2023 - BLUE NOTES - Political and Public International Law One Ateneo

ATENEO CENTRAL
BAR OPERATIONS 2023 POLITICAL LAW & PUBLIC INTERNATIONAL LAW
FOR ONE ATENEO

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TABLE OF CONTENTS
PART ONE: POLITICAL LAW
POWERS AND STRUCTURE OF THE GOVERNMENT

I. PRELIMINARY CONCEPTS ............................................................................................................... 16
A. NATURE OF A CONSTITUTION ................................................................................................. 16

1. PARTS ............................................................................................................................................ 16
2. MANNER OF INTERPRETATION (SELF-EXECUTING AND NON-EXECUTING CHARACTER) ............. 16
3. PROCESS OF CHANGE (AMENDMENTS AND REVISIONS) .............................................................. 19
B. THE PHILIPPINES AS A STATE ................................................................................................... 22
1. ELEMENTS (PEOPLE, TERRITORY, GOVERNMENT, AND CAPACITY TO ENTER INTO RELATIONS
WITH OTHER STATES) ....................................................................................................................... 22
2. DISTINCTION BETWEEN INTERNAL AND EXTERNAL SELF-DETERMINATION ................................ 23
C. FUNDAMENTAL POWERS OF THE STATE .................................................................................. 24
1. POLICE POWER .............................................................................................................................. 25
2. EMINENT DOMAIN ........................................................................................................................ 25
FOR ONE ATENEO

3. TAXATION ...................................................................................................................................... 26
D. RELEVANCE OF THE DECLARATION OF PRINCIPLES AND STATE POLICIES ................................... 27
E. DYNAMICS AMONG THE BRANCHES OF GOVERNMENT ........................................................... 27
1. SEPARATION OF POWERS ............................................................................................................. 27
2. SYSTEM OF CHECKS AND BALANCES ............................................................................................. 27
3. DELEGATION OF POWERS ............................................................................................................. 27
F. STATE IMMUNITY ................................................................................................................... 29
1. BASIS.............................................................................................................................................. 29
2. EXCEPTIONS................................................................................................................................... 30
G. THE NATIONAL TERRITORY ..................................................................................................... 30
1. SCOPE (TERRESTRIAL, AERIAL, AND FLUVIAL DOMAINS) .............................................................. 30
2. ARCHIPELAGIC DOCTRINE ............................................................................................................. 31
II. LEGISLATIVE DEPARTMENT........................................................................................................... 35
A. NATURE OF LEGISLATIVE POWER.................................................................................................. 36

1. DERIVATIVE AND DELEGATED POWER .......................................................................................... 36
2. PLENARY CHARACTER.................................................................................................................... 36
3. LIMITATIONS ................................................................................................................................. 36
4. LAW-MAKING DISTINGUISED FROM LAW-EXECUTION................................................................. 37
5. EXCEPTIONS TO NON-DELEGABILITY............................................................................................. 39
6. LEGISLATIVE POWER OF THE PEOPLE THROUGH INITIATIVE AND REFERENDUM ........................ 39
B. BICAMERAL CONGRESS ........................................................................................................... 40
1. SENATE .......................................................................................................................................... 40
2. HOUSE OF REPRESENTATIVES ....................................................................................................... 40
C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS ............................................ 51
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D. QUORUM AND VOTING MAJORITIES ...................................................................................... 53

E. DISCIPLINE OF MEMBERS ........................................................................................................ 54
F. PROCESS OF LAW-MAKING ..................................................................................................... 55
1. FUNCTION OF THE BICAMERAL CONFERENCE COMMITTEE ......................................................... 55
2. LIMITATIONS ON LEGISLATIVE POWER ......................................................................................... 55
G. RULES ON APPROPRIATION AND RE-ALIGNMENT .................................................................... 58
H. ELECTORAL TRIBUNALS AND COMMISSION ON APPOINTMENTS .............................................. 59
1. COMPOSITION ............................................................................................................................... 59
2. POWERS AND JURISDICTION ......................................................................................................... 59
I. POWERS OF CONGRESS .......................................................................................................... 62
1. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS ................................................................. 62
2.NON-LEGISLATIVE .......................................................................................................................... 65
III. EXECUTIVE DEPARTMENT ............................................................................................................ 68
A. NATURE OF EXECUTIVE POWER .............................................................................................. 69

1. IN RELATION TO THE IMPLEMENTATION OF LAWS ...................................................................... 69
2. EXPRESS OR IMPLIED ..................................................................................................................... 70
B. CONCEPT OF PRESIDENTIAL IMMUNITY................................................................................... 71
1. CONDUCT COVERED ...................................................................................................................... 71
FOR ONE ATENEO

2. WAIVER AND EXCEPTIONS ............................................................................................................ 71
C. CONCEPT OF EXECUTIVE PRIVILEGE ......................................................................................... 71
1. TYPES ............................................................................................................................................. 72
2. WHO MAY INVOKE ........................................................................................................................ 72
D. QUALIFICATIONS, ELECTION, TERM OF THE PRESIDENT AND VICE-PRESIDENT, AND RULES .... 73
E. OTHER PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS .................................................... 75
1. DISQUALIFICATIONS ...................................................................................................................... 75
F. POWERS OF THE PRESIDENT ................................................................................................... 76
1. EXECUTIVE AND ADMINISTRATIVE POWERS................................................................................. 76
2. POWER OF APPOINTMENT............................................................................................................ 76
3. POWER OF CONTROL AND SUPERVISION ..................................................................................... 80
4. EMERGENCY POWERS ................................................................................................................... 81
5. COMMANDER-IN-CHIEF POWERS ................................................................................................. 82
6. PARDONING POWERS ................................................................................................................... 86
7. FOREIGN RELATIONS POWERS ...................................................................................................... 86
8. POWERS RELATIVE TO APPROPRIATION MEASURES .................................................................... 88
9. VETO POWERS ............................................................................................................................... 89
IV. JUDICIAL DEPARTMENT ............................................................................................................... 91
A. CONCEPT OF JUDICIAL POWER ................................................................................................ 91

B. JUDICIAL REVIEW.................................................................................................................... 92
1. REQUISITES .................................................................................................................................... 92
2. POLITICAL QUESTION DOCTRINE .................................................................................................. 95
3. MOOT QUESTIONS ........................................................................................................................ 96
4. OPERATIVE FACT DOCTRINE.......................................................................................................... 96
C. JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY ................................................................. 96
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D. APPOINTMENTS TO THE JUDICIARY......................................................................................... 98

1. QUALIFICATIONS OF MEMBERS .................................................................................................... 98
2. JUDICIAL AND BAR COUNCIL ......................................................................................................... 99
E. THE SUPREME COURT ........................................................................................................... 101
1. COMPOSITION, POWERS, AND FUNCTIONS................................................................................ 101
2. EN BANC AND DIVISION CASES ................................................................................................... 103
3. ADMINISTRATIVE SUPERVISION OVER LOWER COURTS ............................................................. 104
4. ORIGINAL AND APPELLATE JURISDICTION .................................................................................. 105
VI. CONSTITUTIONAL COMMISSIONS .............................................................................................. 109
A. CONSTITUTIONAL SAFEGUARDS TO ENSURE INDEPENDENCE OF COMMISSIONS .................... 109

B. COMMON PROVISIONS......................................................................................................... 110
C. POWERS, FUNCTIONS, AND JURISDICTION ............................................................................ 111
D. COMPOSITION AND QUALIFICATION OF MEMBERS ............................................................... 119
E. PROHIBITED OFFICES AND INTERESTS.................................................................................... 120
F. JUDICIAL REVIEW OF FINAL ORDERS, RESOLUTIONS, AND DECISIONS..................................... 120
1. RENDERED IN THE EXERCISE OF QUASI-JUDICIAL FUNCTIONS ................................................... 121
2. RENDERED IN THE EXERCISE OF ADMINISTRATIVE FUNCTIONS ................................................. 121
THE CITIZEN IN RELATION TO THE STATE
FOR ONE ATENEO

I. CITIZENSHIP ................................................................................................................................ 123
A.
B.
C.
WHO ARE FILIPINOS ............................................................................................................. 123
MODES OF ACQUIRING CITIZENSHIP ..................................................................................... 125
LOSS AND REACQUISITION OF CITIZENSHIP ........................................................................... 127
D. DUAL CITIZENSHIP AND DUAL ALLEGIANCE ........................................................................... 129
E. FOUNDLINGS ........................................................................................................................ 129
II. BILL OF RIGHTS .......................................................................................................................... 132
A. PRIVATE ACTS AND THE BILL OF RIGHTS ................................................................................ 133

B. DUE PROCESS OF LAW .......................................................................................................... 133
1. PROCEDURAL AND SUBSTANTIVE ............................................................................................... 133
2. VOID-FOR-VAGUENESS ............................................................................................................... 135
3. JUDICIAL AND ADMINISTRATIVE DUE PROCESS.......................................................................... 136
C. EQUAL PROTECTION ............................................................................................................. 140
1. REQUISITES FOR VALID CLASSIFICATION..................................................................................... 141
2. STANDARDS OF JUDICIAL REVIEW .............................................................................................. 143
D. ARRESTS, SEARCHES AND SEIZURES ...................................................................................... 144
1. REQUISITES OF A VALID WARRANT ............................................................................................. 144
2. WARRANTLESS ARRESTS AND DETENTION ................................................................................. 150
3. WARRANTLESS SEARCHES ........................................................................................................... 153
4. ADMINISTRATIVE ARRESTS ......................................................................................................... 161
5. EXCLUSIONARY RULE................................................................................................................... 162
E. PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE ..................................................... 163
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1. PRIVATE AND PUBLIC COMMUNICATIONS ................................................................................. 163

2. INTRUSION, WHEN ALLOWED ..................................................................................................... 163
3. EXCLUSIONARY RULE................................................................................................................... 164
F. FREEDOM OF SPEECH AND EXPRESSION ................................................................................ 166
1. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT ................................................................. 166
2. CONTENT-BASED AND CONTENT NEUTRAL REGULATIONS ........................................................ 168
3. FACIAL CHALLENGES AND OVERBREADTH DOCTRINE ................................................................ 168
4. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION .................................. 170
5. STATE REGULATION OF DIFFERENT TYPES OF MASS MEDIA ...................................................... 172
6. COMMERCIAL SPEECH................................................................................................................. 174
7. UNPROTECTED SPEECH ............................................................................................................... 175
G. FREEDOM OF RELIGION ........................................................................................................ 180
1. NON-ESTABLISHMENT CLAUSE AND FREE EXERCISE CLAUSES ................................................... 181
2. BENEVOLENT NEUTRALITY AND CONSCIENTIOUS OBJECTORS .................................................. 186
3. TESTS TO DETERMINE THE VALIDITY OF GOVERNMENTAL REGULATION .................................. 188
H. LIBERTY OF ABODE ANDFREEDOM OF MOVEMENT ............................................................... 188
1. SCOPE AND LIMITATIONS............................................................................................................ 188
2. WATCH-LIST AND HOLD DEPARTURE ORDERS ............................................................................ 189
I. RIGHT TO INFORMATION ...................................................................................................... 190
J. EMINENT DOMAIN ............................................................................................................... 193
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1. CONCEPT ..................................................................................................................................... 193
2. PUBLIC USE .................................................................................................................................. 195
3. JUST COMPENSATION ................................................................................................................. 196
4. EXPROPRIATION BY LOCAL GOVERNMENT UNITS ...................................................................... 199
K. RIGHT TO ASSOCIATION ........................................................................................................ 201
L. NON-IMPAIRMENT OF CONTRACTS ....................................................................................... 203
M. ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS .............................................. 203
N. RIGHTS UNDER CUSTODIAL INVESTIGATION .......................................................................... 204
1. MEANING OF CUSTODIAL INVESTIGATION ................................................................................. 204
2. RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION........................................................ 206
3. REQUISITES OF A VALID WAIVER ................................................................................................ 208
4. EXCLUSIONARY DOCTRINE .......................................................................................................... 209
O. RIGHTS OF THE ACCUSED ...................................................................................................... 210
1. CRIMINAL DUE PROCESS ............................................................................................................. 210
2. BAIL ............................................................................................................................................. 211
3. PRESUMPTION OF INNOCENCE ................................................................................................... 214
4. RIGHT TO BE HEARD .................................................................................................................... 215
5. RIGHT TO COUNSEL ..................................................................................................................... 216
6. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION .................................. 216
7. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL...................................................................... 217
8. RIGHT OF CONFRONTATION ....................................................................................................... 218
9. RIGHT TO COMPULSORY PROCESSES .......................................................................................... 219
10.TRIAL IN ABSENTIA..................................................................................................................... 219
P. RIGHT TO SPEEDY TRIAL AND SPEEDY DISPOSITION OF CASES .............................................. 220
Q. RIGHT AGAINST SELF-INCRIMINATION .................................................................................. 222
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2. IMMUNITY STATUTES.................................................................................................................. 225

R. RIGHT AGAINST DOUBLE JEOPARDY ...................................................................................... 227
1. REQUISITES AND LIMITATIONS ................................................................................................... 227
S. RIGHT AGAINST INVOLUNTARY SERVITUDE ........................................................................... 231
T. RIGHT AGAINST EXCESSIVE FINES, AND CRUEL AND INHUMAN PUNISHMENTS ...................... 232
U. NON-IMPRISONMENT FOR DEBTS ......................................................................................... 233
V. EX POST FACTO LAWS AND BILLS OF ATTAINDER .................................................................. 233
1. EX POST FACTO LAW ................................................................................................................... 233
2. BILL OF ATTAINDER ..................................................................................................................... 235
W. WRITS OF HABEAS CORPUS, KALIKASAN, HABEAS DATA, AND AMPARO ............................... 235
1. WRIT OF HABEAS CORPUS .......................................................................................................... 235
2. WRIT OF KALIKASAN (RULE 7, A.M. NO. 09-6-8-SC).................................................................... 237
3. WRIT OF HABEAS DATA ............................................................................................................... 238
4. WRIT OF AMPARO ....................................................................................................................... 238
III. SOCIAL JUSTICE AND HUMAN RIGHTS ........................................................................................ 242
A. CONCEPT OF SOCIAL JUSTICE ................................................................................................ 242

B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS ......................................................................... 243
URBAN LAND REFORM AND HOUSING ........................................................................................... 246
FOR ONE ATENEO

C. COMMISSION ON HUMAN RIGHTS ........................................................................................ 247
1. POWERS AND FUNCTIONS [IAC-PE2RM-IRA] .............................................................................. 247
2. COMPOSITION AND QUALIFICATION OF MEMBERS ................................................................... 248
IV. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE, AND SPORTS .......................................... 250
A. ACADEMIC FREEDOM ........................................................................................................... 250
NATIONAL ECONOMY AND PATRIMONY

I. REGALIAN DOCTRINE .................................................................................................................. 253
II. PUBLIC TRUST DOCTRINE............................................................................................................ 253
III. NATIONALIST AND CITIZENSHIP REQUIREMENT PROVISIONS ..................................................... 254
IV. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES ............................. 256
V. ACQUISITION, OWNERSHIP, AND TRANSFER OF PUBLIC AND PRIVATE LANDS ............................. 258
VI CONCEPT OF ANCESTRAL DOMAIN ............................................................................................. 259
VII. PRACTICE OF PROFESSIONS ...................................................................................................... 259
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LAW ON PUBLIC OFFICERS, ADMINISTRATIVE LAW, ELECTION LAW & LOCAL GOVERNMENT
I. LAW ON PUBLIC OFFICERS ........................................................................................................... 261
A. GENERAL PRINCIPLES ............................................................................................................ 261

B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE .................................................................... 263
C. MODES AND KINDS OF APPOINTMENT .................................................................................. 265
D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS ................................................................. 267
E. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS ............................................................. 270
F. POWERS AND DUTIES OF PUBLIC OFFICERS ........................................................................... 273
G. RIGHTS OF PUBLIC OFFICERS ................................................................................................. 274
H. LIABILITIES OF PUBLIC OFFICERS............................................................................................ 276
1. PREVENTIVE SUSPENSION AND BACK SALARIES ......................................................................... 278
2. ILLEGAL DISMISSAL, REINSTATEMENT AND BACK SALARIES ...................................................... 280
I. IMMUNITY OF PUBLIC OFFICERS ........................................................................................... 280
J. DISTINGUISH: DE FACTO AND DE JURE OFFICERS ................................................................... 281
K. TERMINATION OF OFFICIAL RELATION .................................................................................. 282
L. THE CIVIL SERVICE ................................................................................................................ 285
1. SCOPE .......................................................................................................................................... 285
2. APPOINTMENTS TO CIVIL SERVICE .............................................................................................. 285
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3. PERSONNEL ACTIONS .................................................................................................................. 286
M. ACCOUNTABILITY OF PUBLIC OFFICERS.................................................................................. 287
1. TYPES OF ACCOUNTABILITY ........................................................................................................ 287
2. DISCIPLINE ................................................................................................................................... 289
3. IMPEACHMENT V. QUO WARRANTO .......................................................................................... 292
4. THE OMBUDSMAN AND THE OFFICE OF THE SPECIAL PROSECUTOR ......................................... 294
5. THE SANDIGANBAYAN................................................................................................................. 295
N. TERM LIMITS ........................................................................................................................ 298
II. ADMINISTRATIVE LAW ............................................................................................................... 303
A. GENERAL PRINCIPLES ............................................................................................................ 303

B. ADMINISTRATIVE AGENCIES ................................................................................................. 304
C. POWERS OF ADMINISTRATIVE AGENCIES .............................................................................. 306
D. JUDICIAL RECOURSE AND REVIEW ......................................................................................... 325
III. ELECTION LAW .......................................................................................................................... 333
A. SUFFRAGE ............................................................................................................................ 333

1. QUALIFICATION AND DISQUALIFICATION OF VOTERS ................................................................ 333
2. REGISTRATION AND DEACTIVATION ........................................................................................... 335
3. INCLUSION AND EXCLUSION PROCEEDINGS ............................................................................... 337
4. LOCAL AND OVERSEAS ABSENTEE VOTING ................................................................................. 338
5. DETAINEE VOTING ....................................................................................................................... 340
B. CANDIDACY .......................................................................................................................... 341
1. QUALIFICATIONS AND DISQUALIFICATIONS OF CANDIDATES .................................................... 341
2. FILING OF CERTIFICATES OF CANDIDACY .................................................................................... 345
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C. CAMPAIGN ........................................................................................................................... 356

1. PREMATURE CAMPAIGNING ....................................................................................................... 356
2. PROHIBITED CONTRIBUTIONS ..................................................................................................... 356
3. LAWFUL AND PROHIBITED ELECTION PROPAGANDA ................................................................. 357
4. LIMITATIONS ON EXPENSES ........................................................................................................ 361
5. STATEMENT OF CONTRIBUTIONS AND EXPENSES ...................................................................... 362
D. REMEDIES AND JURISDICTION............................................................................................... 363
1. PETITION NOT TO GIVE DUE COURSE OR CANCEL A CERTIFICATE OF CANDIDACY .................... 363
2. PETITION FOR DISQUALIFICATION .............................................................................................. 364
3. FAILURE OF ELECTION ................................................................................................................. 368
4. PRE-PROCLAMATION CONTROVERSY ......................................................................................... 369
5. ELECTION PROTEST ..................................................................................................................... 373
6. QUO WARRANTO ........................................................................................................................ 377
7. RECALL ......................................................................................................................................... 378
E. PROSECUTION FOR ELECTION OFFENSES [EXCLUDE: PENAL PROVISIONS] ............................... 379
IV. LOCAL GOVERNMENT............................................................................................................... 382
A. PUBLIC CORPORATIONS ........................................................................................................ 382

1. CONCEPT; DISTINGUISHED FROM GOCCS................................................................................... 382
FOR ONE ATENEO

2. CLASSIFICATIONS......................................................................................................................... 383
B. PRINCIPLES OF LOCAL AUTONOMY ....................................................................................... 387
C. AUTONOMOUS REGIONS AND THEIR RELATION TO THE NATIONAL GOVERNMENT ................ 395
D. LOCAL GOVERNMENT UNIT (LGU) ......................................................................................... 402
1. POWERS OF LOCAL GOVERNMENT UNITS, IN GENERAL............................................................. 402
2. LIABILITY OF LOCAL GOVERNMENT UNITS.................................................................................. 428
3. SETTLEMENT OF BOUNDARY DISPUTES ...................................................................................... 432
4. VACANCIES AND SUCCESSION OF LOCAL OFFICIALS ................................................................... 433
5. RECALL ......................................................................................................................................... 436
6. TERM LIMITS ............................................................................................................................... 438
PART TWO: PUBLIC INTERNATIONAL LAW

PRELIMINARIES .............................................................................................................................. 441
I. SOURCES OF OBLIGATIONS .......................................................................................................... 442
A. TREATIES .............................................................................................................................. 442

1. CONCEPT OF JUS COGENS (PEREMPTORY NORMS OF INTERNATIONAL LAW) .......................... 444
2. RESERVATIONS, WITHDRAWAL, TERMINATION, AND REBUS SIC STANTIBUS............................ 444
B. CUSTOMARY INTERNATIONAL LAW ...................................................................................... 445
1. ELEMENTS ................................................................................................................................... 446
2. OBLIGATIONS ERGA OMNES ....................................................................................................... 447
C. GENERAL PRINCIPLES OF LAW ............................................................................................... 448
D. APPLICATION OF INTERNATIONAL DOMESTIC COURTS .......................................................... 448
1. MONISM ...................................................................................................................................... 448
2. DUALISM ..................................................................................................................................... 449
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3. INVERTED MONISM..................................................................................................................... 449

4. HARMONIZATION ........................................................................................................................ 449
II. INTERNATIONAL LEGAL PERSON ................................................................................................. 450
A. STATES ................................................................................................................................. 450

1. ELEMENTS ................................................................................................................................... 450
2. RECOGNITION OF STATES AND GOVERNMENT .......................................................................... 451
B. NON-STATE ENTITIES ............................................................................................................ 452
C. INTERNATIONAL ORGANIZATIONS ........................................................................................ 453
D. STATUS OF INDIVIDUALS AND CORPORATIONS ..................................................................... 454
III. JURISDICTION ........................................................................................................................... 455
A. BASIS OF JURISDICTION ........................................................................................................ 455

1. TERRITORIALITY PRINCIPLE ......................................................................................................... 455
2. NATIONALITY PRINCIPLE ............................................................................................................. 456
3. PROTECTIVE PRINCIPLE ............................................................................................................... 456
4. PASSIVE PERSONALITY PRINCIPLE ............................................................................................... 456
B. TITLE TO TERRITORY ............................................................................................................. 457
FOR ONE ATENEO

C. ADJACENT MARITIME SEAS ................................................................................................... 457
1. TERRITORIAL SEA ......................................................................................................................... 457
2. CONTIGUOUS ZONE .................................................................................................................... 458
3. EXCLUSIVE ECONOMIC ZONE ...................................................................................................... 458
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4. CONTINENTAL SHELF ................................................................................................................... 459
JURISDICTION OVER PERSONS AND ECONOMIC ACTVITY ....................................................... 460
1. CRIMINAL JURISDICTION ............................................................................................................. 460
2. CIVIL JURISDICTION ..................................................................................................................... 462
3. IMMUNITY FROM JURISDICTION ................................................................................................ 462
4. AREAS NOT SUBJECT TO JURISDICTION OF INDIVIDUAL STATES ................................................ 464
IV. INTERNATIONAL RESPONSIBILITY .............................................................................................. 466
A. CONCEPT OF IMPUTABILITY OF INTERNATIONALLY WRONGFUL ACT OR OMISSION ................ 466

B. REPARATION ........................................................................................................................ 468
C. INTERNATIONAL PROTECTION OF HUMAN RIGHTS ................................................................ 469
1. REMEDIES UNDER TREATY-BASED MECHANISMS ...................................................................... 469
D. INTERNATIONAL MINIMUM STANDARD AND NATIONAL TREATMENT ................................... 471
E. ENVIRONMENTAL HARM ...................................................................................................... 473
1. PRECAUTIONARY PRINCIPLE ....................................................................................................... 473
F. INTERNATIONAL CLAIMS ...................................................................................................... 473
V. DISPUTE RESOLUTION ................................................................................................................ 474
A. LEGALITY OF THE USE OF FORCE ............................................................................................ 474

B. CONCEPT OF INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS ....................... 475
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1. THE ROLE OF THE INTERNATIONAL CRIMINAL COURT ............................................................... 477

C. JUDICIAL AND ARBITRAL SETTLEMENT .................................................................................. 477
1. INTERNATIONAL COURT OF JUSTICE ........................................................................................... 477
2. PERMANENT COURT OF ARBITRATION ....................................................................................... 478
FOR ONE ATENEO

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I. PRELIMINARY CONCEPTS A. NATURE OF A CONSTITUTION
1. PARTS
TOPIC OUTLINE UNDER THE SYLLABUS:
A. NATURE OF A CONSTITUTION Essential Parts of a Written Constitution

1. Parts 1) Constitution of Liberty - sets forth the
2. Manner of Interpretation (Self- fundamental civil and political rights of citizens, and
Executing and Non-Executing imposing limitations on the powers of government as
Character) a means of securing the enjoyment of those rights.
3. Process of Change (Amendments (PHIL. CONST., art. III.)
and Revisions)
2) Constitution of Government - outlines the
B. THE PHILIPPINES AS A STATE
organization of government, enumerating its powers,
1. Elements (People, Territory,
laying down rules regarding its administration, and
Government, and Capacity to Enter
defining the electorate. (PHIL. CONST., art. VI-IX.)
into Relations With Other States)
2. Distinction Between Internal and 3) Constitution of Sovereignty - the mode or
External Self-Determination procedure with which formal changes in the
C. FUNDAMENTAL POWERS OF THE fundamental law may be made. (PHIL. CONST., art.
STATE XVII.)
1. Police Power
2. Eminent Domain
3. Taxation 2. MANNER OF
i. Constitutional Exemption INTERPRETATION (SELF-
Principles EXECUTING AND NON-
D. RELEVANCE OF THE DECLARATION OF
FOR ONE ATENEO

EXECUTING CHARACTER)
PRINCIPLES AND STATE POLICIES
E. DYNAMICS AMONG THE BRANCHES OF Basic Principles of Constitutional Construction
GOVERNMENT
1. Separation of Powers 1. Verba legis – whenever possible, the words
2. System of Checks and Balances used in the Constitution must be given their
3. Delegation of Powers ordinary meaning except where technical
F. STATE IMMUNITY terms are employed;
1. Basis 2. Ratio legis est anima – where there is
2. Exceptions ambiguity, the words of the Constitution
G. THE NATIONAL TERRITORY should be interpreted in accordance with the
1. Scope (Terrestrial, Aerial, and intent of the framers;
Fluvial Domains) 3. Ut magis valeat quam pereat – the
2. Archipelagic Doctrine Constitution should be interpreted as a
whole (Francisco v. House of
Representatives, G.R. No. 160261, Nov. 10,
2003)
Ordinary Meaning
To the extent possible, words must be given their
ordinary meaning; this is consistent with the basic
precept of verba legis. The Constitution is truly a
public document in that it was ratified and approved
by a direct act of the People exercising their right of
suffrage, they approved of it through a plebiscite. The
preeminent consideration in reading the Constitution,
therefore, is the People's consciousness: that is,
popular, rather than technical-legal, understanding.
(David v. SET, G.R. No. 221538, Sept. 20, 2016)
Ascertainment of Intent
One fundamental principle of constitutional
construction is that the intent of the framers of the
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organic law and of the people adopting it should be enactment of laws (Tondo Medical v. Court
given effect. The primary task in constitutional of Appeals, G.R. No. 167324, July 17, 2007).
construction is to ascertain and thereafter assure the 2. The social and economic rights guaranteed
realization of the purpose of the framers and of the in Article XIII are also non-self-executing
people in the adoption of the Constitution, it may also provisions. (Bernas, Constitutional Rights
be safely assumed that the people in ratifying the and Social Demands, 1, 2010).
Constitution were guided mainly by the explanation
offered by the framers. (Nitafan v. CIR, G.R. No. Exceptions to the Exceptions:
78780, July 23, 1987) 1. Article II, Sec. 16 - The right to a balanced
and healthful ecology is self-executory and
In case of doubt, the provisions should be does not need an implementing legislation
considered: (Oposa v. Factoran, G.R. No. 101083, July
1. Self-executing (Manila Prince Hotel v GSIS, 30, 1993).
G.R. No. 122156, Feb. 3, 1997); 2. Article II, Sec. 28 – The duty of full public
2. Mandatory rather than directory (Tanada v disclosure is self-executory (Province of
Cuenco, G.R. No. L-10250, Feb. 28, 1957); North Cotabato v. GRP, G.R. No. 183591,
and Oct. 14, 2008).
3. Prospective rather than retroactive (Peralta v 3. Article II, Sec. 15 - The right to health is also
Director of Prisons, G.R. No. L-49, Nov. 12, self-executing (Imbong v. Ochoa, G.R. No.
1945). 204819, Apr. 8, 2014).
Doctrine of Constitutional Supremacy NOTE: Whether or not a provision is self-executing

If a law or a contract violates any norm of the depends on the language of the provision. Most of
Constitution, that law or contract, whether the provisions in Article II are couched in non-self-
promulgated by the legislative or executive branch of executing language.
FOR ONE ATENEO

the government or entered into by private persons for
private purposes, is null and void, and without any The 1987 provisions were written in the same spirit
force and effect. Since the Constitution is the as their counterparts in the 1935 and 1973
fundamental and supreme law of the land, it is Constitutions; but there was an attempt to distinguish
deemed written in every statute and every contract. “principles” from “policies”:
(NACHURA)
Self-Executing
Provisions
and Non-Self Executing
1. Principles - Binding rules which must be
observed in the conduct of government.
1. Self-Executing - provisions which are 2. Policies - Guidelines for the orientation of

complete in itself and become operative the state. (Bernas, The 1987 Constitution of
without the aid of supplementary or enabling the Republic of the Philippines: A
legislation, or that which supplies a sufficient Commentary, 37, 2009, citing IV RECORD
rule by means of which the right it grants OF THE CONSTITUTIONAL COMMISSION
may be enjoyed or protected (Manila Prince 768 and 580).
Hotel v GSIS, G.R. No. 122156, Feb. 3,
1997). In fact, however, the distinction is of little significance
because not all of the six “principles” are self-
2. Non-Self-Executing - provisions which lay executory and some of the “policies” already anchor
down a general principle. justiciable rights (Id.)
General Rule: The provisions of the Constitution are Generally Accepted Principles of International
considered self-executing, and do not require future Law
legislation for their enforcement. Principles based on natural justice common to most
national systems of law.
Exceptions:
1. The principles found in Article II are not Examples:
intended to be self-executing principles 1. The right of an alien to be released on bail
ready for enforcement through the courts. while awaiting deportation when his failure
They are used by the judiciary as aids or as to leave the country is due to the fact that no
guides in the exercise of its power of judicial country will accept him (Mejoff v. Director of
review, and by the legislature in its Prisons, G.R. No. L-4254, Sept. 26, 1951).
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2. The right of a country to establish military

commissions to try war criminals (Kuroda v.
Jalandoni, G.R. No. L-2662, Mar. 26, 1949).
3. The Vienna Convention on Road Signs and Protection of the Life of the Unborn
Signals (Agustin v. Edu, G.R. No. L-49112, It is not an assertion that the unborn is a legal person.
Feb. 2, 1979). It is not an assertion that the life of the unborn is
4. Duty to protect the premises of embassies placed exactly on the same level of the life of the
and legations (Reyes v. Bagatsing, G.R. No. mother. Hence, when it is necessary to save the life
L-65366, Nov. 9, 1983). of the mother, the lie of the unborn may be sacrificed.
5. Pacta sunt servanda – international
agreements must be performed in good faith The Roe v. Wade doctrine allowing abortion up to the
(Tañada v. Angara, G.R. No. 118295, May 6th month of pregnancy cannot be adopted in the
2, 1997). Philippines human lives are sacred from the moment
of conception, and that destroying those new lives is
The Philippines renounces aggressive war as an never licit, no matter what the purported good
instrument of national policy, but allows for a outcome would be (Imbong vs. Ochoa, G.R. No.
defensive war. 204819, April 8, 2014).
Civilian Authority Right to a Balanced and Healthful Ecology

