
revoke a degree or honor it has conferred to a student
Arts and letters shall enjoy the patronage of the State. after graduation after finding that such degree or
The State shall conserve, promote, and popularize the honor was obtained through fraud. (Garcia v. Faculty
Admission Committee, Loyola School of Theology, G.R.
nation’s historical and cultural heritage and
resources, as well as artistic creations. (Sec. 15, Art. No. L-40779, November 28, 1975)
XIV, 1987 Constitution)
Aspects of Academic Freedom (IFS)
All the country’s artistic and historic wealth
1. From the standpoint of the educational institution
constitutes the cultural treasure of the nation and
– To provide that atmosphere which is most
shall be under the protection of the State which may
conducive to speculation, experimentation and
regulate its disposition. (Sec. 16, Art. XIV, 1987
creation;
Constitution)
2. From the standpoint of the faculty –
a. Freedom in research and in the publication
Q: DMCI Project Developers, Inc. (DMCI-PDI)
of the results, subject to the adequate
acquired a huge lot in the City of Manila for the
construction of the Torre de Manila condominium performance of his other academic duties
project, a 49-storey building looming at the back b. Freedom in the classroom in discussing his
subject less controversial matters which
of the Rizal Monument in Luneta Park. The
bear no relation to the subject
Knights of Rizal (KoR) filed a Petition for
Injunction against the construction, arguing that it c. Freedom from institutional censorship or
will cause the desecration of the Rizal Monument, discipline, limited by his special position in
the community
which, as a National Treasure, is entitled to full
protection of the law. Is the KoR correct?
3. From the standpoint of the student – Right to
A: NO. There is no law prohibiting the construction of enjoy in school the guarantee of the Bill of Rights.
Torre de Manila. Section 15, Article XIV of the (Non v. Dames, G.R. No. 89317, May 20, 1990)
Constitution is not self-executory, Congress passed
laws dealing with the preservation and conservation Freedoms afforded to educational institutions
of our cultural heritage, such as the National Cultural relating to its right to determine for itself on
Heritage Act of 2009, which empowers the National academic grounds
Commission for Culture and the Arts (NCCA) and
other cultural agencies to issue a cease and desist 1. Who may teach;
order "when the physical integrity of the national 2. What may be taught;
cultural treasures or important cultural properties 3. How shall it be taught; and
[is] found to be in danger of destruction or significant 4. Who may be admitted to study. (Miriam College
alteration from its original state. This law declares Foundation v. CA, G.R. No. 127930, December 15,
that the State should protect the "physical integrity" 2000)
of the heritage property or building if there is "danger
of destruction or significant alteration from its Limitations on academic freedom (Pol-Si)
original state." Physical integrity refers to the
structure itself – how strong and sound the structure 1. Police power of the State
is. The same law does not mention that another 2. Social Interest of the community
project, building, or property, not itself a heritage
263
XVI. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE
AND SPORTS
This freedom of a university does not terminate upon Does the Show Cause Resolution violate
the “graduation” of a student, for it is precisely the respondents’ academic freedom as law
“graduation” of such a student that is in question. An professors?
institution of higher learning cannot be powerless if it
discovers that an academic degree it has conferred is A: NO. It is not contested that respondents (UP Law
not rightfully deserved. The pursuit of academic professors) are, by law and jurisprudence, guaranteed
excellence is the university’s concern. It should be academic freedom and indisputably, they are free to
empowered, as an act of self-defense, to take determine what they will teach their students and
measures to protect itself from serious threats to its how they will teach. As pointed out, there is nothing in
integrity. (UP Board of Regents v. CA, G.R. No. 134625, the Show Cause Resolution that dictates upon
Aug. 31, 1999) respondents the subject matter they can teach and the
manner of their instruction. Moreover, it is not
Q: Juan delos Santos, et al., students of De La Salle inconsistent with the principle of academic freedom
University (DLSU) and College of Saint Benilde are for this Court to subject lawyers who teach law to
members of the “Domingo Lux Fraternity”. They disciplinary action for contumacious conduct and
lodged a complaint with the Discipline Board of speech, coupled with undue intervention in favor of a
DLSU charging Alvin Aguilar, et al. of Tau Gamma party in a pending case, without observing proper
Phi Fraternity with “direct assault” because of procedure, even if purportedly done in their capacity
their involvement in an offensive action causing as teachers. (RE: Letter of the UP Law Faculty, A.M. No.
injuries to the complainants, which were the 10-10-4-SC, March 8, 2011)
result of a fraternity war. The DLSU-CSB Joint
Discipline Board found Aguilar et al. guilty and Regulatory power of the Education Secretary as to
were meted the penalty of automatic expulsion. teaching and non-teaching personnel of private
Was DLSU within its rights in expelling the schools
students?
The qualifications of teaching and non-teaching
A: NO. It is true that schools have the power to instill personnel of private schools, as well as the causes for
discipline in their students as subsumed in their the termination of their employment, are an integral
academic freedom. This power does not give them the aspect of the educational system of private schools. It
untrammeled discretion to impose a penalty which is is thus within the authority of the Secretary of
not commensurate with the gravity of the misdeed. If Education to issue a rule, which provides for the
the concept of proportionality between the offense dismissal of teaching and non-teaching personnel of
committed and the sanction imposed is not followed, private schools based on their incompetence,
an element of arbitrariness intrudes. Thus, the penalty inefficiency, or some other disqualification. (Leus v. St.
of expulsion imposed by DLSU on Aguilar, et al. is Scholastica’s College Westgrove, G.R. No. 187226,
disproportionate to their deeds. (DLSU v. CA, G.R. No. January 28, 2015)
127980, December 19, 2007)
Philippine Military Academy’s (PMA) authority to
Q: The counsel of the losing party in the case of impose disciplinary measures
Vinuya, et al. v. Exec. Sec filed a Supplemental
Motion for Reconsideration, in the said Decision, PMA may impose disciplinary measures and
they posited their charge of plagiarism as one of punishment, as it deems fit and consistent with the
the grounds for reconsideration of the decision. A peculiar needs of the Academy. Even without express
statement by the faculty of UP Law on the provision of a law, the PMA has regulatory authority
allegations of plagiarism and misrepresentation to administratively dismiss erring cadets. As an
in the SC entitled “Restoring Integrity” was academic institution, the PMA has the inherent right
submitted by the UP professors. They expressed to promulgate reasonable norms, rules and
dissatisfaction over Justice Del Castillo’s regulations that it may deem necessary for the
explanation on how he cited the primary sources maintenance of school discipline, which is specifically
of the quoted portions and yet arrived at a mandated by Sec. 3 (2), Article XIV of the 1987
contrary conclusion to those of the authors of the Constitution. The PMA has the freedom on who to
articles supposedly plagiarized. Beyond this, admit (and, conversely, to expel) given the high
however, the statement bore certain remarks degree of discipline and honor expected from its
which raise concern for the Court. It reads: “An students who are to form part of the AFP. The schools’
extraordinary act of injustice has again been power to instill discipline in their students is
committed against the brave Filipinas who had subsumed in their academic freedom and that “the
suffered abuse during a time of war.” establishment of rules governing university-student
relations, particularly those pertaining to student
Thus, the Court, in a Show Cause Resolution, discipline, may be regarded as vital, not merely to the
directed Dean Leonen, and several other lawyers smooth and efficient operation of the institution, but
from UP Law to show cause, why they should not to its very survival. The dismissal of Cudia from the
be disciplined as members of the Bar for violation PMA due to being 2 minutes late for a class was
of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of affirmed. (Cudia v. PMA, G.R. No. 211362, February 24,
the Code of Professional Responsibility. 2015)

Political Law
It must be borne in mind that schools are established, principles and rules concerning the basic rights of the
not merely to develop the intellect and skills of the human person, including protection from slavery and
studentry, but to inculcate lofty values, ideals and racial discrimination. Some of the corresponding
attitudes of the total man. Under the rubric of "right to rights of protection have entered into the body of
education," students have a concomitant duty to learn general international law others are conferred by
under the rules laid down by the school. Hence, as the international instruments of universal or quasi-
primary training and educational institution of the universal character. (Vinuya v. Romulo, G.R. No.
AFP, the PMA certainly has the right to invoke 162230, April 28, 2010)
academic freedom in the enforcement of its internal
rules and regulations, which are the Honor Code and Examples of Obligations Erga Omnes
the Honor System. The Honor Code is a set of basic
and fundamental ethical and moral principle. It is the 1. Outlawing of acts of aggression;
minimum standard for cadet behavior and serves as 2. Outlawing of genocide;
the guiding spirit behind each cadet's action. 3. Basic human rights; and,
Throughout a cadet's stay in the PMA, he or she is 4. Protection from slavery and racial
absolutely bound thereto. (ibid.) discrimination.
XVII. PUBLIC INTERNATIONAL LAW Jus Cogens
Also referred to as ‘peremptory norm of general

A. CONCEPTS international law’.
Public International Law (PIL) Literally means “compelling law.” A norm accepted
and recognized by the international community of
It is a body of legal principles, norms, and processes States as a whole as a norm from which no derogation
which regulates the relations of States and other is permitted and which can be modified only by a
international persons and governs their conduct subsequent norm of general international law having
affecting the interest of the international community the same character. (Vienna Convention on the Law of
as a whole. (Magallona, 2005) Treaties, Art. 53)
Private International Law (PRIL) or Conflict of Elements of Jus Cogens
Laws
1. A norm accepted and recognized by international
It is that part of law which comes into play when the community of states as a whole;
issue before the court affects some fact, event or 2. No derogation is permitted; and,
transaction that is so clearly connected with a foreign 3. Which can only be modified by a subsequent
system of law as to necessitate recourse to that norm having the same character.
system. (Sempio-Diy, Conflict of Laws, 2004 ed., p. 1,
citing Cheshire, Private International Law, 1947 ed., p. Examples or Norms with Jus Cogens in character
6)
1. Laws on genocide;
Grand Divisions of PIL (P-War-N) 2. Principle of self-determination;
3. Principle of racial non-discrimination;
1. Laws of Peace. They govern normal relations 4. Crimes against humanity;
between States in the absence of war. 5. Prohibition against slavery and slave trade;
6. Piracy; and
2. Laws of War. They govern relations between 7. Torture.
hostile or belligerent states during wartime.
Distinguish Jus Cogens from Erga Omnes
3. Laws of Neutrality. They govern relations Obligation
between a non-participant State and a participant
State during wartime or among non-participating 1. All jus cogens rules create erga omnes
States. obligations while only some rules creating erga
omnes obligations are rules of jus cogens.
Obligations Erga Omnes
2. With regard to jus cogens obligations, the
An obligation of every State towards the international emphasis is on their recognition by the
community as a whole. All states have a legal interest international community ‘as a whole,’ whilst with
in its compliance, and thus all States are entitled to regard to obligations erga omnes, the emphasis
invoke responsibility for breach of such an obligation. is on their nature.
(Case Concerning the Barcelona Traction, ICJ 1970)
3. The legal consequences of violations or rules
NOTE: Such obligations derive, for example, in creating erga omnes obligations differ from
contemporary international law, from the outlawing those of breach of the rules of jus cogens in that
of acts of aggression, and of genocide, as also from the in addition to the consequences deriving from a
265
XVII. PUBLIC INTERNATIONAL LAW
breach of erga omnes obligations further This affirms that the international law and municipal
consequences, specified in Art. 53 of the Vienna law are distinct and separate; each is supreme in its
Convention on the Law of Treaties (VCLT), follow own sphere and level of operation.
from violations of the rules of jus cogens.
An international norm or law must first be
NOTE: Under Art. 53 of the VCLT, a treaty is void if, at transformed or adopted into the municipal system
the time of its conclusion, it conflicts with a jus cogens through a positive act of the state.
norm. Also, if a new jus cogens rule emerges, any
existing treaty which is in conflict with the rule International Law vs. Municipal Law
becomes void and terminates.
INTERNATIONAL
BASIS MUNICIPAL LAW
Ex Aequo Et Bono LAW
Adopted by states Issued by a
The concept of ex aequo et bono literally means Enacting
as a common rule political superior
“according to the right and good” or “from equity and Authority
of action. for observance.
conscience.” Regulate relations
Regulate relations
of individuals
A judgment based on considerations of fairness, not of states and other
Purpose among themselves
on considerations of existing law, that is, to simply international
or with their own
decide the case based upon a balancing of the persons.
states.
equities. (Brownlie, 2003) Applies to the
conduct of States
NOTE: Under Art. 38 (1)(c) of the Statute of the Applies to a single
and international
International Court of Justice (ICJ), equity is referred country or nation
organizations,
to as: 1) a general principle of international law; Scope of and within a
their relations with
and 2) a way of infusing elements of Application determined
each other or, their
reasonableness and “individualized” justice territory and to its
relations with
whenever a law leaves a margin of discretion to a inhabitants.
persons, natural or
Court in deciding a case. juridical.
Derived principally
If the principle of equity is accepted, customary law Consists mainly of
from treaties,
may be supplemented or modified in order to enactments from
international
achieve justice. (Kaczorowska, 4th Ed., 2010) Source(s) the lawmaking
customs and
authority of each
general principles
Under Art. 38(2) of the Statute of the ICJ, a decision state.
of law.
may be made ex aequo et bono, i.e. the court should Redressed thru
decide the case not on legal considerations but solely Remedy in Resolved thru
local
on what is fair and reasonable in the circumstances case of state-to-state
administrative and
of the case (equity contralegem). However, the violation transactions.
judicial processes.
parties must expressly authorize the court to decide Collective
a case ex auquo et bono. responsibility Individual
Scope of
Reason: because it responsibility
Art. 33 of the United Nations Commission on Respon-
attaches directly to
International Trade Law’s Arbitration Rules (1976) sibility
the state and not to
provides that the arbitrators shall consider only the its nationals
applicable law, unless the arbitral agreement allows Not subject to
the arbitrators to consider ex aequo et bono, or judicial notice
amiable compositeur. before
international
B. RELATIONSHIP BETWEEN INTERNATIONAL tribunals (Vienna
AND NATIONAL LAW Role in Subject to judicial
Convention on the
Inter- notice before
Law of Treaties,
Monism (Monistic Theory) national international
Art. 27; Permanent
Tribunals tribunals.
Court of
Both international law and domestic law are part of a International
single legal order; international law is automatically Justice, 1931,
incorporated into each nation’s legal system and that Polish Nationals in
international law is supreme over domestic law. Danzig Case).
Here, international laws or norms are applicable Doctrine of Incorporation
within the municipal system even without a positive
act of the state.
It means that the rules of international law form part
of the law of the land and no further legislative action
Dualism (Dualist or Pluralist Theory) is needed to make such rules applicable in the
domestic sphere. It is opposed to the doctrine of

Political Law
transformation, which states that international law Efforts should first be exerted to harmonize them, so
only forms a part of municipal law if accepted as such as to give effect to both since it is to be presumed
by statute or judicial decisions. that municipal law was enacted with proper regard
for the generally accepted principles of international
NOTE: The doctrine of incorporation is adopted in our law in observance of the Incorporation Clause in
Constitution under Art. II, Sec. 2 which states that Section 2, Article II of the Constitution.
“The Philippines… adopts the generally accepted
principles of international law as part of the law of the In a situation however, where the conflict is
land. irreconcilable, and a choice has to be made between a
rule of international law and municipal law,
Examples of “generally accepted principles of jurisprudence dictates that municipal law should be
international law” upheld by the municipal courts for the reason that
such courts are organs of municipal law and are
1. Pacta sunt servanda (Lt: agreements must be kept) accordingly bound by it in all circumstances. The fact
2. Rebus sic stantibus (Lt: things standing thus) that international law has been made part of the law
of the land does not pertain to or imply the primacy of
a. Things remain as they are. international law over national or municipal law in
b. Opposite of pacta sunt servanda the municipal sphere.
3. Par in parem non habet imperium (Lt: Equals have The doctrine of incorporation decrees that rules of
no sovereignty over each other.) international law are given equal standing with, but
are not superior to, national legislative enactments.
a. All states are sovereign equals. Accordingly, the principle of lex posterior derogat
b. An equal state cannot assume jurisdiction priori takes effect – a treaty may repeal a statute and a
over another equal state. statute may repeal a treaty.
4. State Immunity from Suit. In states where the Constitution is the highest law of
the land, such as the Republic of the Philippines, both
a. A state (and its agents acting within their statutes and treaties may be invalidated if they are in
official capacity) cannot be sued without its conflict with the Constitution. (Secretary of Justice
consent. v. Hon. Ralph C. Lantion, G.R. No. 139465, January 18,
2000)
5. Right of states to self-defense.
Pacta Sunt Servanda (2000 BAR)
6. Right to self-determination of people.
International agreements must be performed in good
Doctrine of Transformation
faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation
It provides that the generally accepted rules of
on the parties. A state which has contracted a valid
international law are not per se binding upon the state
international agreement is bound to make in its
but must first be embodied in legislation enacted by
legislation such modification as may be necessary to
the lawmaking body and so transformed into
ensure fulfillment of the obligation undertaken.
municipal law. [Cruz, International Law (2003 Ed.), p.
6]
Principle of Auto-Limitation (2006 BAR)
Through the treaty-making power of the President,
It is the doctrine where a state adheres to principles
rules and principles embodied in a treaty in force
of international law as a limitation/restriction to
would be transformed into Philippine law and shall
the exercise of its sovereignty.
become valid and effective upon concurrence of at
least two-thirds of all the Members of the Senate.
NOTE: While sovereignty has traditionally been
(1987 Constitution, Art. VII, Sec. 21)
deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions
Types of Transformation Theories
and limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member of
1. Hard Transformation Theory. Only legislation
the family of nations. By the doctrine of
can transform international law into domestic
incorporation, the country is bound by generally
law. Courts may apply international law only
accepted principles of international law, which are
when authorized by legislation; and,
considered to be automatically part of our own laws.
Thus, sovereignty of a state is not absolute on an
2. Soft Transformation Theory. Either a judicial
international level.
or legislative act of a state can transform
International Law into domestic law.
Corollary, a state has agreed to surrender some of its
sovereign rights in exchange for greater benefits that
Rules to be observed in case there is conflict
it may derive by being a member of the family of
between international law and domestic law
nations or by virtue of treaty stipulations.
267
Correlation of Reciprocity and the Principle of 1. An objective element (general practice)
Auto-Limitation consisting of a relatively uniform and constant
State practice; and,
When the Philippines enters into treaties,
necessarily, these international agreements may 2. A psychological element consisting of subjective
contain limitations on Philippine sovereignty. The conviction of a State that it is legally bound to
consideration in this partial surrender of sovereignty behave in a particular way in respect of a
is the reciprocal commitment of other contracting particular type of situation. This element is usually
States in granting the same privilege and immunities referred to as the opinio juris sive necessitates.
to the Philippines.
No particular length of time is required for the
NOTE: For example, this kind of reciprocity in formation of customary norms so long as the
relation to the principle of auto-limitation existence of the two elements of custom is manifest.
characterizes the Philippine commitments under [North Sea Continental Shelf Cases (ICJ, 1969)]
WTO-GATT. (Ibid.)
The Objective Element – General Practice
C. SOURCES OF INTERNATIONAL LAW
This is normally constituted by the repetition of
1. ARTICLE 38, INTERNATIONAL COURT OF certain behavior on the part of a State for a certain
JUSTICE STATUTE length of time which manifests a certain attitude,
without ambiguity, regarding a particular matter.
The International Court of Justice, whose function is Evidence of state practice may include a codifying
to decide in accordance with international law such treaty, if a sufficient number of states sign, ratify, or
disputes as are submitted to it, shall apply: (Article 38, accede.
Statute of the International Court of Justice)
However, as no particular duration is required for
Primary Sources (2012 BAR) practice to become law, on some occasions, instant
customs come into existence. For that reason, a few
1. International conventions or treaties; repetitions over a short period of time may suffice or
2. International custom; and many over a long period of time or even no repetition
3. The general principles of law recognized by at all in so far as an instant custom is concerned.
civilized nations However, the shorter the time, the more extensive the
practice would have to be to become law.
Subsidiary Sources
A practice must be constant and uniform, in
1. Judicial decisions; and particular with regard to the affected States, but
2. Teachings of the most highly qualified publicists complete uniformity is not required. It would
of various nations. suffice that conduct is generally consistent with the
rule and that instances of practice inconsistent with
NOTE: While primary sources create law, the the rule are treated as breaches of that practice
subsidiary sources constitute evidence of what the concerned, this will usually mean widespread but not
law is. necessarily universal adherence to the rule.
International Conventions or Treaties Indeed, custom may be either general or regional.

General customs apply to the international
A treaty is an international agreement concluded community as a whole. Local or regional customs
between states in written form and governed by apply to a group of States or just two States in their
international law, whether embodied in a single relations inter se.
instrument or in two or more related instruments and
whatever its particular designation. [Art. 2 (1)(a) of The Subjective Element – Opinio Juris Sive
the Vienna Convention on the Law of Treaties] Necessitates
(See discussions under the heading Treaties, and the To assume the status of CIL, the rule in question must
Vienna Convention on the Law of Treaties) be regarded by States as being binding in law, i.e. that
they are under a legal obligation to obey it.
International Custom or Customary International
Law (CIL) The main purpose of the opinio juris sive necessitates
is to distinguish between customary rule and mere
A custom is a practice which has grown between usage followed out of courtesy or habit. Usage, while
states and has come to be accepted as binding by the also a long established way of doing things, is not
mere fact of persistent usage over a long period of coupled with opinio juris (conviction that it is
time. [Cruz, International Law (2003 Ed.), p. 22] obligatory and right).
A customary rule requires the presence of two NOTE: In the North Sea Continental Shelf Cases, the
elements: ICJ stated that the party asserting a rule of customary

Political Law
international law bears the burden of proving it meets 3. Within the period of time since the adoption of
both requirements (objective and psychological the treaty or convention, State practice must
elements). have been both extensive and uniform.
Binding effect of international customs NOTE: The party invoking the rule must be the one to
prove that the rule meets all the requirements for the
GR: All States are bound by international customs, creation of customary law
including Dissenting States.
The treaty may also reflect a custom in three ways:
XPN: Dissenting States are not bound by international
customs if they had consistently objected to it while 1. It may be declarative of a custom; or,
the project was merely in the process of formation 2. It may crystallize a rule of custom in statu
(Persistent Objector Rule). nascendi; or,
3. It may serve to generate a rule of customary law
Dissent, however protects only the dissenter and does in the future.
not apply to other States. A State joining the
international law system for the first time after a General Principles of Law
practice has become customary law is bound by such
practice. The general principles of law are mostly derived from
the law of nature and are observed by the majority of
Persistent Objector Rule states because they are believed to be good and just.
[Cruz, International Law (2003 Ed.), p 24]
If during the formative stage of a rule of customary
international law, a State persistently objects to that These are rules derived mainly from natural law,
developing rule it will not be bound by it. Once a observed, and recognized by civilized nations.
customary rule has come into existence, it will apply (Nachura, Outline Reviewer in Political Law, p. 644)
to all States except any persistent objectors.
Reference to such principles is taken whenever no
However, an objecting State, in order to rely on the municipal law, custom or treaty is applicable, as
persistent objector rule, must: (1) raise its objection directed under Art. 38 of the ICJ. In order to exist, they
at the formative stage of the rule in question; (2) be must be recognized by civilized nations.
consistent in maintaining its objection; and, (3)
inform other States of its objection. NOTE: The main objective of inserting the third
source in Art. 38 is to fill in gaps in treaty and
This is particularly important with regard to a rule customary law and to meet the possibility of a non
which has been almost universally accepted. If a State liquet.
remains silent, its silence will be interpreted as
acquiescence to the new rule. Non liquet means the possibility that a court or
tribunal could not decide a case because of a ‘gap’ in
NOTE: The burden of proof is on the objecting State. law.
The persistent objector rule does not apply if the CIL
has already evolved into a jus cogens rule. e.g.: Burden of proof, admissibility of evidence,
waiver, estoppel, unclean hands, necessity, and force
The relationship between treaties and majeure.
international custom
Judicial Decisions
They co-exist, develop each other and, sometimes,
clash. If there is a clash between a customary rule and As there is no binding authority of precedent in
a provision of a treaty because they are of equal international law, international court and tribunal
authority (except when the customary rule involved is cases do not make law. Judicial decisions are,
of a jus cogens nature whereupon being superior it therefore, strictly speaking not a formal source of law.
will prevail), the one which is identified as being the However, they clarify the existing law on the topic and
lex specialis will prevail. The lex specialis will be may, in some circumstances, create a new principle in
determined contextually. international law. They can also be considered
evidence of State practice.
Treaties resulting to rules of customary law
Judicial decisions, whether from international
Treaties may give rise to rules of customary law when tribunals or from domestic courts, are useful to the
the following conditions are present: extent they address international law directly or
demonstrate a general principle.
1. The provisions of the treaty should be
fundamentally norm-creating in character; Art. 59 of the Statute of the ICJ, provides that,
2. Participation in the treaty or convention must “decisions of the courts have no binding force, except
include those States whose interest would be for the parties and in respect of the case concerned.”
affected by the provision in question; and,
269
This provision shows that: (1) the Decision of the ICJ be translated into binding treaties);
has no binding authority; and, (2) the ICJ does not 2. May provide evidence of an existing
make law. customary rule;
3. May be formative of the opinio juris or of state
NOTE: In practice, the ICJ will follow the previous practice that creates a new customary rule;
decisions so as to have judicial consistency, or if it 4. May be helpful as a means of a purposive
does not follow, the court will distinguish its previous interpretation of international law;
decisions from the case actually being heard. 5. May be incorporated within binding treaties
(Interpretation of Peace Treaties, 1950) but in provisions which the parties do not intend
to be binding;
Teachings of Authoritative Publicists (Including 6. May in other ways assist in the development
Learned Writers) and application of general international law.
“Teachings” refer simply to the writings of learned NOTE: The importance of soft law is emphasized by
scholars. However, Article 38(1)(d) of the ICJ is the fact that not only States, but also non-State actors
expressly limited to teachings of “the most highly participate in the international law-making process
qualified publicists.” through the creation of soft law. Nevertheless, soft law
is made up of rules lacking binding force, and the
Such works are resorted to by judicial tribunals not general view is that it should not be considered as an
for the speculation of their authors concerning what independent, formal source of international law
the law ought to be, but for trustworthy evidence of despite the fact that it may produce significant legal
what the law really is. (Justice Gray in Paquete effects.
Habana case, 175 U.S. 677)
Q: Ang Ladlad was incorporated in 2003, and first
Requisites to be a most highly qualified publicist: applied for registration with the COMELEC in
2006. The application for accreditation was
1. His writings must be fair and impartial denied on the ground that the organization had no
representation of law; and, substantial membership base. On August 17, 2009,
2. He/she acknowledged authority in the field. Ang Ladlad again filed a Petition for registration
with the COMELEC. On November 11, 2009, after
Burdens of Proof admitting the petitioner’s evidence, the COMELEC
(Second Division) dismissed the Petition on moral
In the Corfu Channel Case (U.K. v. Albania, 1949), the grounds. In this Petition before the Court, Ang
ICJ set out the burdens of proof applicable to cases Ladlad invokes that the Yogyakarta Principles - a
before it. set of international principles relating to sexual
orientation and gender identity, intended to
The Applicant normally carries the burden of proof address documented evidence of abuse of rights of
with respect to factual allegations contained in its lesbian, gay, bisexual, and transgender (LGBT)
claim by a preponderance of the evidence. individuals, reflects binding principles of
international law. Can the Court consider these
The burden falls on the Respondent with respect to principles as binding under international law?
factual allegations contained in a crossclaim.
However, the Court may draw an adverse inference if A: NO, the Court cannot rely on the application of the
evidence is solely in the control of one party that Yogyakarta Principle.
refuses to produce it.
There are declarations and obligations outlined in
Hard Law (2009 BAR) said Principles which are not reflective of the current
state of international law, and do not find basis in any
Means binding laws; to constitute law, a rule, of the sources of international law enumerated under
instrument or decision must be authoritative and Article 38(1) of the Statute of the International Court
prescriptive. In international law, hard law includes of Justice. Petitioner also has not undertaken any
treaties or international agreements, as well as objective and rigorous analysis of these alleged
customary laws. These instruments result in legally principles of international law to ascertain their true
enforceable commitments for countries (states) and status.
other international subjects.
International law is full of principles that promote
Soft Law (2009 BAR) international cooperation, harmony, and respect for
human rights, most of which amount to no more than
These are non-binding rules of international law. Soft well-meaning desires, without the support of either
law is of relevance and importance to the State practice or opinio juris. These principles are at
development of international law because it: best - de lege ferenda - and do not constitute binding
obligations on the Philippines. Much of contemporary
1. Has the potential of law-making, i.e. It may be international law is characterized by the soft law
a starting point for later ‘hardening’ of non- nomenclature.
binding provisions (e.g. UNGA resolutions may

Political Law
2. EFFECT OF UNITED NATIONS DECLARATIONS, a. States;
SECURITY COUNCIL RESOLUTIONS b. Colonies and dependencies;
c. Mandates and trust territories (2003 Bar);
Effect of United Nations Declarations/Resolutions belligerent communities;
d. The Vatican;
United Nations General Assembly (UNGA) resolutions e. The United Nations (UN); international
are formal expressions of the opinion or will of United administrative bodies; and
Nations organs. UNGA resolutions are merely f. To a certain extent, individuals.
recommendations, not laws, and thus not binding on
member states. 2. Indirect subjects
a. International organizations;
NOTE: But if they are supported by all the Sates, they b. Individuals; and
are expression of opinio juris communis. Resolutions c. Corporations.
can also be a reflection of what has become customary
law. (An Introduction to Public International Law, 3. Incomplete subjects
Bernas) a. Protectorates;
b. Federal states; and
Effect of Security Council Resolutions c. Mandated and trust territories.
Pursuant to Art. 25 of the UN Charter, all members of Object

the UN agree to accept and carry out the decisions of
the Security Council. While other organs of the United They are those who indirectly have rights under, or
Nations make recommendations to member states, are beneficiaries of international law through subjects
only the Security Council has the power to make of international law.
decisions that member states are then obligated to
implement under the Charter. Subject vs. Object of International Law
3. EFFECTS OF ACTIONS OF ORGANS OF BASIS SUBJECT OBJECT