Article II, Section 3 of the Constitution states that The right to a balanced and healthful ecology is not
“[c]ivilian authority is, at all times, supreme over the less important than any of the civil and political rights
military. The Armed Forces of the Philippines is the enumerated in the Bill of Rights. The right to a
protector of the People and the State. Its goal is to balanced and healthful ecology carries with it an
secure the sovereignty of the State and the integrity intergenerational responsibility to care for and
of the national territory.” protect the environment (Oposa v. Factoran, G.R.
FOR ONE ATENEO

No. 101083, Jul. 30, 1993).
Civilian Authority - The head of the armed forces is
a civilian president and the primary purpose of AFP In environmental cases, the precautionary
is to serve and protect the people. principle is used when there is a lack of full scientific
certainty in establishing a causal link between human
Mark of Sovereignty - Positively, the military is the activity and environmental effect. The precautionary
guardian of the people and of the integrity of the principle, as a principle of last resort, shifts the
national territory and therefore ultimately of the burden of evidence of harm away from those likely to
majesty of the law. Negatively, it is an expression suffer harm and onto those desiring to change the
against military abuses. status quo (International Service for the Acquisition
of Agri-Biotech v. Greenpeace, G.R. No. 209271,
Freedom from Nuclear Weapons Dec. 8, 2015).
DOES NOT
PROHIBITS
PROHIBIT Elements for the Application of Precautionary
Possession, control Peaceful use of Principle: (UPP)
and manufacture of nuclear energy 1. Uncertainty
nuclear weapons; 2. Possibility of irreversible harm
nuclear arms tests 3. Possibility of serious harm
(International Service for the Acquisition of Agri-
Exceptions to policy against nuclear weapons may Biotech v. Greenpeace, G.R. No. 209271, Dec. 8,
be made by political departments, but must be 2015)
justified by demands of national interest.
Standing to file an action for violation of
Social Justice environmental laws
The State shall promote social justice in all phases of The enactment of the Rules of Procedure for
national development. Environmental Cases enabled litigants enforcing
environmental rights to file their cases as citizen
Social Justice has been defined as the humanization suits. It liberalized standing for all cases filed
of laws and the equalization of social and economic enforcing environmental laws and collapses the
forces by the State so that justice in its rational and traditional rule on personal and direct interest, based
objectively secular conception may at least be on the principle that humans are stewards of nature.
approximated (Calalang v. Williams, G.R. No. 47800, The need to give animals legal standing in
Dec. 2, 1940). environmental cases has been eliminated by the
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Rules since any Filipino citizen, as a steward of determine how and to what extent it
nature, is allowed to bring a suit to enforce should be altered. A revision implies
environmental laws (Resident Marine Mammals v. substantive change, affecting the
Reyes, G.R. No. 180771, Apr. 21, 2015). Constitution as a whole (Bernas, 1987
Philippine Constitution: A Commentary,
Requisites for the Issuance of Writ of Kalikasan 1345, 2009).
(CPE) ● A change that alters a basic principle in the
1. There is an actual or threatened violation of constitution, like altering the principle of
the Constitutional right to a balance and separation of powers or the system of
healthful ecology; checks-and-balances; alters the substantial
2. The actual or threatened violation arises entirety of the constitution, as when the
from an unlawful act or omission of a Public change affects substantial provisions of the
official or employee, or private individual or constitution.
entity;
3. The actual or threatened violation involves Examples:
or will lead to an Environmental damage of ● Altering the principle of separation of powers
such magnitude as to prejudice the life, or the system of checks-and-balances;
health or property of inhabitants in two or ● A switch from the presidential system to a
more cities of provinces. (LNL Archipelago parliamentary system;
Minerals Inc v. Agham Party List, GR ● A switch from a bicameral system to a
209165, Apr. 12, 2016) unicameral system (Lambino v. COMELEC,
G.R. No. 174153, Oct. 25, 2006).
3. PROCESS OF CHANGE
(AMENDMENTS AND Two-part test in determining whether a proposal
REVISIONS) involves an amendment or revision:
FOR ONE ATENEO

1. Quantitative test — The court examines
(PHIL CONST., art. XVII.) only the number of provisions affected and
Amendment does not consider the degree of the change.
● An alteration of one or a few specific Whether the proposed change is so
extensive in its provision as to change
separable provisions of the Constitution.
The changes brought about by amendments directly the “substance entirety” of the
will not affect the other provisions of the Constitution by the deletion or alteration of
Constitution (Bernas, 1987 Philippine numerous provisions.
Constitution: A Commentary, 1345, 2009). 2. Qualitative test — Inquires into the
● An addition or change within the lines of the qualitative effects of the proposed change in
original constitution as will effect an the Constitution. The main inquiry is whether
improvement, or better carry out the purpose the change will “accomplish such far-
for which it was framed; a change that adds, reaching changes in the nature of our basic
reduces or deletes without altering the basic governmental plan as to amount to a
principles involved; affects only the specific revision” (Lambino v. COMELEC, G.R. No.
provision being amended. (Lambino v. 174153, Oct. 25, 2006).
COMELEC, G.R. No. 174153, Oct. 25,
2006) Necessary Steps to Give Effect to Amendments
or Revisions (PSR):
Examples: 1. Proposal of amendments or revisions by the
● A change reducing the voting age from 18 proper constituent assembly
years to 15 years; 2. Submission of the proposed amendments or
● A change reducing Filipino ownership of revisions to the people
mass media companies from 100% to 60%; 3. Ratification
a change requiring a college degree as an
additional qualification for election to the Ways of Proposing Amendments (CCP)
Presidency (Lambino v. COMELEC, G.R.
No. 174153, Oct. 25, 2006). 1. Constituent Assembly (ConAss)
● Acting as a Constituent Assembly, the
Revision Congress by itself may propose
● A re-examination of the entire Constitution amendments by 3/4 vote of all its
or of provisions which have over-all members.
implications for the entire Constitution to
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Philippine Constitution: A Comprehensive

Reviewer, 545, 2011).
NOTE:
● The power of Congress to propose 3. People’s Initiative
amendments is NOT part of its ordinary For a valid People’s Initiative, there must be:
legislative power. Congress possesses 1. Petition to propose such amendments must
constituent power only because it has been be signed by at least 12% of all registered
specifically given that power by and under voters.
the conditions of Article XVII (Bernas, The 2. Every legislative district must be
1987 Philippine Constitution: A represented by at least 3% of the registered
Comprehensive Reviewer, 544, 2011, citing voters therein.
Gonzales v. COMELEC, G.R. No. L-28196,
Nov. 9, 1967). ● While the substance of the proposals made
● Each House may separately formulate by each type of ConAss is not subject to
amendments by a vote of 3/4 of all its judicial review, the manner the proposals
members, and then pass it on to the other were made is subject to judicial review.
house for similar process. Nothing is said ● Since a ConAss owes their existence to the
about joint sessions (Bernas, The 1987 Constitution, the courts may determine
Philippine Constitution: A Comprehensive whether the assembly has acted in
Reviewer, 544, 2011). accordance with the Constitution, for
● Even in a joint session, they must still example:
vote separately because Congress is o Whether a proposal was approved
bicameral. by the required number of votes in
Congress (acting as a constituent
2. Constitutional Convention (ConCon) assembly).
FOR ONE ATENEO

● Congress may call a ConCon by a 2/3 vote o Whether the approved proposals
of all its members, or were properly submitted to the
● By a majority vote of all its members, people for ratification.
Congress may submit to the electorate
NOTE:
the question of calling a ConCon.
● The electorate can propose through initiative
NOTE: ONLY amendments, since it would be
● The choice of either a ConAss or ConCon practically impossible to have an over-all
for the purpose of initiating amendments or review of the Constitution through action by
revisions is left to the discretion of Congress. the entire electoral population.
In other words, it is a political question. ● No amendment through a People’s Initiative
● The manner of calling a ConCon is subject shall be authorized within 5 years following
to judicial review, because the Constitution the ratification of the 1987 Constitution (Feb.
has provided for voting requirements. 2, 1987) nor more often than once every 5
● If Congress, acting as a ConAss, calls for a years. Congress shall provide for the
ConCon but does not provide the details for implementation of the exercise of this right.
the calling of such ConCon, Congress — (Art. XVII, Sec.2)
exercising its ordinary legislative power — ● Revision of the Constitution cannot be
may supply such details. But in so doing, effected through initiative and referendum.
Congress (as legislature) should not Formulation of provisions revising the
transgress the resolution of Congress acting Constitution requires both cooperation and
as a constituent assembly (Bernas, The debate which can only be done through a
1987 Philippine Constitution: A collegial body. (BERNAS)
Comprehensive Reviewer, 544-545, 2011).
● Congress, as a ConAss and the ConCon, Ways of Proposing Revisions
has no power to appropriate money for their 1. By Congress, upon a vote of 3/4 of its
expenses. Money may be spent from the members
treasury only pursuant to an appropriation 2. By a Constitutional Convention
made by law. However, the constitutional
convention is free to dispose the funds Doctrine of Proper Submission
appropriated by Congress for the A plebiscite may be held on the same day as a
Convention’s operation (Bernas, The 1987 regular election (Gonzales v. COMELEC, G.R. No. L-
28196, Nov. 9, 1967). The entire Constitution must
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be submitted for ratification at one plebiscite only. The determination of the conditions under which
The people must have a proper “frame of reference”. proposed amendments/revisions are submitted to
(Tolentino v. COMELEC, G.R. No. L-34150, Oct. 16, the people falls within the legislative sphere. That
1971). No “piecemeal submission,” e.g. submission Congress could have done better does not make the
of age amendment ahead of other proposed steps taken invalid.
amendments. (Lambino v. COMELEC, G.R.
No.174153, Oct. 25, 2006) All the proposed amendments or revisions made by
the constituent assemblies must be submitted for
N.B. The process of revision is the same in all ratification in one single plebiscite. There cannot be
respects except that it cannot be proposed via a a piece-meal ratification of amendments/revisions.
People’s Initiative. (Id.)
All the amendments to be proposed by the same
Judicial Review of Amendments Convention must be submitted to the people in a
The validity of the process of amendment is not a single "election" or plebiscite (Tolentino v.
political question because the Court must review if COMELEC, G.R. No. L-34150, Oct. 16, 1971).
constitutional processes were followed. (Id.)
Presidential proclamation is NOT required for
Ratification of Proposal if made through ConAss effectivity of amendments/revisions.
or ConCon ● Exception: When the proposed
● Amendments and revisions are valid when amendments or revisions so provide
ratified by a majority of votes cast in a (Bernas, The 1987 Philippine Constitution: A
plebiscite. Comprehensive Reviewer, 550, 2011).
● Plebiscite is held not earlier than 60 days nor
later than 90 days from the approval of such Date of Effectivity of an Amendment or Revision
amendments or revisions. Since Section 4 of Article XVII, says that any
FOR ONE ATENEO

amendment or revision ‘shall be valid when ratified’,
Ratification of Proposal if made through People’s the date of effectivity of any amendment or revision
Initiative should be the same as that of the date of ratification,
● Valid when ratified by a majority of votes that is, the day on which the votes are cast. However,
cast in a plebiscite. the amendments themselves might specify
● Plebiscite is held not earlier than 60 days nor
later than 90 days after the certification by
COMELEC of the petition's sufficiency.
otherwise. (BERNAS)
Amendments v. Revisions
AMENDMENTS REVISIONS
Requisites for Valid Ratification: (PCR) Change in the Constitution
1. Held in a Plebiscite conducted under the Purpose is to improve Purpose is to examine
election law. specific parts entirety
2. Supervised by the COMELEC. Affects only the Affects several
3. Where only franchised (Registered) voters specific provision provisions
take part. amended
Adds, reduces, Affects basic principles
The Constitution does not require that amendments deletes without Affects substantial
and revisions be submitted to the people in a special altering basic principle entirety
election. Thus, they may be submitted for ratification E.g. lowering the E.g. shift from
simultaneously with a general election. voting age presidential to
parliamentary system
CAN BE DONE BY: HOW RATIFICATION

AMENDMENTS 1. Congress (Constituent By a vote of 3/4 of all its
Assembly/ConAss) members
2. Constitutional By a vote of 2/3 of all the
Convention (ConCon) members of Congress; or Through a plebiscite, 60-
90 days after submission
By a majority vote of all its of the amendments
members, Congress may
submit to the electorate the
question of calling a ConCon
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3. People’s Initiative Petition must be signed by at

least 12% of all registered
voters; and
Every legislative district must

be represented by at least 3%
of the registered voters
therein.
REVISIONS 1. Congress (Constituent By a vote of 3/4 of all its
Assembly/ConAss) members
2. Constitutional By a vote of 2/3 of all the
Convention (ConCon) members of Congress; or
By a majority vote of all its

members, Congress may
submit to the electorate the
question of calling a ConCon
B. THE PHILIPPINES AS A STATE or if some of its territory is claimed by

another state. An entity does not
A state is a community of persons more or less necessarily cease to be a state even if all
numerous, permanently occupying a definite portion its territory has been occupied by a foreign
of territory, independent of external control, and power or if it has otherwise lost control its
possessing an organized government to which the territory temporarily (Restatement (Third)
great body of inhabitants render habitual obedience on the Foreign Relations Law of the United
FOR ONE ATENEO

(Bernas, The 1987 Constitution of the Republic of States).
the Philippines: A Commentary, 37, 2009).
(c) Government – that institution or aggregate
of institutions by which an independent
1. ELEMENTS (PEOPLE,
society makes and carries out those rules
TERRITORY, of action which are necessary to enable
GOVERNMENT, AND men to live in a social state, or which are
CAPACITY TO ENTER INTO imposed upon the people forming that
RELATIONS WITH OTHER society by those who possess the power or
STATES) authority of prescribing them.
(a) People – a community of persons sufficient (d) Capacity to enter into relations with
in number and capable of maintaining the other states or Sovereignty - An entity is
continued existence of the community and not a state unless it has competence, within
held together by a common bond of law. It its own constitutional system, to conduct
is of no legal consequence if they possess relations with other states, as well as
diverse racial, cultural, or economic political, technical, and financial capabilities
interests (Id.) to do so. An entity that has capacity to
conduct foreign relations does not cease to
(b) Territory – A definite territory, consisting of be a state because it voluntarily turns over
land and waters and the air space above to another state control of its foreign
them and the submarine areas below them. relations. States do not cease to be states
because they have agreed not to engage in
The extent of the Philippine territory is certain international activities or have
defined in Article I of the Constitution. delegated authority to do so to a
(Bernas, The 1987 Constitution of the “supernational” entity. Clearly, a state does
Republic of the Philippines: A Commentary, not cease to be a state if it joins a common
40-41, 2009). market.
An entity may satisfy the territorial Sec. 1, Art. II, of the Constitution says:
requirement for statehood even if the “Sovereignty resides in the people and all
boundaries have not been finally settled, if government authority emanates from
one or more of its boundaries are disputed, them.” Sovereignty in this sentence
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therefore can be understood as the source

of ultimate legal authority. A distinction should be made between the right of
internal and external self-determination (Id.)
Legal sovereignty means the power to adapt or
alter a constitution. Holders of the Right
International law has long recognized the right to
Political sovereignty is the sum total of all the self-determination of "peoples", understood not
influences in a state, legal and non-legal, which merely as the entire population of a State but
determine the course of law. also a portion thereof. (Id.)
Sovereign authority is not always directly exercised INTERNAL SELF- EXTERNAL SELF-
by the people. It is normally delegated by the people DETERMINATION DETERMINATION
to the government. DEFINITION
A people's pursuit of its The establishment of a
Finally, is recognition by other states a constitutive political, economic, sovereign and
element of a state? There are two views on this: social and cultural independent State, the
development within free association or
Constitutive theory – recognition constitutes a the framework of an integration with an
state, that is it is what makes a state a state and existing state. independent State or
confers legal personality on the entity. (Province of North the emergence into
Cotabato v. any other political
Declaratory theory – recognition is merely Government of the status freely
“declaratory” of the existence of the state and that Republic of the determined by a
its being a state depends upon its possession of the Philippines Peace people constitute
required elements and not upon recognition. A Panel on Ancestral modes of implementing
FOR ONE ATENEO

recognizing state merely accepts an already existing Domain, G.R. Nos. the right of self-
situation. 183591, 183752, determination by that
183893, 183951 & people. (Province of
The weight of authority favors the declaratory view. 183962, October 14, North Cotabato v.
In practice however, whether to recognize or not is 2008, citing the Government of the
largely a political decision. (Bernas, The 1987
Constitution of the Republic of the Philippines: A
Commentary, 54-56, 2009).
Canadian Supreme Republic
Court in Reference Re: Philippines
Secession of Quebec). Panel on Ancestral
of
Domain, G.R. Nos.

the
Peace
2. DISTINCTION BETWEEN The right presumes 183591, 183752,

INTERNAL AND EXTERNAL that all peoples are 183893, 183951 &
SELF-DETERMINATION “allowed to exercise 183962, October 14,
those rights and 2008, citing the
Self-Determination freedoms which permit Canadian Supreme
The right to self-determination is the right of peoples the expression of the Court in Reference Re:
to freely determine their political status and freely popular will.” Secession of Quebec).
pursue their economic, social and cultural (Cassese, Political
development. (Common Article 1, ICCPR & Self-Determination: It is the ability of the
ICESCR) Old Concepts and New people to decide their
Developments, 137, status in international
The right of a people to self-determination is now so 1979). relations through
widely recognized in international conventions that independence or union
the principle has acquired a status beyond with another State.
'convention' and is considered a general principle of (Cassese, Political
international law." (Province of North Cotabato v. Self-Determination:
Government of the Republic of the Philippines Old Concepts and New
Peace Panel on Ancestral Domain, G.R. Nos. Developments, 137,
183591, 183752, 183893, 183951 & 183962, 1979)
October 14, 2008) WHO EXERCISES?
The right of the nation, The right of a group
The people's right to self-determination should not, already constituted which considered
however, be understood as extending to a unilateral as a State, to choose itself a nation to form
right of secession. (Id.) its form of government a State of its own.
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and to determine the (United Nations C. FUNDAMENTAL POWERS OF THE

policy it meant to General Assembly STATE
pursue. (United Official Records,
Nations General Netherlands, Concept, Application, and Limits
Assembly Official Annotations on the text The totality of governmental power is contained in
Records, Netherlands, of the draft three great powers: police power, power of eminent
Annotations on the text International Covenant domain and power of taxation. These belong to the
of the draft on Human Rights) very essence of government, without which no
International Covenant government can exist. A constitution does not grant
on Human Rights) such powers to government; a constitution can only
define and delimit them and allocate their exercise
FORMS OR INCLUSIONS among various government agencies. (Bernas, The
This includes: the Its different forms 1987 Constitution of the Republic of the Philippines,
determination of the include: the peaceful 2009).
Constitution, inclusion dissolution of a State,
of an autonomous the re(union) or merger Police Power, Power of Taxation, Power of
status, and the right to of one State with Eminent Domain
have a democratic another State, or POLICE EMINENT
government. through secession. TAXATION
POWER DOMAIN
(Cassese, Political (Raič, Statehood and AUTHORITY WHICH EXERCISES THE POWER
Self-Determination: the Law of Self- May be exercised only by the May be
Old Concepts and New Determination, 274, government or its political granted to
Developments, 137, 2002) subdivisions public service
1979). companies or
public utilities
FOR ONE ATENEO

WHEN THE RIGHT ARISES PURPOSE
The exceptional cases The use of the The property The property is
in which the right to property is (generally in the “taken” for
external self- “regulated” for form of money) public benefit,
determination can
the purpose of is taken for the hence, it must
arise are: (1) where a promoting the support of be
people is under general government compensated.
colonial rule, (2) is welfare,
subject to foreign hence it is not
domination or compensable
exploitation outside a PERSONS AFFECTED
colonial context, and — Usually - Operates on
less definitely but operates an entity or an
asserted by a number upon a individual as
of commentators — (3) community of the owner of a
is blocked from the a class of particular
meaningful exercise of entities or property
its right to internal self- individuals
determination.
EFFECT
(Province of North
There is no The money There is a
Cotabato v.
transfer of contributed in transfer of the
Government of the
title. At most, the concept of right to
Republic of the
there is a taxes becomes property
Philippines Peace
restraint on part of the whether it be
Panel on Ancestral
the injurious public funds ownership or
Domain, G.R. Nos.
use of the to a lesser
183591, 183752,
property right (e.g.
183893, 183951 &
possession)
183962, October 14,
BENEFIT
2008, citing the
Canadian Supreme The person Person affected The person
Court in Reference Re: affected receives the affected
Secession of Quebec). receives no equivalent of receives the
direct and the tax in the full and fair
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immediate form of market value insistent and the least limitable of powers,
benefit but protection, of the property extending as it does to all great public
only such as public taken from him needs. (Id.)
may arise improvements,
from the and benefits he Requisites
maintenance receives from 1. Reasonable Subject - The subject of the
of a healthy the government measure is within the scope of police, i.e.
economic as such. that the activity or property sought to be
standard of Therefore, regulated affects the public welfare. The
society and is taxation may be interest of the public, generally as
often referred used as an compared to a particular class requires
to as damnum implementation interference by the state.
absque injuria of police power 2. Reasonable Means - The means
i.e. “damage (Lutz v. employed are reasonably necessary for the
without injury” Araneta, 1955) accomplishment of the purpose, and not
IMPOSITION unduly oppressive on individuals. Both the
The amount There is There is no end and the means must be legitimate (US
imposed generally no amount v. Toribio, G.R. No. L-5060, Jan. 1, 1910)
should not be limit to the imposed but
more than amount that rather the Nature
sufficient to may be owner is paid Legislative but may be delegated to the following:
cover the cost imposed the market a. President
of the license value of the b. Administrative Bodies
and the property taken c. Legislative Bodies of Local Government
necessary Units
FOR ONE ATENEO

expense of
police 2. EMINENT DOMAIN
surveillance
and The purpose of the taking must be public use. Just
inspection, compensation must be given to the private owner.
examination,
or regulation
as nearly as
can be
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
The State has a paramount interest in exercising its

estimated power of eminent domain for the general welfare
EXTENT and that the superior right of the State to expropriate
Regulates Affect only property rights private property always takes precedence over the
both liberty interest of private owners, provided that:
and property a. the expropriation is for public use
b. the exercise of the right to eminent domain
1. POLICE POWER complies with the guarantees of due
process (Estate of JBL Reyes v. City of
Police Power in General Manila, G.R. Nos 132431 & 137146, Feb.
a. Based on public necessity and the right of 13, 2004).
the State and of the public to self-
protection. For this reason, its scope The matter is legislative, however, “once authority is
expands and contracts with changing given to exercise the power, the matter ceases to be
needs. (Baseco v. PCGG, G.R. No. 75885, wholly legislative. The executive authorities may
May 27, 1987) then decide whether the power will be invoked and
b. It is the power of the State to enact to what extent” (Republic v. Juan, G.R. No. L-24740,
regulations to promote the health, morals, Jul 30, 1979).
peace and order, and welfare of the society
(Ermita-Malate Hotel and Motel Operators It may be delegated to LGU’s, other public
v. City of Manila, G.R. No. L-24693, Oct. entities and public utilities. The scope is
23, 1967). These fall under “public narrower and may be exercised only when
necessity” authorized by Congress, subject to its control
c. Police power has been properly and restraints imposed through the law
characterized as the most essential, conferring the power or in other legislations.
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Thus, the power of eminent domain delegated to an should not be interfered with, unless there be a clear
LGU is in reality not eminent but “inferior.” The violation of some constitutional inhibition (Sarasola
national legislature is still the principal of the LGUs, v. Trinidad, G.R. No. 14595, Oct. 11, 1919).
the latter cannot go beyond the principal’s will or
modify the same (Beluso v. Municipality of Panay, The legislature is free to select the subjects of
G.R. 153974, Aug. 7, 2006). taxation and it may determine within reasonable
bounds what is necessary for its protection and
Requisites: expedients for its promotion (Lutz v. Araneta, G.R.
1. Public Use — It means public usefulness, No. L -7859, Dec. 22, 1955).
utility, or advantage or what is productive of
general benefit, so that any appropriation of General Rule: The power to tax is purely legislative
private property by the state under its right of and it cannot be delegated
eminent domain, for purposes of great
advantage to the community, is a taking for Exceptions:
public use. (Bernas, The 1987 Constitution of 1. As to the President — Congress may, by
the Republic of the Philippines, 2009 citing law, authorize the President to fix within
Gohl Realty Co. v. Hartford, 104 A.2d 365, specific limits, and subject to such
368-9 Conn,. 1954). What has emerged is a limitations and restrictions as it may
concept of public use which is as broad as impose, tariff rates, import and export
public welfare. The scope of the power of quotas, tonnage and wharfage dues, and
eminent domain has become as broad as the other duties or imposts within the
expansive and ever expanding scope of police framework of the national development
power itself (Bernas, The 1987 Constitution of program of the Government. (PHIL. CONST.,
the Republic of the Philippines, 2009). art. VI, § 28, ¶ 2. )
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2. “Taking” requires: EPAP-D 2. As to Local Government — Under the
a. Expropriator must Enter the private present Constitution, each local
property government unit is now expressly given the
b. Entrance must not be for a momentary power to create its own sources of revenue
period, must be Permanent and to levy taxes, subject to such
c. Entry must be under warrant or color of guidelines and limitations as the Congress
legal Authority may provide, consistent with the basic
d. Property must be devoted to a Pubic use policy of local autonomy (PHIL. CONST., art.
e. Utilization of property must Deprive owner X, § 5.)
of all beneficial enjoyment of the property a. A municipal corporation has no
(Republic v. Vda Castellvi, G.R. No. L- inherent right to impose taxes Its
20620, Aug. 15, 1974). power to tax must always yield to
a legislative act which is superior
3. Just Compensation — This includes not only having been passed by the State
the determination of the amount to be paid itself which has the inherent power
(market value) to the owner of the land but also to tax (Basco v. PAGCOR, G.R.
the payment of the and within a reasonable No. 91649, May 14, 1991).
period of time from its taking (Municipality of
Makati v. Court of Appeals, G.R. No. 89898- 3. As to Administrative Agencies — When
99, Oct. 1, 1990). It also includes interest in the delegation relates merely to
case of delay. (Republic v. Court of Appeals, administrative implementation which may
G.R. No. 146587, Jul 2, 2002). call for some degree of discretionary
powers under a set of sufficient standards
3. TAXATION expressed by law (Maceda v. Macaraig,
G.R. No. 88291, May 31, 1993)
The power of taxation is essentially a legislative
function. Taxation is an attribute of sovereignty. It is a. Constitutional Exemption
the strongest of all powers of the government. There Principles
is a presumption in favor of legislative
determination. Public policy decrees that since upon Corollary to the power to tax is the power to exempt
the prompt collection of revenue depends the very from tax. Hence, the same general and specific
existence of government itself, whatever limitations on the power to tax also apply to the
determination shall be arrived at by the legislature power to create exemptions. The exemptions,
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therefore, must be for public purpose, uniform, preventing one from invading the domain of the
equitable, and in conformity with the equal others, but the separation is not total.
protection clause.
The principle of separation of powers ordains that
Moreover, the Constitution itself may create each of the three great government branches has
exemptions. When it does, the constitutional exclusive cognizance of and is supreme in concerns
exemption itself becomes a limit on the power to tax. falling within its own constitutionally allocated
sphere; e.g., the judiciary as Justice Laurel
Sec. 28(3) is one such exemption: “Charitable emphatically asserted “will neither direct nor restrain
institutions, churches and personages or convents executive [or legislative] action” (Republic v. Bayao,
appurtenant thereto, mosques, non-profit G.R. No. 179492, Jun 5, 2013).
cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively 2. SYSTEM OF CHECKS AND
used for religious, charitable, or educational BALANCES
purposes shall be exempt from taxation.”
A system operating between and among the three
It must be pointed out, however, that the exemption branches of government the net effect of which is
created by the constitutional provision is only for that no one department is able to act without the
“taxes assessed … as property taxes, as contra- cooperation of at least one of the other departments.
distinguished from excise taxes. (Bernas, The 1987
Constitution of the Republic of the Philippines: A Examples:
Commentary, 807, 2009, citing Lladoc v. 1. Legislation in the form of an enrolled bill
Commissioner of Internal Revenue, 14 SCRA 292, needs final approval from the President to
295, 1965). become a law;
2. President must obtain the concurrence of
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Congress to complete certain acts (e.g.
D. RELEVANCE OF THE granting of amnesty);
DECLARATION OF PRINCIPLES 3. Money can be released from the Treasury
AND STATE POLICIES only by authority of Congress;
4. Appropriation, revenue, tariff, increases in
The “Declaration of Principles and State Policies” is public debt and private bills originate in
a statement of the basic ideological principles and House of Representatives;
policies that underlie the Constitution. As such, the 5. SC can declare acts of Congress or the
provisions shed light on the meaning of the other Executive unconstitutional.
provisions of the Constitution and they are a guide
for all departments of the government in the 3. DELEGATION OF POWERS
implementation of the Constitution. (Bernas, The
1987 Philippine Constitution: A Comprehensive General Rule: Legislative power is vested in
Reviewer, 8, 2011). Congress which consists of the Senate and the
House of Representatives by the sovereign Filipino
They are used by the judiciary as aids or as guides people. Congress cannot delegate its legislative
in the exercise of its power of judicial review, and by power under the maxim delegata potestas non
the legislature in its enactment of laws (Tañada v. potest delegari (delegated power may not be
Angara, G.R. No. 118295, May 2, 1997). delegated).
Exceptions: (PLATE)
E. DYNAMICS AMONG THE 1. Delegation to the People – To the extent
BRANCHES OF GOVERNMENT reserved to the people by the provision on
initiative and referendum.
1. SEPARATION OF POWERS
2. Delegation to Local Government Units –
An allocation of the three great powers of Local legislative bodies are allowed by our
government in the following manner: legislation to Constitution to legislate on purely public
Congress, execution of laws to the Executive, and matters. Since what was given to local
settlement of legal controversies to the Judiciary. It legislative bodies are not power to make rules
is also an implicit limitation on their powers, and regulations but legislative power, the rules
on valid delegation do not apply. However,
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when what is given to local legislative body is 2. penalty of such is provided in the
executive power, the rules applicable to the statutes;
empowerment of administrative agencies also 3. the regulation is published in full text.
become applicable (Rubi v. Provincial Board, d. Powers of Congress which are not to be
G.R. No. L-14078, March 7, 1919). delegated are those that are strictly or
inherently legislative. Purely legislative
a. The BPO issued by the Punong Barangay power is the authority to make a complete
is not an undue delegation of legislative law - complete as to the time it shall take
power for it merely orders the perpetrator to effect or to whom it shall be applicable and
desist from (a) causing physical harm to the to determine the expediency of the
woman or her child; and (2) threatening to enactment
cause the woman or her child physical
harm. Such function of the Punong 4. Tariff Powers
Barangay is purely executive in nature, in - Art. VI, § 28(2) authorizes Congress to
pursuance of his duty under the LGC to delegate to the President the power to fix
“enforce all laws and ordinances,” and to tariff rates, import and export quotas,
“maintain public order in the barangay.” tonnage, wharfage dues, and other duties
(Garcia v. Drilon, G.R. No. 179267, June and impost.
25, 2013)
5. Emergency Powers
3. Delegation of Rule-Making Power to - Art. VI, § 23(2) authorizes Congress to give
Administrative Bodies – power to issue the President the power necessary and
supplementing rules and regulations provided proper to carry out a declared national
that the delegation must be complete and must policy in times of war or other national
prescribe sufficient standards. It also includes emergency pursuant to law.
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the determination of the presence of the
conditions for the law to take effect.
Test of Valid Delegation
a. Rationale:
1. Completeness Test — The law must state the
1. Increasing complexity of the task of policy that must be carried out or implemented
government and leave no room for the delegate to legislate;
2. Lack of technical competence on the nor allow discretion on their part to say what the
part of Congress to provide for specific law is. A statute may be complete when the
details of implementation subject, and the manner and the extent of its
3. Administrative agencies may fill in operation are stated in it such that when it
details of the statute for reaches the delegate, there must be nothing left
implementation for the delegate to do but to enforce the law.
4. Legislature may pass “contingent
2. Sufficiency of Standard — There must be
legislation “which leaves to another
adequate guidelines or limitations in the law to
body the business of ascertaining
map out the boundaries of the delegate
facts necessary to bring the law into
authority and prevent the delegation from
action” (ABAKADA v. Ermita, G.R. No.
running riot. The limits are sufficiently
168056, Sept 1, 2005).
determinate and determinable to which the
delegate must conform in the performance of
a. If there was a valid delegation, his actions.
administrative rules and regulations are just
binding as if they were written in the law.
Examples:
b. Administrative agencies may not issue
regulations that contravene the law i. Public interest (People v. Rosenthal, G.R.
(Solicitor General v. Metro Manila Nos. L-46076 and L-46077, Jun. 12,
Authority, G.R. No. 102782, Dec 11, 1991) 1939);
nor may they add to the standards set by ii. Fair and equitable employment practices
law (Tatad v. Secretary of Energy, G.R. No. (Eastern Shipping Lines v. POEA, supra)
124360, Nov. 5, 1997). iii. Justice and equity;
c. Administrative rules and regulations may iv. Public convenience and welfare;
be penal in nature provided that: v. Simplicity, economy, and efficiency.
1. such a violation is made a crime by the
delegating law; NOTE: Standards may be expressed or implied
from the law taken as a whole (Edu v. Ericta, G.R.
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No. L-32096, Oct. 24, 1970). They can even be Reorganization “involves the reduction of personnel,
gathered in another statute of the same subject consolidation of offices, or abolition thereof by
matter (Chongbian v. Orbos, G.R. No. 96754, June reason of economy or redundancy of functions.” The
6, 1995). general rule has always been that the power to
abolish a public office is lodged with the legislature.
A law allowing a judge to inflict punishment of The exception, however, is that as far as bureaus,
imprisonment in its discretion without any agencies or offices in the executive department are
designated limits is invalid (People v. Dacuycoy, concerned, the President’s power of control may
G.R. No. L-45127, May 5, 1989). justify him to inactivate the functions of a particular
office, or certain laws may grant him the broad
Section 8 of PD 910 regarding the Malampaya funds authority to carry out reorganization measures
provides: “all fees, revenues and receipt…under the (Malaria Employees v. Romulo, G.R. 160093, Jul
Petroleum Act of 1949; as well as the government 31, 2007).
share…shall form part of a special fund to be used
to finance energy resource development and F. STATE IMMUNITY
exploitation programs and projects of the
government and for such other purposes as may be 1. BASIS
hereafter provided by the President.” This is not a
valid delegation of legislative power. The BASIS: Art. XVI, Sec. 3: “The state may not be sued
provision constitutes an undue delegation of without its consent.” This is based on the principle
legislative power insofar as it does not lay down a of equality of states — par in parem non habet
sufficient standard to adequately determine the imperium.
limits of the President‘s authority (Belgica v. Ochoa,
G.R. No. 208566, Nov. 19, 2013). Doctrine of State Immunity
It refers to a principle by which a state, its agents,
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Congress can only delegate, usually to and property are immune from the jurisdiction of
administrative agencies, rule-making power or law another state (MAGALLONA).
execution. This involves either of two tasks for the
administrative agencies: Principle of Equality of States
1. Subordinate Legislation: Filling in the This principle is premised on the juridical equality of
details of an otherwise complete statute; or states, according to which a state may not impose
2. Contingent Legislation: Ascertaining the its authority or extend its jurisdiction to another state
fact necessary to put into effect, suspend, without the consent of the latter through a waiver of
or apply a “contingent” law. immunity. Thus, domestic courts must decline to
hear cases against foreign sovereigns out of
Any post-enactment congressional measure should deference to their role as sovereigns.
be limited to scrutiny and investigation. In particular,
congressional oversight must be confined to the Kinds of Immunity
following: (SAHM) 1. Absolute sovereign immunity - where a
state cannot be sued in a foreign court no
1. Scrutiny based primarily on Congress’
matter what the act it is sued for; and
power of appropriation and the budget
hearings conducted in connection with it
2. Restrictive sovereign immunity - where a
2. Its power to ask heads of departments to
state is immune from suits involving
Appear before and be Heard by either of its
governmental actions (jure imperii), but not
Houses on any matter pertaining to their
from those arising from commercial or non-
departments and its power of confirmation
governmental activity (jure gestionis).
and investigation
3. Monitoring of the implementation of laws
Summary
pursuant to the power of Congress to
General rule – The State cannot be sued.
conduct inquiries in aid of legislation
Exception – The State consents to be sued.
Any action or step beyond that will undermine the How a State gives its consent
separation of powers guaranteed by the 1. Express consent
Constitution. Legislative vetoes fall in this class a. General Law
(Abakada v. Purisima, G.R. No. 166715, Aug. 14, b. Special Law
2008). 2. Implied consent
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a. When the State commences 2. Acta jure imperii - by right of sovereign

litigation, it becomes vulnerable to power and in the exercise of sovereign
a counterclaim; (US v. Guinto, functions; there is no implied consent to be
G.R. No. 76590, Feb. 26, 1990) sued (US v. Ruiz, GR No. 35645, May 22,
b. State enters into a business 1985)
contract (thus exercising
proprietary functions); (Id.) c. When State Executes and Enters Private
c. When it would be inequitable for Contracts
the State to invoke immunity; ● General Rule: The State may be sued if a
d. In eminent domain cases. private contract is entered into by the proper
office and within the scope of his authority.
2. EXCEPTIONS ● Exception: When the private contract is
incidental to the performance of a
Consent to be sued is given by the state either government function.
expressly or impliedly
Suits against Public Officers
Express General Rule: The doctrine of state immunity also
The law expressly grants the authority to sue the applies to complaints filed against officials of the
State or any of its agencies. State for acts performed by them in the discharge of
a. General Law: Authorizes any person who their duties within the scope of their authority.
meets the conditions stated in the law to sue
the government in accordance with the Exception: The doctrine of immunity from suit will
procedure in the law (e.g. money claims not apply and may not be invoked where the public
arising from contract express or implied, official is being sued in his:
liability of local government units for torts) 1. private and personal capacity as an
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b. Special Law: may come in the form of a ordinary citizen
private bill authorizing a named individual to 2. for acts without authority or in excess of the
bring a suit on a special claim. powers vested in him. (Lansang v. CA, G.R.
102667, Feb. 23, 2000)
Implied (CBIP)
a. When the State Commences litigation, it
becomes vulnerable to counterclaim; G. THE NATIONAL TERRITORY
b. When the State enters into a Business
contract (in jure gestionis or proprietary 1. SCOPE (TERRESTRIAL,
functions); AERIAL, AND FLUVIAL
c. When it would be Inequitable for the State
DOMAINS)
to invoke its immunity; and
d. In instances when the State takes private
property for Public use or purpose (Eminent Provision on National Territory
Domain). The National Territory comprises the Philippine
Archipelago, with all the islands and waters
Specific Rules embraced therein, and all other territories over
a. When State Commences Litigation which the Philippines has sovereignty or jurisdiction,
Exception: When the State intervenes not for consisting of its terrestrial, fluvial, and aerial
the purpose of asking for any affirmative relief, domains, including its territorial sea, the seabed, the
but only for the purpose of resisting the claim subsoil, the insular shelves, and other submarine
precisely because of immunity from suit (Lim v areas. The waters around, between, and connecting
Brownell, GR No. L-8587, Mar 24 1960). the islands of the archipelago, regardless of their
breadth and dimension, form part of the internal
b. When State enters a Business Contract waters of the Philippines (PHIL. CONST., art. I, § 1)
Types of Capacity of the State in entering into
contracts: Purpose of Article I
1. Acta jure gestionis - by right of economic 1. Initially it was to prevent the US from
or business relations; commercial or dismembering the Philippines, an
proprietary acts. The State may be sued acceptance by the US President of the
(US v. Guinto, GR. No. 76607, Feb. 26, Constitution would oblige the US to keep
1990) the integrity of the Philippine territory.
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2. Now, it is to determine the State’s 2. Internal Waters: waters around, between

jurisdiction over which it can exercise its and connecting the islands of the
sovereignty. The government can exercise archipelago, regardless of breadth and
its power over those areas included in the dimension; and
national territory and citizens must respect 3. All other territories over which the
that. At the same time, citizens could Philippines has sovereignty or jurisdiction.
demand its rights from the government
under those areas. It consists of:
1. Territorial sea, seabed, subsoil, insular
NOTE: It is only a municipal or local law. The shelves, and other submarine areas; and
constitution is not definitive to claims of other states. 2. Terrestrial, fluvial, and aerial domains.
But it has value, if in history, no one questions it, we
can rely on the fact that it has not been challenged Concept of Innocent Passage
but it does not stop others from claiming it. Passage through territorial waters which is neither
prejudicial to the interests of the coastal state nor
2. ARCHIPELAGIC DOCTRINE contrary to recognized principles of international
law. Example: Entry into territorial waters by a
Archipelagic Doctrine cruise ship.
A body of water studded with islands, or the islands
surrounded with water, is viewed as a unity of Future Acquisitions included in National
islands and waters together forming one integrated Territory
unit. (N.B. Embodied in Art. II, specifically by the The clause includes any territory presently
mention of the “Philippine archipelago” and the belonging or those that might in the future belong to
specification on “internal waters.”) the Philippines through any of the accepted
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international modes of acquiring territory.
Application to the Philippines
The waters around, between, and connecting the Territories belonging to Philippines by historic
islands of the archipelago, regardless of their right or title
breadth and dimensions, form part of the internal The clause also includes what was referred to under
waters of the Philippines. (PHIL. CONST., art. I, § 1) the 1973 Constitution as territories “belonging to the
Philippines by historic right or legal title,” that is,
Treaty limits of the Philippine archipelago territories which, depending on available evidence,
1. Treaty of Paris of 10 December 1898: might belong to the Philippines (e.g., Sabah, the
“Spain cedes to the United States the Marianas, Freedomland) (Bernas, Constitutional
archipelago known as the Philippines Rights and Social Demands, 8, 2010).
Islands, and comprehending the islands
lying within the following line” Article 3 of Under Article 3 of the UNCLOS, “every state has the
the said treaty defines the metes and right to establish the breadth of its territorial sea up
bounds of the archipelago by longitude and to a limit not exceeding 12 nautical miles, measured
latitude, degrees and seconds. Technical from the baselines.”
descriptions are made of the scope of the
archipelago as this may be found on the Contiguous Zone
surface of the earth. It is an area of water which extends up to 24 nautical
2. Treaty of Washington of 7 November 1900 miles from the baseline (12 nautical miles from the
between the United States and Spain: Territorial Sea). Although not part of the territory, the
Ceding Cagayan, Sibuto and Sulu. coastal State may exercise jurisdiction to prevent
3. Treaty of 12 January 1930 between the infringement of customs, fiscal, immigration, or
United States and Great Britain: Ceding the sanitary laws.
Turtle and Mangsee Islands (BERNAS
(2003), cited in Justice Velasco’s Exclusive Economic Zone
concurring opinion in Magallona v. Ermita
This refers to the body of water extending up to 200
(2011))
nautical miles beyond the baseline, within which the
state may exercise sovereign rights to explore,
Composition of National Territory exploit, conserve, and manage the natural
1. Philippine Archipelago, with all the resources.
islands and waters embraced therein;
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Extended Continental Shelf or diminution of territory, as States may only

Portion of the continental shelf that lies beyond the acquire (or lose) territory through the
200 nautical mile limit. A coastal state may establish following modes: (CAPO) Cession,
a continental shelf beyond 200 nautical miles from Accretion, Prescription, and Occupation
its coastline. (Magallona v. Ermita, G.R. No. 187167,
2011).
The coastal state may establish the outer limits of its (b) The law also does not abandon the
juridical continental shelf wherever the continental country’s claim to Sabah, as it does not
margin extends beyond 200 nautical miles by expressly repeal the entirety of R.A. No.
establishing the foot of the continental slope, by 5446. (Magallona v. Ermita, G.R. No.
meeting the requirements of Article 76, paragraphs 187167, Jul. 16, 2011)
4-7, of the UNCLOS.
The law also does not convert internal waters into
The Philippine archipelago and all other territories archipelagic waters (which allow the right of
consist of the following domains: (TAFA) innocent passage). The Philippines still exercises
1. Terrestrial; sovereignty over the body of water lying landward of
2. Aerial; the baselines including the air space over it and the
3. Fluvial; and submarine areas underneath. The political branches
4. All other territories outside archipelago over of the Philippine government, in the competent
which RP has sovereignty or jurisdiction. discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic
waters to regulate innocent and sea lanes passage
Normal Baseline Method
(Magallona v. Ermita, G.R. No. 187167, Jul. 16,
The baseline is drawn following the low-water line 2011).
along the coasts as marked on large-scale charts
officially recognized by the coastal State. This line
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The Baselines Law does not abandon the
follows the sinuosities of the coast and therefore
Philippines’ claim over Sabah under RA 5446. The
would normally not consist of straight lines (Section
definition of the baselines of the territorial sea of the
5, 1982 LOS; Bernas, 1987 Philippine Constitution:
Philippine Archipelago is without prejudice to the
A Commentary, 23, 2009).
delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North
Straight Baseline Method Borneo, over which the Philippines has acquired
Consists of drawing straight lines connecting dominion and sovereignty (R.A. No. 556, § 2).
appropriate points on the coast without departing to
any appreciable extent from the general direction of Maritime Zones
the coast, in order to delineate the internal waters
from the territorial waters of an archipelago. TERRITORIAL 12 nautical Absolute
SEA miles from Sovereignty
baselines
The Baseline Law (R.A. 9522, 2009)
R.A. No. 9522–amended R.A. No. 3046, entitled "An CONTIGUOUS 24 nautical Enforcement
Act to Define the Baselines of the Territorial Sea of ZONE miles from of customs,
the Philippines;" specified that baselines of baselines fiscal,
Kalayaan Group of Islands and Bajo de Masinloc immigration,
(Scarborough Shoal) shall be determined as sanitation
“Regime of Islands” under the Republic of the laws
Philippines, consistent with the UNCLOS. EXCLUSIVE 200 nautical Exploitation
ECONOMIC miles from of living and
R.A. No. 9522 is constitutional: ZONE baselines non-living
(a) It is a statutory tool to demarcate the resources
maritime zone and continental shelf of the
CONTINENTAL Submerged Sovereign
Philippines under UNCLOS III, and does not
SHELF prolongatio rights of
alter the national territory. Baselines laws
n of the land exploration
are nothing but statutory mechanisms for
territory and
UNCLOS III state parties to delimit with
exploitation of
precision the extent of their maritime zones
living and
and continental shelves. The law has
non-living
nothing to do with acquisition, enlargement,
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resources of
the seabed
Regime of Islands
Under Article 121 of the UNCLOS III, any naturally
formed area of land surrounded by water, which is
above water at high tides, qualifies under the
category of “regime of islands” whose islands
generate their own applicable maritime zones (e.g.,
Kalayaan Islands and Scarborough Shoal).
1.
Kalayaan Islands has its own Territorial
Sea, Contiguous Zone, and Exclusive
Economic Zone.
2. BUT Scarborough Shoal ONLY has a
Territorial Sea and Contiguous Zone.
3. There can be a Continental Shelf without an
EEZ, but not an EEZ without a Continental
Shelf.
————- end of topic ————-
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1. Legislative Inquiries and the Oversight

II. LEGISLATIVE DEPARTMENT
Functions
2. Non-Legislative
TOPIC OUTLINE UNDER THE SYLLABUS a. Informing Function
b. Power of Impeachment
A. NATURE OF LEGISLATIVE POWER
1. Derivative and Delegated Power
2. Plenary Character
3. Limitations
a. Substantive – Bill of Rights
b. Procedural – Manner of
Passage and Form of Bills
4. Law-making Distinguished from Law-
Execution
a. Filling-Up Details
b. Ascertainment of Facts
5. Exceptions to Non-Delegability
a. Local Governments
b. Presidential Power in Times of
War and National Emergency,
Including Martial Law and in a
Revolutionary Context
c. Fixing Tariff Rates, Quotas,
and Other Duties
6. Legislative Power of the People
Through Initiative and Referendum
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B. BICAMERAL CONGRESS
1. Senate
2. House of Representative
C. LEGISLATIVE PRIVILEGES,
DISCLOSURE OF FINANCIAL AND
BUSINESS AFFAIRS, PROHIBITIONS,
INHIBITIONS, AND
DISQUALIFICATIONS
D. QUORUM AND VOTING MAJORITIES
E. DISCIPLINE OF MEMBERS
F. PROCESS OF LAW-MAKING
1. Function of the Bicameral Conference
Committee
2. Limitations on Legislative Power
a. Limitations on Revenue,
Appropriations, and Tariff
b. Presidential Veto and
Congressional Override
G. RULES ON APPROPRIATION AND RE-

ALIGNMENT
H. ELECTORAL TRIBUNALS AND

COMMISSION ON APPOINTMENTS
1. Composition
2. Powers and Jurisdiction
I. POWERS OF CONGRESS
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A. NATURE OF LEGISLATIVE
POWER 2. On appropriation:
a. The procedure in approving
Nature of Legislative Power appropriations for Congress shall
Legislative power is the authority to make, alter and strictly follow the procedure for
repeal laws. (PHIL. CONST., art. VI, § 1.) approving appropriations for other
departments or agencies
1. DERIVATIVE AND DELEGATED b. Prohibition against use of public
money or property for a religious
POWER
purpose
c. No specific funds shall be
Classification of Legislative Power (COrODe):
appropriated or paid for use or
1. Constituent - the power to propose
benefit of any religion, sect, etc.,
amendments to the Constitution
except for priests, etc. assigned to
2. Ordinary - the power to pass ordinary laws
AFP, penal institutions, etc.
3. Original - possessed by the people in their
sovereign capacity, exercised via initiative
and referendum. 3. On taxation:
4. Delegated - possessed by Congress and a. No law granting any tax exemption
other legislative bodies by virtue of the shall be passed without the
Constitution; subordinate to the original concurrence of a majority of all
power of the people who delegated the Members of Congress
same. b. All money collected on any tax
levied for a special purpose shall
be treated as a special fund and
2. PLENARY CHARACTER paid out for such purpose only
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c. All revenues and assets of non-
General Plenary Power stock, non-profit educational
The grant of legislative power to Congress is broad, institutions
general and comprehensive. The legislative body
possesses plenary power for all purposes of civil
4. On the Supreme Court’s jurisdiction. No
government. Any power, deemed to be legislative by
law shall be passed increasing the
usage and tradition, is necessarily possessed by
appellate jurisdiction of the Supreme Court
Congress, unless the Constitution has lodged it
as provided in the Constitution without its
elsewhere. Except as limited by the Constitution,
advice and concurrence
either expressly or impliedly, legislative power
embraces all subjects and extends to matters of
general concern or common interest. (Ople v. 5. On nobility. No law granting title of royalty
Torres, G.R. No. 127685, July 23, 1998) or nobility shall be passed
Implied limitations
5. LIMITATIONS
1. Prohibition against irrepealable laws
2. Non-delegation of powers
a. Substantive – Bill of Rights
Jurisprudence
Substantive - limitations on the content of laws. 1. Power to provide holdover: Congress
cannot provide for the holdover of elective
Express limitations: officers if the same would go beyond their
1. Bill of Rights: terms fixed by the Constitution (Abas Kida
a. No law shall be passed abridging v. Senate, G.R. No. 196271, 2011).
freedom of speech, of expression, 2. Power to create new term and appoint the
etc. occupant of the position: Congress cannot
b. No law shall be made respecting create a new term and effectively appoint
an establishment of religion or the occupant of the position for the new
prohibiting the free exercise term. (Id.)
thereof 3. Power to grant franchise for public utilities:
c. No law impairing the obligation of Congress cannot grant legislative
contracts shall be passed franchises for the operation of public
d. No ex post facto law or bill of utilities which shall be exclusive in
attainder shall be enacted character and which shall not be subject to
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amendment, alteration or repeal when The power conferred upon an administrative agency
common good requires (Tawang to issue or promulgate rules and regulations
Multipurpose v. La Trinidad Water District, necessary to carry out its functions has been held to
G.R. No. 166471, 2011). be an adequate source of authority to delegate a
b. Procedural – Manner of particular function, unless by express provision of
Passage and Form of Bills the statute or by implication, it has been withheld."
Procedural - limitations on the manner of passing Limitations on the rule-making power

laws
The quasi-legislative or rule-making power of a
1. There must only be one subject to be stated public administrative body is a delegated legislative
in the title of the bill to prevent hodgepodge power, which it may not use either to abridge the
or log-rolling legislation. authority given it by the Congress or the Constitution
2. Three readings on separate days, printed or to enlarge its power beyond the scope intended.
copies of the final bill in its final form to be Constitutional and statutory provisions control with
distributed to members three days before respect to what rules and regulations may be
its passage, except if the President certifies promulgated by such a body, as well as with respect
to its immediate enactment to meet a public to what fields are subject to regulation by it.
calamity or emergency; upon its last
reading, no amendment is allowed and the 1. It may not make rules and regulations
vote thereon taken immediately and the which are inconsistent with the provisions
yeas and nays entered into the Journal. of the Constitution or a statute, particularly
3. Appropriation, revenue, tariff, bills the statute it is administering or which
authorizing the increase of public debts, created it, or which are in derogation of, or
bills of local application, and private bills defeat, the purpose of a statute.
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shall originate exclusively in the House of
Representatives. 2. It may not, by its rules and regulations,
amend, alter, modify, supplant, enlarge or
6. LAW-MAKING DISTINGUISED expand, restrict or limit the provisions or
coverage of the statute as this power
FROM LAW-EXECUTION
belongs to the legislature. It cannot engraft
In spite of the principle of non-delegability of additional requirements or embrace
legislative power, it is common knowledge that matters not covered by the statute or
numerous statutes have been passed creating contemplated by the legislature. The power
administrative agencies and authorizing them to of administrative officials to promulgate
exercise vast regulatory powers. The rules and rules in the implementation of the statute is
regulations they issue have the force and effect of necessarily defined by and limited to what
law, This phenomenon has been justified in two is provided in the legislative enactment
different theories: (Bernas, The 1987 Constitution of conferring the power. It is confined to
the Republic of the Philippines: A Commentary, 686, putting the law into effect or carrying out the
2009). legislative purpose.
3. A public administrative body may make

Legislation on Administrative Level only such rules and regulations as are
within the limits of the powers granted to it
The rule-making power of an administrative agency, or what is found in the legislative enactment
that is, the power to make implementing or itself; otherwise, they become void. The
interpretative rules or regulations, is legislative in power of administrative officials to
character and results in "delegated legislation." promulgate rules in the implementation of
"Rule making" is legislation on the administrative the statue is necessarily defined by and
level, that is, legislation within the confines of the limited to what is provided in the legislative
granting statute, as required by the Constitution and enactment conferring the power. It is
its doctrine of non-delegability and separability of confined to putting into effect the law as
certain powers flowing from the separation of the enacted or carrying out the legislative
three branches of the government. It is also called purpose.
administrative legislation, delegated legislation,
ordinance-making, and quasi legislation. 4. There is no dispute that in case of
discrepancy between the basic law and a
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rule or regulation issued to implement said Any action or step beyond that will undermine the
law, the basic law prevails because said separation of powers guaranteed by the
rule or regulation cannot go beyond the Constitution. (Belgica v. Ochoa, G.R. No. 208566,
terms and provisions of the basic law. The November 19, 2013 citing Abakada Guro Party List
rules of administrative officers and boards v. Purisima, G.R. No. 166715, August 14, 2008)
which have the effect of extending, or which
conflict with the authority-granting statute a. Filling-Up Details
do not represent a valid exercise of the rule-
making power but constitute an attempt by Congress can delegate to the courts, or to any other
an administrative body to legislate. tribunal, powers which are strictly and exclusively
legislative. But Congress may certainly delegate to
5. Furthermore, a rule or regulation should be others powers which the legislature may rightfully
uniform in operation, reasonable, and not exercise itself. The line has not been exactly drawn
unfair or discriminatory. which separate those important subjects, which
must be regulated by the. Legislature itself, from
(De Leon, Administrative Law: Texts and those of less interest, in which a general provision
Cases, 92-93, 96-98, 2016) may be made, and power given to those who are to
act under such general provisions, to fill up the
Prohibition on Post-Enactment Legislative details (Wayman v. Southwards, 10 Wheat 1, 42
Approval (1825).
In Abakada, the Court held that "from the moment
c. Ascertainment of Facts
the law becomes effective, any provision of law that
empowers Congress or any of its members to play
Congress may pass contingent legislation, that is,
any role in the implementation or enforcement of the
legislation which leaves to another body the
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law violates the principle of separation of powers
business of ascertaining the facts necessary to bring
and is thus unconstitutional.” It must be clarified,
the law into actual operation. (Bernas, The 1987
however, that since the restriction only pertains to
"any role in the implementation or enforcement of
Commentary, 686, 2009)
the law,” Congress may still exercise its oversight
function which is a mechanism of checks and
balances that the Constitution itself allows. But it Under both theories, the function performed by the
must be made clear that Congress‘ role must be administrative agency is not law-making but law-
confined to mere oversight. Any post- enactment- execution (Id.).
measure allowing legislator participation beyond
oversight is bereft of any constitutional basis and In order to ensure that the power delegated by the
hence, tantamount to impermissible interference legislature is not law-making powers, the statute
and/or assumption of executive functions. making the delegation must:
Any post-enactment congressional measure should 1. Be complete in itself – it must set forth the
be limited to scrutiny and investigation. In particular, policy to be carried our or implemented by
congressional oversight must be confined to the the delegate; and
following: 2. Fix a standard – the limits of which are
sufficiently determinate or determinable –
1. scrutiny based primarily on Congress‘ to which the delegate must conform in the
power of appropriation and the budget performance of his functions.
hearings conducted in connection with it, its
power to ask heads of departments to Without a statutory declaration of policy, the
appear before and be heard by either of its delegate would in effect, make or formulate such
Houses on any matter pertaining to their policy, which is the essence of every law; and,
departments and its power of confirmation; without the aforementioned standard, there would
and be no means to determine, with reasonable
2. investigation and monitoring of the certainty, whether the delegate has acted within or
implementation of laws pursuant to the beyond the scope of his authority. Hence, he could
power of Congress to conduct inquiries in thereby arrogate upon himself the power. Not only
aid of legislation. to make the law, but also to unmake it, by adopting
measures inconsistent with the end sought to be
attained by the Act of Congress (Pelaez v. Auditor
General, 15 SCRA 569, 576-7, 1965).
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7. EXCEPTIONS TO NON- Barangay 50

DELEGABILITY
Principle of Non-Delegability Limitations on the Power of Local Initiative

General Rule: Congress cannot delegate its 1. Should not be exercised more than once a
legislative power under the principle of non- year;
delegation (delegata potestas non potest delegari or 2. Extended only to subjects or matters which
delegated power may not be delegated). are within the legal powers of local
legislative bodies to enact;
Exceptions: (PLATE) 3. If the local legislative body adopts the
1. To the extent reserved to the People by the proposition in toto before the initiative is
provision on initiative and referendum. held, the initiative shall be cancelled. Those
2. Delegation to Local government against such action may apply for initiative.
3. Delegation of rule-making power to (R.A. No. 6735, § 15)
Administrative bodies
4. Congress may delegate Tariff powers to Limitation on Local Legislative Body vis-a-vis
the President Local Initiative
5. Emergency powers delegated by Congress Any proposition, ordinance, or resolution approved
to the President. through an initiative and referendum
● Shall not be repealed, modified or
8. LEGISLATIVE POWER OF THE amended by the local legislative body
PEOPLE THROUGH INITIATIVE concerned within 6 months from its date of
AND REFERENDUM approval
● May be amended, modified, repealed
Initiative within 3 years thereafter by a vote of 3/4 of
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The power of the people to propose amendments to all its members.
the Constitution or to propose and enact legislation ○ In case of barangays, the period
called for the purpose (R.A. No. 6735, § 3(a)) shall be 18 months after approval.
(R.A. No. 6735, § 16; Local
Government Code, § 125.)
Three Types of Initiative (CSL)
1. Initiative on the Constitution - A petition
proposing amendments to the Constitution. Indirect Initiative
2. Initiative on Statutes - A petition proposing Exercise of initiative by the people through a
to enact a national legislation. proposition sent to the Congress or the local
3. Initiative on Local Legislation - A petition legislative body for action (R.A. No. 6735, § 3(b))
proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution Referendum
or ordinance (R.A. No. 6735, § 3(a)) The power of the electorate to approve or reject
legislation through an election called for the purpose
Local Initiative (R.A. No. 6735, § 3(c))
Registered voters within a local government unit
may file a petition with the Regional Assembly or Two Classes of Referendum (R.A. No. 6735, §
local legislative body, respectively, proposing the 3(c); Local Government Code, § 126.)
adoption, enactment, repeal or amendment of any 1. Referendum on statutes - petition to
law, ordinance or resolution. (R.A. No. 6735, § approve or reject an act or law, or part
13(a)) thereof, passed by Congress
2. Referendum on local laws - legal
processes whereby the registered voters of
MINIMUM NUMBER OF REGISTERED the local government units may approve,
VOTERS REQUIRED PER LGU amend or reject any ordinance enacted by
the Sanggunian
LGU NOT LESS THAN:
Required Petition
Autonomous region 2000 1. Petition should be registered with the
Commission on Elections
Province or city 1000 2. Should be signed by at least 10% of the total
number of registered voters
Municipality 100
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3. Every legislative district must be Term Limit

represented by at least 3% of the registered No Senator shall serve for more than 2 consecutive
voters thereof terms. Voluntary renunciation of the office for any
length of time shall not be considered as an
The petition to be signed by the people should interruption in the continuity of his service for the full
contain a definite proposal of the amendment of the term for which he was elected (PHIL. CONST., art. VI,
Constitution; not merely a general question whether § 4.)
they approve of the amendment or not (Lambino v.
COMELEC, G.R. No. 174153, October 25, 2006). 2. HOUSE OF REPRESENTATIVES
Matters Which May Not Be the Subject of Composition
Initiative or Referendum (R.A. No. 6735, § 10.) Not more than 250 members, unless otherwise fixed
1. A petition embracing more than one subject. by law, consisting of:
2. Statutes involving emergency measures 1. District Representatives: elected from
legislative districts apportioned among the
Initiative v. Referendum (SBMA v. COMELEC, provinces, cities and the Metropolitan
G.R. No. 125416, Sept. 26, 1996) Manila area
INITIATIVE REFERENDUM 2. Party-list Representatives: shall
constitute 20% of the total number of the
Power of the people to Right reserved to the members of the House of Representatives
propose bills and laws, people to adopt or including those under the party-list.
and to enact or reject reject any act or
them at the polls measure which has Term of Office
independent of the been passed by a 3 years, commencing at noon on the 30th day of
legislative assembly legislative body and June next following their election
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which in most cases
would without action on Term Limit
the part of electors No member of the HOR shall serve for more than 3
become a law consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered
Entirely the work of the
electorate
Begun and consented
to by the law-making
body
as an interruption in the continuity of his service for
the full term for which he was elected.
List of Qualifications for both Senators and