INTERNATIONAL ORGANIZATIONS CREATED BY Person or thing
TREATY in respect of
Entity that has
which rights are
rights and
Effects of Actions of Organs of International Definition held and
responsibilities
Organizations Created by a Treaty obligations
under that law.
assumed by the
Although international organizations have personality subject.
in international law, their powers and privileges are Has international
by no means like those of States. Their powers and personality that it Not directly
privileges are limited by the constituent instrument can directly assert governed by the
that created them. (An Introduction to Public Applicable
rights and can be rules of
International Law, Bernas) law
held responsible international
under the law of law.
The Court goes on to point out that international nations.
organizations are subject of international law which Its rights are
do not, unlike States, possess a general competence. It can be a proper
received and its
International organizations are governed by the party in
responsibilities
principle of speciality, that is to say, they are invested transactions
imposed
by the States which create them with powers, the Capacity to involving the
indirectly
limits of which are a function of the common interests enter into application of the
through the
whose promotion those States entrust to them. (ICJ transaction law of nations
instrumentality
Advisory Opinion on the Use of Nuclear Weapons) among members
of an
of international
intermediate
D. SUBJECTS OF INTERNATIONAL LAW communities.
agency.
A subject of international law is an entity that has NOTE: Under the traditional concept, only states are
rights and responsibilities under that law. It has an considered subjects of international law. However,
international personality in that it can directly assert under the contemporary concept, individuals and
rights and be held directly responsible under the law international organizations are also subjects because
of nations. It meant that it can be a proper party in they have rights and duties under international law.
transactions involving the application of the law of
nations among members of the international Q: Malaya Lolas have approached the Executive
community. [Cruz, International Law (2003 Ed.), p. 27] Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the
The Subjects of International Law: Japanese officials and military officers who
ordered the establishment of the “comfort
1. Direct subjects
271
women” stations in the Philippines. But officials of It is a community of persons, more or less numerous,
the Executive Department declined to assist the permanently occupying a definite portion of territory,
petitioners and took the position that the independent of external control, and possessing an
individual claims of the comfort women for organized government to which the great body of
compensation had already been fully satisfied by inhabitants render habitual obedience.
Japan’s compliance with the Peace Treaty between
the Philippines and Japan. May we force the Elements of a State (Per-De-Go-C)
government to pursue the claims of comfort
women under the doctrine of jus cogens? 1. Permanent population (people). It refers to an
aggregate of individuals of both sexes, who live
A: NO, the Philippines is not under any international together as a community despite racial or
obligation to espouse petitioners’ claims. cultural differences.
From a domestic law perspective, the Executive 2. Defined territory. It refers to the fixed portion
Department has the exclusive prerogative to of the earth’s surface which the inhabitants
determine whether to espouse petitioner’s claims occupy.
against Japan. In the international sphere, the only
means available for individuals to bring a claim within 3. Government. It is the agency through which the
the international legal system has been when the will of the state is formulated, expressed and
individual is able to persuade a government to bring a realized.
claim on the individual’s behalf. Even then, it is not
the individual’s rights that are being asserted, but 4. Capacity to enter into relations with other
rather, the state’s own rights. states (independence/sovereignty). It is the
power of a state to manage its external affairs
The question whether the Philippine government without direction or interference from another
should espouse claims of its nationals against a state. (Montevideo Convention on the Rights and
foreign government is a foreign relations matter, the Duties of States, Art. 1)
authority for which is demonstrably committed by
our Constitution not to the courts but to the political Other suggested elements of a State
branches. In this case, the Executive Department has
already decided that it is to the best interest of the 1. Civilization
country to waive all claims of its nationals for 2. Recognition
reparations against Japan in the Treaty of Peace of
1951. Nation
The State is the sole judge to decide whether its It is defined as a body of people more or less of the
protection will be granted, to what extent it is same race, language, religion and historical traditions.
granted, and when it will cease. It retains, a (Fenwick 104; Sarmiento, 2007)
discretionary power the exercise of which may be
determined by considerations of a political or other Doctrine of Equality of States
nature, unrelated to the particular case. The
International Law Commissions (ILCs) Draft Articles All states are equal in international law despite their
on Diplomatic Protection fully support this traditional obvious factual inequalities as to size, population,
view. They (i) state that "the right of diplomatic wealth, strength, or degree of civilization. (Sarmiento,
protection belongs to or vests in the State, (ii) affirm 2007)
its discretionary nature by clarifying that diplomatic
protection is a "sovereign prerogative" of the State; Principle of State Continuity
and (iii) stress that the state "has the right to exercise
diplomatic protection on behalf of a national. It is From the moment of its creation, the state continues
under no duty or obligation to do so. (Vinuya v. as a juristic being notwithstanding changes in its
Romulo, G.R. No. 162230, April 28, 2010) circumstances provided only that they do not result in
loss of any of its essential elements. (Sapphire Case, 11
International Community Wall. 164 in Cruz, 2003)
It is the body of juridical entities which are governed Q: If State sovereignty is said to be absolute, how
by the law of nations. is it related to the independence of other States
and to their equality on the international plane?
NOTE: Under the modern concept, it is composed not
only of States but also of such other international A: From the standpoint of the national legal order,
persons such as the UN, the Vatican City, colonies and State sovereignty is the supreme legal authority in
dependencies, mandates and trust territories, relation to subjects within its territorial domain. This
international administrative bodies, belligerent is the traditional context in referring to sovereignty as
communities and even individuals. absolute. However, in the international sphere,
sovereignty realizes itself in the existence of a large
1. STATES number of sovereignties, such that there prevails in

Political Law
fact co-existence of sovereignties under conditions of Rules on State Succession
independence and equality. (Magallona, 2004)
1. As to territory – The capacities, rights and duties
State sovereignty as defined in international law of the predecessor State with respect to that
territory terminate and are assumed by the
It is the right to exercise in a definite portion of the successor State.
globe the functions of a State to the exclusion of
another State. Sovereignty in the relations between 2. As to State property – The agreement between the
States signifies independence. Independence in regard predecessor and the successor State govern;
to a portion of the globe is the right to exercise therein otherwise:
to the exclusion of any other State, the functions of a
State. (Island of Palmas case: USA v. the Netherlands, a. Where a part of the territory of a State
April 4, 1928) becomes part of the territory of another
State, property of the predecessor State
Fundamental Rights of a State located in that territory passes to the
successor State;
1. Existence and self-preservation; b. Where a State is absorbed by another State,
2. Sovereignty and independence; property of the absorbed State, wherever
3. Equality; located, passes to the absorbing State; or
4. Property and jurisdiction; and, c. Where a part of a State becomes a separate
5. Diplomatic intercourse. State, property of the predecessor State
located in the territory of the new State
Extinguishment of a State passes to the new State.
The radical impairment of actual loss of one or more 3. As to public debts – the agreement between
of the essential elements of the state will result in its predecessor and successor State govern;
extinction. (Cruz, 2003) otherwise:
Succession a. Where a part of the territory of a State

becomes part of the territory of another
State succession takes place when one state assumes State, local public debt and the rights and
the rights and some of the obligations of another obligations of the predecessor State under
because of certain changes i the condition of the latter. contracts relating to that territory are
This holds true in the event that a state is transferred to the successor State;
extinguished or is created. (Cruz, 2000) b. Where a State is absorbed by another State,
public debt and the rights and obligations
It is the replacement of one State by another in the under contracts of the absorbed State pass
responsibility for the international relations of to the absorbing State;
territory. [Vienna Convention on Succession of States in c. Where a part of a State becomes a separate
respect of Treaties, Art. 2(b)] State, local public debt and the rights and
obligations of the predecessor State under
A succession of States does not as such affect: (a) a contracts relating to that territory are
boundary established by a treaty; or (b) obligations transferred to the successor State.
and rights established by a treaty and relating to the
regime of a boundary. [Vienna Convention on 4. As to treaties
Succession of States in respect of Treaties, Art. 11 a. When part of the territory of a State
(a)(b)] becomes the territory of another State, the
international agreements of the predecessor
“Clean Slate” Rule State cease to have effect in respect of the
territory and international agreements of
When one State ceases to exist and is succeeded by the successor State come into force there.
another on the same territory, the newly independent
State is not bound to maintain in force, or to become a NOTE: “Moving Treaty or Moving
party to, any treaty by reason only of the fact that at Boundaries” Rule – A third State may seek
the date of the succession of States the treaty was in relief from the treaty on ground of rebus sic
force in respect of the territory to which the stantibus.
succession of States relates.
When a State is absorbed by another State,
XPNs: the international agreements of the
absorbed State are terminated, and the
1. When the new State agrees to be bound by the international agreements of the absorbing
treaties made by its predecessor; State become applicable to the territory of
2. Treaties affecting boundary regime (uti the absorbed State.
possidetis); and
3. Customary international law.
273
NOTE: “Moving Treaty or Moving attitude or forbearance from adhering to the enemy
Boundaries” Rule may apply. by giving the latter aid and comfort, the occupant has
no power, as a corollary of the preceding
b. When a part of a State becomes a new State, consideration, to repeal or suspend the operation of
the new State does not succeed to the the law of treason. (Anastacio Laurel vs. Eriberto Misa,
international agreements to which the ibid)
predecessor State was a party, unless,
expressly or by implication, it accepts such Succession of Government
agreements and the other party or parties
thereto agree or acquiesce; or, There is succession of government where one
government replaces another either peacefully or by
c. Pre-existing boundary and other territorial violent methods. The integrity of the state is not
agreements continue to be binding affected; the state continues as the same international
notwithstanding (Uti possidetis rule). person except only that its lawful representative is
changed. (Cruz, 2000)
Effects of a change of sovereignty on municipal
laws Effects of a Change of Government
1. Laws partaking of a political complexion are 1. If the change is peaceful, the new government
abrogated automatically assumes the rights and responsibilities of the old
2. Laws regulating private and domestic rights government.
continue in force until changed or abrogated 2. If the change was effected through a violence, a
distinction must be made.
Effect of change of sovereignty when Spain ceded
the Philippines to the US a. Acts of political complexion may be
denounced; and,
The political laws of the former sovereign are not b. Routinary acts of mere governmental
merely suspended but abrogated. As they regulate the administration continue to be effective.
relations between the ruler and the ruled, these laws
fall to the ground ipso facto unless they are retained Recognition
or re-enacted by a positive act of the new sovereign.
It is the acknowledgment extended by a State to:
Non-political laws, by contrast, continue in operation,
for the reason also that they regulate private relations 1. Another State;
only, unless they are changed by the new sovereign or 2. Government; or a,
are contrary to its institutions. (Cruz, Public 3. Belligerent community
International Law, 2014)
Recognition is not an element of the State.
Status of allegiance during Japanese occupation
The political existence of the state is independent of
There was no case of suspended allegiance during the recognition by the other states. Even before
Japanese occupation. Adoption of the theory of recognition, the state has the right to defend its
suspended allegiance would lead to disastrous integrity and independence to provide for its
consequences for small and weak nations or states, conservation and prosperity, and consequently to
and would be repugnant to the laws of humanity and organize itself as it sees fit, to legislate upon its
requirements of public conscience, for it would allow interests, administer its services, and to define the
invaders to legally recruit or enlist the quisling jurisdiction and competence of its courts. The exercise
inhabitants of the occupied territory to fight against of these rights has no other limitation than the
their own government without the latter incurring the exercise of the rights of other states according to
risk of being prosecuted for treason. To allow international law. (Montevideo Convention on the
suspension is to commit political suicide. (Anastacio Rights and Duties of States, Art. 3)
Laurel vs. Eriberto Misa, ibid)
NOTE: The acknowledgment by a State is coupled
NOTE: An inhabitant of a conquered State may be with an indication of its willingness to deal with the
convicted of treason against the legitimate sovereign entity as such under international law.
committed during the existence of belligerency.
Although the penal code is a non-political law, it is 1. To treat the new State as such;
applicable to treason committed against the national 2. To accept the new government as having
security of the legitimate government, because the authority to represent the State it purports to
inhabitants of the occupied territory were still bound govern and maintain diplomatic relations with
by their allegiance to the latter during the enemy it; and,
occupation. Since the preservation of the allegiance or 3. To recognize in case of insurgents that they are
the obligation of fidelity and obedience of a citizen or entitled to exercise belligerent rights
subject to his government or sovereign does not (Hackworth, 166)
demand from him a positive action, but only passive

Political Law
Kinds of Recognition NOTE: Republic of the Marshall Islands and the
Federated States of Micronesia are formerly part of
1. Express Recognition. This may be verbal or in the U.S. Administered Trust Territory of the Pacific
writing. It may be extended through: Islands.
a. formal proclamation or announcement;
b. stipulation in a treaty; The associated state arrangement has usually been
c. letter or telegram; or, used as a transitional device of former colonies on
d. official call or conference. their way to full independence.
2. Implied Recognition. It is when the recognizing e.g: Antigua, St. Kitts-Nevis-Anguilla, Dominica, St.
state enters into official intercourse with the new Lucia, St. Vincent, and Grenada.
member by:
a. Exchanging diplomatic representatives Q: Formal peace talks between the Philippine
with it; Government and MILF resulted in the crafting of
b. Bipartite treaty; the GRP-MILF Tripoli Agreement on Peace (Tripoli
c. Acknowledging its flag; or, Agreement 2001) which consists of three (3)
d. Entering into formal relations with it. aspects: a.) security aspect; b.) rehabilitation
aspect; and c.) ancestral domain aspect.
Theories of Recognition of a State (2004 BAR)
(Con-Dec) Various negotiations were held which led to the
finalization of the Memorandum of Agreement on
1. Constitutive Theory. Recognition is the last the Ancestral Domain (MOA-AD). In its body, it
indispensable element that converts the state grants “the authority and jurisdiction over the
being recognized into an international person; Ancestral Domain and Ancestral Lands of the
and, Bangsamoro” to the Bangsamoro Juridical Entity
(BJE). The latter, in addition, has the freedom to
2. Declaratory Theory. Recognition is merely an enter into any economic cooperation and trade
acknowledgment of the pre-existing fact that the relation with foreign countries.
state being recognized is an international person.
(Cruz, 2003) The MOA-AD further provides for the extent of the
territory of the Bangsamoro. With regard to
NOTE: The prevailing theory is the Declaratory governance, on the other hand, a shared
Theory. responsibility and authority between the Central
Government and BJE was provided. The
Authority to Recognize relationship was described as “associative.” Does
the MOA-AD violate the Constitution and the laws?
It is to be determined according to the municipal law
of each State. A: YES. The concept of association is not recognized
under the present Constitution. Indeed, the concept
In Philippine setting: It is the President who implies powers that go beyond anything ever granted
determines the question of recognition and his by the Constitution to any local or regional
decisions on this matter are considered acts of state government. It also implies the recognition of the
which are, therefore, not subject to judicial review. associated entity as a state. The Constitution,
however, does not contemplate any state in this
Basis of Authority of the President (TRiMP) jurisdiction other than the Philippine State, much less
does it provide for a transitory status that aims to
1. Treaty-making power; prepare any part of Philippine territory for
2. Right in general to act as the foreign policy independence.
spokesman of the nation;
3. Military power; and, The provisions of the MOA indicate that the parties
4. Power to send and receive diplomatic aimed to vest in the BJE the status of an associated
representatives. state or, at any rate, a status closely approximating it
(The Province of North Cotabato v. GRP, G.R. No.
NOTE: Being essentially discretionary, the exercise of 183591, October 14, 2008).
these powers may not be compelled.
Recognition of State vs. Recognition of
Doctrine of Association (2010 BAR) Government
It is formed when two states of unequal power BASIS STATE GOVERNMENT

voluntarily establish durable links. In the basic model, On a definite territory Person or a
one state, the associate, delegates certain of human society group of persons
responsibilities to the other, the principal, while As to politically organized, capable of
maintaining its international status as a state. Free extent independent and binding the state
association represents a middle ground between capable of observing they claim to
integration and independence. the obligations of represent.
275
international law. upheaval has taken place will deal or not deal with
It carries with it the whatever government is in control therein at the time
recognition of and either action shall not be taken as a judgment on
government It does not carry the legitimacy of the said government.
Reason: The State with it the
recognized has all the recognition of De jure Recognition vs. De facto Recognition (1998
essential requisites of a State. BAR)
State at the time
recognition is extended. BASIS RECOGNITION RECOGNITION
DE JURE DE FACTO
Revocable (if Relatively Provisional (e.g.:
As to
brought about by Duration permanent. duration of armed
its
Irrevocable. violent or struggle).
revoca
unconstitutional Vests title to Does not vest title
-bility
means). Entitlement to properties of to properties of
properties government the government
Requirements for Recognition of Government abroad. abroad.
Scope of Brings about full Limited to certain
1. The government is stable and effective, with no Diplomatic diplomatic juridical relations.
substantial resistance to its authority; Power relations.
2. The government must show willingness and
ability to discharge its international obligations; Effects of Recognition (FIPA)
and,
3. The government must enjoy popular consent or 1. Full diplomatic relations are established;
approval of the people. (XPN: Where the government recognized is de
facto)
Tests in Recognizing a New Government
2. Immunity from jurisdiction of courts of law of
1. Objective Test. Here, the government must be recognizing State;
able to maintain order within the state and repel
external aggression. 3. Right to Possession of the properties of its
predecessor in the territory of the recognizing
2. Subjective Tests. The government is willing to State; and,
comply with its international obligations (NOTE: This is not applicable as to Recognition of
State.)
Tobar or Wilson Doctrine (2004 BAR)
4. All Acts of the recognized state or government
It precludes recognition of any government coming are validated retroactively, preventing the
into existence by revolutionary means so long as the recognizing state from passing upon their legality
freely elected representatives of the people thereof in its own courts.
have not constitutionally reorganized the country.
Belligerency
Stimson Doctrine
It exists when the inhabitants of a State rise up in
There is no recognition of a government established arms for the purpose of overthrowing the legitimate
through external aggression. (Nachura, 2009) government or; when there is a state of war between
two states.
Estrada Doctrine (2004 BAR)
Two (2) Senses of Belligerency:
It involves a policy of never issuing any declaration
giving recognition to governments and of accepting 1. It may refer to the state of war between two (2)
whatever government is in effective control without or more states. In which case, the states of war
raising the issue of recognition. An inquiry into are referred to as the belligerent states; and
legitimacy would be an intervention in the internal
affairs of another State. 2. Actual hostilities amounting to civil war within a
single state.
Wilson Doctrine vs. Estrada Doctrine
Requisites in Recognizing Belligerency (OSSO)
In the Wilson or Tobar Doctrine, a government
established by means revolution, civil war, coup d’état 1. There must be an Organized civil government
or other forms of internal violence will not be directing the rebel forces;
recognized until the freely elected representatives of 2. The rebels must occupy a Substantial portion of
the people have organized a constitutional the territory of the state;
government, while in the Estrada Doctrine any
diplomatic representatives in a country where an

Political Law
3. The conflict between the legitimate government Recognition of Belligerency
and the rebels must be Serious, making the
outcome certain; and Recognition of belligerency is the formal
4. The rebels must be willing and able to Observe acknowledgment by a third party of the existence of a
the laws of war. state of war between the central government and a
portion of that state.
NOTE: Absence of any of the foregoing conditions will
result merely in insurgency which is rarely Effects of Recognition of Belligerency
recognized. (Nachura, Outline Reviewer in Political
Law, p. 648) 1. Responsibility for acts of rebels resulting in
injury to nationals of the recognizing state shall
Legal Consequences of Belligerency be shifted to rebel government
2. The legitimate government recognizing the
PERIOD EFFECT rebels shall observe the laws of war in
Before conducting hostilities
It is the legitimate government that is 3. Third states recognizing belligerency shall
Recognition
responsible for the acts of the rebels maintain neutrality
of the
affecting foreign nationals and their 4. Recognition is only provisional and only for the
parent
properties. purpose of the hostilities (Nachura, Outline
state
1. The belligerent community is Reviewer in Political Law, p. 648-649)
considered a separate state for
the purposes of the conflict it is Q: When does belligerency exist?
waging against the legitimate
government; A: Belligerency exists when a sizable portion of the
2. Their relations for the duration territory of a state is under the effective control of an
of hostilities be governed by the insurgent community which is seeking to establish a
laws of war; separate government and the insurgents are in de
3. Troops of other belligerent when facto control of a portion of the territory and
After captured, shall be treated as population, have a political organization, and are able
recognition prisoners of war; to maintain such control and conduct themselves
of the 4. Parent state shall no longer be according to the laws of war. For example, Great
parent liable for any damage that may Britain recognized a state of belligerency in the United
state be caused to third parties by States during the Civil War.
rebel government;
5. Both belligerents may exercise 2. INTERNATIONAL ORGANIZATIONS (IOs)
the right to visit and search
upon neutral merchant vessels; These are bodies created by sovereign states and
and, whose functioning is regulated by international law,
6. Both the rebel and the legitimate not the law of any given country. They have a
government shall be entitled to functional personality which is limited to what is
full war status necessary to carry out their functions as found in the
They are under obligation to observe instruments of the organization. It is set up by a treaty
As to third strict neutrality and abide by the among two or more states. It enjoys immunity which
States consequences arising from that is based on the need for effective exercise of its
position. functions and is derived from the treaty creating it.
(Bernas, 2009)
Insurgency vs. Belligerency
It is generally used to describe an organization set up
BASIS INSURGENCY BELLIGERENCY by an agreement between two or more states. Under
More serious and contemporary international law, such organizations
widespread and are endowed with some degree of international legal
A mere initial personality such that they are capable of exercising
presupposes the
stage of war. It specific rights, duties and powers. They are organized
existence of war
As to involves a rebel mainly as a means for conducting general
between two or more
nature movement, and international business in which the member states
states (first sense) or
is usually not have an interest.
actual civil war
recognized.
within a single state
(second sense). IOs are governed by the Principle of Specialty, that is,
Sanctions to Belligerency is they are invested by the States which create them
insurgency are governed by the rules with powers, the limits of which are a function of the
As to the governed by on international law common interest whose promotion those States
applicable municipal law – as the belligerents entrust to them. (Nachura, Outline Reviewer in
law Revised Penal may be given Political Law, p. 656)
Code, i.e. international
rebellion. personality.
277
"Specialized agencies" are international organizations The Court has come to the conclusion that the
having functions in particular fields. (ICMC vs. Calleja, organization is an international person. That is not the
G.R. No. 85750, September. 28, 1990) same thing as saying that it is a State, which it
certainly is not, or that its legal personality and rights
An entity is considred an IO if it meets the and duties are the same as those of a State. Still less is
following criteria: it the same thing as saying that it is a ‘super-state’,
whatever that expression may mean. It does not even
1. A permanent association of states, with lawful imply that all its rights and duties must be upon that
objects, equipped with organs; plane. What it does mean is that it is a subject of
2. A distinction, in terms of legal powers and international law and capable of possessing
purposes, between the organization and its international rights and duties, and that it has
member states; and capacity to maintain its rights by bringing
3. The existence of legal powers exercisable on the international claims.
international plane and not solely within the
national system of one or more states. 3. INDIVIDUALS
Q: What does the term “auxiliary status” of some

In international law, individuals were objects or at
international organizations entail?
best “beneficiaries” of international law. With the
greater global awareness of human rights individuals
A: The term “auxiliary status” of some international
have now come to be recognized as possessing albeit
organizations, such as the Red Cross Society, means
limited rights and obligations in international law. (An
that it is at one and the same time a private institution
Introduction to Public International Law, Bernas)
and a public service organization because the very
nature of its work implies cooperation with the state.
The modern trend in public international law is the
The PNRC, as a National Society of the International
primacy placed on the worth of the individual person
Red Cross and Red Crescent Movement, can neither be
and the sanctity of human rights. Slowly, the
“classified as an instrumentality of the state, so as not
recognition that the individual person may properly
to lose its character of neutrality” as well as its
be a subject of international law is now taking root.
independence, nor strictly as a private corporation
The vulnerable doctrine that the subjects of
since it is regulated by international humanitarian law
international law are limited only to states was
and is treated as an auxiliary of the state. (Liban v.
dramatically eroded towards the second half of the
Gordon, G.R. No. 175352, January 18, 2011)
past century. Significant events show that the
individual person is now a valid subject of
Q: There has been an assassination on 17
international law. (Government of Hong Kong Special
September 1948, by Jewish terrorist
Administrative Region v. Hon. Olalia, G.R. No. 153675,
organizations, of the UN’s chief truce negotiator, a
April 19, 2007)
Swedish national, Count Folke Bernardotte, and of
the UN observer, a Frenchman, Colonel Andr
Internal Self-Determination vs. External Self-
S rot, while on an official mission for the UN. They
Determination
were murdered in the eastern part of Jerusalem,
which was under Israeli control, at the time when
INTERNAL SELF- EXTERNAL SELF-
Israel had proclaimed its independence but had
DETERMINATION DETERMINATION
not yet been admitted to the UN. The UN
People of a states'
considered that Israel had neglected to prevent or Establishment of a sovereign
pursuit of its political,
punish the murderers and wished to make a claim and independent State, the
economic, social and
for compensation under international law. The UN free association or integration
cultural development
General Assembly sought the advice of the ICJ as to with an independent State or
within the framework
the legal capacity of the UN to make such a claim. the emergence into any other
of an existing State.
Does the UN have a legal personality to make a political status freely
claim? determined by a people which
NOTE: Recognized
constitute modes of
sources of
A: YES, the UN has a legal personality. implementing the right of self-
international law
determination by that people.
establish that the right
The Court held that the UN possessed a judicial
to self-determination
personality on the international plane and was NOTE: arises only in the most
of a people is normally
therefore capable of presenting such a claim with a extreme cases and, even then,
fulfilled through
view of obtaining reparation due in respect of the under carefully defined
internal self-
damage caused to both its assets and its agents (the circumstances.
determination.
so-called functional protection) – an objective
international legal personality operates erga omnes.
Exceptional cases in which the right to external self-
Though the UN Charter did not expressly clothe the determination can arise, namely:
UN with the capacity to bring an international claim
for reparations, the UN nevertheless possessed 1. Where a State is under colonial rule;
functional personality. 2. Subject to foreign domination or exploitation