A process of law- Consists merely of the Members of the House
making by the people electorate approving or The qualifications of both Senators and Members of
themselves without the rejecting what has the House are LIMITED to those provided by the
participation and been drawn up or Constitution. Congress cannot, by law, add or
against the wishes of enacted by a legislative subtract from these qualifications (PHIL. CONST., art.
their elected body VI, § 3 & 6; Pimentel v. COMELEC, G.R. No.
representatives 161658, Nov. 3, 2008).
B. BICAMERAL CONGRESS
Qualifications for Senate and House of
Representatives:
1. SENATE
SENATOR REPRESENTATIVE
Natural-born citizen of the Philippines
Composition
Able to read and write
24 who are elected at large by the qualified voters
At least 35 years old on At least 25 years old on
of the Philippines. (PHIL. CONST., art. VI, § 2.)
the DAY OF THE the DAY OF THE
ELECTION ELECTION
Term of Office
At least 35 years old on At least 25 years old on
6 years commencing at noon on the 30th day of
the DAY OF THE the DAY OF THE
June following their election (PHIL. CONST., art. VI, §
ELECTION ELECTION
4.)
Registered voter Registered voter in the
district in which he shall
be elected (except
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party-list stranger or newcomer, unacquainted with

representatives) the conditions and needs of a community
Resident of the Resident of the said and not identified with the latter, from an
Philippines for at least district for at least 1 elective office to serve that community.
2 years immediately year immediately (Gallego v. Verra, G.R. No. L-48641, Nov.
preceding the election preceding election 24, 1941)
(except party-list
representative) 4. Domicile of origin is not easily lost. To
Term of 6 years Term of 3 years successfully effect a change of domicile,
commencing at noon commencing at noon the following must be proven: (AID)
on June 30, on June 30, next a. an Actual removal or an actual
next following their following their election change of domicile
election b. a bona fide Intention of
Term limit: no more Term limit: no more abandoning the former place of
than 2 consecutive than 3 consecutive residence and establishing a new
terms terms one
c. Definite acts which correspond
a. District Representatives and with the purpose (Aquino v.
Mechanics of Apportionment COMELEC, G.R. No. 120265,
Sept. 18, 1995)
District Representative (PHIL. CONST., art. VI, § 5.)
Elected from legislative districts that are 5. Therefore, in order to acquire a domicile by
apportioned in accordance with the number of choice, there must be an animus non
inhabitants in each area and on the basis of a revertendi and an animus manendi.
uniform and progressive ratio. (Gallego v. Verra, G.R. No. L-48641, Nov.
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24, 1941)
Qualifications
1. Natural born citizen 6. While voting is not conclusive of residence,
2. At least 25 years of age on the day of the it does give rise to a strong presumption of
election residence. The fact that one has
3. Able to read and write continuously voted in a particular locality is
4. Registered voter in the district in which he a strong factor in assisting to determine the
shall be elected status of his domicile. (Domino v.
5. A resident of the Philippines for a period of COMELEC, G.R. No. 134015, July 29,
not less than 1 year immediately preceding 1999)
the day of the election
7. It is the fact of residence, not a statement in
Residence Requirement a certificate of candidacy which ought to be
1. The term "residence" has been understood decisive in determining whether or not an
as synonymous with domicile not only individual has satisfied the constitution's
under the previous Constitutions but also residency qualification requirement. The
under the 1987 Constitution. (Co v. HRET, said statement becomes material only
G.R. Nos. 92191-92, July 30, 1991) when there is or appears to be a deliberate
attempt to mislead, misinform, or hide a fact
2. Domicile denotes a fixed permanent which would otherwise render a candidate
residence to which when absent for ineligible. (Romualdez-Marcos, G.R. No.
business or pleasure, one intends to return. 119976, Sept. 18, 1995)
a. The absence of a person from said
permanent residence, no matter Creation of Legislative Districts
how long, notwithstanding, it The rules on legislative apportionment or creation of
continues to be the domicile of that legislative districts are found in Art. VI, Section 5 (1),
person. (3) and (4) (Bagabuyo v. COMELEC, G.R. No.
b. In other words, domicile is 176970, Dec. 8, 2008).
characterized by animus
revertendi. (Id.)
3. The manifest intent of the law in fixing a

residence qualification is to exclude a
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5. Legislative districts shall be re-apportioned

LEGISLATIVE REAPPORTIONMENT
by Congress within 3 years after the return
APPORTIONMENT
of each census.
The determination of The realignment or
Jurisprudence
the number of change in legislative
1. 250,000 minimum population NOT a
representatives which districts brought about
requirement for provinces: There is no
a State, county or by changes in
specific provision in the Constitution that
other subdivision may population and
fixes a 250,000 minimum population that
send to a legislative mandated by the
must compose of every legislative district.
body constitutional
What the Constitution provides is a 250,000
requirement of equality
minimum population only for a city to be
It is the allocation of of representation
entitled to a representative, but not so for a
seats in a legislative
province (Aquino v. COMELEC, G.R. No.
body in proportion to
189793, April 7, 2010).
the population; the
drawing of voting
district lines so as to 2. 250,000 only to create an initial
equalize population legislative district: The requirement for
and voting power cities applies only to its initial legislative
among the districts district. The Constitution does not require a
city to increase its population by another
250,000 to be entitled to an additional
Only Congress can create provinces and cities district (Id.)
because the creation of provinces and cities
necessarily includes the creation of legislative 3. Necessity of confirmation by plebiscite:
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districts, a power only Congress can exercise under a. The creation of legislative districts
Section 5, Article VI of the Constitution and Section does not need confirmation by
3 of the Ordinance appended to the Constitution. plebiscite if it does not involve the
The ARMM Regional Assembly cannot create a creation of a local government unit
province without a legislative district because the
(Bagabuyo v. COMELEC, G.R.
Constitution mandates that every province shall No. 176970, Dec. 8, 2008).
have a legislative district (Sema v. COMELEC, G.R. b. When a municipality is converted
No. 177597, July 16, 2008). into a city large enough to entitle it
to one district, the incidental effect
The COMELEC cannot correct the imbalance is splitting the district into two. This
resulting from the increase of districts by transferring does not need a consensus. There
districts. The COMELEC must wait for a legislative is no need for plebiscite under Art.
enactment. (Montejo v. COMELEC, G.R. No. X of the Constitution when one
118702, March 16, 1995) district is split into two, because
there is no creation of new juridical
Rules on apportionment of legislative districts personalities nor division of
Under the Constitution territory per se. There is only a
1. Legislative districts shall be made in need for plebiscite if you are
accordance with the number of respective creating a new Local Government
inhabitants and on the basis of a uniform Unit (Tobias v. Abalos, G.R. No. L-
and progressive ratio 114783, Dec. 8, 1994).
2. Each district shall comprise, as far as
practicable, Contiguous, Compact and 4. Reapportionment either through a
Adjacent territory. (CCA) special law or general reapportionment
3. Each city with at least 250,000 inhabitants law: The reapportionment of legislative
will be entitled to at least one representative districts may be made through a special
while each province will have at least one law, such as the charter of a new city. The
representative. Constitution clearly provides that Congress
4. Each province, irrespective of the number shall be composed of not more than two
of inhabitants, is entitled to at least 1 hundred fifty (250) members, unless
representative otherwise fixed by law. As thus worded, the
Constitution did not preclude Congress
from increasing its membership by passing
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a law, other than a general by selection or election from the labor, peasant,
reapportionment law. (Mariano v. urban poor, indigenous cultural communities,
COMELEC, G.R. No. 118577, Mar. 7, women, youth, and such other sectors as may be
1995) provided by law, except the religious sector (PHIL.
CONST., art. VI, § 5(2).).
Gerrymandering
The formation of one legislative district out of Under Art. XVIII, Sec. 7, until a law is passed, the
separate territories for the purpose of favoring a President may fill by appointment from a list of
candidate or a party. (Navarro v. Executive nominees by the respective sectors the seats
Secretary, G.R. No. 180050, Feb. 10, 2010) reserved for sectoral representation.
(This is the reason why the Constitution requires R.A. No. 7941, the Party-List System Act was
that Legislative Districts be compact, contiguous, approved on March 3, 1995. This law put into place
and adjacent.) the mechanics for a party-list system of
representation based on election and ended the
The Constitutional standards used to determine the appointment of sectoral representatives by the
apportionment of legislative districts, i.e. that each President as provided in the Transitory Provisions.
legislative district is to comprise, as far as
practicable, a contiguous, compact, and adjacent For the purposes of the May 1998 elections, the first
territory, is meant to prevent ‘gerrymandering.’ (Id.) 5 major political parties on the basis of party
representation in the House of Representatives at
Difference of Reapportionment in Sec. 5(10), Art. the start of the Tenth Congress of the Philippines
VI and the Creation of LGU in Sec. 10, Art. X. shall not be entitled to participate in the party-list
In the former, the purpose is to ensure better access system.
to one’s district representative in Congress. No
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political or corporate unit is created. Thus, there is Mechanics (R.A. No. 7941, § 8.)
no need for a plebiscite in the creation, dissolution, 1. Registered party-lists, organizations, or
or any other similar action on a legislative district. coalitions shall submit to the COMELEC a
list of not less than five (5) nominees in
In the latter, political and corporate units are created order of priority.
or altered. These possess legal personality and are
considered “instrumentalities of the State in carrying
out the functions of government”. They exercise
special functions for the sole benefit of constituents.
a. A person may be nominated in one
(1) list only.
b. Only persons who have given their
consent in writing may be named
Thus, the need for a plebiscite to expressly secure in the list.
the consent of the people affected by the creation, c. Candidates for any elective office
division, merger, abolition or alteration of in the immediately preceding
boundaries of local government units through a election shall be disqualified from
plebiscite (Bagabuyo v. COMELEC, G.R. No. becoming a nominee.
176970, Dec. 8, 2008). d. No change of names or alteration
of the order of nominees shall be
d. Party-list system allowed after the same shall have
been submitted to the COMELEC
Party-List Representatives (Sec. 5 (2))
Constitute 20% of the total number of Exceptions:
representatives (the total includes the party-list 1. when the nominee dies
representatives). The maximum number of House of 2. withdraws in writing his nomination
Representative members is set at 250, which means 3. becomes incapacitated in which
a maximum of 50 party-list members are allowed. case the name of the substitute
But this number can be increased through a nominee shall be placed last in the
passage of a law (Banat v. COMELEC, G.R. Nos. list.
179271 & 179295, July 8, 2009). ○ Incumbent sectoral
representatives in the House
However, for 3 consecutive terms after the of Representatives who are
ratification of the 1987 Constitution (1987-1992, nominated in the party-list
1992-1995 and 1995-1998) from February 2, 1987 system shall not be
until 1998, one half of the seats allocated to party- considered resigned.
list representatives shall be filled as provided by law,
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2. The parties, organizations, and coalitions will not question the wisdom of the
shall be ranked from the highest to the Legislature as long as it is not violative of
lowest based on the number of votes the Constitution (Banat v. COMELEC, G. R.
garnered during elections. (R.A. No. 7941, No. 179271, July 8, 2009).
§ 11.)
Seat Allocation for the Party-list
Formula: Representatives
a) If the number of District Seats is given. 1. Determine the number of seats available to
Total House Seats = District Seats / 0.8 party-list representatives through the
Party-List Seats = District Seats x 0.25 following formula:
a. (Number of seats available to
b) If the total number of House Seats is given. legislative districts ÷ 0.80) x 0.20
Party-List Seats = Total House Seats x 0.2
District Seats = Total House Seats x 0.8 2. Rank all party-lists according to votes
received.
c) If the total number of Party-List Seats is given.
Total House Seats = Party-List Seats / 0.2 3. Determine the 2% qualifiers through the
District Seats = Party-List Seats / .25 formula below. These party-lists are
guaranteed one seat in the House
Parameters in Party-List Elections (“guaranteed seats” or the number of seats
1. 20% of the total number of the membership allocated to the 2% qualifiers).
of the House of Representatives is the a. Number of votes received by the
maximum number of seats available to party-list ÷ the total number of
party-list organizations, such that there is votes cast for the party-list system
automatically one party-list seat for every (divisor)
FOR ONE ATENEO

four existing legislative districts. b. LEONEN: The divisor to be used
in interpreting the formula used in
2. Garnering 2% of the total votes cast in the BANAT is the total votes cast for
party-list elections guarantees a party-list the party-list system. This should
organization one seat. The guaranteed not include the invalid votes.
seats shall be distributed in a first round of
seat allocation to parties receiving at least
two percent of the total party-list votes.
However,
disenfranchise
so
a
as not to
substantial
portion of the electorate, total
votes cast for the party-list
3. The additional seats, i.e. the remaining system should mean all the
seats after allocation of the guaranteed votes validly cast for all the
seats, shall be distributed to the party-list candidates listed in the ballot,
organizations including those that received [even those] that are
less than 2% of the total votes. The subsequently disqualified, so
additional seats shall be distributed to the long as they were presented as
parties in a second round of seat allocation a choice to the electorate. The
according to the two-step procedure laid voter relies on the ballot when
down in the BANAT Decision of 21 April making his or her choices.
2009. The continued operation of the 2% (ARARO v. COMELEC, G.R. No.
threshold as it applies to the allocation of 192803, Dec. 10, 2013)
the additional seats is unconstitutional
because this threshold mathematically and 4. Determine the “additional seats” through
physically prevents the filling up of the the following formula:
available party-list seats. a. Maximum number of seats (result
of #1) - guaranteed seats
4. The three-seat cap is constitutional. The
three-seat cap is intended by the 5. Divide the number of votes received by all
Legislature to prevent any party from parties (2% qualifiers and non-qualifiers) by
dominating the party-list system. There is the total number of votes cast, as in #3) and
no violation of the Constitution because the multiply the result to the number available
1987 Constitution does not require seats, as in #4
absolute proportionality for the party-list
system. The well-settled rule is that courts
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6. Distribute the additional seats (rounded 2. Second, we assign one party-list seat to each
down) in accordance to the ranking. of the parties next in rank until all available
seats are completely distributed. We
7. Take note of the three seat cap. (BANAT v. distributed all of the remaining 38 seats in the
COMELEC, G.R. No. 179271, 2009) second round of seat allocation.
3. Finally, we apply the three-seat cap to
The 2% Threshold and 3-Seat Limit determine the number of seats each qualified
1. The parties shall be ranked from the highest party-list candidate is entitled. (BANAT v.
to lowest based on the number of votes they COMELEC, G.R. No. 179271, Apr. 21, 2009.)
garnered.
2. To be entitled to one qualifying seat, a party In ANGKLA v. COMELEC, the SC affirmed the
must obtain 2% of the total ballots cast for BANAT formula, to wit: As finally settled in the
qualified party-list candidates. landmark case of BANAT, Section 11 (b) of RA
3. Votes cast for a party which is not entitled to 7941 is to be applied, thus:
be voted for should not be counted. The votes
they obtained shall be deducted from the Round 1:
canvass of the total votes for the party-list. 1. The participating parties, organizations or
4. Rounding-off is not allowed. coalitions shall be ranked from highest to
5. Parties other than the 1st party (the party that lowest based on the number of votes they
obtained the highest number of votes based each garnered in the party-list election.
on plurality) may be entitled to additional 2. Each of those receiving at least two-
seats based on the following formula: percent (2%) of the total votes cast for the
party-list system shall be entitled to and
Each party shall be entitled to not more than three guaranteed one seat each.
sets.
FOR ONE ATENEO

Rationale: The statute references a two-percent
The two percent threshold in computing for the (2%) threshold. The one-seat guarantee based on
additional seats is unconstitutional. The this arithmetical computation gives substance to
continued application of the two percent threshold this threshold.
in the application of additional seats in proportion to
their total number of votes until all the additional Round 2, Part 1:
seats will frustrate the attainment of the permissive 1. The percentage of votes garnered by each
ceiling that twenty percent of the members of the of the parties, organizations and coalitions
house of representatives shall consist of party-list is multiplied by the remaining available
representatives. (BANAT v. COMELEC, G.R. No. seats after Round 1. All party-list
179271, Apr. 21, 2009) participants shall participate in this
round regardless of the percentage of
In declaring the two percent threshold votes they garnered.
unconstitutional, the SC did not limit the 2. The party-list participants shall be entitled
allocation of additional seats to the two- to additional seats based on the product
percenters. Thus: arrived at in (a). The whole integer of the
The percentage of votes garnered by each party-list product corresponds to a party's share in
candidate is arrived at by dividing the number of the remaining available seats. Fractional
votes garnered by each party by 15,950,900, the seats shall not be awarded.
total number of votes cast for party-list candidates.
There are two steps in the second round of seat Rationale: This formula gives flesh to the
allocation. proportionality rule in relation to the total number
of votes obtained by each of the participating
1. First, the percentage is multiplied by the party, organization, or coalition.
remaining available seats, 38, which is the c. A Party-list shall be awarded no more than two
difference between the 55 maximum seats (2) additional seats.
reserved under the Party-List System and the
17 guaranteed seats of the two-percenters. Rationale: The three-seat cap in the statute is to
The whole integer of the product of the be observed.
percentage and of the remaining available
seats corresponds to a party’s share in the
remaining available seats.
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Round 2, Part 2: The Rule of Law Has Confirmed the Substantial

1. The party-list party, organization or Distinction Between 2-Percenters and Non-2-
coalition next in rank shall be allocated one Percenters. The distinction between two-
additional seat each until all available seats percenters and non-two-percenters has long been
are completely distributed. settled in Veterans Federation Party v.
COMELEC (Veterans) where the Court affirmed
Rationale: This algorithm endeavors to complete the validity of the 2% voting
the 20% composition for party-list representation in threshold. Veterans effectively segregates and
the House of Representatives. distinguishes between the two (2) classes, two-
During the deliberation, Senior Associate Justice percenters and non-two-percenters. It explains the
Estela M. Perlas-Bernabe keenly noted that rationale behind the voting threshold and differential
the BANAT formula mirrors the textual progression treatment, viz.: The two percent threshold is
of Section 11 (b) of RA 7941, as worded, thus: consistent not only with the intent of the framers of
Section 11. Number of Party-List Representatives. the Constitution and the law, but with the very
— x x x xxx xxx xxx (b) The parties, organizations, essence of "representation." Under a republican or
and coalitions receiving at least two-percent representative state, all government authority
(2%) of the total votes cast for the party-list emanates from the people, but is exercised by
system shall be entitled to one seat each: representatives chosen by them. But to have
Provided, That those garnering more than two- meaningful representation, the elected persons
percent (2%) of the votes shall be entitled must have the mandate of a sufficient number of
to additional seats in proportion to people. Otherwise, in a legislature that features the
their total number of votes: Provided, finally, That party-list system, the result might be the proliferation
each party, organization, or coalition shall be of small groups which are incapable of contributing
entitled to not more than three (3) seats. significant legislation, and which might even pose a
threat to the stability of Congress. Thus, even
FOR ONE ATENEO

The first round of seat allocation is based on the legislative districts are apportioned according to "the
first sentence of Section 11 (b) while the second number of their respective inhabitants, and on the
round is based on the first proviso. To prescribe basis of a uniform and progressive ratio" to ensure
a method of seat allocation contrary to the meaningful local representation. (ANGKLA: Ang
unequivocal language of RA 7941 would be nothing Partido ng mga Pilipinong Marino, Inc. v.
short of judicial legislation, if not usurpation of Commission on Elections, G.R. No. 246816,,
legislative powers, as it would allow us to substitute September 15, 2020).
the wisdom of Congress with ours.(ANGKLA: Ang
Partido ng mga Pilipinong Marino, Inc. v. Justice Leonen has a keen analysis of the adverse
Commission on Elections, G.R. No. 246816,, effect of imposing a two-percent (2%) deduction on
September 15, 2020). the two-percenters: “Ignoring votes in the reckoning
of proportions runs afoul of a party-list election as a
Advantage Given to 2-Percenters Does Not race contested by the entire roster of candidates
Violate the Equal Protection Clause. All votes, and won in consideration of all the votes cast by the
whether cast in favor of two-percenters and non- electorate. Reckoning on the basis of a
two-percenters, are counted once. The perceived "recomputed number of votes" artificially
"double-counting of votes" does not offend the equal redraws the electoral terrain. It results in the
protection clause — it is an advantage given to two- distribution of remaining party-list seats based
percenters based on substantial distinction that the on an altered field of contestants and
rule of law has long acknowledged and confirmed. diminished number of votes. This undoes the
It does not violate the “One Person, One Vote” logical advantage earned by those that hurdled
principle. To not count the 2% vote in the second the two-percent-threshold and enables the
round would place the 2-percenters at a glaring election of groups even if their performance was
disadvantage, which is not what the constitutional manifestly worst off than those who have
framers and the legislature intended. It is the 2- hurdled the basic threshold. To concede
percenters who have an established right to an petitioners' plea would be to negate the valid and
advantage in the form of a guaranteed seat. sensible distinction between those that hurdled the
(ANGKLA: Ang Partido ng mga Pilipinong Marino, threshold and those that did not. Ultimately, it
Inc. v. Commission on Elections, G.R. No. 246816,, violates the party-list system's fundamental
September 15, 2020). objective of enabling "meaningful representation
[secured through] the mandate of a sufficient
number of people." (citations omitted) (ANGKLA:
Ang Partido ng mga Pilipinong Marino, Inc. v.
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Commission on Elections, G.R. No. 246816,, and hearing, the registration of any national,
September 15, 2020). regional or sectoral party organization or coalition.
Absolute Proportionality Not Prescribed.

The grounds are:
Section 11, Article VI of the Constitution, however,
does not prescribe absolute proportionality in 1. If it fails to participate in the last two (2)
distributing seats to party-list parties, organizations preceding elections; or
or coalitions. Neither does it mandate the grant of 2. Fails to obtain at least two per centum (2%) of
one seat each according to their rank. On the the votes cast under the party list system in the
contrary, Congress is given a wide latitude of two (2) preceding elections for the
discretion in setting the parameters for determining constituency in which it was registered
the actual volume and allocation of party-list (Philippine Guardians Brotherhood, Inc.
representation in the House of (PGBI) v. COMELEC, G.R. No. 190529, Apr.
Representatives. BANAT elucidates: x x x The 29, 2010)
allocation of seats under the party-list system is
governed by the last phrase of Section 5(1), which The law is clear – the COMELEC may motu proprio
states that the party-list representatives shall be or upon verified complaint of any interested party,
"those who, as provided by law, shall be elected remove or cancel, after due notice and hearing, the
through a party-list system," giving the Legislature registration of any national, regional or sectoral
wide discretion in formulating the allocation of party- party, organization or coalition if it: (a) fails to
list seats. Clearly, there is no constitutional participate in the last two (2) preceding
requirement for absolute proportional elections; or (b) fails to obtain at least two per
representation in the allocation of party-list seats in centum (2%) of the votes cast under the party-list
the House of Representatives. (Emphasis added) system in the two (2) preceding elections for the
In the exercise of this prerogative, Congress constituency in which it has registered. The word
"or" is a disjunctive term signifying disassociation
FOR ONE ATENEO

modified the weight of votes cast under the party-list
system with reason. (ANGKLA: Ang Partido ng mga and independence of one thing from the other
Pilipinong Marino, Inc. v. Commission on Elections, things enumerated; it should, as a rule, be
G.R. No. 246816,, September 15, 2020). construed in the sense in which it ordinarily implies,
as a disjunctive word. XXX Thus, the plain, clear
Party-list groups garnering less than 2% of the and unmistakable language of the law provides for
party-list votes may qualify for a seat in the two (2) separate reasons for delisting. Section 6(8)
allocation of additional seats depending on their of RA 7941 provides for two separate grounds for
ranking in the second round. The continued delisting; these grounds cannot be mixed or
operation of the two-percent threshold was deemed combined to support delisting; and the
"an unwarranted obstacle to the full implementation disqualification for failure to garner 2% party-list
of Section 5(2), Article VI of the Constitution and votes in two preceding elections should now be
prevents the attainment of the “broadest possible understood, in light of the Banat ruling, to mean
representation of party, sectoral or group interests in failure to qualify for a party-list seat in two preceding
the House of Representatives,” and has been elections for the constituency in which it has
declared unconstitutional. The 20% share in registered. (Philippine Guardians v. COMELEC,
representation may never be filled up if the 2% G.R. No.. 190529, Apr. 29, 2010)
threshold is maintained. In the same vein, the Qualifications of Party List Representatives
maximum representation will not be achieved if (R.A. No. 7941, § 9.)
those party-list groups obtaining less than one 1. Natural born citizen of the Philippines;
percentage are disqualified from even one 2. Registered voter;
additional seat in the second round. (Aksyon 3. Resident of the Philippines for a period of
Magsasaka-Partido Tinig ng Masa (AKMA-PTM) vs. not less than 1 year immediately preceding
COMELEC, G.R. No. 207134, May 28, 2015.) the day of the election;
4. At least 25 years of age on the day of the
Delisting election (youth sector nominee must be at
The law provides for 2 separate reasons for the least 25 years old but not more than 30
delisting of any national, regional or sectoral party years old on day of election);
organization or coalition. Section 6(8) of the Party - 5. Able to read and write;
List System Act provides that the COMELEC may 6. A bona fide member of the party or
motu proprio or upon verified complaint of any organization he seeks to represent for at
interested party, remove or cancel, after due notice least 90 days before the day of the election.
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7. A nominee who changes his sectoral a. Marginalized and

affiliation within the same party will only be Underrepresented sectors: (HI
eligible for nomination under the new FLOW PUV)
sectoral affiliation if the change has been i. Handicapped
effected at least six months before the ii. Indigenous Cultural
elections (Amores v. HRET, G.R. No. Communities
189600, June 29, 2010). iii. Fisher Folk
iv. Labor
Rules on Party-Lists v. Overseas Workers
1. Principle of Social Justice: The vi. Peasant
inspiration of the system is social justice vii. Urban Poor
understood in both the economic and viii. Veterans
political sense. b. Sectors that lack 'well defined
political constituencies’: (PWEY)
2. Participation not Limited to Sectoral ix. Professionals
Groups: Participation in the system is not x. Women
limited to the sectors enumerated by the xi. Elderly
Constitution or law. The framers of the 1987 xii. Youth
Constitution did not intend to leave out non-
sectoral parties in the party-list system and 7. Rule on Political Party Participation:
exclusively limit it to sectoral groups. Political parties can participate in party-list
elections provided they register under the
3. Groups must comply with the party-list system and do not field
Constitution and other applicable laws: candidates in legislative district elections.
The enumeration of marginalized and a. A political party, whether major or
FOR ONE ATENEO

under-represented sectors is not exclusive. not, that fields candidates in
The crucial element is not whether a sector legislative district elections can
is specifically enumerated, but whether a participate in party-list elections
particular organization complies with the only through its sectoral wing that
can separately register under the
requirements of the Constitution and RA
7941. Moral disapproval, without more, is party-list system.
not a sufficient governmental interest to b. The sectoral wing is by itself an
justify exclusion of homosexuals from independent sectoral party, and is
participation in the party-list system (Ang linked to a political party through a
Ladlad v. COMELEC, G.R. No. 190582, coalition (Atong Paglaum v.
April 8, 2010). COMELEC, G.R. No. 203766,
April 2, 2013).
4. Three different groups may participate in
the party-list system: national parties or Rules on Members of Sectoral Parties or
organizations, regional parties or Organizations
organizations, and sectoral parties or 1. A majority of the members of both types of
organizations. sectoral parties or organizations must
belong to the sector they represent, i.e.
5. Rule on National and Regional majority must:
Parties/Organizations: The national and a. Be marginalized and underrepresented
regional organizations need not be or
economically marginalized and do not need b. Lack well-defined political
to organize along sectoral lines but they constituencies
must be politically or ideologically
disadvantaged or marginalized. Rules on Nominees of Party-Lists
1. The nominees of sectoral parties or
6. Rule on Sectoral Parties: Sectoral parties organizations that represent the
or organizations may either be "marginalized and underrepresented" or
'marginalized and underrepresented' or that represent those who lack "well-defined
lacking in 'well-defined political political constituencies," must either:
constituencies'. It is enough that their a. Belong to their respective sectors
principal advocacy pertains to the special or
interest and concerns of their sector. i. To “belong” in the
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marginalized and unmistakable language of the law provides for two

underrepresented sector (2) separate reasons for delisting. (Philippine
does not mean one must Guardians Brotherhood Inc. v. COMELEC, G.R. No.
"wallow in poverty, 190529, Apr. 29, 2010)
destitution or infirmity."
ii. It is sufficient that one, or Who determines whether a party represents a
his or her sector, is below marginalized sector?
the middle class COMELEC has jurisdiction to determine whether an
b. Have a track record of advocacy organization applying for the party list system
for their respective sectors represents a marginalized sector. It cannot be
2. The nominees of national and regional challenged by certiorari because the decision is
parties or organizations must be bona- based on facts and the SC does not try facts (V.C.
fide members of such parties or Cadangen v. COMELEC, G.R. No. 177179, June 5,
organizations. 2009).
3. National, regional, and sectoral parties or
organizations shall not be disqualified if Sectoral parties are not required to adduce
some of their nominees are disqualified, evidence showing their track record that they have
provided that they have at least one undertaken to further the cause of the sector they
nominee who remains qualified (Atong represent. It is sufficient that their ideals are geared
Paglaum v. COMELEC, G.R. No. 203766, towards the cause of the sector they represent
April 2, 2013). (Abang-Lingkod v. COMELEC, G.R. No. 206952,
a. The proviso does not authorize a Oct. 22, 2013).
party-list from not complying with
the submission of at least five Term vs. Tenure
nominees upon its manifestation to TERM TENURE
FOR ONE ATENEO

participate in the party-list The period during The period during
elections. (COCOFED v. which the elected which such officer
COMELEC, G.R. No. 207026, officer is legally actually holds the
Aug. 6, 2013). authorized to assume position
his office and exercise
Disqualifications of Parties or Organizations
(R.A. No. 7941, § 6.)
1. religious sector;
2. advocates of violence or unlawful means of
the powers thereof
Cannot be reduced May be limited by law
Ways by Which Tenure of Members of Congress

seeking its goal; May Be Shortened: (FRED)
3. foreign party or organization; 1. Forfeiture of his seat by holding any other
4. receiving support from any foreign office or employment in the government or
government, foreign political party, any subdivision, agency, or instrumentality
foundation, organization, whether directly thereof, including government-owned or
or through any of its officers or controlled corporations or subsidiaries
5. members or indirectly through third parties (PHIL. CONST., art. VI, § 13.);
for partisan election purposes; 2. Voluntary Renunciation of office (PHIL.
6. fails to comply with laws, rules or CONST., art. VI, § 4, ¶ 3.).
regulations relating to elections; a. Mere filing of a certificate of
7. declares untruthful statements in its candidacy during one’s term is
petition; considered voluntary renunciation
8. ceased to exist for at least 1 year; or fails to since the law deems such act as a
participate in the last 2 preceding elections resignation (Dimaporo v Mitra,
or, fails to obtain at least 2% of the votes G.R. No. 96859, Oct. 15, 1991).
cast under the party-list system in the 2 3. Expulsion as a disciplinary action for
preceding elections for the constituency in disorderly behavior (PHIL. CONST., art. VI, §
which it has registered. 16, ¶ 3).
4. Disqualification as determined by
NOTE: The word “or” is a disjunctive term signifying resolution of the electoral tribunal in an
disassociation and independence of one thing from election contest (PHIL. CONST., art. VI, §
the other things enumerated; it should, as a rule, be 17.).
construed in the sense in which it ordinarily implies,
as a disjunctive word. Thus, the plain, clear and
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Vacancy and Special Election vacancy shall be held at the next general
In case of vacancy in the Senate or in the House of elections fixes the date at which the
Representatives, a special election may be called to special election is to be held and operates
fill such vacancy in the manner prescribed by law, as the call for that election.
but the Senator or Member of the House of
Representatives thus elected shall serve only for the 2. Consequently, an election held at the time
unexpired term. thus prescribed is not invalidated by the fact
that the body charged by law with the duty
Special Election (R.A. No. 6645, as amended by of calling the election failed to do so. This is
R.A. No. 7166) because the right and duty to hold the
1. Special election will be called if vacancy election emanate from the statute and not
occurs: from any call for the election by some
a. At least 18 months before the next authority and the law thus charges voters
regular election for the members of with knowledge of the time and place of the
the Senate; election.
b. At least 1 year before the next
regular election for members of the 3. Conversely, where the law does not fix
House of Representatives the time and place for holding a special
2. The particular House of Congress where election but empowers some authority
vacancy occurs must pass either a to fix the time and place after the
resolution if Congress is in session, or the happening of a condition precedent, the
Senate President or the Speaker must sign statutory provision on the giving of notice is
a certification, if Congress is not in considered mandatory, and failure to do so
session will render the election a nullity.
a. Declaring the existence of vacancy
FOR ONE ATENEO

b. Calling for a special election to be 4. Thus, the failure of the COMELEC to
held within 45 to 90 days from the properly call for a special election to fill a
date of the resolution or permanent vacancy in the Senate under
certification R.A. 7166 does not nullify the election held
3. The Senator or representative elected shall
since the statute already fixes the date.
serve only for the unexpired term. However, the failure of the COMELEC to do
so in case of a permanent vacancy in the
COMELEC’s Role in a Special Election (R.A. No. House of Representatives would produce
6645, as amended by R.A. No. 7166) the opposite result. (Tolentino v.
In case a permanent vacancy shall occur in the COMELEC, G.R. No. 148334, Jan. 21,
Senate or House of Representatives at least one (1) 2004)
year before the expiration of the term, COMELEC is
required: District v. Party List Representatives
1. to call a special election by fixing the date
DISTRICT PARTY-LIST
of the special election:
REPRESENTATIVE REPRESENTATIVE
a. House of Representatives - the
AS TO ELECTION OR SELECTION
date shall not be earlier than sixty
Elected according to Elected nationally, with
(60) days nor later than ninety (90)
legislative district by party-list organizations
after the occurrence of the
the constituents of garnering at least 2%
vacancy
such district. of all the votes cast for
b. Senate - the special election shall
the party-list system
be held simultaneously with the
entitled to 1 seat, which
next succeeding regular election
is increased according
2. to give notice to the voters of, among other
to proportional
things, the office or offices to be voted for.
representation, but is in
The calling of an election, that is, the giving notice
no way to exceed 3
of the time and place of its occurrence, whether
seats per organization.
made by the legislature directly or by the body with
the duty to give such call, is indispensable to the AS TO RESIDENCY REQUIREMENT
election’s validity. Must be a resident of No special residency
1. In a special election to fill a vacancy, the his legislative district requirement in a
rule is that a statute that expressly for at least 1 year legislative district.
provides that an election to fill a immediately before the
election.
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AS TO MANNER OF CANDIDATE’S imprisonment. The immunity does not extend to the