Political Law
outside a colonial context; and, 1. Personal jurisdiction. It refers to the power
3. Blocked from the meaningful exercise of its right exercised by a state over its nationals.
to internal self-determination. (The Province of
North Cotabato v. GRP, G.R. No. 183591, October 2. Territorial jurisdiction. It is the jurisdiction of a
14, 2008) state over all persons and property within its
territory.
NOTE: The people’s right to self-determination does
not extend to a unilateral right of secession. 3. Land jurisdiction. It is the jurisdiction of a state
over everything found within the terrestrial
Right to Internal Self-Determination of Indigenous domain of the state.
Peoples
4. Maritime and fluvial jurisdiction. The internal
Indigenous peoples situated within States do not have waters of a state are assimilated to the land mass
a general right to independence or secession from and subjected to the same degree of jurisdiction
those states under international law, but they do have exercised over the terrestrial domain (i.e.
the right amounting to the right to internal self- enclosed waters such as the land-locked lakes,
determination. Such right is recognized by the UN national rivers and man-made canals).
General Assembly by adopting the United Nations
Declaration on the rights of Indigenous Peoples 5. Contiguous zone. States have claimed
(UNDRIP). (The Province of North Cotabato v. GRP, “protective jurisdiction” over contiguous zone or
ibid) a zone of the high seas contiguous to its
territorial sea to: (a) prevent infringement of its
NOTE: The UNDRIP, while upholding the right of customs, fiscal, immigration or sanitary
indigenous peoples to autonomy, does not obligate regulations within its territory or territorial sea;
States to grant indigenous peoples the near and, (b) punish infringement of the above
independent status of an associated state. There is no regulations within its territory or territorial sea.
requirement that States now guarantee indigenous
peoples their own police and internal security force, 6. Continental shelf. The coastal state has the
nor is there an acknowledgment of the right of sovereign right to explore the continental shelf
indigenous peoples to the aerial domain and and to exploit its natural resources and for this
atmospheric space. But what it upholds is the right of purpose it may erect on it such installations and
indigenous peoples to the lands, territories and equipment as may be necessary.
resources, which they have traditionally owned,
occupied or otherwise used or acquired. (Province of 7. Patrimonial Sea. It is also known as the
North Cotabato v. GRP, ibid.) exclusive economic zone. All living and non-living
resources found therein belong exclusively to the
4. OTHER SUBJECTS OF INTERNATIONAL LAW coastal state.
Insurgents 8. Open seas. A state may exercise jurisdiction on

the open seas in the following: (a) over its
They are non-international armed conflicts which vessels; (b) over pirates; (c) in the exercise of the
take place in the territory of a High Contracting Party right of visit and search; and, (d) under the
between its armed forces and dissident armed forces doctrine of hot pursuit.
or other organized armed groups.
9. Aerial jurisdiction. The local state has
National Liberation Movements jurisdiction over the airspace above it to an
unlimited height.
They are organized groups fighting in behalf of a
whole people for freedom from colonial powers. They 10. Other territories. A state may, by virtue of
are “peoples fighting against colonial domination and customary or conventional international law,
alien occupation and against racist regimes in the extend its jurisdiction beyond its territory and
exercise of their right of self-determination, as over territory not falling under its sovereignty
enshrined in the Charter of the United Nations” (First (Cruz, International Law [2003 Ed.], p. 125-140).
Protocol of the 1977 Geneva Convention).
1. BASIS OF JURISDICTION
E. JURISDICTION OF STATES
(T-N-A-P-Un-Pa)
It is the competence of a State under international
law to prescribe and enforce norms of law, as well as 1. Territoriality Principle
adjudicate over persons, property, events and 2. Nationality Principle and Statelessness
relations on the basis of those norms within its 3. Protective Principle
territory. (Magallona, 2005) 4. Universality Principle
5. Passive Personality Principle
Kinds of jurisdictions
NOTE: The leading principles of jurisdiction in
279
Philippine law are the territoriality principle, NOTE: This is illustrated by Art. 15 of the Civil Code,
nationality principle, and the protective principle. thus: “Laws relating to family rights and duties, or to
the status, condition and legal capacity of persons are
a. TERRITORIALITY PRINCIPLE binding upon citizens of the Philippines, even though
living abroad.”
The territorial principle is derived from the concept of
State sovereignty. It means that a State has the Statelessness
primary jurisdiction over all events taking place in its
territory regardless of the nationality of the person It is the condition or status of an individual who is
responsible. It is the dominant ground of jurisdiction either a De jure stateless person or a De facto stateless
in International Law. All other State must respect the person. (Frivaldo v. COMELEC, G.R. No. 123755, June
supremacy of the State over its territory, and 28, 1996)
consequently must not interfere neither in its internal
affairs nor in its territorial jurisdiction. NOTE: See discussion on statelessness under
Nationality and Statelessness
The territorial jurisdiction of State extends over its
land, its national airspace, its internal water, its c. PROTECTIVE PRINCIPLE
territorial sea, its national aircrafts, and its national
vessels. It encompasses not only crimes committed Any State has the right to punish acts even if
on its territory but also crimes that have effects within committed outside its territory, when such acts
its territory. In such a case, a concurrent jurisdiction constitute attacks against its security, as long as that
occurs, a subjective territorial jurisdiction may be conduct is generally recognized as criminal by states
exercised by the State in whose territory the crime in the international community. (2009 BAR)
was committed, and an objective territorial
jurisdiction may be exercised by the State in whose By reason of this principle, the Philippines takes
territory the crime had its effect. jurisdiction over persons who committed acts outside
the territotial jurisdiction but with consequences
Under subjective territorial jurisdiction a State will prejudicial to its interests or inimical to its security.
have jurisdiction over conduct that commences within
the State but is completed abroad. Objective territorial This principle underlies Art. 2 of the Revised Penal
jurisdiction concerns conduct that commences outside Code which declares that its provisions “shall be
the State and is completed within it. enforced not only within the Philippine Archipelago…,
but also outside of its jurisdiction,” against those who:
NOTE: A State has absolute, but not necessarily
exclusive, power to prescribe, adjudicate and enforce 1. Should commit an offense while on a Philippine
rules of conduct that occur within its territory, ship or airship;
without regard to the nationality of the person 2. Should forge or counterfeit any coin or currency
responsible. (2005, 2009 BAR) note of the Philippine Islands or obligations and
securities issued by the Government of the
This is illustrated by Art. 14 of the Civil Code, thus: Philippine Islands;
“Penal laws and those of public security and safety 3. Should be liable for acts connected with the
shall be obligatory upon all who live or sojourn in the introduction into these islands of the obligations
Philippine territory, subject to the principles of public and securities mentioned in the presiding
international law and to treaty stipulations.” number;
4. While being public officers or employees, should
GR: A State has criminal jurisdiction only over commit an offense in the exercise of their
offenses committed within its territory. functions; or
5. Should commit any of the crimes against national
XPNs: security and the law of nations, defined in Title
1. Continuing Offenses One of Book Two of this Code. (Magallona, 2005)
2. Acts prejudicial to the national security or vital
interests of the State d. UNIVERSALITY PRINCIPLE
3. Universal crimes
4. Offenses covered by special agreements (this is
Certain offenses are so heinous and so widely
now obsolete) (Nachura, Outline Reviewer in
condemned that any state that captures an offender
Political Law, p. 668)
may prosecute and punish that person on behalf of
the international community regardless of the
b. NATIONALITY PRINCIPLE AND STATELESSNESS
nationality of the offender or victim or where the
crime was committed. The perpetrator is regard as a
A State may exercise jurisdiction over its nationals, Hostis humani generis ("enemy of mankind") (2005
with respect to their conduct, whether within or BAR)
outside its territory. It is based upon the notion that
the link between the State and its nationals is This is based on the nature of the crime, not on any
personal one independent of location. nexus between the forum State and the matter under

Political Law
consideration. It is normally relied upon in criminal e. PASSIVE PERSONALITY PRINCIPLE
law context to prosecute core international crimes
such as piracy, slave trading, genocide, crimes against It authorizes states to assert jurisdiction over offenses
humanity, war crimes and torture. In recent years, committed against their citizens abroad. It recognizes
crimes such as hijacking of aircraft, violation of that each state has a legitimate interest in protecting
human rights and terrorism, have been added to the the safety of its citizens when they journey outside
list of international crimes. (Kaczorowska, 4th ed., national boundaries.
2010)
2. EXEMPTIONS FROM JURISDICTION
Today under the universality principle, each State and
every State has jurisdiction over any of the a. ACT OF STATE DOCTRINE
international crimes committed by anyone anywhere.
A State should not inquire into the legal validity of the
Q: Prior to the outbreak of WWII, Adolf Eichmann public acts of another State done within the territory
was an Austrian by birth who volunteered to work of the latter. (Nachura, 2009)
for the Security Service in Berlin. He rose through
the ranks and eventually occupied the position of b. INTERNATIONAL ORGANIZATIONS (IOs)
Referant for Jewish Affairs. He oversaw the AND ITS OFFICERS
transport and deportation of Jewish persons and
explored the possibility of setting up a slave
The immunity of International Governmental
Jewish state in Madagascar.
Orgnizations (IGOs) is not based on international
customary law but derives from the terms of
He was captured by Israeli Security Forces in
particular treaty creating the IGO. These treaties,
Argentina and handed over to the District Court of
almost without exception, specify privileges and
Jerusalem to stand for war crimes against
immunities accorded to the IGO which are shaped by
humanity and crimes against the Jewish people.
the function that the relevant IGO is aimed to fulfill.
He was convicted of all 15 counts and sentenced to
The founding treaties usually impose an obligation on
death.
the contracting parties to enact national legislation
granting the relevant international organization and
Does the District Court of Jerusalem have
its representatives specific immunities and privileges.
jurisdiction to try the case in light of the fact that
Normally, a headquarters agreement is concluded
Eichmann is a foreign national and crimes were
between the relevant organization and its host
committed on foreign territory?
member State which regulates the extent of
immunities and privileges granted to the organization
A: YES. The principle of territorial sovereignty merely
in the national territory. (Kaczorowska, 4th Ed., 2010)
requires that the State exercises its power to punish
within its own borders, not outside them; that subject
NOTE: The reason for the grant of immunities and
to this restriction every State may exercise a wide
privileges to international organizations is to avoid
discretion as to the application of its laws and the
the danger of partiality and interference by the host
jurisdiction of its courts in respect of acts committed
country in their internal workings. The very purpose
outside the State; and that only insofar as it is possible
of immunity in accordance with international practice
to point to a specific rule prohibiting the exercise of
is to shield the affairs of international organizations
this discretion. That view was based on the following
from political pressure or control by the host country
two grounds: (1) It is precisely the conception of State
to the prejudice of member States of the organization,
sovereignty which demands the preclusion of any
and to ensure the unhampered performance of their
presumption that there is a restriction on its
functions (Callado vs. IRRI, G.R. No. 106483 May 22,
independence; and (2) Even if it is true that the
1995). Accordingly, if a State is not a member of a
principle of the territorial character of criminal law is
particular international organization it is not obliged
firmly established in various States, it is no less true
under international law to grant immunity to that IGO.
that in almost of such States criminal jurisdiction has
(Kaczorowska, 4th Ed., 2010)
been extended so as to embrace offenses committed
outside its territory.
Q: Huefeng is an economist working with the
Asian Development Bank (ADB). He was charged
However, it is the universal character of the crimes in
with grave oral defamation before the MeTC for
question which vests in every State the power to try
allegedly uttering defamatory words to his co-
those who participated in the preparation of such
worker. The MeTC judge received an "office of
crimes, and to punish them, therefore. It follows that
protocol” from the DFA stating that the petitioner
the State which prosecutes and punishes a person for
is covered by immunity from legal process under
that offense acts solely as the organ and agent of the
the Agreement between the ADB and the
international community and metes out punishment
Philippine Government. As a result, the judge
to the offender for his breach of the prohibition
dismissed the cases filed against the petitioner.
imposed by the law of nations. (Attorney-General of
However, upon petition for certiorari and
the Government of Israel v. Eichmann, Israel Sup. Ct.
mandamus before the RTC, the decision of the
1962)
lower court was reversed and set aside. Is
281
Huefeng covered by immunity provided under the 4. Special diplomatic agents appointed by head of
agreement? the State; and,
5. Envoys ceremonial.
A: NO. He cannot invoke his immunity. Under the
Agreement, the immunity mentioned therein is not Diplomatic Corps
absolute, but subject to the exception that the act was
done in "official capacity." It is a body consisting of the different diplomatic
representatives who have been accredited to the same
Slandering a person could not possibly be covered by local or receiving State. It is headed by a doyun de
the immunity agreement because our laws do not corps, who, by tradition, is the oldest member within
allow the commission of a crime, such as defamation, the highest rank or, in Catholic countries, the papal
in the name of official duty. It is a well-settled nuncio.
principle of law that a public official may be liable in
his personal private capacity for whatever damage he Functions of a Diplomatic Mission (Re-P-Pro-N-A-
may have caused by his act done with malice or in bad R)
faith or beyond the scope of his authority or
jurisdiction. (Liang vs. People, G.R. No. 125865, January 1. Represent sending State in receiving State;
28, 2000) 2. Protect in receiving State interests of sending
State and its nationals;
NOTE: Courts cannot blindly adhere and take on its 3. Negotiate with government of receiving State;
face the communication from the DFA that 4. Promote friendly relations between sending and
petitioner is covered by any immunity. The DFA’s receiving States and developing their economic,
determination that a certain person is covered by cultural, and scientific relations;
immunity is only preliminary which has no binding 5. Ascertain by all lawful means conditions and
effect in courts. xxx At any rate, it has been ruled that developments in receiving State and reporting
the mere invocation of the immunity clause does thereon to government of sending State; and,
not ipso facto result in the dropping of the charges. 6. In some cases, Represent friendly governments
(Liang vs. People, G.R. No. 125865, January 28, 2000) at their request.
F. DIPLOMATIC AND CONSULAR LAW Classes of Heads of a Diplomatic Mission
Right of Legation/ Right of Diplomatic Intercourse 1. Ambassadors or nuncio- accredited to Heads of

State and other heads of missions of equivalent
It is the right of the state to send and receive rank;
diplomatic missions, which enables states to carry on 2. Envoys ministers and internuncios- accredited to
friendly intercourse. It is governed by the Vienna heads of State; and,
Convention on Diplomatic Relations (1961). 3. Charge d’ affaires- accredited to ministers of
foreign affairs.
The exercise of this right is one of the most effective
ways of facilitating and promoting intercourse among NOTE: The appointment of diplomats is not merely a
nations. Through the active right of sending matter of municipal law because the receiving State is
diplomatic representatives and the passive right of not obliged to accept a representative who is a
receiving them, States are able to deal more directly persona non grata to it. Indeed, there have been cases
and closely with each other in the improvement of when duly accredited diplomatic representatives have
their mutual intercourse. been rejected, resulting in strained relations between
the sending and receiving State.
NOTE: As the right of legation is purely consensual,
the State is not obliged to maintain diplomatic Persona non grata
relations with other States.
This refers to an unwelcome person. The receiving
If it wants to, a State may shut itself from the rest of State has the right to declare a diplomatic or consular
the world, as Japan did until the close of the 19th agent a persona non grata and request for the recall of
century. that agent.
Disadvantage: A policy of isolation would hinder the Agreation

progress of a State since it would be denying itself of
the many benefits available from the international It is a practice of the States before appointing a
community. particular individual to be the chief of their diplomatic
mission in order to avoid possible embarrassment.
Agents of Diplomatic Intercourse
It consists of two acts:
1. Head of State;
2. Foreign secretary or minister; 1. The inquiry, usually informal, addressed by the
3. Members of diplomatic service; sending State to the receiving State regarding the

Political Law
acceptability of an individual to be its chief of extent admitted by the receiving State and
mission; and, insofar as they are connected with the
performance of their duties.
2. The agreement, also informal, by which the
receiving State indicates to the sending State that Privileges and Immunities of Diplomatic Mission
such person, would be acceptable.
1. Personal inviolability – Members of diplomatic
Documents Carried by Diplomatic mission shall not be liable for any form of arrest
Representatives or imprisonment;
2. Inviolability of premises – Premises, furnishings
1. Letter of Credence. It is the document by which and means of transport shall be immune from
the envoy is accredited by the sending State to search, seizure, attachment or execution;
the foreign State to which he is being sent. It 3. Archives or documents shall be inviolable;
designates his rank and the general object of his 4. Diplomatic agents are immune from criminal,
mission, and asks that he be received favorably civil or administrative liability;
and that full credence be given to what he says on 5. Receiving State shall protect official
behalf of his State. communication and official correspondence of
diplomatic mission;
2. Letter Patent. The appointment of a consul is 6. Receiving State shall ensure all members of
usually evidenced by a commission, known diplomatic mission freedom of movement and
sometimes as letter patent or letred’provision, travel;
issued by the appointing authority of the sending 7. A diplomatic agent is exempted to give evidence
State and transmitted to the receiving State as a witness;
through diplomatic channels. 8. Exemption from general duties and taxes
including custom duties with certain exceptions;
3. Diplomatic passport authorizing the envoy’s 9. Use of flag and emblem of sending State on
travel; premises of receiving State.
4. Instructions which may include document of full XPNs:

powers authorizing him to negotiate on
extraordinary or special business; 1. Any real action relating to private immovable
situated in the territory of the receiving State
5. Ciphers for secret communication with his State. unless the envoy holds the property in behalf of
the sending State;
Diplomatic immunity (2001, 2005 BAR)
2. Actions relating to succession where diplomatic
Nature agent is involved as executor, administrator,
heirs or legatee as a private person and not on
Diplomatic immunity is essentially a political behalf of the sending State; and,
question and the courts should refuse to look beyond
the determination by the executive branch. 3. An action relating to any professional or
commercial activity exercised by the diplomatic
This is the immunity granted to diplomatic agent in the receiving State outside his official
representatives, in order to uphold their dignity as functions.
representatives of their respective States and to allow
them free and unhampered exercise of their functions. Modes of waiving diplomatic immunity and
(Nachura, Outline Reviewer in Political Law, p. 669) privileges
Q: Besides the head of the mission, who can enjoy 1. Expressly by the sending State; or,
diplomatic immunities and privileges? 2. Impliedly, as when the person entitled to the
immunity from jurisdiction commences litigation
A: Diplomatic suite or retinue which consists of: in the local courts and thereby opens himself to
any counterclaim directly connected with the
1. Official staff. It is made up of the administrative principal claim.
and technical personnel of the mission, including
those performing clerical work, and the member NOTE: Waiver of immunity from jurisdiction with
of their respective families; and, regard to civil and administrative proceedings shall
not be held to mean implied waiver of the immunity
2. Non-official staff. It is composed of the with respect to the execution of judgment, for which a
household help, such as the domestic servants, separate waiver shall be necessary.
butlers, and cooks and chauffeurs employed by
the mission. Q: The U.S. Ambassador from the Philippines and
the American Consul General also in the
NOTE: As a rule, however, domestic servants Philippines quarreled in the lobby of Manila Hotel
enjoy immunities and privileges only to the and shot each other. May Philippine courts take
283
jurisdiction over them for trial and punishment 1. Consul-General. He heads several consular
for the crime they may have committed? districts, or one exceptionally large consular
district
A: The Philippine courts can take jurisdiction over the 2. Consul. He is in-charge of a small district or town
Consul but not over the Ambassador. The or port.
Ambassador is immune from prosecution for all 3. Vice‐consul. He assists the consul.
crimes committed by him whether officially or in his 4. Consular Agent. He is usually entrusted with the
private capacity. The Consul is immune from criminal performance of certain functions by the consul.
prosecution only for acts committed by him in
connection with his official functions. Duties of Consuls (P-Ob- Prom-Is-Su)
Q: The Ambassador of State X to the Philippines 1. Protection of the interests of the sending State
bought, in the name of his government, two and its nationals in the receiving State;
houses and lots at Forbes Park, Makati. One house
is used as the chancery and residence of the 2. Promotion of the commercial, economic, cultural,
ambassador, and the other as quarters for and scientific relations of the sending and
nationals of State X who are studying in the receiving States;
University of Santo Tomas. The Registrar of Deeds
refused to register the sale and to issue Transfer 3. Observation of the conditions and developments
Certificates of Title in the name of State X on the in the receiving State and report the same to the
ground of the prohibition of the Constitution sending State;
against the alienation of lands in favor of aliens. Is
his refusal justified? 4. Issuance of passports and other travel
documents to nationals of the sending State and
A: The prohibition in the Constitution against visas or appropriate documents to persons
alienation of lands in favor of aliens does not apply to wishing to travel to the sending State; and,
alienation of the same in favor of foreign governments
to be used as chancery and residence of its diplomatic 5. Supervision and inspection of vessels and aircraft
representatives. The receiving State is under the of the sending State.
obligation to facilitate the acquisition of its territory,
in accordance with its laws, by the sending State of Sources of Authority of Consuls
premises necessary for its mission, or to assist the
latter in obtaining accommodation in some other way. 1. Letter patent or letter ‘de provision – Which is the
Therefore, the refusal of the Register of Deeds to commission issued by the sending State, and
register the sale and to issue the TCT in the name of 2. Exequatur – Which is the permission given them
State X is unjustified. by the receiving State to perform their functions
therein.
However, in so far as the house and lot to be used as
quarters of the nationals of State X who are studying Immunity of Consuls
in the University of Santo Tomas are concerned, the
Register of Deeds correctly refused registration. Here, Consuls enjoy their own immunities and privileges
the prohibition in the constitution against the transfer but not to the same extent as those enjoyed by the
of properties to parties other than the Filipino citizens diplomats. Like diplomats, consuls are entitled to:
or corporation 60% of the capital of which is owned
by such citizens should be followed. 1. Inviolability of their correspondence, archives
and other documents
Exequatur (1991 BAR) 2. Freedom of movement and travel
3. Immunity from jurisdiction for acts performed
An authorization from the receiving State admitting in their official capacity; and
the head of a consular post to the exercise of his 4. Exemption from certain taxes and customs
functions. Thus, an appointee cannot start performing duties
his function unless the receiving State issues an
exequatur to him. Liabilities of Consuls
Diplomats vs. Consuls 1. Arrest and punishment for grave offenses; and
2. May be required to give testimony, subject to
DIPLOMATS CONSULS certain exceptions.
They are They are not concerned with
concerned with political matters and attend NOTE: Members of a consular post are under no
the political rather to administrative and obligation to give evidence on the following
relations of States. economic issues. situations:
Ranks of Consuls 1. Concerning matters connected with the exercise

of their functions;

Political Law
2. To produce official correspondence and correspondence or
documents; and, articles.
3. To give evidence as expert witness with regard to
the law of the sending State
Immunity of Consular Offices

May be called upon
As a
They are immune only with respect to that part where to attend as a
witness Not obliged to
the consular work is being performed. witness; if declined,
before give evidence as a
no coercive measure
the witness.
Q: May consular offices be subject to or penalty may be
court
expropriation by the receiving State? applied.
A: YES, for purposes of national defense or public Differences in the privileges or immunities of
utility. diplomatic envoys and consular officers from the
civil and criminal jurisdiction of the receiving
NOTE: With respect to expropriation by the receiving State
State, steps shall be taken to avoid impeding the
performance of consular functions, and prompt, 1. A diplomatic agent shall enjoy immunity from the
adequate and effective compensation shall be paid by criminal jurisdiction of the receiving State. He
the sending State. (Art. 31 of the Vienna Convention on shall also enjoy immunity from its civil and
Consular Relations and Optional Protocols) administrative jurisdiction; while
Diplomatic Immunity vs. Consular Immunity XPNs:
BASIS DIPLOMATIC CONSULAR a. A real action relating to private immovable

property situated in the territory of the
Premises of the
receiving State, unless he holds it on behalf of
mission includes
Consular premises the sending State for the purpose of the
the building or
includes the mission;
Scope parts of building
buildings or parts of
as to and the land
buildings and the b. An action relating to succession in which the
buildin irrespective of the
land irrespective of diplomatic agent is involved as executor,
gs and ownership used
ownership used administrator, heir or legatee as private
premise for the purpose of
exclusively for the person and not on behalf of the sending State;
s the mission
purposes of consular and
including the
posts. c. An action relating to any professional or
residence of the
commercial activity exercised by the
head of mission.
diplomatic agent in the receiving State
GR: The agents of
outside of his official functions. (Vienna
the receiving state
GR: The agents of Convention of Diplomatic Relations, Art. 31)
may not enter the
the receiving
consular premises.
On state may not 2. A consular officer does not enjoy immunity from
entry of enter the the criminal jurisdiction of the receiving State and
XPN: Consent of the
agents premises of the is not amenable to the jurisdiction of the judicial
head of the consular
of the mission. or administrative authorities of the receiving State
post.
receivin in respect of acts performed in the exercise of
Consent is assumed
g state XPN: Consent of consular functions.
in case of fire or
the head of the
other disasters
mission. However, this does not apply in respect of a civil
requiring prompt
action either:
protective action.
Consular bag shall
1. Arising out of a contract concluded by a consular
not be opened. It
officer in which he did not enter expressly or
may be requested
impliedly; and,
that the bag be
As to opened in their
2. By a third party for damages arising from an
invio- Personal baggage presence by an
accident in the receiving State caused by a
lability of a diplomatic authorized
vehicle, vessel or aircraft. (Vienna Convention on
of agent shall not be representative of the
the Consular Relations, Arts. 41 and 43)
baggag opened. receiving state if
e they have serious
Grounds for Termination of Consular Office
reason to believe
(2D-2W-RN)
that the bag contains
objects of other
1. Death of consular officer
articles, documents,
285
2. Recall international institutions should have a status which
3. Dismissal protects them against control or interference by any
4. Notification by the receiving State to the sending one government in the performance of functions for
State that it has ceased to consider as member of the effective discharge of which they are responsible
the consular staff to democratically constituted international bodies in
5. Withdrawal of his exequatur by the receiving which all the nations concerned are represented; 2)
State. no country should derive any national financial
6. War – outbreak of war between his home State advantage by levying fiscal charges on common
and the receiving State. international funds; and 3) the international
organization should, as a collectivity of States
Immunity of International Organizations members, be accorded the facilities for the conduct of
its official business customarily extended to each
Q: Trade Union of the Philippines and Allied other by its individual member States. The theory
Services (TUPAS) filed with the Ministry of Labor behind all three propositions is said to be essentially
and Employment a Petition for Certification institutional in character.
Election among the rank and file members
employed by International Catholic Migration "It is not concerned with the status, dignity or
Commission (ICMC), an international organization privileges of individuals, but with the elements of
rendering voluntary humanitarian services in the functional independence necessary to free
Philippines. ICMC opposed the petition of TUPAS international institutions from national control and to
on the ground that it is an international enable them to discharge their responsibilities
organization registered with the United Nations, impartially on behalf of all their members. The raison
hence, enjoys diplomatic immunity. d'etre for these immunities is the assurance of
unimpeded performance of their functions by the
Meanwhile, the Philippine Government and the agencies concerned. (ICMC vs. Calleja, G.R. No. 85750,
Ford and Rockefeller Foundations signed a September. 28, 1990)
Memorandum of Understanding establishing the
International Rice Research Institute (IRRI), Diplomatic relations
which was intended to be an autonomous,
philanthropic, tax-free, non-profit, non-stock These are the arrangement between two countries by
organization designed to carry out the principal which each has representatives in the other country.
objective of conducting basic research on rice (Cambridge Dictionary)
plant. IRRI has an existing local union, the
Kapisanan ng Manggagawa at TAC sa IRRI Diplomatic relations between States are purely by
(Kapisanan), which filed a petition for direct mutual consent. Before the head of mission is sent to
certification election with the DOLE. The latter the receiving State, an agreement must first be
dismissed the petition on the ground that Pres. obtained. The receiving State is under no obligation to
Decree No. 1620 conferred upon it the status of an give reasons for refusing an agreement. (Articles 2 and
international organization and granted it 4, 1961 Vienna Convention on Diplomatic Relations)
immunity from all civil, criminal and
administrative proceedings under Philippine Diplomatic relations are normally conducted through
laws. Do ICMC and IRRI enjoy diplomatic the Head of the State, who may also appoint special
immunity? diplomatic agents charged with specific ceremonial or
political duties. The heads of diplomatic missions are
A: YES. P.D. 1620 is constitutional. There can be no classified as follows:
question that diplomatic immunity has been granted
to ICMC and IRRI. The grant of immunity from local 1. Ambassadors or nuncios accredited to heads of
jurisdiction to ICMC and IRRI is clearly necessitated State;
by their international character and respective 2. Envoys, ministers or internuncios accredited to
purposes. The objective is to avoid the danger of
heads of State; and,
partiality and interference by the host country in their
internal workings. The exercise of jurisdiction by the 3. Charges d’affaires accredited to ministers of
Department of Labor in these instances would defeat foreign affairs. (1961 Vienna Convention on
the very purpose of immunity, which is to shield the Diplomatic Relations)
affairs of international organizations, in accordance
with international practice, from political pressure or Grounds for termination of diplomatic relations
control by the host country to the prejudice of under municipal law (RADAR)
member States of the organization, and to ensure the
unhampered performance of their functions. (ICMC vs. 1. Resignation;
Calleja, G.R. No. 85750, Sept. 28, 1990) 2. Accomplishment of the purpose;
3. Death;
NOTE: There are basically three propositions 4. Abolition of the office; and,
underlying the grant of international immunities to 5. Removal.
international organizations. These principles,
contained in the ILO Memorandum are stated thus: 1) Grounds for termination of diplomatic relation

Political Law
under international law 1. No State can intervene or complain in behalf of
the Stateless person for an international
1. War – Outbreak between the sending and the delinquency committed by another State in
receiving State; inflicting injury upon him.
2. Extinction of either the sending State or the 2. He cannot be expelled by the State if he is
receiving State; and lawfully in its territory except on grounds of
3. Recall – Demanded by the receiving State when national security or public order. (1994 BAR)
the foreign diplomat becomes persona non grata 3. He cannot avail himself of the protection and
benefits of citizenship like securing for himself a
Termination of diplomatic relations does not passport or visa and personal documents.
terminate consular relations between the sending
and receiving States Rights of Stateless Persons
Consuls belong to a class of State agents distinct from A Stateless person is not entirely without right,
that of diplomatic officers. They are not clothed with protection or recourse under the Law of Nations.
diplomatic character and are not accredited to the Under the Convention in Relation to the Status of
government of the country where they exercised their Stateless Persons, the contracting States agree to
consular functions; they deal directly with local accord the stateless persons within their territories
authorities treatment at least as favorable as that accorded their
nationals with respect to:
They do not represent their State in its relations with
foreign States and are not intermediaries through 1. Freedom of religion;
whom matters of State are discussed between 2. Access to the courts;
governments. Consuls look mainly after the 3. Rationing of products in short supply;
commercial interest of their own State in the territory 4. Elementary education;
of a foreign State. 5. Public relief and assistance;
6. Labor legislation; and,
G. NATIONALITY AND STATELESSNESS 7. Social Security.
It is membership in a political community with all its NOTE: They also agree to accord them treatment not
concomitant rights and obligations. It is the tie that less favorable than that accorded to aliens generally in
binds the individual to his State, from which he can the same circumstances. The Convention also
claim protection and whose laws he is obliged to obey. provides for the issuance of identity papers and travel
documents to the Stateless persons.
NOTE: Citizenship has a more exclusive meaning in
that it applies only to certain members of the State Status of Foundlings under Philippine laws
accorded more privileges than the rest of the people
who owe it allegiance. Its significance is municipal, As a matter of law, foundlings are as a class, natural-
not international. born citizens. While the 1935 Constitution's
enumeration is silent as to foundlings, there is no
Multiple Nationality restrictive language which would definitely exclude
foundlings either.
It is the possession by an individual of more than one
nationality. It is acquired as the result of the The deliberations of the 1934 Constitutional
concurrent application to him of the conflicting Convention show that the framers intended
municipal laws of two or more States claiming him as foundlings to be covered by the enumeration,
their national. pursuant to the amendment proposed by Sr. Rafols.
(xxx) Though the Rafols amendment was not carried
Statelessness out, it was not because there was any objection to the
notion that persons of "unknown parentage" are not
It is the condition or status of an individual who is citizens but only because their number was not
either: enough to merit specific mention.
1. De jure stateless person. One who is stripped of Foundlings are likewise citizens under international
his nationality by their former government and law. The common thread of the Universal Declaration
without having an opportunity to acquire of Human Rights, United Nations Convention on the
another; or, Rights of the Child and the International Covenant on
Civil and Political Rights obligates the Philippines to
2. De facto stateless person. One who possesses a grant nationality from birth and ensure that no child
nationality whose country does not give him is stateless. This grant of nationality must be at the
protection outside his own country and who is time of birth, and it cannot be accomplished by the
commonly referred to as a refugee. (Frivaldo v. application of our present naturalization laws.
COMELEC, G.R. No. 123755, June 28, 1996)
Furthermore, the principles stated in Art. 14 of the
Consequences of Statelessness (1995 BAR) 1930 Hague Convention on Certain Questions Relating
287
to the Conflict of Nationality Laws under which a designation.”
foundling is presumed to have the nationality of the
country of birth. While the Philippines is not a party Essential Characteristics of Treaties
to the Hague Convention, it is a signatory to the
Universal Declaration on Human Rights, which 1. It becomes binding on the parties to it by virtue
effectively affirms Art. 14 of the 1930 Hague of their consent; and
Convention. (Poe-Llamanzares v. COMELEC, G.R. No.
221697, March 8, 2016) 2. While treaties will, in most cases, be written
instruments concluded between States, the term
Doctrine of Indelible Allegiance applies equally to unwritten agreements and to
agreements between States and international
It states that an individual may be compelled to retain organizations and between international
his original nationality notwithstanding that he has organizations.
already renounced it under the law of another State
whose nationality he has acquired. Many treaties, particularly those of a multilateral
nature designed to establish general rules of common
Doctrine of Effective Nationality application, exhibit a mixture of ‘legislative’
characteristics. A provision of a treaty may:
A person having more than one nationality shall be
treated as if he had only one – either the nationality of 1. Purport to codify existing rules of customary law,
the country in which he is habitually and principally e.g. Art. 55 of the 1982 Convention on the Law of
resident or the nationality of the country with which the Sea which provides for the recognition of the
in the circumstances he appears to be in fact most EEZ;
closely connected. 2. Crystallize a developing rule of law, firmly
establishing a legal footing a situation which has
NOTE: Also known as Nottebohm principle or the previously been part of the practice of a limited
Genuine Link Doctrine. (International Court of number of States; or
Justice, Liechtenstein v. Guatemala, 1955) 3. Generate rules of law independently of the
previous practice of State, e.g. prohibition on the
Doctrine of Genuine Link threat or use of force in international relations.
It states that the bond of nationality must be real and Requisites for Validity of a Treaty
effective in order that a State may claim a person as
its national for the purpose of affording him 1. Treaty-making capacity - Every State possesses
diplomatic protection. the capacity to conclude treaties, as an attribute
of sovereignty;
Measures States have taken to prevent 2. Competence of the representative concluding the
Statelessness treaty;
3. Parties must freely give their consent;
In the Convention on the Conflict of Nationality Laws 4. Object and subject matter must be lawful;
of 1930, the contracting states agree to accord 5. Ratification must be in accordance with the
nationality to persons born in their territory who constitutional processes of the parties concerned.
would otherwise be stateless. The Convention on the (Nachura, Outline Reviewer in Political Law, p.
Reduction of Statelessness of 1961 provides that if the 682-683)
law of the contracting States results in the loss of
nationality, as a consequence of marriage or Two kinds of a treaty
termination of marriage, such loss must be
conditional upon possession or acquisition of another 1. Law-making treaties (normative treaties); and
nationality. 2. Treaty contracts
H. GENERAL PRINCIPLES OF TREATY LAW Law-making treaties or Normative Treaties
Treaty (2003 BAR) Treaties which are concluded by a large number of

States for purposes of:
A treaty is generally defined as agreements between
and among States, by which parties obligate 1. Declaring, confirming, or defining there
themselves to act, or refrain from acting, according to understanding of what the law is on a particular
the terms of the treaty. subject;
2. Stipulating or laying down new general rules for
However, under the Vienna Convention on the Law of future international conduct; and,
Treaties (VCLT), a treaty has been defined as “an 3. Creating new international institutions.
international agreement concluded between States in
written form and governed by international law, It lays down rules of general or universal application
whether embodied in a single instrument or in two or and are intended for future and continuing
more related instruments and whatever its particular observance.