ELECTION prosecution of criminal offenses.
Elected personally (i.e. Voted upon by party or 1. Right of Members to Attend
by name of candidate). organization; it is the Congressional Sessions: A Senator, who
party who designates remains in detention, cannot be allowed to
who will sit as its go to the Senate to attend all its official
representative. functions. All prisoners whether under
AS TO EFFECT OF CHANGE OF preventive detention or serving final
AFFILIATION DURING THE TERM sentence cannot practice their profession
Does not lose seat if If she/he changes party nor engage in any business or occupation,
he/she changed party or affiliation, loses his or hold office, elective or appointive, while
or affiliation. seat, in which case in detention. This is a necessary
he/she will be consequence of arrest and detention. The
substituted by another presumption of innocence does not carry
qualified person in the with it the full enjoyment of civil and political
party/organization rights (Trillanes v. Judge Pimentel, G.R. No
based on the list 179817, June 27, 2008).
submitted to the
COMELEC. Privileged Speech — No member shall be
AS TO MANNER OF FILLING VACANCIES questioned or held liable in any forum other than
A special election may A substitution will be his/her respective Congressional body for any
be held provided that made within the party, speech or debate in Congress or in any Committee
the vacancy takes based on the list thereof.
place at least 1 year submitted to the
before the next COMELEC. “Speech or debate” includes:
FOR ONE ATENEO

election. 1. Utterances made by Congressmen in the
AS TO EFFECT OF LOSING IN THE performance of their official functions, such
PREVIOUS ELECTION as speeches delivered, statements made,
A district A party-list or votes cast in the halls of Congress, while
the same is in session
representative is not representative cannot
prevented from running sit if he ran and lost in 2. Bills introduced in Congress, whether the
again as a district the previous election. same is in session or not
representative if 3. Other acts performed by Congressmen,
he/she lost during the either in Congress or outside the premises
previous election. housing its offices, in the official discharge
AS TO EFFECT OF CHANGE OF of their duties as members of Congress and
AFFILIATION PRIOR TO ELECTION of Congressional Committees duly
authorized to perform its functions as such,
A change in affiliation A change in affiliation
at the time of the performance of the acts in
within months prior to within 6 months prior to
question (Jimenez v. Cabangbang, G.R.
election does not election prohibits the
No. L-15905, Aug. 3, 1966).
prevent a district party-list
representative from representative from
The privilege arises not because the statement is
running under his new sitting as
made by a lawmaker, but because it is uttered in
party. representative under
furtherance of legislation. It cannot be invoked when
his new
the lawmaker's speech or utterance is extraneous to
party/organization.
the due functioning of the legislative process
(Trillianes v. Castillo-Marigomen, G.R. No. 223451,
C. LEGISLATIVE PRIVILEGES, March 14, 2018).
INHIBITIONS, AND
DISQUALIFICATIONS To participate in or respond to media interviews is
not an official function of any lawmaker; it is not
Privileges (PHIL. CONST., art. VI, § 11.) demanded by his sworn duty nor is it a component
Immunity from Arrest — Legislators are privileged of the process of enacting laws. A lawmaker may
from arrest while Congress is in session only discharge his duties and legislate without having to
(whether regular or special) with respect to offenses communicate with the press. A lawmaker's
punishable by not more than 6 years of participation in media interviews is not a legislative
act, but is "political in nature,” outside the ambit of
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the immunity conferred under the Speech or Debate Cannot be appointed During the term for
Clause (Trillianes v. Castillo-Marigomen, G.R. No. to any office which was which he was elected.
223451, March 14, 2018). created or the
emoluments thereof
A complaint for disbarment or disciplinary action increased.
based on disparaging remarks made by an Cannot personally During term of office.
incumbent Senator against the Chief Justice will not appear as counsel
prosper because of the Speech and Debate clause before any court of
(Pobre v. Defensor-Santiago, A.C. No. 7399, Aug. justice, electoral
25, 2009). tribunal, quasi-judicial
and administrative
Limitations: body.
1. Protection is only against prosecution in Cannot be financially During term of office.
any forum other than Congress itself. interested directly or
Hence, the Senate or the House may indirectly in any
discipline their respective members. contract, franchise, or
2. The ‘speech or debate’ must be made in special privilege
performance of their duties as members of granted by the
Congress. Government, or any
3. Congress need not be in session when the subdivision, agency or
utterance is made, as long as it forms part instrumentality thereof,
of legislative action (e.g. part of the including any GOCC or
deliberative and communicative process its subsidiary.
used to participate in legislative
Cannot intervene in During term of office.
proceedings in consideration of proposed
any matter before any
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legislation or with respect to other matters
office of the
with Congress’ jurisdiction)
government when it is
for his pecuniary
Requirements to Avail of the Privilege of Speech
benefit or where he
and Debate Clause
may be called upon to
1. That the remarks must be made while the
act on account of his
legislature or the legislative committee is
office.
functioning, that is, in session; and
2. That they must be made in connection with (PHIL. CONST., art. VI, § 13 & 14.)
the discharge of official duties.
A Senator who is likewise the Chairman of the
Inhibitions (PHIL. CONST., art. VI, § 12.) National Red Cross does not forfeit his seat in the
All Members of the Senate and the House of Senate because the National Red Cross is a private
Representatives shall, upon assumption of office, corporation performing a public function (Liban v.
make a full disclosure of their financial and business Gordon, G.R. No. 175352, Aug. 15, 2009).
interests. They shall notify the House concerned of
a potential conflict of interest that may arise from the A congressman cannot buy nominal shares in a
filing of a proposed legislation of which they are corporation and appear in “intervention” before the
authors. SEC. This is a circumvention of the constitutional
policy (Puyat v. De Guzman, G.R. No. L-51122,
Therefore, senators and representatives are not Mar. 25, 1982).
prohibited from introducing bills that have conflicts
with their interest, as long as they disclose.
Rules on Increase in Salaries (PHIL. CONST., art.
Disqualifications VI, § 10.)
DISQUALIFICATION WHEN APPLICABLE No increase in their salaries shall take effect until
Cannot hold any other During his term. If he after the expiration of the full term (not tenure) of all
office or employment in does so, he forfeits his the members of the Senate and the House of
the Government or any seat in Congress. Representatives approving such increase.
subdivision, agency or
instrumentality thereof, Since the Constitution provides for rules on
including GOCCS or “salaries” and not “emoluments”, members of the
their subsidiaries. House may appropriate for themselves other sums
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of money such as travel allowances, as well as other each House’s coercive jurisdiction are not
benefits. included.
3. Majority in Senate: The basis in
A new senator or representative elected determining the existence of a quorum in
through a special election is not entitled to the the Senate is the total number of Senators
new salary rate because the new members are who are in the country and within the
serving the terms of those who approved the coercive jurisdiction of the Senate (Avelino
v. Cuenco, G.R. No. L-2821, March 4,
increase. Thus, they are not entitled to the
1949).
increase. 4. Majority of the House: means 1/2 +1 of
the actual membership of the House who
D. QUORUM AND VOTING are within the coercive jurisdiction of the
MAJORITIES Congress (within the Philippines).
5. Majority of all members of Congress:
Sessions (PHIL. CONST., art. VI, § 15.) means majority of the entire composition of
Congress regardless of the number of
1. Regular sessions - Congress convenes members present or absent during time the
once every year on the 4th Monday of July question is brought to the floor as long as
(unless otherwise provided for by law). It there is quorum (e.g. (24/2) +1 for the
continues in session for as long as it may Senate and (250/2) +1 for the HOR)
determine, until 30 days before the opening
of the next regular session, excluding Voting Majorities of Congress
Saturdays, Sundays, and legal holidays. SENATE
NATURE OF REQUIRED BASIS
2. Special Sessions - called by the President PROCEEDING VOTES
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at any time when Congress is not in session For the 2/3 of All Sec. 21, Art.
i.e. when the legislature is in recess. effectivity of VII
treaty or
Regular v. Special Session international
agreement
1. Under the 1935 Constitution, the distinction
between regular and special sessions was Conviction in 2/3 of All Sec. 3(6), Art.
significant because during a special impeachment XI
session, the legislature could consider only
the subject matter designated by the HOUSE OF REPRESENTATIVES
President. NATURE OF REQUIRED BASIS
2. Under the present law, which leaves PROCEEDING VOTES
discretion to Congress as to the number of Affirm or 1/3 of All Sec. 3(3), Art.
regular session days, the distinction is no Override XI
longer significant for the purpose of Resolution to
determining what the legislature may Impeach
consider. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, COMMON TO BOTH
2011) NATURE OF REQUIRED BASIS
PROCEEDING VOTES
Kinds of Recess Discipline 2/3 of All Sec. 16(3)
1. Voluntary Recess - takes place before the Members
adjournment of Congress like Christmas
Election of Majority of All Sec. 16(1)
recess
Officers
2. Compulsory Recess - takes place when
Declare the 2/3 of Both Sec. 23
the Congress adjourns
Existence of a Houses,
State of War voting
Quorum to do business - Majority of each House
separately
shall constitute a quorum.
Override 2/3 of All in Sec. 27(1)
1. A smaller number may adjourn from day to
President's the House of
day and may compel the attendance of
Veto Origin
absent members.
2. In computing a quorum, members who are
outside the country and thus outside of
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Quorum to do Majority w/in Sec. 16(2); 2. Revoking or extending declaration of

business Compulsory Avelino v. martial law (PHIL. CONST., art. VII, § 18.)
Power of the Cuenco
House Officers of Congress (PHIL. CONST., art. VI, § 16.)
Yeas and Nays 1/5 of Sec. 16(4) 1. Senate President
in the Journal Members 2. Speaker of the House
present of 3. Such other officers as it may deem
each house necessary.
Tax Exemption Majority of All Sec. 28(4)
Confirmation of Majority of Art. VII, Sec. Election of Officers
new VP Both Houses, 9 1. By a majority vote of all respective
nominated by voting members
President separately 2. Congress has the sole prerogative in
Determination 2/3 of Both Art. VII, Sec. choosing its officers and the manner by
that Pres. Houses, 11 which they are chosen. (Defensor-Santiago
unable to voting v. Guingona, G.R. No. 134577, Nov. 18,
discharge separately 1988)
powers & duties 3. While the Constitution mandates that the
To break a tie in Majority of All, Art. VII, Sec. President of the Senate must be elected by
presidential voting 4 a number constituting more than one half of
election separately all the members thereof, it does not provide
Revocation of Majority of All, Art. VII, Sec. that the members who will not vote for him
Proc. of Martial voting jointly 18 shall ipso facto constitute the "minority,"
Law/ who could thereby elect the minority leader.
Suspension of Verily, no law or regulation states that the
FOR ONE ATENEO

Priv. of Writ of defeated candidate shall automatically
Habeas Corpus become the minority leader. (Id.)
Extension of Majority of All, Art. VII, Sec. 4. The Senate President or Speaker of the
Proc. of voting jointly 18 HOR is elected through a majority vote of
all its respective Members, and such other
ML/Suspension.
of Priv. of WHC officers as may deem necessary. (PHIL.
To Concur w/ Majority of All Art. VII, Sec. CONST., art. VI, § 16.)
President in 19
granting E. DISCIPLINE OF MEMBERS
amnesty
Suspension v. Expulsion
Instances when Congress is Voting Separately 1. Suspension - shall not exceed 60 days,
1. Determining the winning candidate for with the concurrence of 2/3 of all its
President or Vice President in case two or members.
more candidates have an equal and 2. Expulsion - concurrence of 2/3 of all its
highest number of votes (PHIL. CONST., art. members.
VII, § 4.)
2. Determine President’s disability (PHIL. Nature of Disciplining Authority
CONST., art. VII, § 11.) Each House may determine the rules of its
3. Declaring existence of a state of war in joint proceedings, punish its Members for disorderly
session (PHIL. CONST., art. VI, § 23(1).) behavior, and, with the concurrence of 2/3 of all its
4. Confirming the President’s nomination of a members, suspend or expel a Member. A penalty of
Vice-President from Congress whenever suspension, when imposed, shall not exceed 60
there is a vacancy in the Office of the Vice days. (PHIL. CONST., art. VI, § 16(3).)
President (PHIL. CONST., art. VII, § 0.)
5. Proposing Constitutional amendments The disciplinary action taken by Congress
(PHIL. CONST., art. XVII, § 1.) against a member is not subject to judicial review
because each House is the sole judge of what
Instances when Congress is Voting Jointly disorderly conduct is (Osmeña v. Pendatun, G.R.
1. Revoking or extending proclamation No. L-17144, Oct. 28, 1960).
suspending the privilege of writ of habeas
corpus (PHIL. CONST., art. VII, § 18.) The parliamentary immunity of members of
Congress is not absolute. While parliamentary
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immunity guarantees the legislator complete F. PROCESS OF LAW-MAKING

freedom of expression without fear of being made
responsible before the courts or any other forum 1. FUNCTION OF THE BICAMERAL
outside of Congressional Hall, it does NOT protect CONFERENCE COMMITTEE
him (her) from responsibility before the legislative
body itself whenever words and conduct are BICAMERAL CONFERENCE COMMITTEE – an
considered disorderly or unbecoming a member extra-constitutional creation which is intended to
thereof. resolve conflicts between House and Senate
versions of bills. (Bernas, 1987 Philippine
For unparliamentary conduct, members of Constitution: A Commentary, 790, 2009).
Congress can be:
1. censured, Scope Of The Bicameral Conference
2. committed to prison, Committee’s Powers (A2R2P)
3. suspended, and 1. Adopt the Bill entirely; or
4. even expelled by the votes of their 2. Amend; or
colleagues (Osmeña v. Pendatun, G.R. No. 3. Revise; or
L-17144, Oct. 28, 1960). 4. Reconcile the House Bill and the Senate
Bills;
Is preventive suspension considered an 5. Propose entirely new provisions not found
interruption of a term? in either the House Bill or the Senate Bill.
Preventive suspension is not considered (Amendments in the nature of a substitute)
“interruption” of a term under Sec. 8, Art. X and Sec.
43 (b) of R.A. No. 7160. A preventive suspension 2. LIMITATIONS ON LEGISLATIVE
cannot simply be considered an interruption POWER
because the suspended official continues to stay in
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office although barred from exercising the functions
and prerogatives of the office within the suspension a. Limitation on Revenue,
period. The best indicator of the suspended official’s Appropriation, and Tariff
continuity in office is the absence of a permanent
replacement and the lack of the authority to appoint Limitation: So long as the amendment is germane
one since no vacancy exists (Aldovino v.
COMELEC, G.R. No. 184836, Dec. 23, 2009).
Authority of Sandiganbayan to Suspend

to the subject of the bill before the Committee.
In a bicameral system, bills are independently

processed by both Houses of Congress. It is not
A Congressman can be preventively suspended by unusual that the final version approved by one
the Sandiganbayan for violation of Anti-Graft Law House differs from what has been approved by the
notwithstanding the exclusive power of Congress to other. The “conference committee,” consisting of
discipline its members. members nominated from both Houses, is an extra-
constitutional creation of Congress whose function
The suspension contemplated in Article VI, Section is to propose to Congress ways of reconciling
16(3) of the Constitution is a punishment that is conflicting provisions found in the Senate version
imposed by the Senate or House of Representatives and in the House version of a bill.
upon an erring member. It is distinct from the
suspension under Section 13 of the Anti-Graft and It is within the power of a conference committee to
Corrupt Practices Act, which is not a penalty but a include in its report an entirely new provision that is
preventive measure. Since Section 13 of the Act not found either in the House bill or in the Senate
does not state that the public officer must be bill. If the committee can propose an amendment
suspended only in the office where he is alleged to consisting of one or two provisions, there is no
have committed the acts which he has been reason why it cannot propose several provisions,
charged, it applies to any office which he may be collectively considered as an "amendment in the
holding (Santiago v. Sandiganbayan, G.R. No. nature of a substitute," so long as such amendment
128055, April 18, 2001). is germane to the subject of the bills before the
committee. After all, its report was not final but
needed the approval of both houses of Congress to
become valid as an act of the legislative department
(Tolentino v. Secretary of Finance, G.R. No.
115455, Aug. 25, 1994).
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Bills that must originate in the House (PuP-TL) (Tio v. Videogram Regulatory Board, G.R. No. L-
(PHIL. CONST., art. VI, § 24.) Note: While these bills 75697, June 18, 1987).
must originate from the House, the Senate may
introduce amendments and pass a completely It is sufficient that the title expressing the general
different bill from the original one from the house. subject of the bill and all the provisions of the statute
What is required only is that the bill originate in the are germane to such general subject (Sumulong v.
House. COMELEC, G.R. No. L-48609, Oct. 10, 1941).
1. Bills authorizing the increase of Public debt Bills passed by either House must pass 3 readings
● One which creates public indebtedness on separate days, and printed copies thereof in its
such as bills for the issuance of bonds and final form distributed to its members 3 days before
other forms of obligations its passage.
2. Private bills FIRST READING - Only the title is read; the bill is
● One affecting purely private interest, such passed to the proper committee
as one granting a franchise.
SECOND READING - Entire text is read and
3. Tariff bills debates are held; amendments introduced.
● One that specifies the rates or duties to be
imposed on imported articles THIRD READING - Only the title is read, no
amendments are allowed. Vote shall be taken
4. Bills of Local application immediately thereafter and the yeas and nays
● A bill of local application, such as one entered in the journal.
asking for the conversion of a municipality
into a city, is deemed to have originated Exceptions:
FOR ONE ATENEO

from the House provided that the bill of the ● When the President certifies to the
House was filed prior to the filing of the bill necessity of the bill’s immediate enactment
in the Senate; even if in the end, the Senate to meet a public calamity or emergency, the
approved its own version (Tolentino v. three readings can be held on the same
Secretary of Finance, G.R. No. 115455, day. (PHIL. CONST., art. VI, § 26(2).)
Oct. 30, 1995). ● When the offices of the President and Vice-
President are both vacant, the bill calling for
Revenue Bills a special election to elect a President and
One specifically designed to raise money or revenue Vice-President is deemed certified. (PHIL.
through imposition or levy. CONST., art. VII, § 10.)
1. For example, registration fees used for the
construction and maintenance of highways. See Part V(1) on the Substantive and Procedural
(PAL vs. Edu, G.R. No. L-41383, Aug. 15, Limitations on Congress’ Law-Making Powers.
1988).
2. The Videogram Regulatory Board Law a. Presidential Veto and
imposing a tax on video rentals does not Congressional Override
make the law a revenue bill because the
purpose is primarily regulation, and not to Presidential Veto
raise revenue. (Tio v. Videogram Every bill passed by Congress shall be presented to
Regulatory Board, G.R. No. L-75697, June the President before it becomes law. To approve, he
18, 1987) shall sign it. Otherwise, he shall veto the bill. (PHIL.
CONST., art. VI, § 27(1).)
General Limitations (PHIL. CONST., art. VI, § 26.)
Every bill shall embrace only one (1) subject, as Overriding a Veto
expressed in the title thereof, which does not have The President shall transmit to House where the bill
to be a complete catalogue of everything stated in originated. If, after such reconsideration, 2/3 of all
the bill. the members of such House shall agree to pass the
bill, it shall be sent, together with the objections, to
An Act creating the Videogram Regulatory Board the other House by which it shall likewise be
including 30% tax on gross receipts on video reconsidered, and if approved by 2/3 of all the
transactions was held to be valid. Taxation is members of that House, it shall become law.
sufficiently related to regulation of the video industry
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To override the veto, at least 2/3 of all the members publication when required. As long as these
of each House must agree to pass the bill. In such requirements are complied with, the Court
case, the veto is overridden and becomes a law will not interfere with the right of Congress
without need of presidential approval. (PHIL. CONST., to amend its own rules. (Pimentel v. Senate
art. VI, § 27(1).) Committee, G.R. No. 187714, March 8,
2011)
Item Veto
General Rule: As a general rule, if the President Congressional Journals and Records (PHIL.
disapproves of a provision in a bill approved by CONST., art. VI, § 16.)
congress, he must veto the entire bill.
General Rule: The Journal is conclusive upon the
Exception: As an exception, the President is courts.
allowed to item-veto in these types of bills: (ART)
1. Appropriation Exception: An enrolled bill prevails over the
2. Revenue, and contents of the Journal.
3. Tariff (Sec. 27 (2)).
ENROLLED BILL - The official copy of approved
Exceptions to the Exception: legislation and bears the certifications of the
DOCTRINE OF INAPPROPRIATE PROVISIONS - presiding officers of each House. Thus, where the
A provision that is constitutionally inappropriate for certifications are valid and are not withdrawn, the
an appropriation bill may be subject to veto even if it contents of the enrolled bill are conclusive upon the
is not an appropriation or revenue “item”. (Gonzalez courts as regards the provision of that particular bill.
v. Macaraig, Jr., G.R. No. 87636, Nov. 19, 1990).
ENROLLED BILL DOCTRINE – The signing of a bill
EXECUTIVE IMPOUNDMENT - Refusal of the by the Speaker of the House and the President of
FOR ONE ATENEO

President to spend funds already allocated by the Senate and its certification by the secretaries of
Congress for a specific purpose. It is in effect, an both Houses of Congress that such bill was passed
“impoundment” of the law allocating such are conclusive of its due enactment (Arroyo v. De
expenditure of funds. Venecia, G.R. No.127255, Aug. 14, 1997).
NOTE: There is no doctrine for or against executive
impoundment. It has not been judicially questioned.
Type of Item Bill

ENROLLED
BILL
Official copy of
approved
JOURNAL
Abbreviated
account of
RECORD
Word for word

transcript of
TYPE OF BILL ITEM legislation, daily deliberations
Revenue/tax bill Subject of the tax, and with proceedings in in Congress
tax rate imposed certifications Congress
thereon of presiding
Appropriations bill Indivisible sum officers
dedicated to a stated Submitted to Provides proof Provides
purpose the President of what detailed proof
for signature, transpired of what
VETO OF RIDER - A rider is a provision that does indicating during transpired
not relate to a particular appropriation stated in an approval deliberations during
appropriation bill. Being an invalid provision under deliberations
Section 25 (2), the President may exercise item Insures Supports the
veto. publicity of journal entry
legislative
Internal Rules proceedings
As part of their inherent power, each House may
determine its own rules. Hence, the courts cannot Cases When the Constitution Requires Yeas
intervene in the implementation of these rules And Nays To Be Recorded
insofar as they affect the members of Congress. 1. Last and third readings of a bill
(Arroyo v. De Venecia, G.R. No. 127255, Aug. 14, 2. Upon 1/5 members’ request
1997) 3. Re-passing a bill over Presidential veto
● The only limitation to the power of
Congress to promulgate its own rules is the
observance of quorum, voting, and
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Adjournment “riders” to the General Appropriations Act (GAA)

Neither House during the sessions of the Congress, (Garcia v Mata, G.R. No. L-33713 July 30, 1975).
shall without the consent of the other, adjourn for
more than 3 days, nor to any other place than that Following liberal construction, a provision will not be
in which the two Houses shall be sitting. (PHIL. considered a “rider” if: 1) it is not inconsistent with or
CONST., art. VI, § 16.) foreign to the general subject, 2) considered in
furtherance of such subject by providing for the
method and means of carrying out the general
Types of Adjournment subject (Fariñas v Executive Secretary; G.R. No.
1. Day to day 147387, 2003).
2. Yearly
3. Sine die — with no appointed date for Transfer of Funds / Re-alignment
resumption General Rule: No law shall be passed authorizing
any transfer of appropriations;
‘Place’
Refers not to the building but to the political unit Exception (Exclusive List): The following may, by
where the Houses may be sitting. law, be authorized to augment any item in the
general appropriations law for their respective
G. RULES ON APPROPRIATION AND offices from savings in other items of their respective
RE-ALIGNMENT appropriations:
1. The President
Rules on Appropriation 2. Senate President
All appropriation bills shall originate exclusively in 3. Speaker of the House of Representatives,
the House of Representatives, but the Senate may 4. the Chief Justice of the Supreme Court
propose or concur with amendments. (PHIL. 5. the heads of Constitutional Commissions
FOR ONE ATENEO

CONST. § 24) (PHIL. CONST. § 25 (5))
Individual members of Congress may only

If, by the end of any fiscal year, the Congress shall
determine the necessity of the realignment of
have failed to pass the general appropriations bill for
savings in the allotments for their operating
the ensuing fiscal year, the general appropriations
expenses because they are in the best position to
law for the preceding fiscal year shall be deemed re-
know whether there are savings available in some
enacted and shall remain in force and effect until the
items and whether there are deficiencies in other
general appropriations bill is passed by the
items of their operating expenses that need
Congress. (PHIL. CONST. § 25 (7))
augmentation. However, it is the Senate President
and the Speaker of the House of Representatives
Limits on Power to Appropriate
who shall approve the realignment. (Philippine
The Congress may not increase the appropriations
Constitution Association v. Enriquez, G.R. No.
recommended by the President for the operation of
113105, 19 August 1994.)
the Government as specified in the budget. The
form, content, and manner of preparation of the
Discretionary Funds
budget shall be prescribed by law (PHIL. CONST. §
Discretionary funds appropriated for particular
25 (1)).
officials shall be disbursed only for public purposes
to be supported by appropriate vouchers and
Prohibition on “Riders” in Appropriation Bills
subject to such guidelines as may be prescribed by
No provision or enactment shall be embraced in the
general appropriations bill unless it relates law. (Araullo v. Aquino, G.R. No. 209287, 1 July
specifically to some particular appropriation therein. 2014)
Any such provision or enactment shall be limited in
its operation to the appropriation to which it relates. Special Purpose Fund
(PHIL. CONST. § 25 (2)). A special appropriations bill shall specify the
purpose for which it is intended, and shall be
A provision which refers to the fundamental supported by funds actually available as certified by
government policy matters of the calling to active the National Treasurer, or to be raised by a
duty and the reversion to inactive status of reserve corresponding revenue proposal therein. (Belgica v.
officers in the AFP is a non-appropriation item Ochoa, Jr. G.R. No. 208566, 19 November 2013)
inserted in an appropriation measure and is a
violation of the constitutional inhibition against
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H. ELECTORAL TRIBUNALS AND party he represents in the tribunal, formal affiliation