Political Law
Treaty Contracts 1. The principle of free consent – A state cannot
be bound by treaty to which it has not consented.
Resemble contracts in that they are concluded to Free consent is vital for initial adoption and
perform contractual rather than normative functions. subsequent development of a particular treaty as
It usually concerns the regulation of a narrow area of it ensures that a State remains in control of the
practice between two States (e.g. trade agreements). commitments it has made under the relevant
Such treaties may lead to the formation of general treaty;
international law through the operation of the
principles governing the development of customary 2. The principle of pacta sunt servanda –
rules in the following ways: Literally means agreements must be kept.
Embodied in Art. 26 VCLT, which states that;
1. A series of treaties each of which lay down ‘Every treaty in force is binding upon the parties
similar rules may produce a rule of customary to it and must be performed by them in good
international law to the same effect. faith. Therefore, a contracting party will be held
2. A rule contained in a treaty originally concluded responsible for breach of a treaty.’ Applies only to
between a limited number of parties may treaties which are in force, not to invalid,
subsequently be accepted or imitated as a suspended or terminated treaties; and
general rule.
3. A treaty may have evidential value as to the 3. The principle of good faith – Recognized as the
existence of a rule which has crystallized into law foundation of international legal order. States
by an independent process of development. and non-State actors are required to comply with
binding obligations imposed upon them by
Doctrine of Unequal Treaties international law, irrespective of whether such
obligations derive from treaties, customary rules,
Treaties which have been imposed through coercion or any other source of international law. It is all
or duress by a State of unequal character is void. encompassing as it even imposes obligations on a
(Nachura, Outline Reviewer in Political Law, p. 683) State in the pre-ratification stage.
Vienna Convention on the Law of Treaties (VCLT) It applies throughout the life of a treaty, from its
(2012 BAR) negotiation, through its performance to its
termination.
The law of treaties is the body of rules which govern
what is a treaty, how it is made and brought into Each time a State is in breach of the principle of pacta
force, amended, terminated, and generally operates. sunt servanda it also violates the principle of good
Apart from issues of jus cogens, it is not concerned faith.
with the substance of a treaty (the rights and
obligations created by it), which is known as treaty Essential requisites of a valid treaty
law. Although the VCLT does not occupy the whole
ground of the law of treaties, it covers the most 1. It must be a written instrument or instruments
important areas and is the indispensable starting between two or more parties;
point for any description of the law. For good reason, 2. The parties must be States within the meaning of
the VCLT has been called the treaty on treaties. international law (IL);
3. It must be governed by IL; and
It was adopted on May 22, 1969 and opened for 4. It must be intended to create legal obligations.
signature on May 23, 1969. The Convention entered
into force on January 27, 1980. Exclusions
Scope of the VCLT 1. Those concluded between states and other

subjects of IL;
1. The VCLT sets out the law and procedure for the 2. Agreements not in writing; and,
making, operation, and termination of a treaty;
3. Those which are governed by the national law
2. It does not apply to all treaties, only those
between States (Art. 1 VCLT). Nor is it concerned system chosen by the parties.
with the substance of a treaty as such. That is a
matter for the negotiating States; Usual steps in the treaty-making process
3. The VCLT as a treaty does not apply retroactively (NeS-RA-ER)
to treaties concluded before its entry into force.
Only rules in the VCLT that codify or reflect rules 1. Negotiation – Conducted by the parties to reach
of CIL apply; and an agreement on its terms;
4. Because the VCLT resulted from a codification 2. Signature – The signing of the text of the
project, many of its rules are consistent with instrument agreed upon by the parties;
otherwise applicable rules of CIL. 3. Ratification – The act by which the provisions of a
treaty are formally confirmed and approved by
Fundamental Principles of the Law of Treaties the State;
289
NOTE: In our jurisdiction, the power to ratify is the treaty to the appropriate constitutional
vested in the President. The role of the Senate is machinery for approval. Signature does not,
limited only to giving or withholding its consent, or however, create an obligation to ratify.
concurrence, to the ratification.
b. In the case of a treaty which is only to become
There are two constitutional provisions that require binding upon ratification, acceptance or
the concurrence of the Senate on treaties or approval, that treaty, unless declaratory of
international agreements customary law, will not be enforceable against
a party until one of those steps is taken; and
Section 21, Article VII deals with treaties or
international agreements in general, in which case, c. Where a treaty is not subject to ratification,
the concurrence of at least two-thirds (2/3) of all the acceptance or approval, but a State’s signature
Members of the Senate is required to make the subject will signify consent to be bound. The consent
treaty, or international agreement, valid and binding of a State to be bound by a treaty is expressed
on the part of the Philippines. This means it forms by the signature of its representatives when:
part of Philippine law by virtue of transformation.
i. The treaty provides that signature shall
The involvement of the Senate in the treaty-making have that effect;
process manifests the adherence of the Philippine ii. It is otherwise established that the
system of government to the principle of checks and negotiating states were agreed that
balances. This indispensable participation of the signature should have that effect; or
legislative branch by way of concurrence provides the iii. The intention of the State to give effect
“check” to the ratification of the treaty by the to the signature appears from the full
executive branch. powers of the representative or was
expressed during the negotiations.
In contrast, Section 25, Article XVIII is a special
provision that applies to treaties which involve the 2. Ratification – A formal act whereby one State
presence of foreign military bases, troops or facilities declares its acceptance of the terms of the treaty and
in the Philippines. Under this provision, the undertakes to observe them. Ratification is used to
concurrence of the Senate is only one of the requisites describe two distinct procedural acts:
to render compliance with the constitutional
requirements and to consider the agreement binding a. Ratification in municipal law. It is the formal
on the Philippines. Section 25, Article XVIII further act of the appropriate organ of the State affected
requires that "foreign military bases, troops, or in accord with national constitutional law.
facilities'' may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the Senate, b. Ratification in international law. Ratification is
ratified by a majority of the votes cast in a national a procedure which brings a treaty into force for
referendum held for that purpose if so required by the State concerned by establishing its definitive
Congress, and recognized as such by the other consent to be bound by the particular treaty.
contracting state. (BAYAN vs. Zamora, G.R. No. 138570, International law is not concerned with the
October 10, 2000) requirements of its constitutional law.
4. Accession – A State can accede to a treaty only if NOTE: Despite the fact that a treaty may be ratified by
invited or permitted to do so by the contracting nothing more than the signature of the relevant
parties. Such invitation or permission is usually State’s representative, in many cases, States insist
given in the accession clause of the treaty itself; upon a ratification procedure consisting of more
5. Exchange of instruments of ratification; and formal steps.
6. Registration with the United Nations.
Ratification is so required when under Art. 14(1)
Traditional methods of expressing consent to a of the VCLT:
treaty
1. A treaty provides for such consent to be
1. Signature – The legal effects of signature are as expressed by means of ratification.
follows: 2. It is otherwise established that the negotiating
States were agreed that ratification should be
a. The signing of a treaty may represent simply required.
an authentication of its text. Where signature 3. The representative of the State has signed the
is subject to ratification, acceptance or treaty subject to ratification.
approval, signature does not establish consent 4. The intention of the State to sign the treaty
to be bound; subject to ratification appears from the full
powers of its representative or was expressed
NOTE: The act of signing a treaty creates an during the negotiation.
obligation of good faith on the part of the
signatory: to refrain from acts calculated to Accession or adherence or adhesion
frustrate the objects of the treaty and to submit

Political Law
Occurs when a State, which did not participate in the The following are among the grounds/causes for
negotiating and singing of the relevant treaty, termination of treaties:
formally accepts its provisions. It may occur before or
after a treaty has entered into force. It is only possible 1. Expiration of the term, or withdrawal of a party
if it is provided for in the treaty, or if all the parties to in accordance with the treaty.
the treaty agree that the acceding State should be 2. Extinction of one of the parties to the treaty (in
allowed to accede. case of bipartite treaties), when the rights and
obligations under the treaty would not devolve
Q: A petition for mandamus was filed in the SC to upon the State that may succeed the extinct State.
compel the Office of the Executive Secretary and 3. Mutual agreement of all the parties.
the Department of Foreign Affairs to transmit 4. Denunciation or desistance by one of the parties.
(even without the signature of the President) the The right to give notice of termination or
signed copy of the Rome Statute of the withdrawal is known as the right of denunciation
International Criminal Court (ICC) to the Senate of 5. Supervening impossibility of performance.
the Philippines for its concurrence or ratification 6. Conclusion of a subsequent inconsistent treaty
– in accordance with Sec. 21, Art. VII of the 1987 between the parties.
Constitution. 7. Loss of the subject matter.
8. Material breach or violation of the treaty.
Petitioners contend that ratification of a treaty, 9. The application of the doctrine of rebus sic
under both domestic law and international law, is stantibus.
a function of the Senate. Under treaty law and 10. The outbreak of war between the parties, unless
customary international law, the Philippines has a the treaty precisely relates to the conduct of the
ministerial duty to ratify the Rome Statute. war.
Respondents on the other hand, argued that the 11. Severance of diplomatic relations, only if the
executive department has no duty to transmit the existence of such relationship is indispensable for
Rome Statute to the Senate for concurrence. the application of the treaty.
Decide. 12. The doctrine of jus cogens, or the emergence of a
new peremptory norm of general international
A: The power to ratify treaties does not belong to the law which renders void any existing treaty
Senate. conflicting with such norm. (Nachura, Outline
Reviewer in Political Law, p. 687-688)
Under the Constitution the power to ratify is vested in
the President subject to the concurrence of the Senate. The House of Representatives (HoR) cannot take
The President has the discretion even after the active part in the conduct of foreign relations,
signing of the treaty by the Philippine representative particularly in entering into treaties and international
whether or not to ratify a treaty. The signature of the agreements. As held in US v. Curtiss-Wright Export
representative does not signify final consent, it is Corporation (299 US 304), it is the President alone
ratification that binds the state to the provisions of who can act as the representative of the nation in the
the treaty and renders it effective. conduct of foreign affairs. Although the Senate has
the power to concur in treaties, the President alone
The role of the Senate is limited only to giving or can negotiate treaties and Congress is powerless to
withholding its consent, concurrence to the intrude into this.
ratification. It is within the President to refuse to
submit a treaty to the Senate or having secured its NOTE: However, if the matter involves a treaty or an
consent for its ratification, refuse to ratify it. Such executive agreement, the HoR may pass a resolution
decision is within the competence of the President expressing its views on the matter.
alone, which cannot be encroached by this Court via
writ of mandamus. (Pimentel v. Executive Secretary, Protocol de Clôture
G.R. No. 158088, July 6, 2005)
It is a final act and an instrument which records the
Interpretation of Treaties winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the
A treaty shall be interpreted in good faith, in texts of treaties, conventions, recommendations and
accordance with the ordinary meaning given to the other acts agreed upon and signed by the
terms of the treaty in their context and in the light of plenipotentiaries attending the conference.
its objects and purposes.
Instances when a third State who is a non-
Amendment or Modification of Treaties signatory may be bound by a treaty
To amend or modify provisions of the treaty, the 1. When a treaty is a mere formal expression of
consent of all the parties is required. However, if customary international law, which, as such is
allowed by the treaty itself, two States may modify a enforceable on all civilized states because of their
provision only insofar as they are concerned. membership in the family of nations;
2. Under Art. 2 of its charter, the UN shall ensure
Termination of Treaties that non-member States act in accordance with
291
the principles of the Charter so far as may be 4. When a State objecting to a reservation has not
necessary for the maintenance of international opposed the entry into force of the treaty
peace and security. Under Art. 103, obligations of between itself and the reserving State, the
member-states shall prevail in case of conflict provisions to which the reservation relates do
with any other international agreement including not apply as between the two States to the extent
those concluded with non-members; of the reservation.
3. The treaty itself may expressly extend its benefits
to non-signatory States; and Judicial Review of Treaties
4. Parties to apparently unrelated treaties may also
be linked by the most-favored nation clause. Even after ratification, the Supreme Court has the
power of judicial review over the constitutionality of
Effectivity date of a treaty any treaty, international or executive agreement and
must hear such case en banc. (Sec. 5 (2) (1), Art. VIII,
1. In such manner and upon such date as it may 1987 Constitution)
provide or as the negotiating States may agree;
or, Rules in case of conflict between a treaty and a
2. Failing any such provision or agreement, a treaty custom
enters into force as soon as consent to be bound
by the treaty has been established for all the 1. If the treaty comes after a particular custom-
negotiating States. treaty prevails, as between the parties to the
treaty
NOTE: 2. If the custom develops after the treaty- custom
prevails it being an expression of a later will.
GR: A State may not invoke the fact that its consent to
the treaty was obtained in violation of its internal law. A treaty or conventional rule may not qualify as a
norm of jus cogens character
XPN: If the violation was manifest and concerned a
rule of its internal law of fundamental importance. A treaty rule binds only States that are parties to it. In
the event that all States are parties to a treaty, they
A violation is manifest if it would be objectively are entitled to terminate or withdraw from the treaty.
evident to any State conducting itself in the matter in
accordance with normal practice and in good faith. NOTE: If a treaty at the time of its conclusion, conflicts
with jus cogens, it is void. (2008 BAR)
Reservation
Treaty vs. Executive Agreement (2015 BAR)
It is a unilateral statement, however phrased or
named, made by a State, when signing, ratifying, EXECUTIVE
BASIS TREATY
accepting, approving, or acceding to a treaty, whereby AGREEMENT
it purports to exclude or modify the legal effect of It involves: (TITA)
certain provisions of the treaty in their application to It involves: (PNP)
that State. (Art. 19, Vienna Convention on the Law of 1. arrange-ments of
Treaties [VCLT]) 1. basic political
temporary
issues,
nature;
Reservation is NOT applicable when: 2. changes in
2. imple-mentation
national policy,
of treaties and
1. The reservation is prohibited by the treaty; As to 3. agreements of a
statutes;
subject permanent
2. The treaty provides that only specified 3. transitory
matter character.
reservations, which do not include the effectivity; and
reservation in question, may be made; or, 4. adjustment of
(Saguisag, et al. v.
3. The reservation is incompatible with the object details carrying
Executive
and purpose of the treaty. out established
Secretary, et al.,
national policies
G.R. No. 212426,
Effects of Reservation and of Objections to and traditions.
January 12, 2016)
Reservations
As to Permanent
1. Modifies, for the reserving State in its relations Merely temporary
perma- international
with that other party, the provisions of the treaty arrangements
nence agreements
to which the reservation relates to the extent of Concur- It needs the It needs no
the reservation; rence of concurrence of 2/3 concurrence from the
2. Modifies those provisions to the same extent for Senate of the Senate. Senate.
that other party in its relations with the reserving
State; Q: Enhanced Defense Cooperation Agreement
3. The reservation does not modify the provisions (EDCA) authorizes the U.S. military forces to have
of the treaty for the other parties to the treaty access to and conduct activities within certain
inter se; and "Agreed Locations" in the country. It was not

Political Law
transmitted to the Senate on the Executive's Modification of a treaty
understanding that to do so was no longer
necessary. Accordingly, in June 2014, the DFA and GR: A treaty may not be modified without the consent
the U.S. Embassy exchanged diplomatic notes of all the parties.
confirming the completion of all necessary
internal requirements for the agreement to enter XPN: If allowed by the treaty itself, two states may
into force in the two countries. Is the Executive modify a provision only insofar as their countries are
branch of government correct? concerned.
A: YES. The EDCA need not be submitted to the Senate Grounds of nullity affecting the consent of a party
for concurrence because it is in the form of a mere to a treaty
executive agreement, not a treaty. Under the
Constitution, the President is empowered to enter 1. Corruption of a representative of a State.
into executive agreements on foreign military bases, “Corruption” must be a substantial influence. A
troops, or facilities if (1) such agreement is not the small courtesy or favor shown to a representative
instrument that allows the entry of such, and (2) if it will be insufficient.
merely aims to implement an existing law or treaty. 2. Coercion of a representative of a State. It must
be directed at the representative personally or
EDCA is in the form of an executive agreement since it his/her family.
merely involves “adjustments in detail” in the 3. Coercion of a State. It must be shown that the
implementation of the Mutual Defense Treaty and the conclusion of a treaty has been procured by the
Visiting Forces Agreement. These are existing treaties threat or use of force.
between the Philippines and the U.S. that have already 4. Fraud.
been concurred in by the Philippine Senate and have 5. Manifest violation of its internal law. The
thereby met the requirements of the Constitution alleged violation of a domestic law must concern
under Art XVIII, Sec 25. Because of the status of these fundamental provisions which relate to the State’s
prior agreements, EDCA need not be transmitted to treaty-making power and must be evident to any
the Senate. (Saguisag v. Executive Secretary, G.R. No. State acting by normal practice and good faith.
212426, January 12, 2016) 6. Essential error. An error, whether unilateral or
mutual, must neither concern a question of law
Applicable rules when there is conflict between a nor the wording of text of a treaty agreed by the
treaty and a domestic legislation parties. It must relate to a fact or situation which
was assumed at the time when a treaty was
The rule will depend on which court is deciding. concluded and formed an essential basis of its
consent. Further, a State will not be able to claim
1. INTERNATIONAL COURT, will uphold treaty error if by its own conduct it contributed to it.
obligation in general. 7. Violations of restrictions on the competence of
the representative of a State. The restrictions on
NOTE: However, Art. 46 of the VCLT states that: the competence must have been notified to the
other parties.
a. A State may not invoke the fact that its
consent to be bound by a treaty has been Grounds of nullity which lead to nullity of a treaty
expressed in violation of a provision of its for all contracting parties
internal law regarding competence to
conclude treaties as invalidating its consent 1. A treaty is void if at the time of its conclusion it
unless that violation was manifest and conflicts with a rule of jus cogens;
concerned a rule of its internal law of
fundamental importance. 2. If a new jus cogens emerges, any existing treaty
b. A violation is manifest if it would be which is in conflict with that rule becomes void and
objectively evident to any State conducting terminates.
itself in the matter in accordance with
normal practice and in good faith. Grounds for the suspension of a treaty
2. DOMESTIC COURT A treaty may be suspended in six situations. Two of

them are:
a. Treaty vs. Constitution – The Constitution 1. Where all contracting parties agree to suspend the
will always prevail. operation of a treaty, or some of its provisions;
b. Treaty vs. Statute - When the two
instruments relate to the same subject, try to 2. Where to or more parties agree to suspend its
give effect to both; if inconsistent, legal operation temporarily between themselves
techniques on statutory construction would provided this is either allowed under the relevant
be employed. Some of such rules say that the treaty or not prohibited.
“later in time prevails” or that the “specific
law prevails over the general”. NOTE: The remaining situations are set out in Articles
293
59-62 of the VCLT and are the same as for termination rebus sic stantibus
of a treaty
The principle of rebus sic stantibus cannot be invoked
Grounds for termination of a treaty as a ground for terminating or withdrawing from a
treaty if:
A party in the following situations has a choice either
to suspend or terminate the relevant treaty: 1. The treaty establishes a boundary; or
2. The fundamental change is the result of a breach
1. Material breach of a treaty by the party invoking it of an obligation under the
2. Impossible for a party to perform its obligations treaty or of any other obligation owed to any
3. Rebus sic stantibus other party to the treaty.
4. All contracting parties to an earlier treaty are
also parties to a later treaty and the two treaties I. DOCTRINE OF STATE RESPONSIBILITY
relate to the same subject matter.
A State may be held responsible for an international
NOTE: Additionally, a treaty can be terminated: delinquency, directly or indirectly, imputable to it
which causes injury to the national of another State.
1. When the termination of a treaty is in accordance Liability will attach to the State where its treatment of
with the terms of the treaty. the alien falls below the international standard of
2. Parties to the relevant treaty agreed to terminate justice or where it is remiss in according him the
the treaty. protection or redress that is warranted by the
3. If the treaty is in conflict with a just cogens rule. circumstances. (2010 BAR)
Termination vs. Suspension NOTE: No government can be held responsible for the
act of rebellious bodies of men committed in violation
When a treaty is suspended, it is still valid but its of its authority, where it is itself guilty of no breach of
operation is suspended temporarily, either for all the good faith, or of no negligence in suppressing
parties or some of them. On the other hand, when a insurrection.
treaty is terminated, it is no longer in force as it has
ended its existence. Elements of State Responsibility (VAD)
Doctrine of Rebus Sic Stantibus 1. An act or omission in violation of International

Law
It states that a fundamental change of circumstances 2. Attributable to the State
which determined the parties to accept a treaty, if it 3. Causing damage to a third State either directly or
has resulted in a radical transformation of the extent indirectly to a national of the third State.
of the obligations imposed by it, may under certain
conditions, afford the party affected a ground to Kinds of State Responsibility
invoke the termination of the treaty.
1. Direct State Responsibility. Where the
The change must have increased the burden of the international delinquency was committed by
obligations to be executed to the extent of rendering superior government officials or organs like the
performance essentially different from the original chief of State or the national legislature, liability
intention. will attach immediately as their acts may not be
effectively prevented or reversed under the
Requisites of Rebus Sic Stantibus (Not-IR, Must- constitution or laws of the State.
URIS)
2. Indirect State Responsibility. Where the
1. The change must not have been caused by the offense is committed by inferior government
party Invoking the doctrine. officials or by private individuals, the State will
2. The doctrine cannot operate Retroactively, i.e., it be held liable only if, by reason of its indifference
must not adversely affect provisions which have in preventing or punishing it, it can be considered
already been complied with prior to the vital to have connived in effecting its commission.
change in the situation.
3. The change must have been Unforeseen or Requisites for the enforcement of the doctrine of
unforeseeable at the time of the perfection of the State Responsibility (NER)
treaty.
4. The doctrine must be invoked within a 1. Nationality of the Claimant/The Doctrine of
Reasonable time. Effective Nationality/The Genuine Link Doctrine;
5. The duration of the treaty must be Indefinite. 2. The injured alien must first Exhaust all local
6. The change must be so Substantial that the remedies; and
foundation of the treaty must have altogether 3. He must be Represented in the international
disappeared. claim for damages by his own State.
Limitation on the application of the principle of Calvo Clause

Political Law
A stipulation by which an alien waives or restricts his and may help to establish the breach of duty; and
right to appeal to his own state in connection with any 2. Motive and intent may be a specific element in
claim arising from the contract and agrees to limit defining permitted conduct.
himself to the remedies available under the laws of
the local state. Relief available where a State is liable for an
internationally wrongful act
NOTE: This cannot be interpreted to deprive the
alien’s state of the right to protect or vindicate his 1. Declaratory relief. It refers to the declaration
interests in case they are injured in another state, as by the court that, as to the illegality of an act,
such waiver can legally be made not by the alien but constitutes a measure of satisfaction or
by his own state. reparation in the broad sense;
Elements of an Internationally Wrongful Act (AB) NOTE: Available when this is, or the parties deem
this, the proper way to deal with a dispute or
1. Act or omission is Attributable to the State when the object is not to give satisfaction for the
under international law; and wrong received but only to recognize the liability.
2. Constitutes a Breach of an international
obligation of the State. 2. Satisfaction. It refers to a measure other than
restitution or compensation which an offending
NOTE: Every internationally wrongful act of a State State is bound to take;
entails the international responsibility of that State.
NOTE: Its object is often either: (APT)
Acts or situations attributable to the State a. An Apology and other acknowledgment of
wrongdoing;
1. Acts of the State organs. Acts of State organs in b. Punishment of individuals concerned; or
their capacity provided by law or under c. Taking of measures to prevent a recurrence.
instructions of superiors.
3. Restitution. It involves the wiping out of all the
2. Acts of other persons. If the group of persons consequences of the breach and re-establishing
was in fact exercising elements of the the situation which would probably have existed
governmental authority in the absence or default had the act not been committed.
of the official authorities and circumstances such
as to call for the exercise of those elements of NOTE: It can either be in the form of legal
authority. restitution or specific restitution.
3. Acts of revolutionaries. Conduct of an a. Legal Restitution is declaration that an

insurrectional movement which becomes the offending treaty, law, executive act, or
new government of a State or part of a State. agreement, is invalid.
Theory of Objective or Strict Liability b. Specific Restitution is a restitution in kind or

payment of a sum corresponding to the
With respect to state responsibility, the theory value of the restitution, and the award for
provides that fault is unnecessary for State losses sustained which would not be covered
responsibility to be incurred. Its requisites are: by the first two.
1. Agency; and, 4. Compensation. It is the payment of money as a