COMMISSION ON with another political party, or removal for other valid
cause. A member may not be expelled by the HOR
APPOINTMENTS
for ‘party disloyalty’ short of proof that he has
formally affiliated with another political group.
ELECTORAL TRIBUNALS (Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1991)
1. COMPOSITION
2. POWERS AND JURISDICTION
The Senate and the House of Representatives shall
each have an Electoral Tribunal (SET and HRET).
Jurisdiction
(PHIL. CONST., art. VI, § 17.)
Each Electoral Tribunal shall be the sole judge of
all contests relating to the (ERQ) Election,
Composition – Nine (9) members
Returns and Qualifications of their respective
1. Three (3) Supreme Court Justices to be
members. This includes determining the validity or
designated by the Chief Justice.
invalidity of a proclamation declaring a particular
o The senior Justice in the Electoral
candidate as the winner.
Tribunal shall be its Chairman.
2. Six (6) Members of the Senate or House,
“Qualifications” are not limited to the qualifications
as the case may be. They shall be chosen
prescribed by the Constitution for a Member of
on the basis of proportional representation
Congress under Art. VI, Sec. 6. (Guerrero v.
COMELEC, G.R. No. 137004, July 26, 2000)
The presence of the three Justices, as against six
members of [each House], was intended as an
The COMELEC’s jurisdiction over election contests
additional guarantee to ensure impartiality in the
relating to election, returns, and qualifications ends,
judgment of cases before it. As such, there should
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and the HRET's own jurisdiction begins once a
always be one member of the Tribunal who is a
winning candidate is:
Justice. If all three Justice-members inhibit
1. proclaimed
themselves in a case, the Supreme Court will
2. taken his oath, and
designate another Justice to chair the Electoral
3. assumed office as a Member of the House
Tribunal. (Reyes v. HRET, G.R. No. 221103, Oct.
of Representatives. (Aggabao v.
16, 2018)
COMELEC, G.R. No. 163756, Jan. 26,
2005)
Nature of Tribunals
The tribunal was created to function as a
Thus, in an electoral contest where the validity of
nonpartisan court although two-thirds of its
the proclamation of a winning candidate who has
members are politicians. It is a non-political body in
taken his oath of office and assumed his post as
a sea of politicians. As judges, the members of the
Congressman is raised, that issue is best addressed
tribunal must be non-partisan. They must discharge
to the HRET. (Guerrero v. COMELEC, G.R. No.
their functions with complete detachment,
137004, July 26, 2000)
impartiality, and independence — even
independence from the political party to which they
Once COMELEC loses its jurisdiction, the proper
belong. Hence, "disloyalty to party" and "breach of
remedy is to file a petition for quo warranto before
party discipline," are not valid grounds for the
the HRET and not a petition for certiorari before the
expulsion of a member of the tribunal. (Bondoc v.
Supreme Court. (Señeres v. COMELEC, G.R. No.
Pineda, G.R. No. 97710, Sept. 26, 1991)
178678, Apr. 16, 2009)
An Electoral Tribunal is a quasi-judicial body.
NOTE: The Constitution provides that a person
Therefore, the degree of proof required is only
assumes office “at noon on the 30th day of June”.
substantial evidence or that amount of relevant
The Oath of Office the petitioner presented is not
evidence which a reasonable mind might accept as
valid. As far as the court is concerned, she took her
adequate to justify a conclusion. (David v. SET, G.R.
oath on 5th of June which is not the one prescribe
No. 221538, Sept. 20, 2016)
by the Constitution. Therefore, the COMELEC still
has jurisdiction. Before there is a valid taking of
Security of Tenure
the oath, it must be made:
Membership in the HRET may not be terminated
1. before the Speaker of the House of
except for a just cause, such as the expiration of the
Representatives, and
member's congressional term of office, his death,
permanent disability, resignation from the political
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2. in open session. (Reyes v. COMELEC, ● Its members may not be arbitrarily removed
G.R. No. 207264, June 25, 2013) from their positions in the tribunal by the
parties that they represent. Neither may
Does the HRET have jurisdiction over pre- they be removed for not voting according to
proclaimed controversies? party lines, since they are acting
No, the COMELEC has exclusive jurisdiction over independently of Congress. (Bondoc v.
pre-proclaimed controversies. (Omnibus Election Pineda, G.R. No. 97710, Sept. 26, 1991)
Code, § 242)
The mere fact that the members of either the Senate
Is jurisdiction lost upon withdrawal or protest? or the House sitting on the Electoral Tribunal are
No. Jurisdiction once acquired, is not lost upon the themselves the ones sought to be disqualified (due
instance of the parties, but continues until the case to the filing of an election contest against them) does
is terminated. Mere filing of a motion to withdraw not warrant the disqualification of all the members of
protest, without any action on the part of the tribunal, the Electoral Tribunal. (Abbas v. SET, G.R. No.
does not divest it of jurisdiction. An election protest 83767, Oct. 27, 1988)
is impressed with public interest in the sense that ● Judicial review of decisions of the Electoral
the public is interested in knowing what happened in Tribunals may be had with the Supreme
the elections. Thus, private interest must yield to the Court only on the ground of grave abuse of
common good. (Robles v HRET, G.R. No. 86647, discretion, the decision or resolution having
Feb. 5, 1990) been rendered without or in excess of
jurisdiction. (Pimentel v. HRET, G.R. No.
Election Contest – where a defeated candidate 141489, Nov. 29, 2002)
receiving the second highest number of votes
challenges the qualifications of a winning candidate E.g. A final vote tally made by an Electoral Tribunal
and claims for himself the seat of a proclaimed without supporting evidence has been struck down
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winner. by the Court. (Lerias v. COMELEC, G.R. No. 97105,
● In the absence of an election contest, the Oct. 15, 1991)
Electoral Tribunal is without jurisdiction.
However, each House can expel its own When the names of the parents of a foundling
members or even defer their oath taking cannot be discovered despite a diligent search, but
until their qualifications are determined. sufficient evidence is presented to sustain a
This may be exercised even without an reasonable inference that satisfies the quantum of
election contest. proof required to conclude that at least one or both
of his or her parents is Filipino, then this should be
The power of the HRET to determine the citizenship sufficient to establish that he or she is a natural-born
of a winning candidate does not include looking at citizen. When these inferences are made by the
the grant of citizenship to the candidate’s SET in the exercise of its sole and exclusive
ascendant. That would be a prohibited collateral prerogative to decide the qualifications of the
attack (Vilando v. HRET, G.R. Nos. 192147 & members of the Senate, then there is no grave
192149, Aug. 23, 2011). abuse of discretion. (David v. SET, G.R. No.
221538, Sept. 20, 2016)
An Electoral Tribunal may annul election results if in
its determination, fraud, terrorism or other electoral The cardinal objective in ballot appreciation is to
irregularities existed to warrant the annulment. discover and give effect to, rather than frustrate, the
Because in doing so, it is merely exercising its intention of the voter. Extreme caution is observed
constitutional duty to ascertain who among the before any ballot is invalidated and doubts are
candidates received the majority of the valid votes resolved in favor of the ballot’s validity. This Court
cast. (Abayon v. HRET, G.R. No. 222236, May 3, finds no grave abuse of discretion by the HRET in
2016) its findings after its careful review of the objected
ballots and guided by existing principles, rules and
Since the Electoral Tribunals are independent rulings on its appreciation. (Locsin v. HRET, G.R.
constitutional bodies: No. 204123, March 19,2013)
Neither Congress nor the Courts may interfere with Rule Making Power
procedural matters relating to the functions of the The power of the HRET, as the sole judge of all
Electoral Tribunals. (Angara v. Electoral contests relating to the election, returns and
Commission, G.R. No. L-45081, July 15, 1936) qualifications of the Members of the House of
Representatives, to promulgate rules and
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regulations relative to matters within its jurisdiction, 2. The chairman shall only vote in case of a
including the period of filing election protests before tie. (Id.)
it, is beyond dispute. It’s rule-making power 3. The Commission shall act on all
necessarily flows from the general power granted it appointments submitted to it within 30
by the Constitution. (Lazatin v HRET, G.R. No. session days. (Id.)
84297, 1998) 4. The Commission shall meet only while
Congress is in session, at the call of its
COMMISSION ON APPOINTMENTS Chairman or a majority of all its members.
1. COMPOSITION
2. POWERS AND JURISDICTION
Composition
1. Senate President as ex-officio chairman Jurisdiction (PHIL. CONST., art. VII, § 16.)
2. 12 Senators The Commission on Appointments shall confirm the
3. 12 Members of the House appointments by the President with respect to the
following positions: (E-MA²-C)
The Commission on Appointments (CA) acts as a 1. Heads of the Executive Departments
legislative check on the appointing authority of the o Exception: Appointment of Vice
President. For the effectivity of the appointment of President as a member of the
certain key officials enumerated in the Constitution, Cabinet needs no confirmation
the consent of the CA is needed. (Bernas) (PHIL. CONST., art. VII, § 15.)
2. Ambassadors,
Manner of Composition 3. Other public Ministers or consuls
Elected on the basis of proportional representation 4. Officers of the AFP from the rank of Colonel
from the political parties and party-list organizations or Naval Captain and above; and
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within 30 days after the Senate and the House of 5. Other officers whose appointments are
Representatives shall have organized with the vested in him by the Constitution (e.g.
election of the Senate President and the Speaker of COMELEC members)
the House (PHIL. CONST., art. VI, § 19.) o Examples: Chairmen and
commissioners of the CSC,
The Constitution does not require that the “political
parties” be registered before the COMELEC. (Daza
v. Singson, G.R. No. 86344, Dec. 21, 1989)
COMELEC, and COA; regular
members of the Judicial Bar
Council (JBC)
The minimum required number of elected senators NOTE: The consent of Commission on
belonging to the same political party in order for the Appointments is required only in the 1st sentence
party to qualify for a seat in the CA is at least two (2) enumeration of Art. VII, Section 16. (Sarmiento v.
elected senators for every seat in the CA. (Guingona Mison, G.R. No L-79974, Dec. 17, 1987)
v. Gonzales, G.R. No. 106971, March 1, 1993).
Limitations
The Constitution does not require that the full ● Congress cannot by law prescribe that the
complement of 12 senators be elected to the appointment of a person to an office
membership in the CA before it can discharge its created by such law shall be subject to
functions and that it is not mandatory to elect 12 confirmation by the CA.
senators to the CA (Guingona vs. Gonzales, G.R. ● Appointments extended by the President to
No. 106791, March 1, 1993). the enumerated positions while Congress
is not in session shall only be effective until
The two Houses have primary jurisdiction on who disapproval by the CA, or until the next
should sit in the CA. This includes determination of adjournment of Congress.
party affiliation and number of party members for ● Since the Commission on Appointments is
purpose of determining proportional representation an independent constitutional body, its
(Drilon v. De Venecia, G.R. No. 180055, July 31, rules of procedure are outside the scope of
2009). congressional powers as well as that of the
judiciary.
Voting
1. The Commission shall rule by a majority For further discussion on this topic, see VI(C)(2)
vote of all the Members. (PHIL. CONST., art. [Powers of the President: Power of Appointment] of
VI, § 18.) this Reviewer.
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I. POWERS OF CONGRESS Philippine Constitution: A Commentary,

761, 2009).
General Classification
1. Legislative Nature and Purpose
a. General plenary power The power of inquiry — with process to enforce it —
b. Specific power of appropriation is an essential and appropriate auxiliary to the
c. Taxation legislative function. A legislative body cannot
d. Expropriation legislate wisely or effectively in the absence of
e. Legislative investigation information respecting the conditions which the
f. Question hour legislation is intended to effect or change; and
2. Non-Legislative where the legislative body does not itself possess
a. Canvass presidential elections the requisite information — which is not infrequently
b. Declare the existence of a state of true — recourse must be had to others who do
war possess it. (Arnault v. Nazareno, G.R. No. L-3820,
c. Delegation of emergency powers July 18, 1950)
d. Call a special election for
President and Vice President Legislative inquiries must be conducted “in aid of
e. Concur to treaties and amnesties legislation” which does not necessarily mean that
f. Propose constitutional there is pending legislation regarding the subject of
amendments the inquiry. Hence, the materiality of a question is
g. Confirm certain appointments determined not by its connection to any pending
h. Impeach legislation, but by its connection to the general
i. Decide the disability of the scope of the inquiry. (Bengzon v. Senate Blue
President in cases where majority Ribbon Committee, G.R. No. 89914, Nov. 20, 1991)
of the Cabinet dispute his
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assertion that he is able to If the investigation is no longer “in aid of legislation”
discharge his duties but, “in aid of prosecution” where the stated purpose
j. Revoke or extend proclamation of of the investigation is, to determine the existence of
suspension of privilege of writ of violations of the law, it is beyond the scope of
habeas corpus or declaration of congressional powers.
k.
martial law
Power with regard to utilization of
natural resources
Compulsory Process
The power of legislative investigation includes the
power to compel the attendance of witnesses.
1. LEGISLATIVE INQUIRIES AND Corollary to the power to compel the attendance of
witnesses is the power to ensure that said witnesses
OVERSIGHT FUNCTIONS
would be available to testify in the legislative
investigation. (Standard Chartered v. Senate, G.R.
LEGISLATIVE INQUIRIES
No. 167173, Dec. 27, 2007).
Duly Published Rules of Procedure
Scope
It is incumbent upon the Senate to publish the rules
The power of legislative investigation includes:
for its legislative inquiries in each Congress or
1. Power to issue summons and notices;
otherwise make the published rules clearly state that
2. Power to punish or declare a person in
the same shall be effective in subsequent
contempt
Congresses or until they are amended or repealed
3. The power to determine the rules of its
to sufficiently put the public on notice. If it was the
proceedings
intention of the Senate for its present rules on
legislative inquiries to be effective even in the next
Limitations: (ADR)
Congress, it could have easily adopted the same
1. The inquiry must be in Aid of legislation.
language it had used in its main rules regarding
2. The inquiry must be conducted in
effectivity. Publication in the internet does not satisfy
accordance with the ‘Duly published rules
the requirement of publication as provided in the
of procedure’ of the House conducting the
Constitution (Garcillano v. House of
inquiry; and
Representatives, G.R. No. 170338, Dec. 23, 2008).
3. The rights of persons appearing in or
affected by such inquiries shall be
Respected. (e.g., right to due process, right
against self- incrimination) (Bernas, 1987
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Right against Self-Incrimination independently of the judicial branch, it can assert its
A subpoenaed witness cannot refuse to attend a authority and punish contumacious acts against it.
legislative inquiry by invoking his or her right against Such power is sui generis, as it attaches not to the
self-incrimination. Such right may be invoked only discharge of legislative functions per se, but to the
when the incriminating question is being asked, sovereign character of the legislature as one of the
since they have no way of knowing in advance the three independent and coordinate branches of
nature or effect of the questions to be asked of them. government. (Id.)
(Sabio v. Gordon, G.R. No. 174340, Oct. 17, 2006).
Period of Detention for Contempt (Balag v.
Non-Applicability of the Sub Judice Rule to Senate, G.R. No. 234608, July 3, 2018)
Inquiries in Aid of Legislation HOUSE OF
SENATE
The mere filing of a criminal or an administrative REPRESENTATIVES
complaint before a court or a quasi-judicial body Can last only until the Can last only until the
should not automatically bar the conduct of final adjournment of the termination of the
legislative investigation. Otherwise, it would be last session of such legislative inquiry (even
extremely easy to subvert any intended inquiry by Congress during recess) under
Congress through the convenient ploy of instituting which the said power is
a criminal or an administrative complaint. Surely, the invoked
exercise of sovereign legislative authority, of which
the power of legislative inquiry is an essential The legislative inquiry
component, cannot be made subordinate to a of the Senate
criminal or an administrative investigation. terminates on two
(Standard Chartered v. Senate, G.R. No. 167173, instances:
Dec. 27, 2007). 2. Upon the
approval or
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A legislative investigation in aid of legislation disapproval of
and court proceedings have different purposes. the Committee
On one hand, courts conduct hearings or like Report
adjudicative procedures to settle, through the 3. Upon the
application of a law, actual controversies arising expiration of
between adverse litigants and involving
demandable rights. On the other hand, inquiries in
aid of legislation are, inter alia, undertaken as tools
to enable the legislative body to gather information
such Congress
Prior to Balag, the prevailing rule was that the

Senate, as a continuing body (as opposed to the
and, thus, legislate wisely and effectively; and to House of Representatives), can incarcerate a
determine whether there is a need to improve witness indefinitely based on Arnault v. Nazareno.
existing laws or enact new or remedial legislation, However, the Court ruled that an indefinite and
albeit the inquiry need not result in any potential unspecified period of detention will amount to
legislation. On-going judicial proceedings do not excessive restriction and will certainly violate any
preclude congressional hearings in aid of legislation. person's right to liberty. (Id.)
(Romero v. Estrada, G.R. No. 174105, April 2, 2009)
If Congress decides to extend the period of
Power to Punish for Contempt imprisonment for the contempt committed by a
The power to punish contempt must be considered witness beyond the duration of the legislative
implied or incidental to the exercise of legislative inquiry, then it may file a criminal case under
power. How could a legislative body obtain the existing statute (Art. 150 of the Revised Penal Code
knowledge and information on which to base penalizes the refusal of a witness to answer any
intended legislation if it cannot require and compel legal inquiry before Congress), amend existing law,
the disclosure of such knowledge and information, if or enact a new law to increase the definite period of
it is impotent to punish a defiance of its power and imprisonment. Augmenting its power of contempt
authority? (Standard Chartered v. Senate, G.R. No. and extending the period of imprisonment shall be
167173, Dec. 27, 2007). in the sole discretion of Congress. This constitutes
as a statutory power of contempt, which is
The exercise by Congress or by any of its different from the inherent power of contempt. (Id.)
committees of its contempt power is based on the
principle of self-preservation (i.e. preserving its
authority and dignity). As the branch of the
government vested with the legislative power,
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OVERSIGHT FUNCTIONS Houses on any matter pertaining to their

(PHIL. CONST., art. VI, § 22.) departments and its power of confirmation;
2. Investigation and monitoring of the
Section 22 pertains to the power to conduct implementation of laws pursuant to the
a question hour, the objective of which is to obtain power of Congress to conduct inquiries in
information in pursuit of Congress' oversight aid of legislation. (Belgica v. Ochoa, G.R.
function. No. 208566, Nov. 19, 2013).
Question Hour – Appearance of department heads Question Hour vs. Legislative Investigation
before Congress to give account of their Sections 21 and 22, while closely related and
stewardship (Bernas, 1987 Philippine Constitution: complementary to each other, should not be
A Commentary, 769, 2009). considered as pertaining to the same power of
Congress. One specifically relates to the power to
Under Section 22, department heads (members of conduct inquiries in aid of legislation, the aim of
the Executive Department) cannot be compelled to which is to elicit information that may be used for
appear before Congress. Neither may department legislation, while the other pertains to the power to
heads impose their appearance upon Congress. conduct a question hour, the objective of which is
This is in line with the principle of separation of to obtain information in pursuit of Congress’
powers. oversight function. (Neri v. Senate, G.R. No.
180643, March 25, 2008)
Department Heads May Appear before Congress
in the Following Instances: Section 22, in keeping with the separation of
1. Upon their own initiative, with the consent powers, states that Congress may only request their
of the President (and that of the House appearance. Nonetheless, when the inquiry in which
concerned) Congress requires their appearance is "in aid of
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2. Upon the request of either House legislation" under Section 21, the appearance is
3. Written questions shall be submitted to the mandatory (Senate v. Ermita, G.R. No. 169777,
President of the Senate or Speaker of the April 20, 2006).
House at least 3 days before the scheduled
appearance of the department heads. LEGISLATIVE
4. Interpellations shall not be limited to written QUESTION
INVESTIGATI
questions, but may cover related matters. HOUR
ON
5. The inquiry will be conducted in executive (SEC. 22)
(SEC. 21)
session when: WHO MAY Only Any person
○ Required by the security of state, APPEAR department
or public interest, and heads
○ When the President so states in WHO Entire body Entire body or
writing. CONDUCTS its respective
committees
There is no such thing as a ‘question hour’ in the SUBJECT Matters Any matter in
Constitution (It is a parliamentary concept and MATTER OR related to the aid of
practice). The distinction in legislative hearings is PURPOSE department legislation
between investigative function and oversight only as an
function. (Senate v. Ermita, G.R. No. 169777, April exercise of
20, 2006). Congress’
oversight
Any post-enactment congressional measure should function
be limited to scrutiny and investigation, in following NATURE Discretionary Compulsory
the principle separation of powers. An accountability EXEMPTED All heads of (1) President
mechanism with which the proper expenditure of PERSONS departments (2) Justices of
public funds may be checked is the power of of the the Supreme
congressional oversight, which may be performed Executive Court
either through: Branch of the (3) Members of
1. Scrutiny based primarily on Congress‘ government the AFP, if
power of appropriation and the budget shall secure prevented by
hearings conducted in connection with it, its the consent the President
power to ask heads of departments to of the as
appear before and be heard by either of its President Commander-
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prior to in-Chief the President has the duty to faithfully execute

appearing (Gudani v. (Gudani v. Senga, G.R. No. 170165, Aug. 15, 2006).
before either Senga, G.R.
House of No. 170165, When Congress merely seeks to be informed on
Congress Aug. 15, 2006) how department heads are implementing the
(EO 464, statutes which it has issued, its right to such
Sec.1) information is not as imperative as that of the
EXEMPTED (1) Executive privilege, which President to whom, as Chief Executive, such
INFORMATIO must be invoked by the department heads must give a report of their
N President himself or through performance as a matter of duty. In such instances,
the Executive Secretary by Section 22 of Article VI, in keeping with the
authority of the President separation of powers, states that Congress may
(Senate v. Ermita, G.R. No. only request their appearance. Nonetheless, when
169777, April 20, 2006) the inquiry in which Congress requires their
(2) Privileged information e.g. appearance is “in aid of legislation” under Section
national defense, diplomatic, 21, Article VI, the appearance is mandatory (Senate
military secrets, etc. v. Ermita, G.R. No. 169777, April 20, 2006).
(3) Right against self-
incrimination 2. NON-LEGISLATIVE
Invocation of Executive Privilege a. Informing Function

Under Article VI, Section 22, the appearance of
department heads in the question hour is Informing Power: The President shall address
discretionary on their part. However, under Section Congress at the opening of its regular session. He
21, Congress is not bound to respect their refusal to may also appear before it at any time. (Art. VII, Sec.
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appear in inquiries in aid of legislation, unless a valid 23.)
claim of privilege is subsequently made, either by
the President herself or by the Executive Secretary. NOTE: The Informing Power properly belongs to the
(Senate v. Ermita, G.R. No. 169777, April 20, 2006) President through the State of the Nation Address.
Role of Congress is to receive the same from the
Only the President may invoke this. If it is President whereby the Congress is informed about
invoked by some other person, there must be the priority policies and programs of the President
proof that he or she has Presidential authority. that an be turned into legislation.
A claim of privilege, being a claim of exemption from
an obligation to disclose information, must, b. Power of Impeachment
therefore, be clearly asserted. The court itself must
determine whether the circumstances are Exclusive Power To Initiate
appropriate for the claim of privilege, and yet do so The House of Representatives shall have the
without forcing a disclosure of the very thing the exclusive power to initiate all cases of impeachment
privilege is designed to protect. Absent then a (PHIL. CONST., art. IX, § 3(1).)
statement of the specific basis of a claim of 1. The impeachment proceedings begin with
executive privilege, there is no way of determining a complaint filed with the House of
whether it falls under one of the traditional Representatives either by a member of the
privileges, or whether, given the circumstances in House or by any citizen supported by a
which it is made, it should be respected (Senate v. resolution of endorsement by any member.
Ermita, G.R. No. 169777, April 20, 2006). The complaint is referred to a Committee
which prepares a report (which can be
The President has constitutional authority to prevent favorable or unfavorable). In either case,
any member of the Armed Forces from testifying the House by a vote of 1/3 of all its
before a legislative inquiry by virtue of her power as members decides whether complaint
commander-in- chief, and that as a consequence a should be given due course. (PHIL. CONST.,
military officer who defies such injunction is liable art. IX, § 3(2 & 3).)
under military justice. The only way to circumvent 2. Referral to the Committee and decision by
this is by judicial order because the President may the House is unnecessary if the complaint
be commanded by judicial order to compel the is filed by at least 1/3 of all the members of
attendance of the military officer. Final judicial the house (PHIL. CONST., art. IX, § 3(4).)
orders have the force of the law of the land which
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Exclusive Power to Try and Decide

The Senate shall have the sole power to try and
decide all cases of impeachment. No person shall
be convicted without the concurrence of 2/3 of all the
Members of the Senate (PHIL. CONST., art. IX, §
3(6).)
The penalty imposable shall be limited to:

● removal from office and
● disqualification to hold any office under the
Republic of the Philippine (PHIL. CONST.,
art. IX, § 3(7).)
Officers Subject to Impeachment (PHIL. CONST.,

art. IX, § 2.) (P-VSCO)
● President
● Vice President
● Members of the Supreme Court
● Members of the Constitutional
Commissions
● Ombudsman
Grounds for Impeachment (PHIL. CONST., art. IX, §

2.) (BGC-T2O)
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● Bribery
● Graft and Corruption
● Culpable Violation of the Constitution
● Treason
● Betrayal of Public Trust
● Other high crimes
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Page 67 of 479
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b) Forms of Executive
III. EXECUTIVE DEPARTMENT
Clemency
7. Foreign Relations Powers
TOPIC OUTLINE UNDER THE SYLLABUS a) In General
b) To Contract or Guarantee
A. NATURE OF EXECUTIVE POWER Foreign Loans
1. In Relation to the Implementation c) Entry into Treaties or
of Laws (Including Delegated International Agreements
Powers) 8. Powers Relative to Appropriation
2. Express of Implied (Including the Measures
Faithful Execution of Laws and 9. Veto Powers
Residual Powers)
B. CONCEPT OF PRESIDENTIAL
IMMUNITY
1. Conduct Covered
2. Waiver and Exceptions
C. CONCEPT OF EXECUTIVE PRIVILEGE
1. Types
2. Who May Invoke
D. QUALIFICATIONS, ELECTION, TERM OF
THE PRESIDENT AND VICE-
PRESIDENT, AND RULES ON
SUCCESSION
E. OTHER PRIVILEGES, INHIBITIONS, AND
DISQUALIFICATIONS
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F. POWERS OF THE PRESIDENT
1. Executive and Administrative
Powers
2. Power of Appointment
a) Process of Confirmation
by the Commission
b) By-Passed Appointments
and their Effects
c) Appointments by an
Acting President
d) Scope of Midnight
Appointments
e) Recess of Ad-Interim
Appointments
f) Power of Removal
3. Power of Control and Supervision
a) Doctrine of Qualified
Political Agency
b) Executive Departments
and Offices
c) Local Government Units
4. Emergency Powers
5. Commander-in-Chief Powers
a) Calling Out Powers
b) Declaration of Martial Law
and the Suspension of the
Privilege of the Writ of
Habeas Corpus
(Including Extension of
Period)
6. Pardoning Powers
a) Scope and Limitations
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A. NATURE OF EXECUTIVE POWER 2. Sufficiency of Standard — There must be

adequate guidelines or limitations in the law to
Executive Powers, In General map out the boundaries of the delegate
The Constitution provides that "[t]he executive authority and prevent the delegation from
power shall be vested in the President of the running riot. The limits are sufficiently
Philippines.” However, it does not define what is determinate and determinable to which the
meant by executive power although in the same delegate must conform in the performance of
article it touches on the exercise of certain powers his actions.
by the President, i.e., the power of control over all
executive departments, bureaus and offices, the Examples:
power to execute the laws, the appointing power, i. Public interest (People v. Rosenthal, G.R.
the powers under the commander-in-chief clause, Nos. L-46076 and L-46077, Jun. 12,
the power to grant reprieves, commutations and 1939);
pardons, the power to grant amnesty with the ii. Fair and equitable employment practices
concurrence of Congress, the power to contract or (Eastern Shipping Lines v. POEA, supra)
guarantee foreign loans, the power to enter into iii. Justice and equity;
treaties or international agreements, the power to iv. Public convenience and welfare;
submit the budget to Congress, and the power to
v. Simplicity, economy, and efficiency.
address Congress.
The President’s Executive powers are not NOTE: Standards may be expressed or implied
limited to those set forth in the Constitution. The from the law taken as a whole (Edu v. Ericta, G.R.
President has residual powers as the Chief No. L-32096, Oct. 24, 1970). They can even be
Executive of the country, which powers include gathered in another statute of the same subject
others not set forth in the Constitution (Marcos v. matter (Chongbian v. Orbos, G.R. No. 96754, June
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Manglapus, G.R. No. 88211, Sept. 15, 1989). 6, 1995).
1. IN RELATION TO THE A law allowing a judge to inflict punishment of

IMPLEMENTATION OF LAWS imprisonment in its discretion without any
designated limits is invalid (People v. Dacuycoy,
(INCLUDING DELEGATED POWERS)
Tariff Powers
G.R. No. L-45127, May 5, 1989).
Section 8 of PD 910 regarding the Malampaya funds

provides: “all fees, revenues and receipt…under the
- Art. VI, § 28(2) authorizes Congress to Petroleum Act of 1949; as well as the government
delegate to the President the power to fix share…shall form part of a special fund to be used
tariff rates, import and export quotas, to finance energy resource development and
tonnage, wharfage dues, and other duties exploitation programs and projects of the
and impost. government and for such other purposes as may be
hereafter provided by the President.” This is not a
Emergency Powers valid delegation of legislative power. The
- Art. VI, § 23(2) authorizes Congress to give provision constitutes an undue delegation of
the President the power necessary and legislative power insofar as it does not lay down a
proper to carry out a declared national sufficient standard to adequately determine the
policy in times of war or other national limits of the President‘s authority (Belgica v. Ochoa,
emergency pursuant to law. G.R. No. 208566, Nov. 19, 2013).
Test of Valid Delegation Congress can only delegate, usually to