2. Casual connection between the breach and the valuation of the wrong done.
act or omission imputable to the State.
NOTE: The compensation must correspond to the
Culpa (fault) is relevant when: value which restitution in kind would bear; the
award of damages for loss sustained must be that
1. The breach results from acts of individuals not which would not be covered by restitution in
employed by the state or from the activities of kind or payment in place of it.
licenses or trespassers on its territory;
2. A state engages in lawful activities, in which case Pecuniary satisfaction vs. Compensation
responsibility may result from culpa in executing
these lawful activities; PECUNIARY COMPENSATIO
BASIS
3. Determining the amount of damages; and, SATISFACTION N
4. Due diligence or liability for culpa is stipulated in A token of regret and To make up for or
a treaty. As to acknowledgment of repair the damage
nature wrongdoing done.
Motive (intent) is relevant when: (“monetary sorry”).
1. The existence of a deliberate intent to injure may

have an effect on the remoteness of the damage State’s exercise of diplomatic protection
295
When a State admits into its territory foreign conflict, internal strife, systematic violation of human
investments or foreign nationals, whether natural or rights, or natural or man-made disaster, and, who are
juristic persons, it is bound to extend to them the within their territory of their country. (Analytical
protection of the law and assumes obligations Report of the United Nations’ Secretary-General on
concerning the treatment to be afforded to them. Internally Displaced Persons, February 14, 1992)
These obligations, however, are neither absolute nor Principle of Non-Refoulement

unqualified. An essential distinction should be drawn
between: Posits that a State may not deport or expel refugees to
the frontiers of territories where their life or freedom
1. Obligations of the State towards the international would be put in danger or at risk. (Magallona, 2005).
community as a whole - concern of all States. All
States can be held to have a legal interest in their Q: The Humanitarian Services Society (HSS), an
protection; they are obligations erga omnes. international non-government organization,
assisted the displaced families of Tribe X who had
2. Obligations the performance of which is the to flee their home country in order to escape the
subject of diplomatic protection - cannot be held, systematic persecution conducted against them by
when one such obligation in particular is in their country’s ruling regime based on their
question, in a specific case, that all States have a cultural and religious beliefs. Fearing for their
legal interest in its observance. (Case Concerning lives, some of these displaced families, with the
Barcelona Traction, Light and Power Company, help of HSS, were able to sail out into the sea on a
Limited, February 5, 1970) boat which eventually landed in Palawan. The
Philippine Coast Guard intended to push back the
J. REFUGEES boat with 15 passengers.
Any person who is outside the country of his An affiliate of HSS in the Philippines intervened on
nationality or the country of his former habitual behalf these displaced families, claiming that they
residence because he has or had well-founded fear of are refugees under international law and hence,
persecution by reason of his race, religion, nationality, should not be expelled from our territory.
membership of a political group or political opinion
and is unable or, because of such fear, is unwilling to May the displaced families of Tribe X be
avail himself of the protection of the government of considered "refugees" under international law?
the country of his nationality, or, if he has no Explain. (2019 BAR)
nationality, to return to the country of his former
habitual residence. A: YES, because under the 1951 Convention Relating
to the Status of Refugees, to which the Philippines is a
Elements (ONPer) signatory, a refugee includes one who, as a result of
events and owing to well-founded fear of being
1. The person is Outside the country of his persecuted for reasons of race, religion, nationality,
nationality, or in the case of Stateless persons, membership to a particular social group, or political
outside the country of habitual residence; opinion, is outside the country of his nationality and is
2. The person lacks National protection; and unable or, owing to such fear, is unwilling to avail
3. The person fears Persecution in his own country. himself of the protection of that country.
NOTE: The second element makes a refugee a K. TREATMENT OF ALIENS

Stateless person.
1. EXTRADITION
Refugees v. Internally displaced persons
It is the surrender of an individual by the state within
Refugees are people who, owing to well-founded fear whose territory he is found to the state under whose
of being persecuted for reasons of race, religion, laws he is alleged to have committed a crime or to
nationality, membership of a particular social group have been convicted of a crime.
or political opinion, are outside the country of his
nationality, are unable or owing to such fear, are Basis of Extradition
unwilling to avail themselves of the protection of that
country, or who not having a nationality and being The extradition of a person is required only if there is
outside the country of their former habitual residence a treaty between the State of refuge and the State of
as a result of such events, are unable or, owing to such origin. In the absence of such treaty, the local state has
fear are unwilling to return to it. (United Nations every right to grant asylum to the fugitive and not
Convention Relating to the Status of Refugees, 1951 Sec. refuse to deliver him back to the latter state even if he
A par. 2) is its national. As a gesture of comity, however, the
surrender requested is may still be effected by the
While internally displaced persons are those who have state of asylum. Furthermore, even with a treaty,
been forced to flee their homes, suddenly or crimes which are political in character are exempted.
unexpectedly in large numbers as a result of armed

Political Law
a. FUNDAMENTAL PRINCIPLES 4. Upon receipt of a petition for extradition and its
supporting documents, the judge must study
1. Based on the consent of the State expressed in a them and make, as soon as possible, a prima facie
treaty (or manifested in an act of goodwill); finding whether:
a. They are sufficient in form and
2. Principle of specialty – A fugitive who is substance;
extradited may be tried only for the crime b. They show compliance with the
specified in the request for extradition and Extradition Treaty and Law; and
included in the list of offenses in the extradition c. The person sought is extraditable.
treaty, unless the requested State does not object
to the trial of such person for the unlisted offense At his discretion, the judge may require the
(1993 BAR); submission of further documentation or may
personally examine the affiants and witnesses of
3. Any person may be extradited, whether he is a the petitioner. If, in spite of this study and
national of the requesting State, of the State of examination, no prima facie finding is possible,
refuge or of another State. He need not be a the petition may be dismissed at the discretion of
citizen of the requesting State; the judge.
4. Political or religious offenders are generally not 5. On the other hand, if the presence of a prima
subject to extradition (2002 BAR). It has been facie case is determined, then the magistrate
held that “in order to constitute an offense of a must immediately issue a warrant for the
political character, there must be two or more arrest of the extraditee, who is at the same
parties in the state, each seeking to impose the time summoned to answer the petition and
government of their own choice. to appear at scheduled summary hearings;
NOTE: Attentat clause is a provision in an 6. Hearing (provide counsel de officio if

extradition treaty which states that the murder of necessary);
the head of state or any member of his family is
not to be regarded as a political offense and 7. Appeal within 10 days to the CA, whose
therefore extraditable. decision shall be final and executory;
5. The offense must have been committed within 8. Decision forwarded to the DFA through the
the territory of the requesting State or against its DOJ; and,
interest; and,
9. Individual placed at the disposal of the
6. Double criminality rule – The act for which the authorities of the requesting State, which
extradition is sought must be punishable in both shall shoulder costs and expenses.
the requesting and requested States. (1991,
2007 BAR) c. DISTINGUISHED FROM DEPORTATION
Common bars to Extradition Extradition vs. Deportation (1993 BAR)
1. Failure to fulfill dual criminality; BASIS EXTRADITION DEPORTATION

2. Political nature of the alleged crime; Effected at the
3. Possibility of certain forms of punishment; As to Unilateral act of the
request of the
4. Jurisdiction; ands authority local State.
State of origin.
5. Citizenship of the person in question. Based on offenses Based on causes
As to
committed in the arising in the local
b. PROCEDURE cause
State of origin. State.
Calls of the return Undesirable alien
1. File/issue request through diplomatic of the fugitive to may be deported to a
As to
representative with: the State of origin. State other than his
effect
a. Criminal charge and warrant of arrest; (ROC-Origin) own or the State of
b. Recital of facts; origin. (UCU-Local)
c. Text of applicable law designating the
offense; Due process in extradition proceeding
d. Pertinent papers; and,
e. Decision of conviction. Q: Is a respondent in an extradition proceeding
entitled to notice and hearing before the issuance
2. The DFA forwards request to the DOJ. of a warrant of arrest?
3. The DOJ files petition for extradition with the A: YES

RTC.
1. On the Basis of the Extradition Law
297
Under Sec. 6 of P.D. 1069, Extradition Law uses the admitted to bail. (Government of Hong Kong Special
word “immediate” to qualify the arrest of the Administrative Region v. Olalia, Jr., G.R. No. 153675,
accused. Hearing entails sending notices to the April 19, 2007)
opposing parties, receiving facts and arguments from
them, and giving them time to prepare and present Requisites for granting bail in extradition cases
such facts and arguments. Arrest subsequent to a
hearing can no longer be considered The possible extraditee must show upon a clear and
“immediate.” The law could not have intended the convincing evidence that:
word as a mere superfluity but, on the whole, as a 1. He will not be a flight risk or a danger to the
means of imparting a sense of urgency and swiftness community; and,
in the determination of whether a warrant of arrest 2. There exist special, humanitarian and compelling
should be issued. circumstances.
The court is expected merely to get a good first Rights of a person arrested and detained in
impression, a prima facie finding, sufficient to make a another State
speedy initial determination as regards the arrest and
detention of the accused. 1. Right to have his request complied with by the
receiving State to so inform the consular post of
2. On the Basis of the Constitution his condition;
2. Right to have his communication addressed to
Even Section 2 of Article III of the 1987 Constitution the consular post forwarded by the receiving
does not require a notice or a hearing before the State accordingly; and
issuance of a warrant of arrest. To determine 3. Right to be informed by the competent
probable cause for the issuance of arrest warrants, the authorities of the receiving State without delay
Constitution itself requires only the examination, his rights as mentioned above.
under oath or affirmation, of the complainants and
the witnesses they may produce. There is no Q: Is the retroactive application of the extradition
requirement to notify and hear the accused before the treaty amounting to an ex post facto law?
issuance of warrants of arrest. (U.S. v. Purganan, G.R.
No. 148571, September 24, 2002) A: NO. In Wright v. Court of Appeals, G.R. No. 113213,
August 15, 1994, it was held that the retroactive
Q: Does an extraditee have a right of access to the application of the Treaty of Extradition does not
evidence against him? violate the prohibition against ex post facto laws. The
Treaty is neither a piece of criminal legislation nor a
A: It depends. During the executive phase of an criminal procedural statute. It merely provided for the
extradition proceeding, an extraditee does not have extradition of persons wanted for offenses already
the right of access to evidence in the hands of the committed at the time the treaty was ratified.
government. But during the judicial phase he has.
(Secretary of Justice v. Judge Lantion, GR. No. 139465, L. INTERNATIONAL HUMAN RIGHTS LAW
October 17, 2000)
Human Rights
Nature of extradition proceeding
Those inalienable and fundamental rights which are
Extradition proceeding is sui generis. It is not a essential for life as human beings.
criminal proceeding which will call into operation all
the rights of an accused as guaranteed by the Bill of International Human Rights Law
Rights.
The law which deals with the protection of individuals
Validity of a petition for bail in extradition cases and groups against violations by governments of their
internationally guaranteed rights, and with the
Sec. 11, Art. II of our Constitution provides: “The State promotion of these rights. (Buergenthal)
values the dignity of every human person and
guaranteed full respect for human rights.” The NOTE: International human rights are divided into 3
Philippines, therefore, has the responsibility of generations, namely:
protecting and promoting the right of every person to
liberty and due process, ensuring that those detained 1. First generation: traditional civil and political
or arrested can participate in the proceedings before a rights;
court, to enable it to decide without delay on the 2. Second generation: economic, social and cultural
legality of the detention and order their release if rights; and
justified. 3. Third generation: right to peace, clean
environment, self-determination, common
The Philippine authorities are under obligation to heritage of mankind, development, minority
make available to every person under detention such rights.
remedies which safeguard their fundamental right to
liberty. These remedies include the right to be Classification of Human Rights

Political Law
1. Individual rights; and 8. Right to an effective remedy before courts for
2. Collective rights (right to self-determination of acts violating fundamental rights;
people; the permanent sovereignty over natural 9. Right against arbitrary arrest, detention or exile;
resources) 10. Right to a fair and public hearing by an
independent and impartial tribunal;
Main instruments of International Human Rights 11. Right to be presumed innocent until proven
guilty;
1. The Universal Declaration of Human Rights; 12. Right to privacy, family, home or
2. The International Covenant on Economic, Social correspondence;
and Cultural Rights; and 13. Right to freedom of movement and residence;
3. The International Covenant on Civil and Political right to leave any country, including one’s own
Rights and its two Optional Protocols. and to return to one’s own country;
14. Right to seek and enjoy in another country
NOTE: The Philippines is a signatory to the asylum from persecution; however, this may not
International Convention on the Protection of the be invoked in the case of prosecutions genuinely
Rights of All Migrant Workers and Members of Their arising from non-political crimes or acts contrary
Families. This instrument is a multilateral treaty to the principles of the United Nations;
governing the protection of migrant workers and 15. Right to a nationality and right against arbitrary
families. Concluded on December 18, 1990, it entered deprivation of such right;
into force on July 1, 2003 after the threshold of 20 16. Right to marry, entered into freely and with full
ratifying states was reached in March 2003. The consent, without any limitation due to race,
Committee on Migrant Workers (CMW) monitors nationality or religion; entitled to equal rights to
implementation of the Convention and is one of the marriage, during marriage and dissolution; the
seven UN-linked human rights treaty bodies. family is the natural and fundamental group of
society and is entitled to protection by society
1. UNIVERSAL DECLARATION OF HUMAN RIGHTS and State.;
17. Right to own property alone as well as in
The basic international statement of the inalienable association with others; right against arbitrary
rights of human beings. It is the first comprehensive deprivation of such property;
international human rights instrument. It covers civil 18. Right to freedom of thought, conscience and
and political rights, and economic, social and cultural religion;
rights. 19. Right to freedom of opinion and expression;
20. Right to freedom of peaceful assembly and
NOTE: Rights covered by UDHR are customary association; no one may be compelled to belong
international law. Hence, even during the times when to an association;
the bill of rights under the Constitution is inoperative, 21. Right to suffrage; right to take part in the
rights under UDHR remained in effect. (Republic v. government of one’s country, directly or through
Sandiganbayan, G.R. No. 104768, July 21, 2003) representatives; right of equal public service in
one’s country;
Q: Is the UDHR a treaty? 22. Right to social security;
23. Right to work/labor, free choice of employment,
A: NO. It has no obligatory character because it was just and favorable conditions of work; right to
adopted by the UN General Assembly as Resolution equal pay for equal work; right to form and join
217 (III). As a resolution, it is merely trade unions;
recommendatory. 24. Right to rest and leisure, including reasonable
working hours and periodic holidays with pay;
Basic rights guaranteed by the UDHR 25. Right to a standard of living adequate for the
health and being of one’s self and his family;
1. Equality in dignity and in rights; motherhood and childhood are entitled to special
2. Everyone is entitled to all the rights and care and assistance;
freedoms in this Declaration, without distinction 26. Right to education; and
of any kind such as race, color, sex, language, 27. Right to freely participate in the cultural life of
religion, political or other opinion, national or the community, enjoy the arts and share in
social origin, property, birth or other status. No scientific advancement.
distinction shall also be made on the basis of the
political or international status of a country or Under the Declaration, everyone is entitled to a social
territory to which a person belongs; and international order in which the rights and
3. Right to life, liberty and security of person; freedoms in this Declaration can be fully realized. The
4. Right against slavery or servitude; exercise of these rights and freedoms are subject only
5. Right against torture or to cruel, inhumane and to such limitations as are determined by law, for the
degrading treatment or punishment; purpose of recognition and respect of rights of others,
6. Right to be recognized everywhere as a person for public order and general welfare.
before the law;
7. Right to equal protection of the law; 2. INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS
299
It is an international covenant and is binding on the derogate from their obligations to the extent strictly
respective state parties. It commits its parties to required by the exigencies of the situation.
respect the civil and political rights of individuals. It
includes the first generation of human rights. XPNs: There can be no derogation from the following:
The substantive rights that are treated in the covenant 1. Right to life
on Civil and Political Rights are found in Articles 1, 2. Freedom from torture or cruel, inhuman or
and 6 to 27: degrading punishment
3. Freedom from slavery
1. Life 4. Freedom from imprisonment for failure to fulfill
2. Liberty and property a contractual obligation
3. Equality 5. Freedom from ex post facto laws
6. Right to recognition everywhere as a person
Rights guaranteed in the International Covenant before the law
on Civil and Political Rights 7. Freedom of thought, conscience and religion
1. Right to self-determination; Torture

2. Right to an effective remedy;
3. Equal right of men and women to the enjoyment Any act by which severe pain or suffering, whether
of all the civil and political rights; physical or mental, is intentionally inflicted on a
4. Right to life; person for such purposes as obtaining from him or a
5. Not to be subjected to torture or to cruel, third person, information or a confession, punishing
inhuman or degrading treatment or punishment. him for an act he or a third person has committed or
In particular, freedom from medical or scientific is suspected of having committed, or intimidating or
experimentation except with his consent (1992, coercing him or a third person, or for any reason
2010 BAR); based on discrimination of any kind, when such pain
6. Freedom from slavery and servitude; or suffering is inflicted by or at the instigation of or
7. Right to liberty and security of person; with the consent or acquiescence of a public official or
8. Right to be treated with humanity and with other person acting in an official capacity. (United
respect for the inherent dignity of the human Nations Convention against Torture and Other Cruel,
person; Inhuman or Degrading Treatment or Punishment
9. No imprisonment on the ground of inability to [UNCTO], Effective June 26, 1987)
fulfill a contractual obligation;
10. Right to liberty of movement and freedom to NOTE: It does not include pain or suffering arising
choose his residence; only from, inherent in or incidental to lawful
11. Right to a fair and public hearing by a competent, sanctions.
independent and impartial tribunal established
by law; Obligations of the State Parties in the UNCTO
12. No one shall be held guilty of an criminal offense
on account of any act or omission which did not 1. No exceptional circumstances whatsoever,
constitute a criminal office, under national or whether a state of war or a threat or war, internal
international law, at the time when it was political instability or any other public
committed; emergency or any order from a superior officer
13. Right to recognition everywhere as a person or a public authority may be invoked as a
before the law; justification of torture;
14. Right to privacy;
15. Right to freedom of thought, conscience and 2. No State party shall expel, return (“refouler”) or
religion; extradite a person to another State where there
16. Right to freedom of expressions; are substantial grounds for believing that he
17. Right of peaceful assembly; would be in danger of being subjected to torture;
18. Right of freedom of association;
19. Right to marry and to found a family; 3. All acts of torture are offenses under a State
20. Right to such measures of protection as are Party’s criminal law;
required by his status as a minor, name and
nationality; 4. State Parties shall afford the greatest measure of
21. Right to participation, suffrage and access to assistance in connection with civil proceedings
public service; brought in respect of any of the offences;
22. Right to equal protection of the law; and,
23. Right of minorities to enjoy their own culture, to 5. To ensure that education and information
profess and practice their religion and to use regarding the prohibition against torture are fully
their own language. included on persons involved in the custody,
interrogation or treatment of any individual
GR: In times of public emergency which threatens the subject to any form of arrest, detention, or
life of the nation and the existence of which is imprisonment;
officially proclaimed, parties may take measures to

Political Law
6. To keep under systematic review interrogation cultural rights. It embodies the second generation of
rules, instructions, methods and practices as well human rights.
as arrangements for the custody and treatment of
persons subjected to any form of arrest, Rights guaranteed thereunder
detention or imprisonment in any territory under
its jurisdiction, with a view to preventing any 1. Right to work (Art. 6)
case of torture; 2. Right to favorable conditions of work (Art. 7)
3. Right to form trade unions (Art. 8)
7. To ensure a prompt and impartial investigation 4. Right to social security and insurance (Art. 9)
wherever there is reasonable ground to believe 5. Right to special assistance for families (Art. 10)
that an act of torture has been committed; 6. Right to adequate standard of living (Art. 11)
7. Right to the highest standard of physical and
8. To ensure that an individual subjected to torture mental health (Art. 12)
has the right complain and have his case 8. Right to education including compulsory primary
promptly and impartially examined by education (Arts. 13 and 14)
competent authorities; 9. Right to enjoyment of cultural and scientific
benefits and international contacts (Art. 15)
9. To ensure that the victim obtains redress and has 10. Right to strike
an enforceable right to fair and adequate 11. Right to be free from hunger
compensation; 12. Freedom of scientific research and creativity
10. To ensure that any statement established to have M. INTERNATIONAL HUMANITARIAN LAW
been made as a result of torture shall not be
invoked as evidence in any proceedings, except International Humanitarian Law (IHL)
against a person accused of torture as evidence
that the statement was made; and, A set of rules which seek, for humanitarian reasons, to
limit the effects of armed conflict. It protects persons
11. To prevent in any territory under its jurisdiction who are not or are no longer participating in the
other acts of cruel, inhuman or degrading hostilities and restricts the means and methods of
treatment or punishment which do not amount to warfare. This is used to be known as the Laws of War
torture when such acts are committed by or at which provides for instances when the use of armed
the instigation of or with the consent of force is justifiable (jus ad bellum) and regulates the
acquiescence of a public official or other person conduct of armed conflict (jus in bello).
acting in an official capacity.
Importance of IHL
Instances when a state party may establish its
jurisdiction over offenses regarding torture It is one of the most powerful tools the international
community has at its disposal to ensure the safety and
1. When the offenses are committed in any territory dignity of people in times of war. It seeks to preserve
under its jurisdiction or on board a ship or a measure of humanity, with the guiding principle that
aircraft registered in the State; even in war there are limits.
2. When the alleged offender is a national of that
State; Fundamental principles of IHL
3. When the victim was a national of that State if
1. Parties to armed conflict are prohibited from
that State considers it appropriate; and, employing weapons or means of warfare that
4. Where the alleged offender is present in any cause unnecessary damage or excessive suffering
territory under its jurisdiction and it does not (Principle of prohibition of use of weapons of a
extradite him. nature to cause superfluous injury or unnecessary
suffering);
NOTE: Nos. 1 to 3 are considered as extraditable
offenses. In the absence of an extradition treaty, the 2. Parties to armed conflict shall distinguish
UNCTO may be considered as the legal basis for between civilian populace from combatants and
extradition. Such offenses shall be treated, for the spare the former from military attacks (Principle
purpose of extradition, as if they have been of distinction between civilians and combatants);
committed not only in the place in which they
occurred but also in the territories of the State 3. Persons hors de combat and those who do not
required to establish their jurisdiction. take part in hostilities are entitled to respect for
their lives and their moral and physical integrity.
3. INTERNATIONAL COVENANT ON ECONOMIC, They shall be protected and treated humanely
SOCIAL AND CULTURAL RIGHTS without any adverse distinction;
It is a multilateral treaty adopted by the United 4. It is prohibited to kill or injure an enemy who
Nations General Assembly. It commits its parties to surrenders or who is a hors de combat;
work toward the granting of economic, social, and
301
5. The wounded and the sick shall be protected and 1. Anarchic conflicts – It is a situation where armed
cared for by the party who is in custody of them. groups take advantage of the weakening or
Protection shall cover medical personnel, breakdown of the State structures in an attempt to
establishments, transports and equipment; and. grab power; and
6. Parties who captured civilians and combatants 2. Those in which group identity becomes a focal point
shall respect the latter’s rights to life, dignity, and – These groups exclude the adversary through “ethnic
other personal rights. cleansing” which consists in forcibly displacing or
even exterminating populations. This strengthens
Essential rules of IHL group feeling to the detriment of the existing national
identity, ruling out any possibility of coexistence with
1. The parties to a conflict must at all times other groups.
distinguish between the civilian population and
combatants; Branches of IHL
2. Neither the civilian population as a whole nor
individual civilians may be attacked; 1. LAW OF GENEVA. It is designed to safeguard
3. Attacks may be made sole against military military personnel who are no longer taking part
objectives; in the fighting and people not actively
4. People who do not or can no longer take part in participating in the war.
the hostilities are entitled to respect for their
lives and for their physical and mental integrity Essence of Geneva Convention
and must be treated with humanity, without any
unfavorable distinction whatever; Persons not actively engaged in warfare should
5. It is forbidden to kill or wound an adversary who be treated humanely. The rules apply to any
surrenders or who can no longer take part in the international armed conflict, whether a declared
fighting; war or not.
6. Neither the parties to the conflict nor members of
their armed forces have an unlimited right to NOTE: It includes the following: (a) wounded and
choose methods and means of warfare; sick in the Field; (b) wounded, sick and
7. It is forbidden to use weapons or methods of shipwrecked at sea; (c) prisoners of war; and, (d)
warfare that are likely to cause unnecessary civilians.
losses and excessive suffering;
8. The wounded and sick must be collected and 2. LAW OF THE HAGUE. It establishes the rights
cared for by the party to the conflict which has and obligations of belligerents in the conduct of
them in its power; military operations, and limits the means of
9. Medical personnel and medical establishments, harming the enemy.
transports and equipment must be spared. The
red cross or red crescent is the distinctive sign NOTE: Belligerents are inhabitants of a State who
indicating that such persons and objects must be rise up in arms for the purpose of overthrowing
respected; and the legitimate government.
10. Captured combatants and civilians who find
themselves under the authority of the adverse Persons protected under IHL
party are entitled to respect for their lives, their
dignity, their personal rights and their political, IHL protects those who are not, or no longer,
religious and other convictions and must be participating in hostilities, such as:
protected against all acts of violence or reprisals;
entitled to exchange of news with their families 1. Civilians;
and receive aid and enjoy basic judicial 2. Medical and religious military personnel;
guarantees. 3. Wounded, shipwrecked and sick combatants; and
4. Prisoners of war.
Application of IHL
NOTE: Recognizing their specific needs, IHL grants
IHL concerns two situations: women and children additional protection.
1. International armed conflicts, which involve at Protection under IHL

least two countries; and
2. Armed conflicts that take place in one country 1. IHL prohibits the use of weapons which are
(such as those between a government and rebel particularly cruel, or which do not distinguish
forces). between combatants and civilians.
NOTE: IHL applies to all parties to a conflict 2. The parties to a conflict are required to:
regardless of who started it. a. Distinguish between combatants and
civilians, and to refrain from attacking
“New” conflicts covered by the IHL civilians;

Political Law
b. Care for the wounded and sick and protect also provide for the
medical personnel; establishment of
c. Ensure that the dignity of prisoners of war committees of independent
and civilian internees is preserved by experts charged with
allowing visits by International Committee monitoring their
of the Red Cross delegates. implementation. Certain
regional treaties (European
International Humanitarian Law (IHL) vs. Human and American) also
Rights Law establish human rights
courts.
INTERNATIONAL
HUMAN RIGHTS LAW
HUMANITARIAN LAW NOTE: IHL and International Human Rights Law
Application (hereafter referred to as human rights) are
Situations of armed Applicable at all times in complementary. Both strive to protect the lives, health
conflict only. war and peace alike. and dignity of individuals, albeit from different angles.
Permissibility of derogation
No derogations are Some human rights treaties 1. CATEGORIES OF ARMED CONFLICT
permitted under IHL permit governments to
because it was conceived derogate from certain Kinds/types of conflict as contemplated in R.A.
for emergency situations, rights, in situations of 9851
namely armed conflict. public emergency.
Purpose 1. International Armed Conflict. It is between two
Aims to protect people Tailored primarily for or more States, including belligerent occupation.
who do not take part or peacetime and applies to
are no longer taking part everyone. Their principal 2. Non-International Armed Conflict. It is
in hostilities. The rules goal is to protect between governmental authorities and organized
embodied in IHL impose individuals from arbitrary armed groups, or between such groups within a
duties on all parties of a behavior by their own State.
conflict. governments.
Consequence to states NOTE: It does not cover internal disturbances or
tensions such as riots, isolated and sporadic acts
Obliges states to take
of violence, or other acts of a similar nature (R.A.
practical and legal States are bound by human
9851).
measures, such as rights law to accord
enacting penal national law with
3. War of National Liberation. It refers to an
legislation and international obligations.
armed struggle waged by a people through its
disseminating IHL.
liberation movement against the established
Applicable mechanisms
government to reach self-determination.
Implementing mechanisms
are complex and, contrary
It is also used to denote conflicts in which peoples are
to IHL include regional
fighting against colonial domination and alien
systems. Supervisory
occupation and against racist regimes in the exercise
bodies, e.g. the UN
of their right of self-determination, as enshrined in
Provides for several Commission on Human
the U.N. Charter and the Declaration of Principles of
mechanisms that help its Rights (UNCHR), are either
International Law. [Protocol I, Art. 1(4)]
implementation. Notably, based on the UN Charter or
states are required to provided for in specific
a. INTERNATIONAL ARMED CONFLICT
ensure respect also by treaties.
other states. Provision is The UNCHR has developed
also made for inquiry a mechanism of special Armed conflict under IHL and R.A. 9851
procedure, a Protecting rapporteurs and working
Power mechanism, and groups, whose task is to 1. “All cases of declared war or any other armed
the International Fact- monitor and report on conflict which may arise between two or more of
Finding Commission. In human rights situations the Highest contracting parties, even if the State
addition, the either by country or by of war is not recognized by one of them” (Geneva
International Committee topic. Its role is to enhance Convention of 1949, Art. 2). It also applies to
of the Red Cross (ICRC) the effectiveness of the UN armed conflict between the government and a
is given a key role in human rights machinery rebel or insurgent movement (Geneva Convention
ensuring respect for the and to build up national, of 1949, Art. 3).
humanitarian rules. regional and international
capacity to promote and 2. Under R.A. 9851, it is any use of force or armed
protect human rights and violence between States or a protracted armed
to disseminate human violence between governmental authorities and
rights texts and organized groups or between such groups within
information. Human rights a State provided that it gives rise or may give rise
to a situation to which the Geneva Conventions of
303
12 August 1949 including their common Art. 3 rights law and such measures of domestic legislation
apply. as may be invoked. IHL does not apply to situations of
violence not amounting in intensity to an armed
Instances not covered by an armed conflict (R-I-O) conflict.
It does not include internal disturbances or tensions Applicability of IHL in non-international armed
such as: conflicts
1. Riots; IHL is intended for the armed forces, whether regular

2. Isolated and sporadic acts of violence; and or not, taking part in the conflict, and protects every
3. Other acts of a similar nature. individual or category of individuals not or no longer
actively involved in the hostilities.
Hors de combat
e.g.: wounded or sick fighters; people deprived of
It refers to any person who: (a) is in the power of an their freedom as a result of the conflict; civilian
adverse party to the conflict; (b) has clearly expressed population; medical and religious personnel.
an intention to surrender; and, (c) has been rendered
unconscious or otherwise incapacitated by wounds or Applicable rules in non-international armed
sickness and therefore is incapable of defending conflict
himself provided he abstains away from any hostile
act and does not attempt to escape (R.A. 9851) 1. Persons taking no active part in the hostilities,
including armed forces who have laid down their
Protected persons in an armed conflict arms and those placed hors de combat be treated
humanely, without any adverse distinction
1. A person wounded, sick or shipwrecked, whether founded on race, color, religion or faith, sex, birth
civilian or military; or wealth, or any other similar criteria. To this
2. A prisoner of war or any person deprived of end, the following acts are and shall remain
liberty for reasons related to an armed conflict prohibited at any time and any place whatsoever
3. A civilian or any person not taking a direct part with respect to the abovementioned persons:
or having ceased to take part in the hostilities in
the power of the adverse party; a. Violence to life and person, in particular
4. A person who, before the beginning of hostilities, murder of all kinds, mutilation, cruel
was considered a stateless person or refugee treatment and torture;
under the relevant international instrument b. Taking of hostages;
accepted by the parties to the conflict concerned c. Outrages against personal dignity, in
or under the national legislation of the state of particular humiliating and degrading
refuge or state of residence; treatment;
5. A member of the medical personnel assigned d. The passing of sentences and the carrying
exclusively to medical purposes or to the out of executions without previous
administration of medical units or to the judgment pronounced by a regularly
operation of an administration of medical constituted court, affording all the judicial
transports; or guarantees which are recognized as
6. A member of the religious personnel who is indispensable by civilized peoples.
exclusively engaged in the work of their ministry
and attached to the armed forces of a party to the 2. The wounded and sick shall be collected and
conflict, its medical units or medical transports cared for.
or non-denominational, non-combatant military
personnel carrying out functions similar to NOTE: An impartial humanitarian body, such as the
religious personnel. International Committee of the Red Cross, may offer
its services to the parties to the conflict.
NOTE: In these situations, the Geneva Conventions
and Additional Protocol I apply: the protection of c. WAR OF NATIONAL LIBERATION
wounded and sick soldiers, medical personnel,
facilities and equipment, wounded and sick civilian Armed conflicts in which people are fighting against
support personnel accompanying the armed forces, colonial domination and alien occupation and against
military chaplains, and civilians who spontaneously racist regimes in the exercise of their right to self-
take up arms to repel an invasion determination [Protocol I, Art. 1(4)]. These are
sometimes called insurgencies, rebellions or wars of
b. INTERNAL OR NON-INTERNATIONAL ARMED independence.
CONFLICT
Basis
Inapplicability of IHL in internal disturbance
Protocol Additional to the Geneva Conventions of 12
Internal disturbances and other situations of internal August 1949 and relating to the Protection of Victims
violence are governed by the provisions of human

Political Law
of International Armed Conflicts. (Protocol I, June 8 4. Enemy public property found in the territory of
1977) other belligerent at the outbreak of the hostilities
is with certain exceptions, subject to confiscation.
Categories of Wars of National Liberation
NOTE: An army of occupation can only take
1. Colonial domination; possession of the cash, funds, and property liable
2. Alien occupation; and to requisition belonging strictly to the State,
3. Racist regimes when the peoples oppressed by depots of arms, means of transport, stores and
these regimes are fighting for self-determination. supplies, and, generally, all movable property of
the State which may be used for military
NOTE: The above listed enumeration is EXCLUSIVE. operations. Railway plant, land telegraphs,
telephones, steamers, and other ships, apart from
Effect of the Protocol cases governed by maritime law, as well as
depots of arms and, generally, all kinds of war
Armed conflicts that fall under the categories will now material, even though belonging to companies or
be regarded as international armed conflicts and thus to private persons, are likewise material which
fall under the International Humanitarian Law. may serve for military operations, but they must
be restored at the conclusion of peace, and
War indemnities paid for them. (Laws and Customs of
War on Land, Hague II July 29, 1899, Art. 53)
A contention between two States, through their armed
forces, for the purpose of overpowering the other and Reprisal (1991 BAR)
imposing such conditions of peace as the victor
pleases. Act of self-help on the part if the injured state,
responding after an unsatisfied demand to an act
Instances when force is allowed contrary to international law on the part of the
offending state.
Under the UN Charter, the use of force is allowed only
in two instances, to wit: A retaliatory action against an enemy in wartime. It is
an otherwise illegal act done in response to a prior
1. In the exercise of the inherent right of self- illegal act by an enemy, proportionate to the original
defense; and (1998, 2002, 2009 BAR); and wrong and designed to compel the enemy to desist
2. In pursuance of the so-called enforcement action from his illegal acts on the battlefield. Under such
that may be decreed by the Security Council. circumstances the law of armed conflicts recognizes
the otherwise illegal acts as legal. (The Naulilaa Case,
Steps in the Commencement of a War involving Portugal and Germany)
1. Declaration of war; Conditions for Legitimacy of Reprisals

2. Rejection of an ultimatum; and
3. Commission of an act of force regarded by at least 1. There must have been an illegal action on the
one of the parties as an act of war. part of the other state;
2. They must be preceded by a request for redress
Declaration of War of the wrong;
3. The measures adopted must not be excessive,
A communication by one State to another informing in the sense of being out of all proportion to the
the latter that the condition of peace between them vocation received
has come to an end and a condition of war has taken
place. Retorsion (1991, 2010 BAR)
Ultimatum It is an unfriendly act which may be taken by one state

against another. It may be in response to an
A written communication by one State to another internationally wrongful conduct or an unfriendly act
which formulates, finally and categorically, the but which is nonetheless lawful.
demands to be fulfilled if forcible measures are to be
averted. Any act taken in “retaliation where the acts
complained of do not constitute a legal ground of
Effects of the Outbreak of War offense but are rather in the nature of unfriendly acts
but indirectly hurtful to other states.” (Fernwich, 532
1. Laws of peace are superseded by the laws of war; as cited in Cruz, 2000)
2. Diplomatic and consular relations between the
belligerents are terminated; Elements:
3. Treaties of political nature are automatically
cancelled, but those which are precisely intended 1. It is unfriendly;
to operate during war such as one regulating the 2. It is lawful; and
conduct of hostilities, are activated; and 3. It is remedial in character
305
Because the act is legitimate, no responsibility is The suspension of hostilities within a certain area or
engaged in international law, and the state taking the in the entire region of the war, agreed upon by the
retorsion has a wide discretion as to what unfriendly belligerents, usually for the purpose of arranging the
actions it may implement, and to what extent. terms of the peace.
(Wallace-Bruce, The Settlement of International
Disputes: The Contribution of Australia and New Armistice vs. Suspension of Arms
Zealand, 1998)
SUSPENSION OF
BASIS ARMISTICE
Tests in determining the enemy character of ARMS
individuals As to
Political Military
purpose
1. Nationality test. The gauge is “if they are
Usually in
nationals of the other belligerent, wherever they As to form May be oral.
writing.
may be”;
Only by the
2. Domiciliary test. If they are domiciled aliens in As to who
commanders-in-
the territory of the other belligerent, on the may May be concluded
chief
assumption that they contribute to its economic conclude by the local
of the
resources; commanders.
belligerent
governments.
3. Activities test. If, being foreigners, they
nevertheless participate in the hostilities in favor
of the other belligerent; Ceasefire
4. Territorial or Commercial Domicile Test. In An unconditional stoppage of all hostilities usually

matters referring to economic warfare; and, ordered by an international body like the United
Nations Security Council for the purpose of employing
5. Controlling Interest Test. This test is applied to peaceful means of settling the differences between the
corporation in addition to the place of belligerents.
incorporation test. A corporation is considered as
enemy if it (a) is incorporated in an enemy Truce
territory, and (b) is controlled by individuals
bearing enemy character. Sometimes used interchangeably with armistice but is
now generally regarded as a ceasefire with conditions
Principle of Distinction attached.
Parties to an armed conflict must at all times Capitulation

distinguish between civilian and military targets and
that all military operations should only be directed at The surrender of military forces, places or districts, in
military targets. accordance with the rules of military honor.
Participants in war Basic principles that underlie the rules of warfare
1. Combatants. These are those who engage 1. The Principle of Military Necessity. The
directly and legally entitled to partake in belligerent may employ any amount of force to
hostilities. compel the complete submission of the enemy
2. Non-combatants. On the other hand, these are with the least possible loss of lives, time and
those who do not engage in such hostilities, such money.
as women and children.
NOTE: Under R.A. 9851, it is the necessity of
Civilian employing measures which is indispensable to
achieve a legitimate aim of the conflict and not
Any person who does not belong to the armed forces prohibited by IHL.
and who is not a combatant.
2. The Principle of Humanity. It prohibits the use
NOTE: In case of doubt whether a person is a civilian of any measure that is not absolutely necessary
or not, that person shall be considered as a civilian. for the purpose of the war, such as the poisoning
of wells, destruction of works of art and property
Suspension of Arms devoted to religious or humanitarian purposes.
A temporary cessation of hostilities by agreement of 3. The Principle of Chivalry. It prohibits the

the local commanders for such purposes as the belligerents from the employment of treacherous
gathering of the wounded and the burial of the dead. methods in the conduct of hostilities, such as the
illegal use of Red Cross emblems.
Armistice

Political Law
4. The Principle of Proportionality. The legal use Each of the belligerents is entitled to the territory and
of force whereby belligerents must make sure property which it had possession of at the
that harm caused to civilians or civilian property commencement of the war.
is not excessive in relation to the concrete and
direct military advantage from an anticipated Effect/Relevance of the Passage of R.A. No. 9851
attack or by an attack on military objective.
R.A. No. 9851 or the Philippine Act on Crimes Against
Q: How is war terminated? International Humanitarian Law, Genocide, and Other
Crimes Against Humanity mandates both the State
A: Wars may be terminated by any of the following: and non-state armed groups to observe international
humanitarian law standards and gives the victims of
1. Simple cessation of hostilities, without the war-crimes, genocide and crimes against humanity
conclusion of a formal treaty; legal recourse.
2. Treaty of peace;
3. Unilateral declaration; and, Genocide
4. The complete submission and subjugation of
one of the belligerents, followed by a dictated 1. Any of the following acts with intent to destroy,
treaty of peace or annexation of conquered in whole or in part, a national, ethnic, racial,
territory. religious, social or any other similar stable and
permanent group such as:
Postliminium
a. Killing of members of the group;
It imports the reinstatement of the authority of the b. Causing serious bodily or mental harm to
displaced government once control of the enemy is members of the group;
lost over the territory affected c. Deliberately inflicting on the group
conditions of life calculated to bring about
Is that in which persons or things taken by the enemy its physical destruction in whole or in part;
are restored to the former state on coming actually d. Imposing measure intended to prevent
into the power of the nation to which they belong. births within the group; and
e. Forcibly transferring children of the group
Application of the Principle of Postliminium (1979 to another group.
BAR)
2. Directly and publicly inciting others to commit
Where the territory of one belligerent State is genocide (R.A. 9851)
occupied by the enemy during war, the legitimate
government is ousted from authority. When the NOTE: Genocide may be committed either during war
belligerent occupation ceases to be effective, the or armed conflict or in times of peace.
authority of the legitimate government is
automatically restored, together with all its laws, by War Crimes
virtue of the jus postliminium.
It means grave breaches of the Geneva Conventions of
Principle of Uti Possidetis August 12, 1949, which are any of the acts
enumerated under Article 8 of the ICC Statute against
Literally translated as “as you possess, thus may you persons or property protected under the provisions of
possess,” this principle of customary international law the relevant Convention:
enables a belligerent party to claim territory that it
has acquired by war. 1. Namely, any of the following acts against persons
or property protected:
Jus ad Bellum (Law on the Use of Force)
a. Willful killing;
Literally translated as “right to war,” it seeks to limit b. Torture or inhuman treatment, including
resort to force between States. States must refrain biological experiments;
from the threat or use of force against the territorial c. Willfully causing great suffering, or serious
integrity or political independence of another state. injury to body or health;
(UN Charter, Art. 2, par. 4) d. Extensive destruction and appropriation of
property not justified by military necessity
XPNs: and carried out unlawfully and wantonly;
1. Self-defense; or e. Willfully depriving a prisoner of war or
2. Following a decision adopted by the UN Security other protected person of the rights of fair
Council under Chapter VII of the UN Charter. and regular trial;
f. Arbitrary deportation or forcible transfer of
Status Quo Ante Bellum (the situation as it existed population or unlawful confinement;
before the war) g. Taking hostages;
307
h. Compelling a prisoner of war or other the knowledge that such attack will cause
protected person to serve in the forces of a excessive loss of life, injury to civilians or
hostile power; and damage to civilian objects, and causing death
i. Unjustifiable delay in the repatriation of or serious injury to body or health;
prisoners of war or other protected persons. g. Attacking or bombarding, by whatever
means, towns, villages, dwellings or
2. In case of non-international armed conflict, buildings which are undefended and which
serious violation of common Art. 3 to the four are not military objectives, or making non-
Geneva Conventions of August 12 1949, namely defended localities or demilitarized zones
any of the following acts committed against the object of attack;
persons taking no active part in the hostilities, h. Killing or wounding a person in the
including members of the armed forces who have knowledge that he/she is hors de combat,
laid down their arms and those placed hors de including a combatant who, having laid
combat by sickness, wounds, detention or any down his/her arms no longer having means
other cause: of defense, has surrendered at discretion;
i. Making improper use of a flag of truce, of the
a. Violence to life and person, in particular, flag or the military insignia and uniform of
willful killings, mutilation, cruel treatment the enemy or of the United Nations, as well
and torture; as of the distinctive emblems of the Geneva
b. Committing outrages upon personal dignity, Conventions or other protective signs under
in particular humiliating and degrading the International Humanitarian Law,
treatment; resulting in death, serious personal injury or
c. Taking of hostages; and capture;
d. The passing of sentences and the carrying j. Intentionally directing attacks against
out of executions without previous judgment buildings dedicated to religion, education,
pronounced by a regularly constituted court, art, science, or charitable purposes, historic
affording all judicial guarantees which are monuments, hospitals and places where the
generally recognized as indispensable. sick and wounded are collected, provided
that they are not military objectives.
3. Other serious violations of the laws and customs k. Subjecting persons who are in the power of
applicable in the armed conflict within the an adverse party to physical mutilation or to
established framework of international law, medical or scientific experiments of any
namely: kind, or to removal of tissue or organs for
transplantation, which are neither justified
a. Intentionally directing attacks against the by the medical, dental or hospital treatment
civilian population as such or against of the person concerned not carried out in
individual civilians not taking direct part in his/her interest, and which cause death to or
hostilities; seriously endanger the health of such person
b. Intentionally directing attacks against or persons;
civilian objects, that is, objects which are not l. Killing wounding or capturing an adversary
military objectives; by resort to perfidy;
c. Intentionally directing attacks against
buildings, material, medical units and NOTE: Perfidy – A combatant’s conduct that
transport, and personnel using the creates the impression that an adversary is
distinctive emblems of Additional Protocol II entitled to, or is obliged to accord protection
in conformity with international law; under international law when in fact the
d. Intentionally directing attacks against conduct is use to gain an advantage (Black’s
personnel, installations, material, units or Law Dictionary).
vehicles involved in a humanitarian
assistance or peacekeeping mission in m. Declaring that no quarter will be given;
accordance with the Charter of the United n. Destroying or seizing the enemy’s property
Nations as long as they are entitled to the unless such destruction or seizure is
protection given to civilians or civilian imperatively demanded by the necessities of
objects under the international law of armed war;
conflict; o. Pillaging a town or place, even when taken
e. Launching an attack in the knowledge that by assault;
such attack will cause incidental loss of life p. Ordering the displacement of the civilian
or injury to civilians or damage to civilian population for reasons related to the
objects or widespread long-term and severe conflict, unless the security of the civilians
damage to the natural environment which involved or imperative military reasons so
would be excessive in relation to the demand;
concrete and direct military advantage q. Transferring, directly or indirectly, by
anticipated; occupying power of parts of its own civilian
f. Launching an attack against works or population into the territory it occupies, or
installations containing dangerous forces in the deportation or transfer of all or parts of

Political Law
the population of the occupied territory 1. Murder
within or outside this territory; 2. Extermination;
r. Committing outrages upon personal dignity, 3. Enslavement;
in particular, humiliating and degrading 4. Arbitrary deportation or forcible transfer of
treatment; population;
s. Committing rape, sexual slavery, enforced 5. Imprisonment or other severe deprivation of
prostitution, forced pregnancy, enforced physical liberty in violation of fundamental rules
sterilization, or any other form of sexual of international law;
violence; 6. Torture;
t. Utilizing the presence of a civilian or other 7. Rape, sexual slavery, enforced prostitution,
protected person to render certain points, forced pregnancy, enforced sterilization or any
areas or military forces immune from other form of sexual violence of comparable
military operations; gravity;
u. Intentionally using starvation of civilians as 8. Persecution against any identifiable group or
a method of warfare by depriving them of collectivity on political, racial, national, ethnic,
objects indispensable to their survival, cultural, religious, gender, sexual orientation
including willfully impending relief supplies; other grounds that are universally recognized as
v. In an international armed conflict, impermissible under international law;
compelling the nationals of the hostile party 9. Enforced or involuntary disappearance of
to take part in the operations of war directed persons;
against their own country, even if they were 10. Apartheid; and
in the belligerent’s service before the 11. Other inhumane acts of similar character
commencement of the war; intentionally causing great suffering, or serious
w. In an international armed conflict, declaring injury to body or to mental or physical health.
abolished, suspended or inadmissible in a (RA 9851)
court of law the rights and actions of the
nationals of the hostile party; 2. CORE INTERNATIONAL OBLIGATIONS OF
x. Committing any of the following acts: STATES UNDER THE IHL
i. Conscripting, enlisting or recruiting 1. The protection of persons who are not, or are no
children under the age of 15 years into longer, participating in hostilities;
the national armed forces; 2. Soldiers who surrender or who are hors de combat
ii. Conscripting, enlisting, or recruiting are entitled to respect for their lives and their
children under the age of 18 years into moral and physical integrity. It is forbidden to kill
an armed force or group other than the or injure them;
national armed forces; and 3. The wounded and sick must be collected and
iii. Using children under the age of 18 years cared for by the party to the conflict which has
to participate actively in hostilities; them in its power. Protection also covers medical
personnel, establishments, transports and
y. Employing means of warfare which are equipment. The emblem of the red cross, red
prohibited under international law, such as: crescent or red crystal is the sign of such
protection and must be respected;
i. Poison or poisoned weapons; 4. Captured combatants are entitled to respect for
ii. Asphyxiating, poisonous or other gases, their lives, dignity, personal rights and
and all analogous liquids, materials or convictions. They must be protected against all
devices; acts of violence and reprisals. They must have the
iii. Bullets which expand or flatten easily in right to correspond with their families and to
the human body, such as bullets with receive relief;
hard envelopes which do not entirely 5. Civilians under the authority of a party to the
cover the core or are pierced with conflict or an occupying power of which they are
incisions; and not nationals are entitled to respect for their lives,
iv. Weapons, projectiles and material and dignity, personal rights and convictions;
methods of warfare which are of the 6. Everyone must be entitled to benefit from
nature to cause superfluous injury or fundamental judicial guarantees. No one must be
unnecessary suffering or which are sentenced without previous judgment pronounced
inherently indiscriminate in violation of by a regularly constituted court;
the international law of armed conflict. 7. No one must be held responsible for an act he has
(R.A .9851) not committed. No one must be subjected to
physical or mental torture, corporal punishment
“Other crimes against humanity” aside from war or cruel or degrading treatment;
crimes and genocide under RA 9851 8. The right of parties to an armed conflict to choose
methods and means of warfare is not unlimited;
Any of the following acts when committed as part of a 9. Parties to a conflict and members of their armed
widespread or systematic attack directed against any forces do not have an unlimited choice of methods
civilian population, with knowledge of the attack: and means of warfare. It is prohibited to employ
309
weapons or methods of warfare of a nature to b. PRISONERS OF WAR
cause unnecessary losses or excessive suffering;
and Those lawful combatants who have fallen into the
10. Parties to a conflict must at all times distinguish power of the enemy.
between the civilian population and combatants in
order to spare civilian population and property. Rights and Privileges of Prisoners of War
Adequate precautions shall be taken in this regard
before launching an attack. 1. To be treated humanely;
2. Not to be subject to torture;
3. PRINCIPLE OF INTERNATIONAL 3. To be allowed to communicate with their
HUMANITARIAN LAW families;
4. To receive food, clothing, religious articles, and
Principle of Humanity or the Martens Clause medicine;
5. To bare minimum of information;
In cases not covered by other international 6. To keep personal belongings;
agreements, civilians and combatants remain under 7. To proper burial;
the protection and authority of the principles of 8. To be grouped according to nationality;
International Law derived from established custom, 9. To the establishment of an informed bureau; and
from the Principles of Humanity and from the dictates 10. To repatriation for sick and wounded (1949
of public conscience. Geneva Convention)
The extensive codification of IHL and the extent of the Members of Militias or Volunteer Groups as
accession to the resultant treaties, as well as the fact Prisoners-Of-War
that the denunciation clauses that existed in the
codification instruments have never been used, have Members of militias or volunteer groups are entitled
provided the international community with a corpus to prisoner-of-war status when captured by the
of treaty rules the great majority of which had already enemy, provided that:
become customary and which reflected the most
universally recognized humanitarian principles. These 1. They form part of such armed forces of the state;
rules indicate the normal conduct and behavior or
expected of States. 2. They fulfill the following conditions:
a. They are being commanded by a person
a. TREATMENT OF CIVILIANS responsible as superior;
b. They have a fixed distinctive sign
Treatment of Civilians under the International recognizable at a distance;
Humanitarian Law (IHL) c. They carry arms openly; and
d. They conduct their operations in accordance
The IHL provides that civilians under the power of with the laws and customs of war.
enemy forces must be treated humanely in all
circumstances, without any adverse distinction. They Captured guerilla as prisoners of war
must be protected against all forms of violence and
degrading treatment, including murder and torture. A captured guerilla or other members of organized
Moreover, in case of prosecution, they are entitled to a resistance movements may demand treatment
fair trial affording all essential judicial guarantees. afforded to a prisoner of war under the 1949 Geneva
(International Committee of the Red Cross, Civilians Convention, provided that:
Protected under the International Humanitarian Law,
2010) 1. They are being commanded by a person
responsible as superior;
States must never make civilians object of attack and 2. They have a fixed distinctive sign recognizable at
must, consequently, never use weapons that are a distance;
incapable of distinguishing between civilian and 3. They carry arms openly; and
military targets. Non-combatants or persons taking no 4. They conduct their operations in accordance with
direct part in the hostilities should be treated the laws and customs of war.
humanely in all circumstances, and the following acts
are prohibited with respect to them: NOTE: Persons such as civilian members of military
aircraft crews, and war correspondents, shall be so
1. Violence to life and person; entitled to prisoner-of-war status when they fall
2. Taking of hostages; under the hands of the enemy.
3. Outrages upon personal dignity; and,
4. The passing of sentences and the carrying out of Status of Journalists who are engaged in
executions without previous judgment dangerous professional missions in areas of
pronounced by a regularly constituted court. armed conflicts
(Article III, The Geneva Convention of 1949
Relative to the Protection of Civilian Persons in They shall be treated as civilians, provided that they
Times of War) take no action adversely affecting their status as

Political Law
civilians, and their prisoners-of-war status to the It is the policy of the state to remain neutral in future
armed forces when they fall to the enemy hands. wars.
Treatment of spies when captured Neutrality vs. Non-alignment
As spy is a soldier employing false pretenses or acts BASIS NEUTRALITY NON-ALIGNMENT

through clandestine means to gather information Presupposes the
from the enemy. As to Exists during peace
existence of war
applicability time.
or conflict.
When captured, [a spy] may be proceeded against Avoids Rejects imperialism
under the municipal law of the other belligerent, Purpose involvement in a and colonialism by
although under the Hague Convention, [he] may not war. the world powers.
be executed without trial. But if captured after he has Evaluates the world
succeeded in rejoining his army, [he] must be treated Pre-determined political events
as a prisoner of war. (Nachura, Political Law Outline, As to nature
position. based on case-to-
2014) case merits.
A soldier not wearing uniform during hostilities runs A State considered as a neutralized state
the risk of being treated as a spy and not entitled to
prisoner of war status. When caught, they are not to When its independence and integrity are guaranteed
be regarded as prisoners of war. by an international convention on the condition that
such State obligates itself to never take up arms
NOTE: Military scouts are not spies. against any other State, except for self-defense, or
enter into such international obligations as would
Spies are not entitled to prisoner-of-war status when indirectly involve a war.
captured by the enemy. Any member of the armed
forces of a party to the conflict who falls into the Rights and Duties of a Neutral State (A-P-A-D)
power of an adverse party while engaging in
espionage shall not have the right to the status of 1. Duty of Abstention. A neutral State may abstain
prisoner of war and may be treated as a spy. from taking part in the hostilities and from giving
assistance to either belligerent.
However, the following acts of gathering or
attempting to gather information shall not be 2. Duty of Prevention. A neutral State may prevent
considered as acts of espionage: its territory and other resources from being used
in the conduct of hostilities.
1. When made by a member of the armed forces
who is in uniform; and 3. Duty of Acquiescence. A neutral State may
2. When made by a member of the armed forces acquiesce in certain restrictions and limitations
who is a resident of the territory occupied by an the belligerents may find necessary to impose.
adverse party who does so but not through an act
of false pretenses or in a deliberately clandestine 4. Right of Diplomatic Communication. A neutral
manner. State may continue diplomatic relations with
other neutral states and with the belligerents.
4. LAW ON NEUTRALITY
Obligations of Belligerents
Neutrality
The belligerents must: (a) respect the status of the
It is non-participation, directly or indirectly, in a war neutral State; (b) avoid any act that will directly or
between contending belligerents. This exists only indirectly involve it in their conflict; and (c) submit to
during war time and is governed by the law of nations. any lawful measure it may take to maintain or protect
It is dependent solely on the attitude of the neutral its neutrality.
state.
Some restraints on neutral states
e.g.: Switzerland, Sweden, The Vatican City, and Costa
Rica. 1. Blockade;
2. Contraband of war; and
Non-alignment (Neutralism) 3. Free ships make free goods.
This refers to peacetime foreign policies of nations Blockade

desiring to remain detached from conflicting interests
of other nations or power groups. It is any effort to cut off all maritime commerce
between any enemy state and the rest of the world.
Neutralist policy The purpose was not only to prevent goods from
reaching the enemy but also to prevent the enemy
311
from exporting to the outside world and thereby Doctrine of Free Ships Make Free Goods
sustaining its war economy. (Sarmiento, 2007)
A ship’s nationality determines the status of its cargo.
Elements of a Valid Blockade Thus, enemy goods on a neutral ship, excepting
contraband, would not be subject to capture on the
1. Binding and duly communicated to neutral high seas.
states;
2. Effective and maintained by adequate sources; Visit and Search
3. Established by a competent authority of
belligerent government; Belligerent warships and aircraft have the right to
4. Limited only to the territory of the enemy; and visit and search neutral merchant vessels on the high
5. Impartially applied to all states. seas to determine whether they are in any way
connected with the hostilities.
Q: Is blockade lawful in international law?
Unneutral service
A: YES, if it is made upon the order or authority of the
UN Secretary Council pursuant to Article 42 of the UN It consists of acts, of a more hostile character than
Charter, that is, a measure to maintain or restore carriage of contraband or breach of blockade, which
international peace and security. Otherwise, it will fall are undertaken by merchant vessels of a neutral State
under the UN Charter’s prohibition against the use of in aid of any of the belligerents.
force under Article 2(4).
Right of Angary
Contraband
A belligerent may, upon payment of just
It refers to goods which, although neutral property, compensation, seize, use or destroy, in case of urgent
may be seized by a belligerent because they are useful necessity for purposes of offenses or defenses, neutral
for war and are bound for a hostile destination. property found in its territory, in enemy territory, or
on high seas.
Kinds of Contraband
Requisites for the Exercise of Right of Angary
1. Absolute – those which are useful for war under
all circumstances (e.g. guns and ammunitions); 1. That the property is in the territory under the
2. Conditional – those which have both civilian and control or jurisdiction of the belligerent;
military utility (e.g. food and clothing); or 2. That there is urgent necessity for the taking; and
3. Under the free list – goods useful for war and 3. That just compensation is paid to the owner.
bound for the belligerents but those which are
exempt from the law on contraband for Termination of Neutrality
humanitarian reasons (e.g. medicines)
Neutrality is terminated when the neutral State itself
Doctrine of Continuous Voyage or Continuous joins the war or upon the conclusion of peace.
Transport
N. LAW OF THE SEA
Goods immediately reloaded at an intermediate port
on the same vessel, or reloaded on another vessel or 1. BASELINES
other forms of transportation may also be seized on
the basis of doctrine of ultimate consumption. Baseline
Doctrine of Ultimate Consumption It is a line from which the breadth of the territorial
sea, the contiguous zone and the exclusive economic
Goods intended for civilian use which may ultimately zone is measured in order to determine the maritime
find their way to and be consumed by belligerent boundary of the coastal State.
forces may be seized on the way.
It is the “low-water line along the coast as marked on
Doctrine of Infection large scale charts officially recognized by the coastal
State” (Sec. 5, 182 LOS)
Innocent goods belonging to the same owner shipped
together with contraband which are subject to Baselines may either be: (a) normal; or, (b) straight.
condemnation may be confiscated. (Declaration of
London, Art. 42)
Doctrine of Ultimate Destination
The liability of the contraband from being captured is

determined not by their ostensible but by their real
destination.