1. Completeness Test — The law must state the administrative agencies, rule-making power or law
policy that must be carried out or implemented execution. This involves either of two tasks for the
and leave no room for the delegate to legislate; administrative agencies:
nor allow discretion on their part to say what the 1. Subordinate Legislation: Filling in the
law is. A statute may be complete when the details of an otherwise complete statute; or
subject, and the manner and the extent of its 2. Contingent Legislation: Ascertaining the
operation are stated in it such that when it fact necessary to put into effect, suspend,
reaches the delegate,there must be nothing left or apply a “contingent” law.
for the delegate to do but to enforce the law.
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Any post-enactment congressional measure should limited to the enforcement of acts of Congress
be limited to scrutiny and investigation. In particular, according to their express terms." According to
congressional oversight must be confined to the Father Bernas, Neagle "saw as law that had to be
following: (SAHM) faithfully executed not just formal acts of the
4. Scrutiny based primarily on Congress’ legislature but any duty or obligation inferable from
power of appropriation and the budget the Constitution or from statutes." Under his broad
hearings conducted in connection with it powers to execute the laws, the President can
5. Its power to ask heads of departments to undoubtedly create ad hoc bodies for purposes
Appear before and be Heard by either of its of investigating reported crimes. (Biraogo v.
Houses on any matter pertaining to their Philippine Truth Commission of 2010, G.R. Nos.
departments and its power of confirmation 192935 & 193036, [December 7, 2010], 651 PHIL
and investigation 374-773)
6. Monitoring of the implementation of laws
pursuant to the power of Congress to This Court has interpreted
conduct inquiries in aid of legislation the faithful execution clause as an obligation
imposed on the President, and not a separate grant
Any action or step beyond that will undermine the of power. 148 Section 17, Article VII of
separation of powers guaranteed by the the Constitution, expresses this duty in no uncertain
Constitution. Legislative vetoes fall in this class terms and includes it in the provision regarding the
(Abakada v. Purisima, G.R. No. 166715, Aug. 14, President's power of control over the executive
2008). department. xxx In light of this constitutional duty, it
is the President's prerogative to do whatever is legal
and necessary for Philippine defense interests. It is
Reorganization “involves the reduction of personnel,
no coincidence that the constitutional provision on
consolidation of offices, or abolition thereof by
the faithful execution clause was followed by that on
reason of economy or redundancy of functions.” The
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the President's commander-in-chief powers, which
general rule has always been that the power to
are specifically granted during extraordinary events
abolish a public office is lodged with the legislature.
of lawless violence, invasion, or rebellion. And this
The exception, however, is that as far as bureaus,
duty of defending the country is unceasing,
agencies or offices in the executive department are
even in times when there is no state of lawless
concerned, the President’s power of control may
violence, invasion, or rebellion. At such times,
justify him to inactivate the functions of a particular
the President has full powers to ensure the
office, or certain laws may grant him the broad
faithful execution of the laws. (Saguisag v.
authority to carry out reorganization measures
Ochoa, Jr., G.R. Nos. 212426 & 212444, [January
(Malaria Employees v. Romulo, G.R. 160093, Jul
12, 2016], 777 PHIL 280-699)
31, 2007).
Until and unless a law is declared unconstitutional,
2. EXPRESS OR IMPLIED the President has a duty to execute it regardless of
his doubts as to its validity.
(INCLUDING THE FAITHFUL EXECUTION
OF LAWS AND RESIDUAL POWERS) Residual Powers
The President shall exercise such other powers and
Faithful Execution Clause functions vested in the President which are provided
Under the Faithful Execution Clause, the President for under the laws and which are not specifically
has the power to take "necessary and proper steps" enumerated above, or which are not delegated by
to carry into execution the law (Schwartz, On the President in accordance with law.
Constitutional Law, p. 147 [1977]). These steps are
the ones to be embodied in the guidelines (i.e. on The textual justification for this under the
the use of public funds authorized by Constitution is Article VII, Section 17 – to ensure that
Congress). (Philippine Constitution Association v. the laws are faithfully executed – called the Faithful
Enriquez, G.R. Nos. 113105, 113174, 113766 & Execution Clause.
113888, August 19, 1994)
The power involved is the President's residual
That the President cannot, in the absence of any power to protect the general welfare of the
statutory justification, refuse to execute the laws people. It is founded on the duty of the
when called for is a principle fully recognized by President, as steward of the people. To
jurisprudence. In In re: Neagle, the US Supreme paraphrase Theodore Roosevelt, it is not only the
Court held that the faithful execution clause is "not power of the President but also his duty to do
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anything not forbidden by the Constitution or the For the presidential communications privilege to
laws that the needs of the nation demand. It is a apply, the following must concur:
power borne by the President's duty to preserve and (a) Communications relate to a “quintessential
defend the Constitution. It also may be viewed as a and nondelegable power” of the President.
power implicit in the President's duty to take care (e.g. the power to enter into an executive
that the laws are faithfully executed (Marcos v agreement with other countries without the
Manglapus, G. R. No. 88211, Sept. 15, 1989). concurrence of the Legislature has
traditionally been recognized in Philippine
jurisprudence)
B. CONCEPT OF PRESIDENTIAL (b) Communications are “received” by a close
advisor of the President. Under the
IMMUNITY “operational proximity” test, Secretary Neri
of NEDA can be considered a close
1. CONDUCT COVERED advisor, being a member of President
Arroyo’s cabinet.
Immunity from suit is personal to the President and (c) There is no adequate showing of a
may be invoked by him alone. The President may compelling need that would justify the
waive it impliedly, as when he himself files suit limitation of the privilege and of the
(Soliven v. Makasiar, G.R. No. 82585, Nov. 14, unavailability of the information elsewhere
1988). by an appropriate investigating authority.
The presidential immunity from suit remains Scope of Executive Privilege

preserved under our system of government, albeit Executive privilege covers all confidential or
not expressly reserved in the present constitution classified information between the President and the
(Rubrico, et al. v. Gloria Macapagal-Arroyo, et al., public officers covered by this executive order;
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G.R. No. 183871, Feb. 18, 2010). including:
• Conversations and correspondence
Unlawful acts of public officials are not acts of State between the President and the public
and the officer who acts illegally is not acting as such official covered by this executive order
but stands in the same footing as any other (Chavez v Public Estates Authority, G.R.
trespasser. Once out of office, even before the end No. 133250, July 9, 2002);
of the six-year term, immunity for non-official acts is • Military, diplomatic and other national
lost (Estrada v. Desierto, G.R. No. 146710-15, security matters which in the interest of
March 2, 2001). national security should not be divulged;
• Information between inter-government
A department secretary, even if an alter ego of the agencies prior to the conclusion of treaties
President, cannot invoke presidential immunity in a and executive agreements (Chavez v.
case filed against him because the questioned acts PCGG, G.R. No. 130716, Dec. 9, 1998);
are not the acts of the President. (Gloria v CA, G.R. • Discussion in close-door Cabinet meetings
No. 119903, Aug. 15, 2000) (Chavez v. PCGG, G.R. No. 130716, Dec.
9, 1998); and
Duration of Presidential Immunity
• Matters affecting national security and
After his tenure, the Chief Executive cannot invoke
public order (Chavez v. Public Estates
immunity from suit for civil damages arising out of
Authority, G.R. No. 133250, Jul. 9, 2002).
acts done by him while he was President which were
not performed in the exercise of official duties.
(Estrada v. Desierto, G.R. No. 146710, March 2,
2001)
2. WAIVER AND EXCEPTIONS
C. CONCEPT OF EXECUTIVE
PRIVILEGE
Executive Privilege is the power of the President to

withhold certain types of information from the court,
the Congress, and the public. (Neri v. Senate, G.R.
No. 180643, March 25 2008).
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1. TYPES communications authored or solicited and received

by those members of an immediate White House
Difference between Presidential advisor’s staff who have broad and significant
Communications Privilege and Deliberative responsibility for investigation and formulating of the
Process Privilege advice to be given the President on the particular
matter to which the communications relate (Neri v.
PRESIDENTIAL DELIBERATIVE Senate Committee, G.R. No. 180643, March 25,
COMMUNICATIONS PROCESS 2008 citing In re: Sealed, No. 96-3124, 121 F.3d
PRIVILEGE PRIVILEGE 729,326 U.S. App. D.C. 276, 1997).
Pertains to Includes advisory
communications, opinions, Presidential communications are presumptively
documents or other recommendations and privileged and such presumption can be overcome
materials that reflect deliberations only by mere showing of public need by the branch
presidential decision- comprising part of a seeking access to conversations. The oversight
making and process by which function of Congress may be facilitated by
deliberations governmental compulsory process ONLY to the extent that it is
decisions and policies performed in pursuit of legislation” (Neri v. Senate,
are formulated G.R. No. 180643, March 25, 2008).
Applies to decision- Applies to decision-
making of the making of executive While the final text of the JPEPA may not be kept
President officials (and judiciary) perpetually confidential - since there should be
“ample opportunity for discussion before a treaty is
Rooted in the Based on common law approved” – the offers exchanged by the parties
constitutional principle privilege during the negotiations continue to be privileged
of separation of powers even after the JPEPA is published. Diplomatic
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Requisites: Requisites: negotiations privilege bears a close resemblance to
(a) It must involve a (a) Predecisional – it the deliberative process and residential
quintessential and precedes, in communications’ privilege. Clearly, the privilege
non-delegable temporal sequence, accorded to diplomatic negotiations follows as a
logical consequence from the privileged character of
power of the the decision to
President which it relates the deliberative process (Akbayan v. Aquino, G.R.
(b) Operational (b) Deliberative – No. 170516, July 16, 2008).
Proximity reflects the give and
(c) Important and take of the When To Apply Executive Privilege:
compelling need to consultative (a) Must fall within one of the above.
be confidential, not process such that (b) Must be stated with sufficient particularity
merely based on disclosure would so the Congress or Court can determine the
general interest discourage candid legitimacy of the claim of privilege.
discussion within
the agency (In Re: Exception to Executive Privilege:
Production of Court The President's generalized assertion of privilege
Records and must yield to the demonstrated, specific need for
Documents, Feb. evidence in a pending criminal trial. (U.S. v. Nixon,
14, 2012) 418 U.S. 683, 1974).
Executive privilege cannot be used to conceal a

crime or a possible wrongdoing. Thus, the specific
2. WHO MAY INVOKE need for evidence in a pending criminal trial
outweighs the President’s generalized interest in
Person Covered by the Privilege confidentiality (Neri v. Ermita, G.R. No. 169777,
The person covered by the executive privilege is a April 20, 2006).
person in possession of information which is, in the
judgment of the head of office concerned, privileged
Operational Proximity
Not every person who plays a role in the
development of presidential advice, no matter how
remote and removed from the President, can qualify
for the privilege. The privilege should apply only to
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D. QUALIFICATIONS, ELECTION, Election

TERM OF THE PRESIDENT AND Regular: 2nd Monday of May, every 6 years
VICE-PRESIDENT, AND RULES
Special (Requisites)
ON SUCCESSION ● Death, Permanent disability, removal from
office or resignation of both President and
Qualifications of President and Vice-President Vice-President
(Secs 3-4): ● Vacancies occur more than 18 months
PRESIDENT VICE- before the next regular presidential
PRESIDENT election; and
1. Natural-born citizen of the Philippines ● A law passed by Congress calling for a
2. Registered voter special election to elect a President and
3. Able to read and write Vice President to be held not earlier than 45
4. At least 40 years old on the day of election days nor later than 60 days from the time of
5. Resident of the Philippines for at least 10 years such call (PHIL. CONST., art VII, § 10)
immediately preceding the election
6. Term of 6 years Congress as Canvassing Board
7. Unless otherwise provided by law, term of The proclamation of presidential and vice
office commences at noon of June 30 next presidential winners is a function of Congress and
following the election not of the COMELEC (Macalintal v COMELEC, G.R.
Single term only; not Term limitation; 2 No. 157013, June 10, 2003)
eligible for any successive terms
reelection (but can run SC as the Presidential Electoral Tribunal (PET)
if no longer incumbent The SC, sitting en banc, shall be the sola judge of
president, like all contests relating to the election, returns and
President Estrada in
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qualifications of the President or Vice President, and
May 2020) may promulgate its rules for the purpose.
(Macalintal v. PET, G.R. No. 191618, Nov. 23, 2010)
Any person who has
succeeded as Oath of Office
President, and served Before they enter on the execution of their office, the
as much for more than President, Vice President or the Acting President
4 years shall NOT be shall take the oath or affirmation (PHIL. CONST., art.
qualified for election to VII, § 5).
the same office at any
time RULES OF SUCCESSION
Voluntary renunciation of the office for any length
of time shall not be considered an interruption in Manner Of Election (PHIL. CONST., art. VII, § 4)
the continuity of service
The President and Vice-President shall be elected
by the direct vote of the people.
Term of Office
The President and Vice President shall be elected Election returns for President and Vice-President,
by direct vote of the people for a term of 6 years duly certified by the Board of Canvassers of each
(PHIL. CONST. art. VII, § 4). province or city, shall be transmitted to Congress,
directed to the Senate President.
The president shall not be eligible for any re-
election. No person who has succeeded as Upon receipt of the certificates of canvass, the
President and has served for more than 4 years Senate President shall, not later than 30 days after
shall be qualified for election to the same office at the day of the election, open all the certificates in the
any time. (PHIL. CONST., art VII, § 4, ¶ 1). presence of both houses of Congress, assembled in
joint public session.
No Vice-President shall serve for more than 2
consecutive terms. (PHIL. CONST., art. VII, § 4, ¶ 2). The Congress, after determining the authenticity
and due execution of the certificates, shall canvass
the votes.
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The person having the highest number of votes shall Succession of President and Vice-President
be proclaimed elected. During Mid-Term (PHIL. CONST., art. VII, § 8)
VACANCY SUCCESSOR
In case of a tie between 2 or more candidates, one President VP becomes President
shall be chosen by a majority of ALL the members dies/permanently for the unexpired term
of both Houses, voting separately. disabled/impeached or
resigns
The Supreme Court en banc shall act as the sole
judge over all contests relating to the election, Both President and VP Senate President, or in
returns, and qualifications of the President or Vice- die/ permanently case of his inability,
President and may promulgate its rules for the disabled/ impeached or Speaker of the House
purpose. resign shall act as president
until the President or
Congress may delegate counting to a committee Death, permanent VP shall have been
provided it approves it as a body (considered as a disability, or inability of elected and qualified.
non-legislative function of Congress). Senate President and
Speaker of the house Congress shall
Proclamation of President-Elect & VP-Elect is the as Acting President determine, by law, who
function of Congress not the COMELEC’s. will be the Acting
President until a
Limitations President or VP shall
(a) Salaries and emoluments of the President have been elected and
and Vice-President shall be determined by qualified, subject to the
law same restrictions of
(b) Shall not be decreased during the tenure of powers and
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the President and the Vice-President disqualifications as the
(c) Increases take effect only after the Acting President
expiration of the term of the incumbent
during which the increase was approved.
(d) No other emolument from the government Vacancy in the Office of the Vice-President
or any other source during their tenure may (PHIL. CONST., art. VII, § 9)
be received.
Procedure To Fill Up Vacancy
Succession of President-Elect and Vice- President will nominate new VP from among the
President Elect at the Start of the Term (PHIL. members of either House of Congress.
CONST., art. VII, § 7)
Nominee shall assume office upon confirmation by
VACANCY SUCCESSOR
majority vote of ALL members of both Houses,
President-elect fails to VP-elect will be Acting
voting separately. (In effect, nominee forfeits his
qualify or to be chosen President until a
seat in Congress.)
President is
qualified/chosen
Election of President and Vice-President after
vacancy (PHIL. CONST., art. VII, § 10)
President-elect dies or VP becomes President
permanently disabled
Procedure
Both President and Senate President, or in
Congress shall convene 3 days after the vacancy in
VP-Elect are not case of his inability,
the offices of both the President and the VP, without
chosen, or do not Speaker of the House
need of a call. The convening of Congress cannot
qualify, or both die, or shall act as President
be suspended.
both become until a President or a
permanently disabled VP shall have been
Within 7 days after convening, Congress shall enact
chosen and qualified.
a law calling for a special election to elect a
Death, permanent
President and a VP. The special election cannot be
disability, or inability of Congress shall
postponed.
Senate President and determine, by law, who
Speaker of the house will be the Acting
The requirement of three readings on separate days
as Acting President President until a
under Sec. 26(2), Art VI shall not apply to a bill
President or VP shall
calling for a special election. The law shall be
have qualified.
deemed enacted upon its approval on third reading.
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The special election shall be held within 45-60 days E. OTHER PRIVILEGES,
from the time of the enactment of the law. INHIBITIONS, AND
DISQUALIFICATIONS
Limitation: No special election shall be called if the
vacancy occurs within 18 months before the date of
1. Disqualifications
the next presidential election.
SUBJECT SOURCE OF
DISQUALIFICATION
Temporary Disability of the President to
President PROHIBITED FROM:
discharge his duties (PHIL. CONST. art. VII, Sec.
Holding any office or
11) may be raised in either of two ways:
Vice employment during their tenure
(a) By the President himself, when he sends a
President
written declaration to the Senate President
Exceptions:
and the Speaker of the House. In this case,
Cabinet ● Otherwise provided in
the Vice-President will be Acting President
Members the Constitution (e.g.,
until the President transmits a written
declaration to the contrary. Vice President
(b) When a majority of all Cabinet members Deputies or appointed as a member
transmit to the Senate President and the Assistants of of the Cabinet,
Speaker of the House their written Cabinet Secretary of Justice sits
declaration. The VP will immediately members as an ex-officio
assume the powers and duties of the office member on Judicial
as Acting President. and Bar Council)
● The positions are ex-
Scenarios After Disability is Relayed in the officio and they do not
Congress: receive any salary or
other emoluments
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If the President transmits a written declaration that
he is not disabled, he reassumes his position. therefor (e.g. Sec. of
Finance is head of
If within 5 days after the President re-assumes his Monetary Board)
position, the majority of the Cabinet transmits their
written declaration to the contrary, Congress shall ● Practicing, directly or
decide the issue. In this event, Congress shall indirectly, any other
convene within 48 hours if it is not in session, without profession during their
heed of a call tenure
Within 10 days after Congress is required to ● Participating in any

assemble, or 12 days if Congress is not in session, business
a 2/3 majority of both Houses, voting separately, is
needed to find the President temporarily disabled, in ● Being financially
which case, the VP will be Acting President. interested in any
contract with, or in any
Presidential Illness (Sec. 12) franchise, or special
General Rules: privilege granted by the
If the President is seriously ill, the public must be government or any
informed thereof. subdivision, agency or
instrumentality thereof,
During such illness, the following shall not be denied including GOCCs or
access to the President: their subsidiaries (PHIL.
(a) National Security Adviser CONST., art VII, § 13)
(b) Secretary of Foreign Affairs Spouses and Cannot be appointed during
(c) Chief of Staff of the AFP 4th degree President’s tenure as:
relatives of (a) Members of the
the President Constitutional
(consanguinit Commissions
y or affinity) (b) Office of the Ombudsman
(c) Department Secretaries
(d) Department Under-
secretaries
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(e) Chairman or heads of ● Shall not receive any other emoluments

bureaus or offices including from the government or any other source
GOCCs and their (PHIL. CONST., art. II, § 6)
subsidiaries ● Shall avoid conflict of interest in conduct of
office (PHIL. CONST., art. VII, § 13).
If the spouse, etc., was already
in any of the above offices F. POWERS OF THE PRESIDENT
before his/her spouse became
President, he/she may continue 1. EXECUTIVE AND ADMINISTRATIVE
in office. What is prohibited is
POWERS
appointment and
reappointment, not continuation
Executive Powers, In General
in office.
The Constitution provides that "[t]he executive
power shall be vested in the President of the
Spouses etc., can be appointed
Philippines.” However, it does not define what is
to the judiciary and as
meant by executive power although in the same
ambassadors and consuls
article it touches on the exercise of certain powers
by the President, i.e., the power of control over all
The Chief Presidential Legal Counsel (CPLC) has executive departments, bureaus and offices, the
the duty of giving independent and impartial legal power to execute the laws, the appointing power,
advice on the actions of the heads of various the powers under the commander-in-chief clause,
executive departments and agencies and to review the power to grant reprieves, commutations and
investigations involving heads of executive pardons, the power to grant amnesty with the
departments and agencies, as well as other concurrence of Congress, the power to contract or
Presidential appointees. guarantee foreign loans, the power to enter into
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treaties or international agreements, the power to
The PCGG is charged with the responsibility, under submit the budget to Congress, and the power to
the President, of recovering ill-gotten wealth. The address Congress.
offices of the PCGG and CPLC are incompatible.
Without question, the PCGG is an agency under the
The President’s Executive powers are not limited to
Executive Department. Thus, the actions of the those set forth in the Constitution. The President has
PCGG Chairman are subject to the review of the residual powers as the Chief Executive of the
CPLC (Public Interest Group v. Elma, G.R. No. country, which powers include others not set forth in
138965, June 30, 2006). the Constitution (Marcos v. Manglapus, G.R. No.
88211, Sept. 15, 1989).
Exception to the Prohibition on the President
and His/Her Official Family from Holding Any Power of Administrative Reorganization
Other Office or Employment The President has the continuing authority to
If 4th degree relatives are already in office when a reorganize the national government, which includes
President assumes office, the relatives are not the power to group, consolidate bureaus and
thereby ousted from their positions. What is agencies, to abolish offices, to transfer functions, to
prohibited is appointment or reappointment and not create and classify functions, services and activities
uninterrupted continuance in office and to standardize salaries and materials, if effected
in good faith and for the purpose of economy or
Inhibitions make the bureaucracy more efficient. (MEWAP v
● No increase in salaries until after the Executive Secretary, G.R. No. 160093, July 31,
expiration of the term of the incumbent 2007).
during which such increase was approved
(PHIL. CONST., art. VII, §6).
2. POWER OF APPOINTMENT
● Shall not, during tenure, directly or
indirectly, practice any other profession,
In General
participate in any business, or be financially
Executive in nature; while Congress (and the
interested in any contract with, or in any
Constitution in certain cases) may prescribe the
franchise, or special privilege granted by
qualifications for particular offices, the determination
the Government or any subdivision, agency
of who among those who are qualified will be
or instrumentality thereof, including
appointed is the President’s prerogative.
GOCCs or their subsidiaries (PHIL. CONST.,
art. VII, § 13).
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In case of vacancy in an office occupied by an alter that “[t]he President may temporarily designate an
ego of the President, such as the office of a officer already in the government service or any
department secretary, the President must other competent person to perform the functions of
necessarily appoint an alter ego of her choice as an office in the executive branch.” But EO 292 also
acting secretary before the permanent appointee provides that acting appointments cannot exceed
of her choice could assume office. Congress, one year. The law has incorporated this safeguard
through a law, cannot impose on the President the to prevent abuses, like the use of acting
obligation to appoint automatically the appointments as a way to circumvent confirmation
undersecretary as her temporary alter ego. An alter by the Commission on Appointments. (Pimentel v.
ego, whether temporary or permanent, holds a Ermita, G.R. No. 164978, Oct. 13, 2005)
position of great trust and confidence. Congress, in
the guise of prescribing qualifications to an office, Requisites for Valid Appointment
cannot impose on the President who her alter ego 1. Authority to appoint and evidence of its
should be (Pimentel v. Ermita, G.R. No. 164978, exercise;
Oct. 13, 2005). 2. Transmittal of the appointment and proof
of it
a. Process of Confirmation by the 3. Vacant position at the time of appointment;
Commission 4. Receipt of the appointment and
5. acceptance by the appointee who
May the President appoint an individual as possesses all the qualifications and none
acting Solicitor General and acting Secretary of of the disqualifications. (Velicaria-Garafil v.
Justice? OP, G.R. No. 203372, June 16, 2015).
The President may not appoint an individual as Limitations on the Exercise/Power

acting Solicitor General and acting Secretary of
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Justice in a concurrent capacity. The designation of The Constitutional Limitations on the
Alberto Agra as acting Secretary of Justice President’s appointing power
concurrently with his position as Solicitor General is The President may not appoint his/her spouse and
in violation of the constitutional prohibition under relatives by consanguinity or affinity within the 4th
civil degree as members of the:
Article VII, Section 13. It is of no moment that the
designation was in a temporary capacity. The (a) Constitutional Commissions
Constitution makes no reference to the nature of the (b) Ombudsman
designation (Funa v. Agra, G.R. No. 191644, Feb. (c) Department Secretaries
19, 2013). (d) Undersecretaries
(e) Chairmen and heads of Bureaus and
Kinds of Presidential Appointments under Art Offices
VII, Sec.15 of the Constitution (f) GOCCs (PHIL. CONST., art. VII, § 13)
(a) Appointments made by an acting president
(b) Midnight appointment — appointment Appointments extended by an acting President shall
made by a President after the election of his remain effective unless revoked by the elected
successor and up to the end of his term. President within 90 days from assumption of office
This is prohibited by the Constitution. (PHIL. CONST., art. VII, § 14)
(c) Appointments for Partisan Political
Consideration. Those made 2 months Two months immediately before the next
before the next Presidential election. This is Presidential elections and up to the end of his/her
prohibited by the Constitution. term, a President or Acting President shall not make
(d) Regular presidential appointments, with or appointments except temporary appointments to
without confirmation by the Commission on executive positions when continued vacancies
Appointments, and ‘recess’ or ‘ad-interim’ therein will prejudice public service or endanger
appointments. public safety (PHIL. CONST., art. VII, § 15).
Appointment in an Acting Capacity The appointment of the heads of the executive

The essence of an appointment in an acting departments, ambassadors, other public ministers
capacity is its temporary nature. It is a stop-gap and consuls, or officers of the armed forces from the
measure intended to fill an office for a limited time rank of colonel or naval captain, and other officers
until the appointment of a permanent occupant to whose appointments are vested in him in this
the office. The law expressly allows the President Constitution require the consent of the Commission
to make such acting appointment. EO 292 states on Appointments (PHIL. CONST., art. VII, § 16).
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Regular Appointments Requiring Consent of PROCEDURE WHEN CA CONFIRMATION

Commission on Appointment (CA) NEEDED:
The following may be appointed by the president, (a) Nomination by President
subject to approval by the Commission on (b) Confirmation by CA
Appointments (CA): (c) Appointment by President
(a) Heads of executive departments (d) Acceptance by appointee.
(b) Ambassadors, consuls, and other public a. At any time before all four steps
ministers have been complied with, the
(c) Officers of AFP from the rank of colonel or President can withdraw the
naval captain nomination or appointment.
(d) Other officers whose appointment is vested
in him by the Constitution, such as: Procedure When No CA Confirmation Needed:
a. Chairmen and members of the (a) Appointment
COMELEC, COA, and CSC. (b) Acceptance
b. Regular members of the JBC.
c. The Ombudsman and his Once appointee accepts, President can no longer
deputies. withdraw the appointment
d. Sectoral representatives in
Congress, as provided in d. Appointments By An Acting
Transitory Provisions (Sec. 16). President
Appointments With Prior Recommendation or These shall remain effective unless revoked by the
Nomination By The JBC elected President within 90 days from his
● Members of the SC and judges of the lower assumption or re-assumption of office.
courts; these appointments do not need CA
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confirmation (PHIL. CONST., art. VIII, § 9). The power of the succeeding President to revoke
● Ombudsman and his Deputies (PHIL. appointments made by the Acting President refers
CONST., art. VIII, § 9). only to appointments in the Executive Department
(De Castro v. JBC, G.R. No. 191002, April 20,
c. By-passed Appointments and
2010).
their Effects
Difference between Disapproval and By-Passed
Regular Appointments Without Need Of CA Appointments
Confirmation APPOINTMENTS BY-PASSED
All other officers whose appointments are not DISAPPROVED APPOINTMENTS
otherwise provided for by law and those whom he When the Commission When an ad-interim
may be authorized by law to appoint do not require disapproves an ad position is by-passed
CA confirmation. This includes the Chairman and interim appointment, because of law of time
members of the Commission on Human Rights the appointee can no or failure of the
(CHR), whose appointments are provided for by law, longer be extended a Commission to
and NOT by the Constitution. (PHIL. CONST., Art. VII, new appointment, organize, there is no
Sec. 16) inasmuch as the final decision, the
disapproval is a final President is free to
Congress may, by law, vest in the President alone decision in the exercise renew the ad-interim
or in the courts, or in the heads of departments, of the Commission’s appointment.
agencies boards or commissions the appointment of checking power on the
other officers lower in rank than those mentioned appointment authority
above (PHIL. CONST., Art. VII, Sec 16) of the President
However, Congress cannot, by law, require CA e. Scope of Midnight

confirmation of the appointment of other officers for Appointment
offices created subsequent to the 1987 Constitution
e.g. NLRC Commissioners, Bangko Sentral MIDNIGHT APPOINTMENT
Governor (Calderon v. Carale, G.R. No. 91636, April
23, 1992). General Rule: Two (2) months immediately before
the next Presidential elections and up to the end of
his term, the President or Acting President shall not
make appointments. This is to prevent the practice
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of making “midnight appointments.” (PHIL. CONST., prior process of the JBC ensured that there
art. VII, § 15). would no longer be midnight appointments to
the Judiciary. JBC intervention eliminates the
Exceptions danger that appointments to the Judiciary can
be made for the purpose of buying votes in a
1. Temporary appointments to executive positions coming presidential election, or of satisfying
if continued vacancies will prejudice public partisan considerations. The creation of the
service or endanger public safety. JBC was precisely intended to de-politicize the
Judiciary by doing away with the intervention of
2. Prohibition does not extend to appointments in the Commission on Appointments (De Castro v.
the Supreme Court. Had the framers intended JBC, G.R. No. 191002, April 20 2010).
to extend the prohibition to the appointment of
Members of the Supreme Court, they could Prohibition against Midnight Appointments
have explicitly done so. The prohibition is applicable to Presidential Appointments only
confined to appointments in the Executive (LEONEN)
Department. Existence of the JBC also prevents The prohibition on midnight appointments under
possible abuses in appointment (De Castro v Article VII, Sec 15 only applies to presidential
JBC, G.R. No. 191002, April 20, 2010); appointments. It does not apply to appointments
overturned In re: Appointment of Valenzuela, made by local chief executives. Nevertheless, the
A.M. 98-5-01-SC, Nov. 9, 1998). Civil Service Commission has the power to
promulgate rules and regulations to professionalize
3. There is no law that prohibits local elective the civil service. It may issue rules and regulations
officials from making appointments during the prohibiting local chief executives from making
last days of his or her tenure. Prohibition only appointments during the last days of their tenure.
applies to appointments by the President (De la Appointments of local chief executives must
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Rama v. CA, G.R. No. 131136, Feb. 28, 2001). conform to these civil service rules and regulations
in order to be valid. (Provincial Government of
4. If the President is not satisfied with the list Aurora v Marco, G.R. No. 202331, April 22, 2015)
submitted by the JBC, he may ask for another
list. But once the appointment is issued by the f. Recess of Ad-Interim
5.
President and accepted by the nominee, it
needs no further confirmation.
President may appoint SC Justice within 60

Appointments
What is an ad interim appointment?