Political Law
A state constituted wholly by one or more
archipelagos and may include other islands. (UNCLOS,
Art. 46)
Archipelagic Doctrine (2016 BAR)
Art. I, Sec. 1 of the 1987 Constitution adopts the

archipelagic doctrine. It provides that the national
territory of the Philippines includes the Philippine
archipelago, with all the islands and waters embraced
therein; and the waters around, between and
connecting the islands of the archipelago, regardless
of their breadth and dimensions form part of the
internal waters of the Philippines.
It emphasizes the unity of land and waters by defining

an archipelago either as a group of islands
surrounded by waters or a body of water studded
with islands.
a. STRAIGHT ARCHIPELAGIC BASELINES
Straight Archipelagic Baselines vis-à-vis

Archipelagic State (2016 BAR)
An archipelagic State may draw straight archipelagic

baselines by joining the outermost points of the
outermost islands and drying reefs of the archipelago
provided that within such baselines are included the
main islands and an area in which the ration of the
water to the area of the land, including atolls, is
between 1 to 1 and 9 to 1. (UNCLOS, Art. 47)
Guidelines in drawing archipelagic baselines
1. The length of such baselines shall not exceed 100

nautical miles, except that up to 3 per cent of the
total number of baselines enclosing any
archipelago may exceed that length, up to a
maximum length of 125 nautical miles. [UNCLOS,
Art. 47 (2)]
2. The drawing of such baselines shall not depart to

any appreciable extent from the general
Two ways to draw baselines configuration of the archipelago. [UNCLOS, Art.
47(3)]
1. Normal Baseline
3. Such baselines shall not be drawn to and from
Is one drawn following the “low-water line along the low tide elevations. [UNCLOS, Art. 47(4)]
coast as marked on large-scale charts officially
recognized by the coastal state”. The line follows the NOTE: Unless lighthouses or similar installations
curvature of the coast and therefore would normally which are permanently above sea level have been
not consist of straight lines. built on them or where a low-tide elevation is
situated wholly or partly at distances not
2. Straight Baseline exceeding the breadth of the territorial sea from
the nearest island. (Ibid)
Instead of following the curvatures of the coast,
straight lines are drawn connecting selected points on 4. It shall not be applied in such a manner as to cut
the coast without appreciable departure from the off from the high seas or the exclusive economic
general shape of the coast. zone the territorial sea of another State. [UNCLOS,
Art. 47(5)]
2. ARCHIPELAGIC STATES
5. If a part of the archipelagic water of an
Archipelagic State archipelagic State lies between two parts of an
immediately adjacent neighboring State, existing
313
rights and all other legitimate interests which the XPN: Right of Innocent Passage may be suspended in
latter State has traditionally exercised in such some areas of its archipelagic waters. But such
waters and all rights stipulated by agreement suspension must be:
between those States shall continue and be
respected. [UNCLOS, Art. 47(6)] 1. The suspension is made without discrimination
in form or in fact among foreign ships;
NOTE: The breadth of the territorial sea, the 2. Suspension is merely temporary;
contiguous zone, the exclusive economic zone and the 3. It must specify the areas of it archipelagic waters
continental shelf are measured from the archipelagic where innocent passage shall not be allowed;
baselines drawn in accordance with Art. 47. (UNCLOS, 4. Such suspension is essential for the protection of
Art. 48) its security; and
5. Such suspension shall take effect only after
Sovereignty of the archipelagic states having been duly published. [UNCLOS, Art. 52
(2)]
It extends to the waters enclosed by the archipelagic
baselines (archipelagic waters), regardless of their Q: Does R.A. 9522 (Philippine Archipelagic
depth or distance from the coast, to the air space over Baseline Law) converting internal waters into
the archipelagic waters, as well as to their bed and archipelagic waters, violate the Constitution in
subsoil and the resources contained therein. subjecting these waters to the right of innocent
and sea lanes passage including overflight? (2004,
The sovereignty extends to the archipelagic waters 2015 BAR)
but is subject to the right of innocent passage which is
the same nature as the right of innocent passage in A: NO. Whether referred to as Philippine “internal
the territorial sea. [UNCLOS, Art. 49(1) in relation to waters” under Art. I of the Constitution or as
Art. 52(1)] “archipelagic waters” under UNCLOS III [Art. 49 (1)],
the Philippines exercises sovereignty over the body of
NOTE: The regime of archipelagic sea lanes passage water lying landward of the baselines, including the
shall not in other respects affect the status of the air space over it and the submarine areas underneath.
archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty The fact of sovereignty, however, does not preclude
over such waters and their air space, bed and subsoil the operation of municipal and international law
and the resources contained therein. [UNCLOS, Art. norms subjecting the territorial sea or archipelagic
49(4)] waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious
b. ARCHIPELAGIC WATERS international navigation, consistent with the
international law principle of freedom of navigation.
These are waters enclosed by the archipelagic
baselines, regardless of their depth or distance from Thus, domestically, the political branches of the
the coast. [UNCLOS, Art. 49(1)] Philippine government, in the competent discharge of
their constitutional powers, may pass legislation
Rights by which Archipelagic Waters are subject designating routes within the archipelagic waters to
to: regulate innocent and sea lanes passage. (Magallona v.
Ermita, G.R. No. 187167, August 16, 2011)
1. Rights under existing agreement on the part of
the third states should be respected [UNCLOS, NOTE: In the absence of municipal legislation,
Art. 51(1)]; international law norms, now codified in UNCLOS III,
operate to grant innocent passage rights over the
2. The traditional fishing rights and other legitimate territorial sea or archipelagic waters, subject to the
activities of the immediately adjacent treaty’s limitations and conditions for their exercise.
neighboring States (Ibid); and, Significantly, the right of innocent passage is a
customary international law, thus automatically
3. Existing submarine cables laid by other States incorporated in the corpus of Philippine law. No
and “passing through its waters without making a modern State can validly invoke its sovereignty to
windfall” as well as the maintenance and absolutely forbid innocent passage that is exercised in
replacement of such cables upon being notified of accordance with customary international law without
their location and the intention to repair or risking retaliatory measures from the international
replace them. [UNCLOS, Art. 51(2)] community.
Applicability of the right of innocent passage in The imposition of these passage rights through
archipelagic waters archipelagic waters under UNCLOS III was a
concession by archipelagic States, in exchange for
GR: As a rule, ships of all States enjoy the right of their right to claim all the waters landward of their
innocent passage through archipelagic waters. baselines, regardless of their depth or distance from
[UNCLOS, Art. 52(1)] the coast, as archipelagic waters subject to their
territorial sovereignty. More importantly, the

Political Law
recognition of archipelagic States’ archipelago and the The baseline in the following areas over which the
waters enclosed by their baselines as one cohesive Philippines likewise exercises sovereignty and
entity prevents the treatment of their islands as jurisdiction shall be determined as "Regime of
separate islands under UNCLOS III. Separate islands Islands" under the Republic of the Philippines
generate their own maritime zones, placing the consistent with Art. 121 of the United Nations
waters between islands separated by more than 24 Convention on the Law of the Sea (UNCLOS):
nautical miles beyond the States’ territorial
sovereignty, subjecting these waters to the rights of 1. The Kalayaan Island Group as constituted under
other States under UNCLOS III. (Magallona v. Ermita, Presidential Decree No. 1596; and
ibid.) 2. Bajo de Masinloc, also known as Scarborough
Shoal. (R.A. No. 9522, Sec. 2)
c. ARCHIPELAGIC SEA LANES PASSAGE
3. INTERNAL WATERS
All ships are entitled to the right of archipelagic sea
lanes passage. Submarines are not required to surface Internal waters
in the course of its passage unlike the exercise of right
of innocent passage in the territorial sea. [UNCLOS, These are waters of lakes, rivers and bays landward of
Art. 20 in relation to Art. 53(3)] the baseline of the territorial sea. Waters on the
landward side of the baseline of the territorial sea also
The right is the same as Transit Passage. Both define form part of the internal waters of the coastal state.
the rights of navigation and overflight in the normal However, in the case of archipelagic states, waters
mode solely for the purpose of “continuous, landward of the baseline other than those of rivers,
expeditious and unobstructed transit.” In both cases, bays, and lakes, are archipelagic waters. [UNCLOS, Art.
the archipelagic state cannot suspend passage. 8 (1)]
(UNCLOS, Arts. 44 and 54)
Delimitation of internal waters
NOTE: The right of archipelagic sea lanes passage
may be exercised through the routes normally used Within the archipelagic waters, the archipelagic state
for international navigation. [UNCLOS, Art. 53(12)] may draw closing lines for the delimitation of internal
waters. (UNCLOS, Art. 50 in relation with Arts. 9, 10,
d. REGIME OF ISLANDS 11)
1. An island is a naturally formed area of land, NOTE: A coastal state has sovereignty over its
surrounded by water, which is above water at internal waters as if internal waters were part of its
high tide; land territory. (UNCLOS, Art. 50)
2. Except as provided for in paragraph 3, the
territorial sea, the contiguous zone and the 4. TERRITORIAL SEA
continental shelf of an island are determined in
accordance with the provisions of the Convention Breadth of the Territorial Sea (2004, 2015 BAR)
applicable to other land territory; and
3. Rocks which cannot sustain human habitation or Every State has the right to establish the breadth of
economic life of their own shall have no exclusive the territorial sea up to a limit not exceeding 12
economic zone or continental shelf. (UNCLOS, Art. nautical miles, measured from baselines. (UNCLOS,
121) Art. 3)
NOTE: Islands can be very important because of the Outer Limit of the Territorial Sea
possibility of exploiting oil and gas resources around
them. This explains the controversy over Spratleys. It It is the line every point of which is at a distance from
is noteworthy that islands can have their own the nearest point of the baseline equal to the breadth
territorial sea, exclusive economic zone and of the territorial sea. (UNCLOS, Art. 4)
continental shelf. However, rocks “which cannot
sustain human habitation or economic life” only have Territorial sea vs. Internal waters of the
a territorial sea. But there is no clear international law Philippines
definition of “economic life” referred to in no. 3.
(Bernas, Introduction to Public International Law 2009, TERRITORIAL SEA INTERNAL WATERS
p. 129) Defined by historic right Defined by the
or treaty limits archipelagic doctrine
Artificial islands or installations are not “islands” in As defined in the Outermost points of our
the sense of Art. 121 of the UNCLOS. However, coastal Convention on the Law archipelago which are
states may establish safety zones around artificial of the Sea, has a uniform connected with
islands and prescribe safety measures around them. breadth of 12 miles baselines and all waters
[Ibid, citing UNCLOS, Art. 60(4) and (5)] measured from the lower comprised therein
water mark of the coast
Regime of Islands under Philippine Laws
315
Methods used in defining territorial sea Right of innocent passage is considered
prejudicial if the foreign ship engages in the
1. Normal baseline method – The territorial sea is following activities: (UWI PA MiCo PoFiRIO)
simply drawn from the low-water mark of the
coast, to the breadth claimed, following its 1. Any threat or use of force against the
sinuousness and curvatures but excluding the sovereignty, territorial integrity or political
internal waters in the bays and gulfs (UNCLOS, independence of the coastal State, or in any other
Art. 5); and, manner in violation of the principles of
international law embodied in the Charter of the
2. Straight baseline method – Where the coastline is United Nations;
deeply indented and cut into, or if there is a 2. Any exercise or practice with weapons of any
fringe of islands along the coast in its immediate kind;
vicinity, the method of straight baselines joining 3. Any act aimed at collecting information to the
appropriate points may be employed in drawing prejudice of the defense or security of the coastal
the baseline from which the breadth of the State;
territorial sea is measured. (UNCLOS, Art. 7) 4. Any act of propaganda aimed at affecting the
defense or security of the coastal State;
NOTE: The Philippines uses this method in 5. The launching, landing or taking on board of any
drawing baselines. aircraft;
6. The launching, landing or taking on board of any
Sovereignty over the territorial sea (2015 BAR) military device;
7. The loading or unloading of any commodity,
Coastal states exercise sovereignty over Territorial currency or person contrary to the customs,
Sea and it extends to the airspace over the territorial fiscal, immigration or sanitary laws and
sea and to its seabed and subsoil. regulations of the coastal State;
8. Any act of willful and serious pollution contrary
NOTE: The sovereignty over the territorial sea is the Convention;
subject to the right of innocent passage on the part of 9. Any fishing activities;
ships of all states. (Magallona, 2005) 10. The carrying out of research or survey activities;
11. Any act aimed at interfering with any systems of
Right of Innocent Passage (1991 BAR) communication or any other facilities or
installations of the coastal State; or
It means navigation through the territorial sea of a 12. Any other activity not having a direct bearing on
State for the purpose of traversing the sea without passage. (UNCLOS, Art. 19 [2])
entering internal waters, or of proceeding to internal
waters, or making for the high seas from internal Laws and regulations of the coastal State relating
waters, as long as it is not prejudicial to the peace, to innocent passage
good order or security of the coastal State. [UNCLOS,
Arts. 18 (1)(2), 19(1)] The coastal state may adopt laws and regulations in
respect of all or any of the following:
NOTE: The right of innocent passage only applies to
foreign vessels. Aircraft in flight are not entitled to 1. Safety of navigation and the regulation of
innocent passage and thus aircraft must remain maritime traffic;
onboard vessels during innocent passage. 2. Protection of navigational aids and facilities and
other facilities or installations;
Applicability of the right of innocent passage in 3. Protection of cables and pipelines;
the internal waters and territorial sea 4. Conservation of the living resources of the sea;
5. Prevention of infringement of the fisheries laws
In the territorial sea, a foreign State can claim for its and regulations of the coastal State;
ships the right of innocent passage, whereas in the 6. Preservation of the environment of the coastal
internal waters of a State no such right exists. State and the prevention, reduction and control
of pollution thereof;
NOTE: A coastal state may extend its internal waters 7. Marine Scientific research and hydrographic
by applying the straight baseline method in such a surveys; or
way as to enclose as its internal waters areas which 8. Prevention of infringement of the customs, fiscal,
are previously part of the territorial sea. It also immigration or sanitary laws and regulations of
applies to straits used for international navigation the coastal State. [UNCLOS, Art. 21(1)]
converted into internal waters by applying the
straight baselines method. Thus, the right of innocent NOTE: It shall not however, apply to the design,
passage continues to exist in the “extended” internal construction, manning or equipment of foreign ships
waters. [UNCLOS, Art. 8(2)] unless they are giving effect to generally accepted
international rules or standards. [UNCLOS, Art. 21(2)]
Instances when the right of innocent passage is
considered prejudicial Rules when traversing the territorial sea through
the right of innocent passage

Political Law
1. Submarines and other underwater vehicles – They Rights of the coastal state relating to innocent
are required to navigate on the surface and to passage through the territorial sea: (PaBS)
show their flag (UNCLOS, Art. 20);
The coastal State may:
2. Foreign nuclear-powered ships and ships carrying
nuclear or other inherently dangerous or noxious 1. Take the necessary steps in its territorial sea to
substances – They must carry documents and prevent passage which is not innocent [UNCLOS,
observe special precautionary measures Art. 25(1)];
established for such ships by international 2. Take the necessary steps to prevent any breach
agreements. They may be required to confine of the conditions to which admission of ships to
their passage on sea lanes prescribed by the internal waters or such a call is subject [UNCLOS,
coastal State (UNCLOS, Art. 23); Art. 25(2)];
3. Without discrimination in form or in fact among
3. Warships – foreign ships, suspend temporarily in specified
a. Coastal State may require that it leave the areas of its territorial sea the innocent passage of
territorial sea immediately when it does not foreign ships if such suspension is essential for
comply with the laws and regulations of the the protection of its security, including weapon
coastal State and disregards compliance exercises. [UNCLOS, Art. 25(3)]
(UNCLOS, Art. 30);
b. Flag State shall bear international NOTE: No charge may be levied upon foreign ships by
responsibility for any loss or damage to the reason only of their passage through the territorial
coastal State resulting from non-compliance sea. [UNCLOS, Art. 26(1)]
with the laws and regulations of the coastal
State concerning passage (UNCLOS, Art. 31); Charges may be levied only as payment for specific
and services rendered to the ship which shall be levied
c. Submarines in innocent passage are without discrimination. [UNCLOS, Art. 26(2)]
required to navigate on the surface and to
show their flag. (UNCLOS, Art. 20) Right of the coastal state to suspend innocent
passage in specified areas
NOTE: This will not affect the immunities of
warships and other government ships operated The coastal state may, without discrimination in form
for non-commercial purpose. (UNCLOS, Art. 32) or in fact among foreign ships, suspend temporarily in
specified areas of its territorial sea the innocent
Warship passage of foreign ships if such suspension is essential
for the protection of its security, including weapons
It is a ship belonging to the armed forces of a State exercises. Such suspension shall take effect only after
bearing the external marks distinguishing such ships having been duly published. [UNCLOS, Art. 25(3), Part
of its nationality, under the command of an officer II Territorial Sea and Contiguous Zone]
duly commissioned by the government of the State
and whose name appears in the appropriate service Exercise of criminal jurisdiction of the coastal
list or its equivalent, and manned by a crew which is state
under regular armed forces discipline. (UNCLOS, Art.
29) GR: Criminal jurisdiction of the coastal state should
not be exercised on board a foreign ship passing
NOTE: The right of innocent passage pertains to all through the territorial sea to arrest any person or to
ships, including warships. conduct any investigation in connection with any
crime committed on board the ship during its passage.
Duties of the coastal State with regard to innocent
passage of foreign ships (HIDA) XPNs:
The coastal State shall: 1. Consequence of the crime extend to the coastal
state;
1. Not hamper the innocent passage of the foreign 2. Crime is of a kind to disturb the peace of the
ships through its territorial sea; country or the good order of the territorial sea
2. Not impose requirements on foreign ships which 3. Assistance of local authorities has been
have the practical effect of denying or impairing requested by the master of the ship or by a
the right of innocent passage; diplomatic agent or consular officer of the flag
3. Not discriminate in form or in fact against the State; or
ships of any State or against ships carrying 4. Measures are necessary for the suppression of
cargoes to, from or on behalf of any State; and illicit traffic in narcotic drugs or psychotropic
4. Give appropriate publicity to any danger to substances. [UNCLOS, Art. 27(1)]
navigation, of which it has knowledge, within its
territorial sea. (UNCLOS, Art. 24) NOTE: Such does not affect the right of the coastal
state to take any steps authorized by its laws for the
purpose of an arrest or investigation on board a
317
foreign ship passing through the territorial sea after It is the right to exercise freedom of navigation and
leaving internal waters. [UNCLOS, Art. 27(2)] overflight solely for the purpose of continuous and
expeditious transit through the straits used for
Exercise of civil jurisdiction over foreign ships international navigation, i.e., between two areas of the
passing through the territorial sea of the coastal high seas or between two exclusive economic zones.
state
The requirement of continuous and expeditious
The coastal state may exercise civil jurisdiction, transit does not preclude passage through the strait
subject to the following exceptions: for the purpose of entering, leaving or returning from
a State bordering the strait, subject to the conditions
1. It should not stop or divert a foreign ship passing of entry to that State. [UNCLOS, Art. 38(2)]
through the territorial sea for the purpose of
exercising civil jurisdiction in relation to a person NOTE: The right of transit passage is not applicable if
on board the ship [UNCLOS, Art. 28(1)] there exists seaward of the island a route through the
2. It may not levy execution against or arrest the high seas or through an exclusive economic zone of
ship for the purpose of any civil proceedings, similar convenience with respect to navigational and
save only in respect of obligations or liabilities hydrographical characteristics. [UNCLOS, Art. 38(1)]
assumed or incurred by the ship itself in the
course or for the purpose of its voyage through Vessels entitled to right of transit passage
the waters of the coastal State [UNCLOS, Art.
28(2)] All ships and aircraft enjoy the right of transit
passage.
NOTE: It is without prejudice to the right of the
coastal State, in accordance with its laws, to levy Right of innocent passage vs. Transit passage
execution against or to arrest, for the purpose of
any civil proceedings, a foreign ship lying in the INNOCENT TRANSIT
BASIS
territorial sea, or passing through the territorial PASSAGE PASSAGE
sea after leaving internal waters. [UNCLOS, Art.
28(3)] Covers navigation Covers
As to scope only. navigation and
5. CONTIGUOUS ZONE overflight by
aircrafts.
It is the zone adjacent to the territorial sea, which the Requires No requirement
coastal State may exercise such control as is necessary submarine and specially
to: other underwater applicable to
As to
vehicles to submarines.
1. Prevent infringement of its customs, fiscal, submarines
navigate on the
immigration, or sanitary laws within its territory surface and to
or its territorial sea; or show their flag.
2. Punish such infringement. May be May not be
As to
unilaterally unilaterally
It is the area of water not exceeding 24 nautical miles suspension
suspended suspended
from the baseline. It thus extends 12 nautical miles In the designation Designation of
from the edge of the territorial sea. [UNCLOS, Art. 33 of sea lanes and sea lanes and
(1)(2)] traffic separation traffic
schemes, the separation
Contiguous zone does not automatically belong to coastal State shall schemes is
the territory of the coastal state only take into subject to a
account the proposal and
The coastal state must make a claim to its Contiguous As to
recommendations agreement
Zone for pertinent rights to exist. Art. 33 of the designation
of a competent between States
UNCLOS speaks in permissive terms, i.e., “the coastal of sea lanes
international bordering the
state may exercise the control necessary” for definite organization. straits and its
purposes. (Magallona, 2005) subsequent
adoption by a
Extent of the Contiguous Zone competent
international
The coastal State may not extend its Contiguous Zone organization.
beyond the 24 nautical miles from the baseline (from
which the breadth of the territorial sea is measured). Thalweg Doctrine
[UNCLOS, Art. 33 (2)]
It provides that for boundary rivers, in the absence of
Right of transit passage an agreement between the riparian States, the
boundary line is laid in the middle of the main
navigable channel. The boundary between two states

Political Law
divided by a flowing body of water should be drawn Primary obligations of coastal states over the EEZ
along the thalweg, which is the deepest potion of the
channel. 1. Proper conservation and management measures
that the living resources of the EEZ are not
6. EXCLUSIVE ECONOMIC ZONE subjected to over-exploitation; and,
It gives the coastal State sovereign rights overall NOTE: The UNCLOS does not set a limit, except
economic resources of the sea, sea-bed and subsoil in by the duty of the coastal state not to overexploit.
an area extending not more than 200 nautical miles (Magallona, 2005)
beyond the baseline from which the territorial sea is
measured. (UNCLOS, Articles 55 & 57) 2. Promote the objective of “optimum utilization” of
the living resources, and to this end, to determine
NOTE: The provisions on the exclusive economic zone the maximum allowable catch of such resources
are both a grant of right to and imposition of in relation to its capacity to harvest the allowable
obligations on coastal states relative to the catch. [UNCLOS, Art. 61(2), 62(1)]
exploitation, management, and preservation of the
resources found within the zone. Objectives of conservation of living resources in
the EEZ
Rights of the coastal state in the EEZ (2004, 2005
BAR) 1. The determination of the allowable catch of the
living resources;
1. Sovereign rights; 2. The maintenance of the living resources in such a
a. For the purpose of exploring and exploiting, way that they are not endangered by over-
conserving and managing the living and non- exploitation
living resources in the super adjacent waters 3. The maintenance or restoration of population of
of the sea-bed and the resources of the sea- harvested species at levels which can produce the
bed and subsoil; and maximum sustainable yield; and (UNCLOS, Art.
b. With respect to the other activities for the 61); and
economic exploitation and exploration of the 4. The maintenance of associated or dependent
EEZ, such as production of energy from species above levels at which their reproduction
water, currents and winds; may become seriously threatened. (UNCLOS, Art.
61)
2. Jurisdictional rights; and
NOTE: The coastal state must determine its capacity
a. With respect to establishment and use of to harvest the living resources of the EEZ. If it does
artificial islands; not have capacity to harvest the allowable catch, it
b. As to protection and preservation of the shall give other states access to the surplus of the
marine environment; and allowable catch by means of agreements or
c. Over marine scientific research arrangements consistent with the UNCLOS. For this
purpose the coastal state may establish terms and
3. Other rights and duties provided for in the Law of conditions by laws and regulations. (UNCLOS, Art. 62)
the Sea Convention. (UNCLOS, Art. 56)
If the coastal state sets the allowable catch at the same
NOTE: The coastal State has no sovereignty over the level as its harvesting capacity, then no surplus is left.
EEZ. What the coastal State only has are sovereign The result is that the access by other states to surplus
rights, jurisdictional rights, and other rights under the stocks may prove to be illusory. (Magallona, 2005)
Law of the Sea Convention.
Matters that the coastal state may regulate in
The coastal state may inspect and arrest ship’s regard to fishing by the nationals of other states in
crew in its EEZ the EEZ
The coastal State may board, and inspect a ship, arrest 1. Licensing of fishermen, fishing vessels and
a ship and its crew and institute judicial proceedings equipment, and the payment of fishing;
against them. Arrested vessels and their crews may be 2. Determining the species which may be caught
required to post reasonable bond or any other form of and fixing the quotas to catch;
security. However, they must be promptly released 3. Regulation of seasons and areas of fishing, the
upon posting of bond. types, sizes and amount of gear and fishing
vessels that may be used;
In the absence of agreement to the contrary by the 4. Fixing the age and size of fish that may be caught;
States concerned, UNCLOS does not allow 5. Information required of fishing vessels, including
imprisonment or any other form of corporal catch and effort statistics and vessel position
punishment. However, in cases of arrest and reports;
detention of foreign vessels, it shall promptly notify 6. The conduct of fisheries research programs;
the flag state of the action taken. 7. The placing of observers and trainees by the
coastal state on board foreign vessels;
319
8. The landing of the catch by foreign vessels in the Geological continental shelf
ports of the coastal state;
9. The terms and conditions of joint ventures or It comprises the entire prolongation of the coastal
cooperative arrangements; state’s land mass and extends up to the outer edge of
10. Training of personnel and transfer of fisheries the continental margin.
technology; and,
11. Enforcement procedures. It starts from the baseline from which the territorial
sea is measured and has its outer limit at the outer
NOTE: The nationals of other states granted access to edge of the continental margin which may extend
the EEZ must comply with conservation measures and beyond the 200 nautical miles from the baseline or
other conditions provided in these laws and may fall short of that distance.
regulations. (UNCLOS, Art. 62)
Continental shelf (Juridical/Legal Continental
Contiguous zone vs. EEZ (2004 BAR) Shelf)
CONTIGUOUS ZONE EEZ It comprises the sea-bed and subsoil of the submarine
Known as the protective Ends at the 200th areas that extend beyond its territorial sea
jurisdiction and starts nautical mile from the throughout the natural prolongation of its land
from the 12th nautical mile baseline. territory to the outer edge of the continental margin
from low water from the or to a distance of 200 nautical miles beyond the
baseline. baselines from which the breadth of the territorial sea
is measured if the edge of the continental margin does
Coastal state may exercise No state really has the not extend up to that distance. [UNCLOS, Art. 76(1)]
the control necessary to exclusive ownership of
(1) prevent infringement it, but the state which NOTE: The rights of the coastal state over the
of its customs, fiscal, has a valid claim on it continental shelf do not depend on occupation,
immigration, or sanitary according to the effective or notional, or on any express proclamation.
laws within its territory UNCLOS has the right [UNCLOS, Art. 77(3)]
or its territorial sea or (2) to explore and exploit
punish such infringement. its natural resources. The UNCLOS unifies the continental and the extended
continental shelves into one by providing that the
7. CONTINENTAL SHELF continental shelf extends to the breadth of either
shelf, whichever is the farthest. [UNCLOS, Art.
Otherwise known as archipelagic or insular shelf for 76(1)(4)]
archipelagos, refers to a) the seabed and subsoil of the
submarine areas adjacent to the meters or, beyond Continental margin
that limit, to where the depth allows exploitation, and
b) the seabed and subsoil of areas adjacent to islands. It is the submerged prolongations of the land mass of
the coastal state, consisting of the continental shelf
Categories of Continental shelf proper, the continental slope and the continental rise.
It does not include the deep ocean floor with its ocean
1. Continental shelf; and ridges or the subsoil. [UNCLOS, Art. 76(3)]
a. Geological continental shelf; and
b. Juridical/Legal Continental Shelf NOTE: The coastal State shall establish the outer edge
2. Extended Continental Shelf. of the continental margin wherever the margin
extends beyond the 200 nautical miles from the
baselines. In establishing the Continental Margin it
shall either use:
1. A line drawn by reference to points no more than

60 nautical miles from the foot of the continental
slope; or
2. A line drawn by reference to points at which the
thickness of sediments is less than one percent of
the distance to the base of the continental slope.
[UNCLOS, Art. 76(4)]
Permissible breadth of the continental shelf
Under the said UN Convention, it extends to a distance

not extending 200 nautical miles from the baselines.
However, if the coastal State succeeds in its
application for an extended continental shelf, it may
extend to not more than 350 nautical miles. [UNCLOS,
Art. 76(1)(5)]

Political Law
NOTE: Under Presidential Proclamation 370, the 3. To lay submarine cables and pipelines;
continental shelf has no such legal limit. It extends 4. To construct artificial islands and other
outside the area of the territorial sea “to where the installations permitted under international law;
depth of the superjacent waters admits of the 5. Fishing; and
exploitation of such natural resources.” In this case, 6. Scientific research. (UNCLOS, Art. 87[1] in relation
exploitation of resources may go beyond the 200 to Art. 90)
nautical miles.
NOTE: This is open to all States and shall be exercised
Extended Continental Shelf with due regard for the interests of other States in
their exercise of the freedom of the high seas.
It is that portion of the continental shelf that lies [UNCLOS, Art. 87(2)]
beyond the 200 nautical miles limit in the
juridical/legal continental Shelf. (Ibid) Flag State
Benham Plateau It refers to the State whose nationality the ship

possesses; for it is nationality which gives the right to
It is also known as the Benham Rise. The Philippines fly a country’s flag. In the high seas, a state has
lodged its claim on the area with the United Nations exclusive jurisdiction over ships sailing under its flag.
Commission on the Limits of the Continental Shelf on It is required however, that there exists a genuine link
April 8, 2009. The UNCLOS approved the claim of the between the State and the ship. [UNCLOS, Arts. 91(1),
Philippines that the Benham Plateau is part of 92(2)]
Philippine Territory on April 12, 2012.
Applicable laws to vessels sailing on the high seas
Limitation on the rights of coastal state over the
continental shelf GR: Vessels sailing on the high seas are subject only to
international law and to the laws of the flag State.
Rights of the coastal State over the continental shelf
do not affect the legal status of the superjacent waters XPN: However, the arrest or boarding of a vessel
or of the air space above those waters and such sailing in the high seas may be made by a State, other
exercise of right must not infringe or result in than the flag-State of such vessel, in the following
unjustifiable interference with navigation and other instances:
rights and freedoms of other States. [UNCLOS, Art.
78(1)(2)] 1. A foreign merchant ship by the coastal State in its
internal waters, the territorial sea and the
Island contiguous zones for any violation of its laws;
2. A foreign merchant ship for piracy;
It is a naturally formed area of land, surrounded by 3. Any ship engaged in the slave trade;
water, which is above water at high tide. 4. Any ship engaged in unauthorized broadcasting;
or
NOTE: It can have its own territorial sea, exclusive 5. A ship without nationality or flying a false flag or
economic zone and continental shelf. refusing to show its flag.
The continental shelf of an island is recognized. Flag of Convenience (2004 BAR)

However, rocks which cannot sustain human
habitation or economic life shall have no continental It is a national flag flown by a ship not because the
shelf or EEZ. ship or its crew has an affiliation with the nation, but
because the lax controls and modest fees and taxes
High or Open seas imposed by that nation have attracted the owner to
register it there.
The waters, which do not constitute the internal
waters, archipelagic waters, territorial sea and Jurisdiction over crimes committed on board a
exclusive economic zone of a state. They are beyond foreign private vessel anchored in a coastal state
the jurisdiction and sovereign rights of states.
(UNCLOS, Art. 86) Under both the English and French rules, a crime will
be tried by a local state, if serious enough as to
It is treated as res communes or res nullius, and thus, compromise the peace of its port; otherwise by the
are not part of the territory of a particular State. flag state, if it involves only the members of the crew
(UNCLOS, Art. 89) and is of such a petty nature as not to disturb the
peace of the local state.
Freedoms on the high seas
In the French rule, it recognizes the jurisdiction of the
These are the freedom of: (NOLAFS) flag state over crimes committed on board the vessel
except if the crime disturbs the peace, order and
1. Navigation; security of the host country. In English rule, the host
2. Overflight; country has jurisdiction over the crimes committed on
321
board the vessel unless they involve the internal
management of the vessel.
Instances when a State may exercise jurisdiction

on open seas
1. Slave trade;
2. Hot pursuit;
3. Right of approach; and
4. Piracy.
Doctrine of Hot Pursuit
It provides that the pursuit of a vessel maybe

undertaken by the coastal State which has “good
reason to believe that the ship has violated the laws
and regulations of that State.”
The pursuit must start when the foreign vessel is

within the internal waters, the archipelagic waters,
the territorial waters or the contiguous zone of the
pursuing state. It may be carried out only by warships
or military aircraft, or any other ship or aircraft
properly marked for that purpose.
Elements of the Doctrine of Hot Pursuit
1. The pursuit must be commenced when the ship is

within the internal waters, territorial sea or the
contiguous zone of the pursuing State, and may
only be continued outside if the pursuit has not
been interrupted;
2. It is continuous and unabated; and.
3. Pursuit conducted by a warship, military aircraft,

or government ships authorized to that effect.
(UNCLOS, Art. 111)
Arrival under Stress
It refers to involuntary entrance of a foreign vessel on

another state’s territory which may be due to lack of
provisions, unseaworthiness of the vessel, inclement
weather, or other case of force majeure, such as
pursuit.

Political Law
EXTENT and DEFINITION RIGHTS and POWERS OF STATES

These are waters enclosed by the 1. Rights under existing agreement on the part of the third
archipelagic baselines, regardless states should be respected.
of their depth or distance from the
coast. 2. The traditional fishing rights and other legitimate activities
of the immediately adjacent neighboring States.
Internal All waters (part of the sea, rivers,
Waters lakes, etc.) landwards from the 3. Existing submarine cables laid by other States and “passing
baseline of the territory. through its waters without making a windfall” as well as the
Sovereignty over these waters is maintenance and replacement of such cables upon being
the same extent as sovereignty over notified of their location and the intention to repair or
land, and it is not subject to the replace them.
rights of innocent passage.
Territorial Seas are defined by

Territorial historic right or treaty limits. Coastal states exercise sovereignty over Territorial sea and it
Sea As defined in the Convention on the extends to the airspace over the territorial sea and to its seabed
Law of the Sea, it has a uniform and subsoil.
breadth of 12 miles measured
from the lower water mark of the
coast.
It is the zone adjacent to the The coastal state does not have sovereignty over the contiguous
Contiguous territorial sea. The contiguous zone zone because the contiguous zone is a zone of jurisdiction for a
Zone may not extend more than 24 particular purpose, not of sovereignty.
nautical miles beyond the
baseline from which the breadth State may exercise control as is necessary to:
of the territorial sea is measured
12 nautical miles from the 1. Prevent infringement of its customs, fiscal, immigration,
territorial sea. or sanitary laws within its territory or its territorial sea
or
2. Punish such infringement.
It gives the coastal State sovereign States may exercise; (S-J-O)

rights overall economic resources
Exclusive of the sea, sea-bed and subsoil in an 1. Sovereign rights;
Economic area extending not more than 2. Jurisdictional rights; and
Zone 200 nautical miles beyond the 3. Other rights and duties provided for in the Law of the
baseline from which the territorial Sea Convention.
sea is measured.
(Please see discussion on rights of the coastal state in the EEZ, p.
50)
High Seas They are all parts of the sea that are They are beyond the jurisdiction and sovereign rights of state.
not included in the territorial sea or
in the internal waters of a state. It is treated as res communes or res nullius, and thus, are not part
(Article 1, Geneva Convention) of the territory of a particular State.
323
8. INTERNATIONAL TRIBUNAL FOR THE LAW OF 4. No member of the Tribunal may act as agent,
THE SEA counsel or advocate in any case [UNCLOS, Annex
VI, Statute of ITLoS, Art. 7(2)];
International Tribunal for the Law of the Sea
(ITLoS) 5. No member of the Tribunal may participate in the
decision of any case in which he has previously
It is an independent judicial body established by the taken part as agent, counsel or advocate for one
Third United Nations Convention on the Law of the of the parties, or as a member of a national or
Sea that adjudicates disputes arising out of the international court or tribunal, or in any other
interpretation and application of the Convention. It capacity [UNCLOS, Annex VI, Statute of ITLoS, Art.
was established after Ambassador Arvido Pardo Malta 8(1)]; and,
addressed the General Assembly of the United Nations
and called for “an effective international regime over 6. If for some special reason a member of the
the seabed and ocean floor beyond a clearly defined Tribunal should not sit in a particular case:
national jurisdiction”. Its seat is in Hamburg, a. Member should inform the President of the
Germany. Tribunal [UNCLOS, Annex VI, Statute of ITLoS,
Art. 8(2)]; or
Part XV of the 1982 UN Convention on the Law of the b. President should give the member notice
Sea requires States to settle peacefully any dispute accordingly. [UNCLOS, Annex VI, Statute of
concerning the Convention. Failing a bilateral ITLoS, Art. 8(3)]
settlement, it provides that any dispute shall be
submitted for compulsory settlement to one of the NOTE: Any doubt shall be resolved by decision of the
tribunals having jurisdiction. (UNCLOS, Art. 286) majority of other members of the Tribunal present.
These include the ITLos, the International Court of (UNCLOS Annex VII, Arbitration, Art. 7, 8)
Justice (ICJ), and arbitral or special arbitral tribunals
constituted under the UNCLOS. Members enjoy diplomatic privileges and immunities.
(UNCLOS Annex VII, Arbitration, Art. 10)
The ITLoS is composed of 21 independent members
elected by the States partied to the UNCLOS from The West Philippine Sea Case
among persons with recognized competence in the
field of the law of the sea and representing the Arguments of the Republic of the Philippines (RP):
principal legal systems of the world.
1. Declarations that the Philippines’ and China’s
Jurisdiction of the tribunal respective rights and obligations in regard to the
waters, seabed, and maritime features of the
Its jurisdiction comprises all disputes and all South china Sea are governed by the UNCLOS;
applications submitted to it and all matters and that China’s claims based on “historic rights”
specifically provided for in any other agreement encompassed within its so-called “Nine-dash
which confers jurisdiction to the Tribunal. Line” are inconsistent with the UNCLOS and
therefore invalid;
Rules with regard to membership in the Tribunal 2. Determinations as to whether, under the
UNCLOS, certain maritime features claimed by
1. No two members of the Tribunal may be both states are properly characterized as islands,
nationals of the same State [UNCLOS, Annex VI, rocks, low tide elevations, or submerged banks.
Statute of ITLoS, Art. 3(1)]; The Philippines claims in particular that
Scarborough Shoal and eight of such features in
NOTE: The person shall be deemed to be a the Spratlys are low-tide elevations or
national of the one in which he ordinarily submerged banks that merely generate a
exercises civil and political rights. (Ibid) territorial sea (TS), not an exclusive economic
zone (EEZ) or continental shelf (CS); and
2. There should be no fewer than three members
3. Declarations that China has violated the UNCLOS
from each geographical group to be established
by interfering with the Philippines’ sovereign
by the UN General Assembly [UNCLOS, Annex VI,
Statute of ITLoS, Art. 3(2)]; rights and freedoms, through construction and
fishing activities that have harmed the marine
environment.
3. No member of the Tribunal may exercise any
political or administrative function, or associate
actively with or be financially interested in any of Arguments of the People’s Republic of China
the operations of any enterprise concerned with (PRC):
the exploration for or exploitation of the
resources of the sea or the seabed or other China contested the Tribunal’s jurisdiction on the
commercial use of the sea or the seabed [UNCLOS, following grounds:
Annex VI, Statute of ITLoS, Art. 7(1)];

Political Law
1. That the essence of the subject-matter of the Tribunal’s Decision on the Merits of the
arbitration is the territorial sovereignty over Philippines’ Claim
several maritime features in the South China Sea
(SCS), which is beyond the scope of the 1. The ‘nine-dash line’ and China’s claim to historic
Convention, and does not concern the rights in the maritime areas of the South China Sea
interpretation or application of the Convention;
2. That the two countries have agreed, through Whether China has historic rights to resources in the
bilateral instruments and the Declaration on the South China Sea beyond the limits of the maritime
Conduct of Parties in the SCS, to settle their zones that it is entitled to pursuant to the Convention
relevant disputes through negotiations. Thus, the
Philippines’ resort to arbitration is a breach of its  Based on the history of the Convention and its
obligations under international law; and provisions concerning maritime zones, the
Convention was intended to comprehensively
3. Even assuming, arguendo, that the subject-matter
allocate the rights of States to maritime areas.
of the arbitration were concerned with the
interpretation or application of the Convention,  The question of pre-existing rights to resources
that subject-matter would constitute an integral was considered during the negotiations on the
part of maritime delimitation, which is covered creation of exclusive economic zone and a
by China’s 2006 declaration excluding maritime number of States wished to preserve historic
delimitation from its acceptance of compulsory fishing rights in the new zone: this position was
dispute settlement procedures under the rejected; the final text of the Convention gives
UNCLOS. other States only a limited right of access to
fisheries in the exclusive economic zone and no
rights to petroleum or mineral resources.
Award on Jurisdiction and Admissibility
 China’s claim to historic rights to resources was
The Tribunal found that the submissions of the incompatible with the detailed allocation of
Philippines did not per se involve disputes concerning rights and maritime zones in the Convention: that
sovereignty or maritime boundary delimitation, China had historic rights to resources in South
which are among the issues that may be excluded by China Sea waters, such rights were extinguished
States from the subject-matter jurisdiction of when the Convention entered into force to the
compulsory dispute settlement procedures entailing extent that they were incompatible with the
binding decisions under the UNCLOS. However, this Convention’s system of maritime zones.
exclusion of the issue of sovereignty or maritime
boundary delimitation is premised on the Philippines’ Whether China actually had historic rights to resources
position that the features claimed by China belong to in the South China Sea prior to the entry into force of
the Philippines; are low-tide elevations or rocks only the Convention
that do not generate either a Territorial Sea (TS), EEZ,
or a Continental Shelf (CS), or EEZ or a CS only; and • Prior to the Convention, the waters of the South
that as such, in the case that any/some/all of these China Sea beyond the territorial sea were legally
features are found to belong to China, the maritime considered part of the high seas where vessels
entitlements they will generate, if at all, will not from any State can fish and navigate.
overlap with the Philippines’ own maritime • Historical navigation and fishing by China in the
entitlements.
waters of the South China Sea were an exercise of
high sea freedoms rather than a historic right;
The above reasoning will also determine whether there is no evidence that China had historically
China acted unlawfully with respect to the enjoyment exercised exclusive control over the waters of the
of the Philippines of its rights, and the obligation to
South China Sea or prevented other States from
protect and preserve the marine environment, within exploiting their resources.
the disputed areas. The Tribunal also acknowledged
that other findings on the merits may preclude its • Between the Philippines and China, there was no
jurisdiction, where fishing and fisheries related law legal basis for China to claim historic rights to
enforcement, and military activities, may be in issue. resources, in excess of the rights provided by the
With respect to the Scarborough Shoal, however, the Convention, within the sea areas falling within
Tribunal found that the exceptions under Art. 297 and the ‘nine-dash line’.
298 cannot oust it of jurisdiction, given that the
activities complained of involve traditional fishing 2. The status of features in the South China Sea
rights and other events occurring in the territorial sea,
a maritime area over which the said provisions have Whether certain coral reefs claimed by China are or are
no application. not above water at high tide
Finally, the Tribunal asked the Philippines to clarify • Arts. 13 and 121: features that are above water at
the content and narrow the scope of its last high tide generate an entitlement to at least a 12-
submission, requesting a declaration that “China shall nautical mile territorial sea; features that are
desist from further unlawful claims and activities.” submerged at high tide generate no entitlement
to maritime zones.
325
• Many of the reefs in the South China Sea have • The Convention does not provide for a group of
been heavily modified by recent land reclamation islands (such as the Spratly Islands) to generate
and construction; the Convention classifies maritime zones collectively as a unit
features on the basis of their natural condition.
• Evaluation of features based on the assistance of 3. Chinese activities in the South China Sea Lawfulness
an expert hydrographer and archival materials of various Chinese actions in the South China Sea
and historical hydrographic surveys. under the Convention
- Scarborough Shoal, Johnson Reef, Cuarteron
Reef, and Fiery Cross Reef are high-tide • Because Mischief Reef, Second Thomas Shoal and
features, and Reed Bank are submerged at high tide and are
not overlapped by any possible entitlement of
- Subi Reef, Hughes Reef, Mischief Reef, and
China, they from part of the exclusive economic
Second Thomas Shoal were submerged at zone and continental shelf of the Philippines; the
high tide in their natural condition Convention is clear in allocating sovereign rights
- But Gaven Reef (North) and McKennan Reef to the Philippines with respect to sea areas in its
are high-tide features exclusive economic zone.
• China had violated the Philippines’ sovereign
Whether any of the features claimed by China could rights with respect to its exclusive economic zone
generate an entitlement to maritime zones beyond 12 and continental shelf: China had a) interfered
nautical miles with Philippine petroleum exploration at Reed
Bank, b) purported to prohibit fishing by
Philippine vessels within the Philippines’
• Art. 121 of the Convention: islands generate an exclusive economic zone, c) protected and failed
entitlement to an exclusive economic zone of 200 to prevent Chinese fishermen from fishing within
nautical miles and to a continental shelf, but the Philippines’ exclusive economic zone at
rocks which cannot sustain human habitation or Mischief Reef and Second Thomas Shoal, and d)
economic life of their own shall have no exclusive constructed installations and artificial islands as
economic zone or continental shelf — closely Mischief Reef without the authorization of the
linked to the expansion of coastal State Philippines.
jurisdiction and intended to prevent insignificant
features from generating large entitlements to
maritime zones that would infringe on Traditional fishing at Scarborough Shoal
entitlements of inhabited territory or on high
• Fishermen from both China and the Philippines
seas and the area of the seabed reserved for the
and from other countries had long fished at the
common heritage of mankind.
Scarborough Shoal and had traditional fishing
• Entitlements of a feature depend on the a) rights in the area.
objective capacity of a feature, b) its natural
• Scarborough Shoal is above water at high tide so
conditions to sustain either c) a stable
it generates an entitlement to a territorial sea, its
community of people or d) economic activity that
is neither dependent on outside resources nor surrounding waters do not form part of the
purely extractive in nature. exclusive economic zone, and traditional fishing
rights were not extinguished by the Convention.
• Even if many of the features are currently
• China had violated its duty to respect the
controlled by one or other of the littoral States,
traditional fishing rights of Philippine fishermen
which have constructed installations and
maintained personnel there and have been by halting access to the Shoal after May 2012.
modified to improve their habitability (by land
reclamation and construction of infrastructure), Effect of China’s actions on the marine environment
the current presence of official personnel on
many of the features does not establish their • China’s large scale land reclamation and
capacity, in their natural condition, to sustain a construction of artificial islands at seven features
stable community of people and considered that in the Spratly Islands has caused severe harm to
historical evidence of habitation or economic life the coral reef environment.
was more relevant to the objective capacity of the • China violated its obligations under Articles 192
features. and 194 of the Convention to preserve and
• Temporary of use of features (as in by small protect the marine environment with respect to
groups of Chinese fishermen and from other fragile ecosystems and the habitat of depleted,
states in the Spratly Islands and Japanese fishing threatened, or endangered species.
and guano mining enterprises) did not amount to • Chinese fishermen were engaged in the
inhabitation by a stable community and that all harvesting of endangered sea turtles, corals and
historical economic activity had been extractive giant clams on a substantial scale in the South
in nature. China Sea using methods that inflicted severe
• All high-tide features in the Spratly Islands are damage on the coral reef environment; Chinese
legally “rocks” that do not generate an exclusive authorities were aware of these and failed to
economic zone or continental shelf.

Political Law
fulfill their due diligence obligation under the Court of Arbitration Before the Arbitral Tribunal
Convention to stop them. constituted under UNCLOS Annex VII, July 12, 2016,
case brief provided by UP Law Institute for Maritime
Lawfulness of conduct of Chinese law enforcement Affairs and Law of the Sea)
vessels at Scarborough Shoal in April and May 2012
(Chinese vessels sought to physically obstruct O. INTERNATIONAL ENVIRONMENTAL LAW
Philippine vessels from approaching or gaining
entrance to the Shoal) International Environmental Law is a branch of public
international law which is concerned with the attempt
• Assisted by an independent expert on to control pollution and the depletion of natural
navigational safety and expert evidence on resources within a framework of sustainable
navigational safety provided by the Philippines. development. It covers topics such as population,
biodiversity, climate change, ozone depletion, toxic
• Chinese law enforcement vessels had repeatedly
and hazardous substances, air, land, sea and
approached the Philippine vessels at high speed
transboundary water pollution, conservation of
and to cross ahead of them at close distances,
marine resources, desertification, and nuclear
creating serious risk of collision and danger to damage. (Lakshman D. Guruswamy, International
Philippine ships and personnel.
Environmental Law in a Nutshell, [West, 5th edition,
• China breached its obligations under the 2017]).
Convention on the International Regulations for
Preventing Collisions at Sea (1972), and Art. 94 of 1. PRINCIPLE 21 OF THE STOCKHOLM
the Convention concerning maritime safety. DECLARATION
4. Aggravation of the dispute between the parties Stockholm Declaration
Whether China’s recent large-scale land reclamation The Stockholm Declaration, or the Declaration of the
and construction of artificial islands at seven features United Nations Conference on the Human
in the Spratly Islands since the commencement of the Environment, was adopted on June 16, 1972 in
arbitration had aggravated the dispute between the Stockholm, Sweden. It contains 26 principles and 109
Parties recommendations regarding the preservation and
enhancement of the right to a healthy environment.
• Parties engaged in a dispute settlement
procedure have a duty to refrain from Principle 21 of the Stockholm Declaration
aggravating or extending the dispute or disputes
at issue during the pendency of the settlement This declares that States have:
process.
1. The sovereign right to exploit their own
• China has a) build a large artificial island on
Mischief Reef which is within the exclusive resources pursuant to their own environmental
economic zone of the Philippines, b) caused policies; and
permanent harm to the coral reef ecosystem, and 2. The responsibility to ensure that activities within
c) permanently destroyed evidence of the natural their jurisdiction or control do not cause damage
condition of the features in question. to the environment of other States or of areas
• China violated its obligations to refrain from beyond the limits of national jurisdiction or
aggravating or extending the Parties’ disputes otherwise known as the Good Neighborliness
during the pendency of the settlement process. Principle. (Sarmiento, 2007)
5. Future conduct of the parties Principle 21 of the Stockholm Declaration is a part

of customary law
Philippines request for declaration that China shall
The Court recognizes that the environment is daily
respect the rights and freedoms of the Philippines and
comply with its duties under the Convention under threat and that the use of nuclear weapons
could constitute a catastrophe for the environment.
• Both the Philippines and China have accepted the The Court also recognizes that the environment is not
an abstraction but represents the living space, the
Convention and general obligations of good faith
define and regulate their conduct. quality of life and the very human beings, including
• The root of the disputes at issue in this generations unborn. The existence of the general
arbitration lies not in any intention of any Party obligation of States to ensure that activities within
their jurisdiction and control respect the environment
to infringe on the legal rights of the other but in
the fundamentally different understandings of of other States or of areas beyond national control is
their respective rights under the Convention in now part of the corpus of international law relating to
the waters of the South China Sea. the environment. (ICJ Advisory Opinion on the Legality
of the Threat or Use of Nuclear Weapons, July 8, 1996)
(The Republic of the Philippines v. The People’s
Republic of China, Case No. 2013-19 in the Permanent
327
Principle of Common but Differentiated modified eggplant. The SC is the first in the world to
Responsibility adopt the precautionary principle regarding GMO
products in its decision.
This principle requires the protection of specified
environmental resource or area as common When there is lack of full scientific certainty in
responsibility but takes into account the differing establishing a causal link between human activity and
circumstances of certain States in the discharge of environmental effect, the court shall apply the
such responsibilities. [Framework Convention on precautionary principle in resolving the case before it,
Climate Change, Art. 3(1)] The constitutional right if the people to a balanced
and healthful ecology shall be given the benefit if the
It is also embodied in the Rio Declaration which doubt (Rule 20, Sec. 1, Rules of Procedure for
states: “…In view of the different contributions to Environmental Cases; (International Service for the
global environmental degradation, States have Acquisition of Agri-biotech Applications, Inc. V.
common but differentiated responsibilities. The Greenpeace Southeast Asia Philippines, G.R. No. 209271,
developed countries acknowledge the responsibility July 26, 2016).
that they bear in the international pursuit to
sustainable development in view of the pressures Q: NAPOCOR began constructing steel towers to
their societies place on the global environment and of support overhead high tension cables in
the technologies and financial resources they connection with its Sucat-Araneta-Balintawak
command.” (Rio Declaration, Principle 7) Power Transmission Project. Residents of
Dasmariñas Village were alarmed by the sight of
2. PRECAUTIONARY PRINCIPLE the towering steel towers and scoured the
internet on the possible adverse health effects of
Principle 15 of the Rio Declaration, commonly known such structures. They got hold of published
as the Precautionary Principle states: articles and studies linking the incidence of a
fecund of illnesses to exposure to electromagnetic
In order to protect the environment, the fields. The illnesses range from cancer to
precautionary approach shall be widely applied by leukemia.
States according to their capabilities. Where there are
threats of serious damage, lack of full scientific Petitioners filed a complaint for the Issuance of a
certainly shall not be used as a reason for postponing TRO and/or a Writ of Preliminary Injunction
cost-effective measures to prevent environmental against NAPOCOR. This was granted by the trial
degradation. court. The Court of Appeals reversed the order,
holding that the proscription on injunctions
NOTE: This principle advocates that the potential against infrastructure projects of the government
harm should be addressed even with minimal is clearly mandated by Sec. 1 of P.D. 1818. Is the
predictability at hand. The Precautionary Principle issuance of a Writ of Preliminary Injunction
requires a high degree of prudence on the part of the justified, despite the mandate of P.D. 1818?
stakeholders. Decision makers are not only mandated
to account for scientific uncertainty but can also take A: Whether there is a violation of petitioners’
positive action, e.g., restrict a product or activity even constitutionally protected right to health is a question
when there is scientific uncertainty. of law that invested the trial court with jurisdiction to
issue a TRO and subsequently, a preliminary
Under Rule 20 of the Rules of Procedure for injunction. This question of law divests the case from
Environmental Cases, the Precautionary Principle is the protective mantle of Presidential Decree No. 1818.
adopted as a rule of evidence. The Supreme Court’s
adoption of the Precautionary Principle in the newly There is adequate evidence on record to justify the
promulgated Rules of Procedure for Environmental conclusion that the project of NAPOCOR probably
Cases affords plaintiffs a better chance of proving imperils the health and safety of the petitioners so as
their cases where the risks of environmental harm are to justify the issuance by the trial court of a writ of
not easy to prove. preliminary injunction. The health concerns are at the
very least, far from imaginary.
BT Talong Case
In hindsight, if, after trial, it turns out that the health-
Greenpeace Southeast Asia and farmer-scientist related fears that petitioners cleave on to have
coalition MASIPAG asked the CA to stop the planting adequate confirmation in fact and in law, the
of BT (Bacillus thuringiensis) talong in test fields. CA, questioned project of NAPOCOR then suffers from a
citing the precautionary principle, granted the paucity of purpose, no matter how noble the purpose
petition. CA stated that “when human activities may may be. For what use will modernization serve if it
lead to threats of serious and irreversible damage to proves to be a scourge on an individual’s fundamental
the environment that if scientifically plausible but right, not just to health and safety, but, ostensibly, to
uncertain, actions shall be taken to avoid or diminish life preservation itself, in all of its desired quality…
the threat”. The SC permanently stopped the field (Hernandez v. NAPOCOR, G.R. No. 145328, March 23,
testing for BT Talong, upholding the decision of the CA 2006)
which stopped the field trials for the genetically

Political Law
Polluter Pays Principle
It means that the party responsible for producing the

pollutants must bear responsibility for shouldering
the costs of the damage done to the environment. It is
expressly stated in Principle 16 of the Rio Declaration
on Environment and Development: “National
authorities should endeavor to promote the
internalization of environment costs and the use of
economic instruments, taking into account the
approach that the polluter should, in principle, bear
the cost of pollution, with due regard to the public
interest and without distorting international trade
and investment”. (Rio Declaration, Principle 16)
329

GN 2021 - Political Law

Uploaded by

Copyright:

Available Formats

You might also like

GN 2021 - Political Law

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

GN 2021 - Political Law

Uploaded by

Copyright:

Available Formats

G

2021 GOLDEN NOTES

Address: Academics Committee

Tel. No: (02) 731-4027

No portion of this material may be copied or reproduced in books, pamphlets, outlines

Released in the Philippines, 2021.

ATTY. AL CONRAD B. ESPALDON

POLITICAL LAW COMMITTEE 2021

FRANCINE BLAISE M. LOJA ASST. HEAD POLITICAL LAW

ATTY. AL CONRAD B. ESPALDON

POLITICAL LAW COMMITTEE

PATRICIA CLAIRE UMALI ASST. HEAD POLITICAL LAW

ATTY. AL CONRAD B. ESPALDON

ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAÑO, O.P.

ATTY. ARTHUR B. CAPILI

ATTY. ELGIN MICHAEL C. PEREZ

JUDGE PHILIP A. AGUINALDO

LENY G. GADIANA, R.G.C.

Justice Amy Lazaro-Javier

Justice Oswaldo D. Agcaoili

Judge Charito M. Sawali

Atty. Carlo L. Cruz

Atty. Enrique V. Dela Cruz

Atty. Rene B. Gorospe

Atty. Victoria V. Loanzon

Atty. Rafaelito M. Garayblas

Atty. Anicia C. Marquez

Atty. Edwin R. Sandoval

Atty. Mauricio C. Ulep

THE RISK OF USE OF THIS BAR

I. THE 1987 CONSTITUTION ............................................................................................................................................................... 1

II. BASIC CONCEPTS................................................................................................................................................................................ 3

III. NATIONAL TERRITORY................................................................................................................................................................ 29

IV. CITIZENSHIP ..................................................................................................................................................................................... 31

V. LEGISLATIVE DEPARTMENT ....................................................................................................................................................... 34

VII. JUDICIAL DEPARTMENT.............................................................................................................................................................78

VIII. CONSTITUTIONAL COMMISSIONS.........................................................................................................................................87

IX. BILL OF RIGHTS ...............................................................................................................................................................................91

X. LAW ON PUBLIC OFFICERS ........................................................................................................................................................ 144

XI. ADMINISTRATIVE LAW ............................................................................................................................................................. 180

XII. ELECTION LAW ........................................................................................................................................................................... 196

XIV. NATIONAL ECONOMY AND PATRIMONY ......................................................................................................................... 252

XV. SOCIAL JUSTICE AND HUMAN RIGHTS ............................................................................................................................... 260

XVII. PUBLIC INTERNATIONAL LAW .......................................................................................................................................... 265

I. I. THE 1987 CONSTITUTION B. PARTS OF A CONSTITUTION

A. NATURE AND CONCEPT OF A CONSTITUTION 1. Liberty – provisions prescribing the fundamental

UNIVERSITY OF SANTO TOMAS

PROCEDURE TO AMEND OR REVISE THE CONSTITUTION

BASIS CONSTITUENT CONSTITUTIONAL PEOPLE’S INITIATIVE

UNIVERSITY OF SANTO TOMAS

UNIVERSITY OF SANTO TOMAS

DOCTRINE OF 1. Art. III, Sec. 5: “No law shall be made respecting

UNIVERSITY OF SANTO TOMAS

UNIVERSITY OF SANTO TOMAS

BASIS IMPERIUM DOMINIUM

UNIVERSITY OF SANTO TOMAS

2. Implied consent Q: Do all contracts entered into by the government

UNIVERSITY OF SANTO TOMAS

XPN: Where a law or ordinance has been enacted D. SEPARATION OF POWERS