An ad interim appointment is a permanent
days prior to election. Article VII deals entirely appointment unless otherwise indicated. It is an
with the executive department while Article VIII appointment made by the President while Congress
deals with the judiciary. Had the framers is NOT in session or during recess.
intended to extend the 60-day prohibition
contained in Section 15, Article VII to the Ad-Interim Appointments (PHIL. CONST., art VII, §
appointment of Members of the Supreme Court, 16)
they could have explicitly done so. That such ● When Congress is in recess, the President
specification was not done only reveals that the may still appoint officers to positions
prohibition against the President or Acting subject to CA confirmation. These
President making appointments within two appointments are effective immediately,
months before the next presidential elections but are only effective until they are
and up to the end of the President’s or Acting disapproved by the CA or until the next
President’s term does not refer to the Members adjournment of Congress.
of the Supreme Court. The usage in Section 4 ● Applies only to positions requiring
(1), Article VIII of the word shall – an imperative, confirmation of CA Appointments to fill an
operating to impose a duty that may be office in an ‘acting’ capacity are NOT ad-
enforced – should not be disregarded. interim in nature and need no CA approval.
● The assumption of office on the basis of the
6. The framers did not need to extend the ad interim appointments issued by the
prohibition against midnight appointments to President does not amount to a temporary
appointments in the Judiciary, because the appointment which is prohibited by § 1 (2),
establishment of the JBC and subjecting the Art. IX-C. An ad interim appointment is a
nomination and screening of candidates for permanent appointment because it takes
judicial positions to the unhurried and deliberate effect immediately and can no longer be
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withdrawn by the President once the performance of his duties, and to substitute the
appointee has qualified into office. (Matibag judgment of the officer for that of his subordinate.
v. Benipayo G.R. No. 149036, April 2,
2002). The President’s power of control is a self-executing
provision. The incumbent President is free to
How Ad-Interim Appointments Terminated amend, rescind and modify any political agreements
(a) Disapproval of the appointment by the CA; entered into by the previous Presidents (Ocampo v.
(b) Adjournment by the Congress without the Enriquez, G.R. No. 225973, Nov. 8, 2016).
CA acting on the appointment
(NACHURA) The appeal from the decision of a Department
Secretary to the President can be restricted due to
g. Power of Removal the President’s power of control. It may be limited by
executive order of the President, a law providing for
General Rule: The express power of appointment judicial review, and a rule of procedure promulgated
of the President has the corollary implied power of by the Supreme Court. (Angeles v. Gaite, G.R. No.
removal. Hence, the President may remove 165276, Nov. 25, 2009).
appointees.
Power of Supervision
Exception: Appointments requiring certain The power of a superior officer to ensure that the
methods for removal (e.g., Impeachment, laws are faithfully executed by subordinates.
appointment of judges of inferior courts (PHIL.
CONST., art. VIII, § 11; Gonzales III vs. Office of the The power of supervision does not include the
President of the Philippines, G.R. No. 196231, Sept. power of control; but the power of control
4, 2012). necessarily includes the power of supervision.
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The succeeding President may not revoke The President’s power over GOCCs comes not from
appointments to the Judiciary made by an Acting the Constitution but from statute. Hence, it may
President. Sec. 14, Art. VII refers only to similarly be taken away by statute.
appointments in the Executive Department. It has no
application to appointments in the Judiciary because For Administrative Proceedings, decisions of
temporary or acting appointments can only Department Secretaries need not be appealed to
undermine the judiciary due to their being revocable the President in order to comply with the
at will…Prior to their mandatory retirement or requirement of exhaustion of administrative
resignation, judges of the first or second level courts remedies.
and the Justices of the third level courts may only be
removed for cause, but the members of the The execution of laws is an OBLIGATION of the
Supreme Court may be removed only by President. He cannot suspend the operation of laws.
impeachment (De Castro v. JBC, G.R. No. 191002,
Apr. 20, 2010). a. Doctrine of Qualified Political
Agency
Disciplinary Powers
The power of the President to discipline officers Acts of department heads, etc., performed and
flows from the power to appoint the officer, and NOT promulgated in the regular course of business, are
from the power of control. presumptively acts of the President.
While the President may remove from office those Exceptions:

who are not entitled to security of tenure, or those If the acts are disapproved or reprobated by the
officers with no set terms, such as Department President. If the President is required to act in
Heads, the officers, and employees entitled to person by law or by the Constitution (e.g. the power
security of tenure cannot be summarily removed to grant pardons).
from office.
Application to Cabinet Members and Executive
3. POWER OF CONTROL AND Secretary
SUPERVISION The doctrine of qualified political agency
acknowledges the multifarious executive
Power of Control responsibilities that demand a president's attention,
The power of an officer to alter, modify, or set aside such that the delegation of control power to his or
what a subordinate officer has done in the her Cabinet becomes a necessity.
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Unless the Constitution or law provides supplant the Ombudsman or the Department of
otherwise, Cabinet members have the Justice or erode their respective powers. The
president's imprimatur to exercise control over investigative function of the Commission will
the offices and departments under their complement those of the two offices (Biraogo v. The
respective jurisdictions, which authority Philippine Truth Commission of 2010 / Rep. Edcel
nonetheless remains subject to the president's C. Lagman, et. al. v. Exec. Sec. Paquito N. Ochoa,
disapproval or reversal. In a long line of decisions, Jr., et al., G.R. No. 192935 & G.R. No. 193036, Dec.
the Court upheld the notion that "the power of the 7, 2010).
president to reorganize the National Government
may validly be delegated to his [or her] cabinet c. Local Government Units
members exercising control over a particular
executive department”. The power of the president over local government
units is only of general supervision. He can interfere
But the Court retains the distinction that the with the actions of their executive heads only if these
doctrine remains limited to the President's are contrary to law.
executive secretary and other Cabinet
secretaries. It does not extend to deputy executive The President exercises direct supervision over
secretaries or assistant deputy secretaries. Clearly, autonomous regions, provinces, and independent
the president cannot be expected to personally cities.
exercise his or her control powers all at the same
time. This entails the delegation of power to his or To facilitate the exercise of power of general
her Cabinet members (Philippine Institute for supervision of local government, the President may
Development Studies v. Commission on Audit, GR. merge administrative regions and transfer the
No. 212022, Aug. 20, 2019). regional center to Koronadal City from Cotabato City
(Republic v. Bayao, G.R. No. 179492, June 5,
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b. Executive Departments and 2013).
Offices
4. EMERGENCY POWERS
The President may, by executive or administrative
order, direct the reorganization of government Congress is the repository of emergency powers.
entities under the Executive Department. Section But in times of war or other national emergency, it
17, Article VII of the 1987 Constitution, clearly may, by law, authorize the President, for a limited
states: “The President shall have control of all period and subject to such restrictions as it may
executive departments, bureaus and offices.” The prescribe, to exercise powers necessary and proper
Administrative Code also grants the President the to carry out a declared national policy. Unless
power to reorganize the Office of the President in sooner withdrawn by resolution of the Congress,
recognition of the recurring need of every President such powers shall cease upon the next adjournment
to reorganize his or her office “to achieve simplicity, thereof. (PHIL. CONST., art. VI, § 23(2); IBP v.
economy and efficiency” (Tondo Medical v. Court of Zamora, G.R. No. 141284, Aug. 15, 2000)
Appeals, G.R. No. 167324, July 17, 2007).
Conditions for the Exercise of the President of
The President may transfer any agency under the Emergency Powers (David v. Macapagal-Arroyo,
Office of the President to any other department or G.R. No. 171396, May 3, 2006)
agency, subject to the policy in the Executive Office 1. There must be a war or national
and in order to achieve simplicity, economy and emergency;
efficiency (Anak Mindanao v. Executive Secretary, 2. There must be a law authorizing the
G.R. No. 166052, Aug. 29, 2007). President to exercise emergency powers;
3. Exercise must be for a limited period;
The creation of the Truth Commission does not fall 4. Exercise must be necessary and proper to
within the President’s power to reorganize. It flows carry out a declared national policy; and
from the faithful-execution clause of the Constitution 5. Must be subject to restrictions that
under Article VII, Section 17 thereof. One of the Congress may provide.
recognized powers of the President is the power to
create ad hoc committees. This flows from the need The President could validly declare the existence
to ascertain facts and determine if laws have been of a state of national emergency even in the
faithfully executed or guide the President in absence of a Congressional enactment. But the
performing his duties relative to the execution and exercise of emergency powers, such as the taking
enforcement of laws. The Truth Commission will not over of privately owned public utility or business
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affected with public interest, is a different matter. the manner by which the President decides which
This requires a delegation from Congress. (Id.) power to choose.
Article XII, Section 17 of the Constitution, which The power to choose, initially, which among these
states that, “[i]n times of national emergency, when extraordinary powers to wield in a given set of
the public interest so requires, the State may, during conditions is a judgment call on the part of the
the emergency and under reasonable terms President.
prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or It is thus beyond doubt that the power of judicial
business affected with public interest,” is an aspect review does not extend to calibrating the President's
of the emergency powers clause (i.e. PHIL. CONST., decision pertaining to which extraordinary power to
art. VI, § 23(2)). Whether or not the President may avail given a set of facts or conditions. To do so
exercise such power is dependent on whether would be tantamount to an incursion into the
Congress may delegate it to him pursuant to a law exclusive domain of the Executive and an
prescribing the reasonable terms thereof. (Id.) infringement on the prerogative that solely, at least
initially, lies with the President. (Lagman v.
5. COMMANDER-IN-CHIEF POWERS Medialdea, G.R. No. 231658, July 4, 2017)
Extraordinary/Commander-in-Chief Powers a. Calling Out Powers

Differentiated
SUSPENDING THE As Commander-in-Chief of the Armed Forces,
PRIVILEGE OF THE whenever necessary, the President may call out the
CALLING OUT
WRIT OF HABEAS Armed Forces to PREVENT or SUPPRESS:
POWERS
CORPUS/DECLARING (a) Lawless violence
MARTIAL LAW (b) Invasion
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GROUNDS (c) Rebellion
May be resorted to May be exercised only
whenever it becomes when there is actual Among the three extraordinary powers, the calling
necessary to prevent invasion or rebellion, out power is the most benign and involves ordinary
police action. The power to call is fully discretionary
or suppress lawless and public safety
violence, invasion, or requires it to the President; the only limitations being that he
rebellion acts within permissible constitutional boundaries or
ACTION BY THE LEGISLATIVE OR JUDICIAL in a manner not constituting grave abuse of
BRANCH discretion. In fact, the actual use to which the
The Court may nullify Congress may revoke President puts the armed forces is not subject to
the exercise of such such proclamation or judicial review. (Lagman v. Medialdea, G.R. No.
power only when the suspension and the 231658, July 4, 2017)
President acts in a Court may review the
manner constituting sufficiency of the factual The President's calling out power is in a different
grave abuse of basis thereof category from the power to suspend the privilege of
discretion the writ of habeas corpus and the power to declare
(Lagman v. Medialdea, G.R. No. 231658, July 4, martial law. In other words, the President may
2017; IBP v. Zamora, G.R. No. 141284, Aug. 15, exercise the power to call out the Armed Forces
2000) independently of the power to suspend the
privilege of the writ of habeas corpus and to declare
Graduation of the Extraordinary Powers martial law, although, of course, it may also be a
The 1987 Constitution gives the President a prelude to a possible future exercise of the latter
sequence of graduated power[s]. From the most to powers. (Id.)
the least benign, these are: the calling out power,
the power to suspend the privilege of the writ of The factual necessity of calling out the armed forces
habeas corpus, and the power to declare martial is something that is for the President to decide. (IBP
law. It must be stressed, however, that the v. Zamora, G.R. No. 141284, Aug. 15, 2000)
graduation refers only to hierarchy based on scope
and effect. It does not in any manner refer to a Judicial inquiry can go no further than to satisfy the
sequence, arrangement, or order which the Court not that the President’s decision is correct but
Commander-in-Chief must follow. This so-called that the President did not act arbitrarily. Thus, the
"graduation of powers" does not dictate or restrict standard laid down is not correctness, but
arbitrariness.
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PP 1017 is constitutional insofar as it constitutes a time being are unable to cope with the condition in
call by PGMA on the AFP to suppress lawless a locality, which remains under the control of the
violence, which pertains to a spectrum of conduct State. (Lagman v. Medialdea, G.R. No. 231658, July
that is manifestly subject to state regulation, and not 4, 2017)
free speech.
Grounds For The Suspension Of The Privilege
PP 1017 is unconstitutional insofar as it grants Of The Writ Of Habeas Corpus And Declaration
PGMA the authority to promulgate “decrees.” Of Martial Law
Legislative power is within the province of the 1. Actual rebellion or invasion (not imminent)
Legislature. She can only order the military, under 2. Public safety requires it
PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence (David v. Gloria Checks and Balances to Limit the Exercise of
Macapagal-Arroyo, G.R. No. 171396, May 3, 2006). the Martial Law and Suspension
Powers/Safeguards against Abuse
Gen. Order No. 5 is constitutional since it provides a
standard by which the AFP and the PNP should 1. The President may declare martial law or
implement PP 1017, that is, suppressing lawless suspend of the privilege of the writ of the
violence. However, considering that “acts of privilege of habeas corpus only when there
terrorism” have not yet been defined and made is an invasion or rebellion and public safety
punishable by the Legislature, such portion of G.O. requires such declaration or suspension.
No. 5 is declared unconstitutional. (David v. 2. The President's proclamation or
Macapagal-Arroyo, G.R. No. 171396, May 3, 2006) suspension shall be for a period not
exceeding 60 days.
Declaration of a State of Emergency 3. Within 48 hours from the proclamation or
The declaration of a state of emergency is merely a suspension, the President must submit a
FOR ONE ATENEO

description of a situation that authorizes (the Report in person or in writing to Congress.
President) to call out the Armed Forces to help the 4. The Congress, voting jointly and by a vote
police maintain law and order. It gives no new power of at least a majority of all its Members, can
to her, or to the military, or to the police. Certainly, it revoke the proclamation or suspension.
does not authorize warrantless arrests or control of 5. The President cannot set aside the
2006).
media (David v. Ermita, G.R. No. 171409, May 3,
Emergency Powers v. Calling Out Powers

Congress' revocation of his proclamation or
suspension.
6. The President cannot, by himself, extend
his proclamation or suspension. He should
The presidential proclamation of a state of ask the Congress' approval.
emergency is NOT sufficient to allow the President 7. Upon such initiative or request from the
to take over any public utility. Since it is an aspect of President, the Congress, voting jointly and
emergency powers in accordance with § 23 (2), Art. by a vote of at least a majority of all its
VI of the Constitution, there must be a law Members, can extend the proclamation or
delegating such power to the President (David v. suspension for such period as it may
Macagapal Arroyo, G.R. No. 171396, May 3, 2006). determine.
8. The extension of the proclamation or
b. Declaration of Martial Law and suspension shall only be approved when
Suspension of the Privilege of the the invasion or rebellion persists and public
Writ of Habeas Corpus; Extension safety requires it.
9. The Supreme Court may review the
Besides his calling out powers, the President may sufficiency of the factual basis of the
also: proclamation or suspension, or the
(a) Suspend the privilege of the writ of habeas extension thereof, in an appropriate
corpus proceeding filed by any citizen.
(b) Proclaim a state of martial law 10. The Supreme Court must promulgate its
decision within 30 days from the filing of the
A state of martial law is peculiar because the appropriate proceeding
President, at such a time, exercises police power, 11. Martial law does not suspend the operation
which is normally a function of the Legislature. In of the Constitution. Accordingly, the Bill of
particular, the President exercises police power, Rights remains effective under a state of
with the military’s assistance, to ensure public safety martial law. Its implementers must adhere
and in place of government agencies which for the to the principle that civilian authority is
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supreme over the military and the armed and to revoke such proclamation or
forces is the protector of the people. They suspension.
must also abide by the State's policy to 2. The power to approve any extension of
value the dignity of every human person the proclamation or suspension, upon the
and guarantee full respect for human rights. President's initiative, for such period as it
12. Martial law does not supplant the may determine, if the invasion or rebellion
functioning of the civil courts or legislative persists and public safety requires it.
assemblies, nor authorize the conferment (Lagman v. Pimentel III, G.R. No. 235935,
of jurisdiction on military courts and Feb. 6, 2018)
agencies over civilians where civil courts
are able to function. Duty to Report to Congress
13. The suspension of the privilege of the writ Section 18, Article VII, requires the President to
applies only to persons judicially charged report his actions to Congress, in person or in
for rebellion or offenses inherent in or writing, within 48 hours of such proclamation or
directly connected with invasion. suspension. In turn, the Congress is required to
14. Finally, during the suspension of the convene without need of a call within 24 hours
privilege of the writ, any person thus following the Presidents proclamation or
arrested or detained should be judicially suspension. Clearly, the Constitution calls for quick
charged within three days, otherwise he action on the part of the Congress. Whatever form
should be released. that action takes, therefore, should give the Court
sufficient time to fulfill its own mandate to review the
(Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, factual basis of the proclamation or suspension
2018) within 30 days of its issuance. (Fortun v. Arroyo,
G.R. No. 190293, March 20, 2012)
Territorial Coverage
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The Constitution grants to the President the As to what facts must be stated in the proclamation
discretion to determine the territorial coverage of and the written Report is up to the President. As
martial law and the suspension of the privilege of the Commander-in-Chief, he has sole discretion to
writ of habeas corpus. He may put the entire determine what to include and what not to include in
Philippines or only a part thereof under martial law. the proclamation and the written Report taking into
(Lagman v. Medialdea, G.R. No. 231658, July 4, account the urgency of the situation as well as
2017) national security. (Lagman v. Medialdea, G.R. No.
231658, July 4, 2017)
Limiting the proclamation and/or suspension to the
place where there is actual rebellion would not only Supreme Court Review
defeat the purpose of declaring martial law, it will (a) In an appropriate proceeding filed by any
make the exercise thereof ineffective and useless. citizen
(e.g. martial law over Mindanao as a whole and not (b) The SC may review the sufficiency of the
merely Marawi where actual rebellion transpired) factual basis of the proclamation or
● It is difficult, if not impossible, to fix the suspension, or the extension thereof
territorial scope of martial law in direct (c) Its decision must be promulgated within 30
proportion to the "range" of actual rebellion days from filing
and public safety simply because rebellion
and public safety have no fixed physical Parameters of the Court for Determining the
dimensions. Sufficiency of the Factual Basis for the
● Moreover, the President's duty to maintain Declaration of Martial Law and/or the
peace and public safety is not limited only Suspension of the Privilege of the Writ of
to the place where there is actual rebellion; Habeas Corpus (Sufficiency of the Factual Basis
it extends to other areas where the present Test)
hostilities are in danger of spilling over. (Id.) 1. Actual rebellion or invasion
2. Public safety requires it
3. There is probable cause for the President
Congressional Check on the Exercise of Martial to believe that there is actual rebellion or
Law and Suspension Powers invasion. (Lagman v. Medialdea, G.R. No.
1. The power to review the President's 231658, July 4, 2017)
proclamation of martial law or suspension
of the privilege of the writ of habeas corpus, The scope of the Supreme Court’s power to review
the declaration of Martial Law or suspension of the
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writ of habeas corpus is limited to a determination of (Lagman v. Pimentel III, G.R. No. 235935, Feb. 6,
the sufficiency (not accuracy) of the factual 2018; Lagman v. Medialdea, G.R. No. 243522, Feb.
basis of such declaration or suspension. (Id.) 19, 2019)
The nature of the Supreme Court’s jurisdiction to Judicial Power to Review vs. Congressional
determine the sufficiency of the factual basis for the Power to Revoke Martial Law and Suspension
declaration of martial law and the suspension of the of the Writ of Habeas Corpus
privilege of the writ of habeas corpus by the JUDICIAL POWER CONGRESSIONAL
President is sui generis and granted by Sec. 18, TO REVIEW POWER TO
Art. VII of the Constitution. It does not stem from REVOKE
Sec. 1 or 5 of Art. VIII. (Id.) Court can only refer Congress may take into
to information consideration:
Extension of Martial Law available to the (a) Data available
When approved by the Congress, the extension of President prior to or to the President
the proclamation or suspension, as described during at the time of the prior to or at the
the deliberations on the 1987 Constitution, becomes declaration time of the
a "joint executive and legislative act" or a declaration and
"collective judgment" between the President and the Court is not allowed (b) Events
Congress. (Lagman v. Medialdea, G.R. No. 243522, to undertake an supervening the
Feb. 19, 2019) independent declaration
investigation beyond
The Court need not make an independent the pleadings
determination of the factual basis for the Does not look into the Can probe further and
proclamation or extension of martial law and the absolute correctness deeper, can delve into
suspension of the privilege of the writ of habeas of the factual basis accuracy of facts
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corpus. The Court is not a fact-finding body required presented before it
to make a determination of the correctness of the
factual basis for the declaration or extension of Passive Automatic
martial law and suspension of the writ of habeas Initiated by filing of a May be activated by
corpus. It would be impossible for the Court to go on petition “in an Congress itself at any
the ground to conduct an independent investigation
or factual inquiry, since it is not equipped with
resources comparable to that of the Commander-in-
Chief to ably and properly assess the ground
appropriate
proceeding” by a
citizen
time after
proclamation
suspension was made
the
or
conditions. (Id.)
(Lagman v. Medialdea, G.R. No. 231658, July 4,
In determining the sufficiency of the factual basis for
2017)
the extension of martial law, the Court needs only to
assess and evaluate the written reports of the
The Court can simultaneously exercise its power of
government agencies tasked in enforcing and
review with, and independently from, the power to
implementing martial law in Mindanao. (Id.)
revoke by Congress. Corollary, any perceived
inaction or default on the part of Congress does not
The test of sufficiency is not accuracy nor
deprive or deny the Court of its power to review. (Id.)
preciseness but reasonableness of the factual
basis adopted by the Executive in ascertaining the
Ways to Lift the Proclamation of Martial Law
existence of rebellion and the necessity to quell it.
and/or Suspension of the Privilege:
(Id.)
1. Lifting by the President himself;
2. Revocation by Congress;
Manner of Approval by Congress of Extension is
3. Nullification by the Supreme Court; and
a Political Question
4. By operation of law after 60 days (PHIL.
The Court cannot review the rules promulgated by
CONST. art. VII, § 18).
Congress (in extending martial law or the
suspension of the writ of habeas corpus) in the
absence of any constitutional violation. Legislative
rules, unlike statutory laws, do not have the imprints
of permanence and obligatoriness during their
effectivity. In fact, they may be revoked, modified or
waived at the pleasure of the body adopting them.
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6. PARDONING POWERS Requires concurrence No need for

of majority of all Congressional
a. Scope and Limitations members of Congress Concurrence
A public act; subject to Private act of
The matter of executive clemency is non-delegable judicial notice President; it must be
power and must be exercised by the President proved
personally (Villena v. Secretary of the Interior, G.R. Extinguishes the Only penalties are
No. L-46570, April 21, 1939). offense extinguished; May or
may not restore
The power exists as an instrument for correcting the political rights;
infirmities in administration of justice and for Absolute pardon
mitigating whenever a strict application of the restores; Conditional,
provisions of the law will result in undue harshness. does not.
(Bernas, 1987 Philippine Constitution: A Civil indemnity is not
Commentary, 924, 2009). extinguished
May be granted before Only granted after
b. Forms of Executive Clemency or after conviction conviction by final
judgment
PARDON – An act of grace, proceeding from the
power entrusted of the laws, which exempts the EXECUTIVE CLEMENCY IN ADMINISTRATIVE
individual on whom it is bestowed, from the CASES:
punishment the law inflicts for a crime he has The power to grant clemency includes cases
committed (United States v. Wilson, 503 U.S. 329, involving administrative penalties. Where a
1992). It is either conditional or plenary. conditional pardon is granted, the determination of
whether it has been violated rests with the
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AMNESTY - An act of grace concurred in by President.
Congress, usually extended to groups of persons
who commit political offenses, which puts into The President can extend it to administrative cases
oblivion the offense itself. The President alone but only in the Executive Branch, not in the Judicial
or Legislative Branches of government (Llamas v.
cannot grant amnesty for it needs the concurrence
by a majority of all the members of Congress. When Orbos, G.R. No. 99031, Oct. 15, 1991).
a person applies for amnesty, he must admit his guilt
of the offense that is subject to such amnesty. If his TAX AMNESTY: General pardon to impose
application is denied, he can be convicted based on penalties on persons guilty of evasion or violation of
this admission of guilt. revenue or tax law (Republic v. IAC, G.R. No.
69344, Apr. 26, 1991).
REPRIEVE – postpones the execution of an offense
to a day certain (People v. Vera, G.R. No. L-45685, LIMITATIONS
Dec. 22, 1937).
CANNOT BE GRANTED:
REMISSION OF FINES AND FORFEITURES – (a) Before conviction, in cases of impeachment
prevents the collection of fines or the confiscation of
forfeited property but it cannot have the effect of The President can pardon criminal offenses after an
returning the property which has been vested in 3rd impeachment proceeding such as what happened in
parties or money already in the public treasury 2007 when President Arroyo pardoned former
(Bernas, 1987 Philippine Constitution: A President Estrada after having been convicted by
Commentary, 933, 2009). the Sandiganbayan of plunder.
COMMUTATION – a remission of a part of the The exercise of the pardoning power is discretionary
punishment; it is a substitution of a lesser penalty for in the President and may not be interfered with by
the one originally imposed (People v. Vera, G.R. No. Congress or the Court, except only when it exceeds
L- 45685, Dec. 22, 1937). the limits provided for by the Constitution (Risos-
Vidal v. COMELEC, G.R. No. 206666, Jan. 21,
Amnesty v. Pardon 2015).
AMNESTY PARDON
Political Offenses Ordinary Offenses (b) For violations of election laws, rules, and
To a class of persons To individuals regulations without the favorable
Need not be accepted Must be accepted
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recommendation of the COMELEC in The President may contract or guarantee foreign

cases of civil or legislative contempt loans on behalf of the Republic of the Philippines
(c) Granted only after conviction by final with the prior concurrence of the Monetary Board;
judgment. (People. v. Salle, G.R. No. and subject to such limitations as may be provided
103567, Dec. 4, 1995) by law.
The Monetary Board shall, within 30 days from the

AS TO EFFECT: end of every quarter of the calendar year, submit to
(a) Does not absolve civil liabilities for an Congress a complete report on loans to be
offense contracted or guaranteed by the government of
(b) Does not restore public offices already GOCCs the would have the effect of increasing
forfeited, although eligibility for the same foreign debts.
may be restored (Monsanto v. Factoran,
G.R. No. 78239, Feb. 9, 1989). c. Entry into Treaties or
International Agreements
7. FOREIGN RELATIONS POWERS
Principle of Transformation of International
a. In general Law (PHIL. CONST., art. VII, § 21)
Power to enter into foreign relations includes: No treaty or international agreement shall be valid
(a) The power to appoint ambassadors, other and effective unless concurred in by at least 2/3 of
public ministers, and consuls ALL the Members of the Senate.
(b) The power to receive ambassadors and
other public ministers accredited to the TREATIES EXECUTIVE
Philippines AGREEMENTS
(c) The power to contract and guarantee International International
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foreign loans on behalf of the Republic agreements involving agreements
(d) The power to deport aliens – this power is political issues or embodying
vested in the President by virtue of his changes of national adjustments of detail
office, subject only to restrictions as may be policy and those carrying out well-
provided by legislation as regards grounds involving international established national
for deportation. In the absence of any arrangements of policies and traditions
legislative restriction to authority, the permanent character and those involving
President may exercise this power arrangements of more
(e) The power to negotiate treaties and other or less temporary
international agreements. However, such nature
treaty or international agreement shall be
transmitted to the Senate, with the following EXECUTIVE AGREEMENTS
options: Executive agreements are concluded:
a. Approve it by 2/3 majority vote (a) to adjust the details of a treaty, e.g., EDCA
b. Disapprove it outrights as to VFA;
c. Approve it conditionally, with (b) pursuant to or upon confirmation by an act
suggested amendments. If re- of the Legislature; or
negotiated and the Senate’s (c) in the exercise of the President's
suggestions are incorporated, the independent powers under the
treaty goes into effect without need Constitution.
of further Senate approval.
The President may enter into an executive
NOTE: While a treaty is re-negotiated, there is yet agreement on foreign military bases, troops or
no treaty facilities only if the executive agreement is not the
instrument that allows the presence of foreign
b. To Contract or Guarantee military bases, troops or facilities; or merely aims to
Foreign Loan implement an existing law or treaty. (Saguisag v.
Exec. Sec., G.R. No. 212426, Jan. 12, 2016)
Power to Contract of Guarantee Foreign Loans Although municipal law makes a distinction between
(PHIL. CONST., art. VII, § 20) international agreements and executive
agreements, with the former requiring Senate
approval and the latter not needing the same, under
international law, there is no such distinction.
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The President cannot, by executive agreement, 1. The President enjoys some leeway in
undertake an obligation that indirectly circumvents a withdrawing from agreements which he or
legal prohibition. she determines to be contrary to the
Constitution or statutes.
The President alone without the concurrence of the 2. The President cannot unilaterally withdraw
Senate abrogated a treaty. Assume that the other from agreements which were entered into
country party to the treaty is agreeable to the pursuant to congressional imprimatur.
abrogation provided it complies with the Philippine When a statute is adopted, the President
Constitution. If a case involving the validity of the cannot withdraw from the treaty being
treaty abrogation is brought to the SC, it should implemented unless the statute itself is
dismiss the case. The jurisdiction of the SC (other repealed. (ex. Congress passed R.A 9581
lower courts) over a treaty is only with respect to ahead of the Senate’s concurrence to the
questions of its constitutionality of validity. It does Rome Statute.)
not pertain to the termination/abrogation of a treaty 3. The President cannot unilaterally withdraw
(Gonzales v. Hechanova, G.R. No. L-21897, Oct. from international agreements where the
22, 1963). Senate concurred and expressly declared
that any withdrawal must also be made
Treaty v. Executive Agreement with its concurrence. Effecting treaties is a
TREATY EXECUTIVE shared function between the executive
AGREEMENT and legislative branches hence the
Involves political Involves details Senate’s power to concur with treaties
issues, national policy carrying out national necessarily includes the power to impose
policy conditions for its concurrence. (Pangilinan
International More or less temporary et. al. v. Cayetano et. al., G.R. No. 238875,
agreements of a in character G.R. No. 239483 & 240954, March 16,
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permanent kind 2021)
Must be ratified No need to be ratified
8. POWERS RELATIVE TO
An “exchange of notes” is a record of a routine APPROPRIATION MEASURES
agreement that has many similarities with a private
law contract. The agreement consists of the ITEM VETO POWER on the basis of:
exchange of two documents, each of the parties Doctrine of Inappropriate Provisions - A provision
being in possession of the one signed by the that is constitutionally inappropriate for an
representative of the other. Under the usual appropriation bill may be subject to veto even if it is
procedure, the accepting State repeats the text of not an appropriation or revenue “item.”
the offering State to record its assent. An exchange
of notes is considered a form of an executive Executive Impoundment
agreement, which becomes binding through Refusal of the President to spend funds already
executive action without the need of a vote by the allocated by Congress for a specific purpose. It is, in
Senate or Congress (Abaya vs. Edbane, G.R. No. effect, an “impoundment” of the law allocating such
167919, Feb. 14, 2007). expenditure of funds.
The Exchange of Notes between Secretary Romulo Budget

and the US Ambassador embodying a “No The Executive Branch proposes a budget to
Surrender Agreement” regarding citizens arrested Congress, which the latter considers in drafting
under the Rome Treaty is valid. An exchange of appropriation laws.
Notes is equivalent to an executive agreement
and it is a valid form of international agreement. Power to Augment
The categorization of agreements in Eastern Sea No law shall be passed authorizing any transfer of
Trading, is not cast in stone. Neither a hard and fast appropriations; however, /the President, /the
rule on whether Senate concurrence is needed for President of the Senate, /the Speaker of the House
executive agreements. (Bayan Muna v. Secretary of Representatives, /the Chief Justice of the
Romulo, G.R. No. 159618, Feb. 1, 2011). Supreme Court, and /the heads of Constitutional
Commissions may, by law, be authorized to
The President does not have absolute unilateral augment any item in the general appropriations law
authority to withdraw from a treaty. for their respective offices from savings in other
items of their respective appropriations. (PHIL.
CONST., Art. VI, § 25(5))
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What are the requisites for a valid transfer of Non-Delegable Powers of the President
appropriation? ● Commander-in-Chief powers;
There are two essential requisites in order that a ● Appointment and removal power;
transfer of appropriation with the corresponding ● The power to grant pardons and reprieves;
funds may legally be effected. First, there must be ● The authority to receive ambassadors and
savings in the programmed appropriation of the other public officials; and
transferring agency. Second, there must be an ● The power to negotiate treaties. (Neri v.
existing item, project or activity with an appropriation Senate, G.R. No.180643, Mar. 25, 2008)
in the receiving agency to which the savings will be
transferred. (Sanchez v. COA, 552 SCRA 471) Other Powers
(a) Borrowing Power: The President may
Actual savings is a sine qua non to a valid transfer contract or guarantee foreign loans on
of funds from one government agency to behalf of the Republic with the concurrence
another. The word “actual” denotes that something of the Monetary Board, subject to such
is real or substantial, or exists presently in fact as limitations as may be provided by law.
opposed to something which is merely theoretical, (b) Deportation Power
possible, potential or hypothetical. (Sanchez v. (c) Power to Receive Ambassadors and
COA, 552 SCRA 471) other public ministers duly accredited to
the Philippines
9. VETO POWERS (d) Informing Power: The President shall
address Congress at the opening of its
Veto Powers regular session. He may also appear
The President must communicate his decision to before it at any time.
veto within 30 days from the date of receipt thereof. (e) Call Congress to a special session
If he fails to do so, the bill shall become law as if he (f) Power to Classify and Reclassify lands
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signed it. This rule eliminates the possibility of a
‘pocket veto’ whereby the President simply refuses
to act on the bill. ————- end of topic ————-
In exercising the veto power, the bill is rejected and
returned with his objections to the House from which
it originated. The House shall enter the objections in
the journal and proceed to reconsider it. (See earlier
comment)
Pocket Veto vs. Item Veto

POCKET VETO ITEM VETO
When the president is Power of a president to
considered to have nullify or cancel
rejected a bull specific provisions of a
submitted to him for his bill, usually a budget
approval when appropriations bill,
Congress adjourns without vetoing the
during the period given entire legislative
to the president to package
approve or reject a bill
Congressional pork barrel violates the

President’s power to item-veto
The President cannot exercise his item-veto power
because the purpose of the lump-sum discretionary
budget is still uncertain. Furthermore, it cannot be
considered an item because an item is defined in the
field of appropriations as the particulars, details,
distinct and severable parts of the appropriation or
of the bill. (Belgica v. Hon. Ochoa, G.R. No. 208566,
Nov. 19, 2013)
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IV. JUDICIAL DEPARTMENT A. CONCEPT OF JUDICIAL POWER

Judicial Power
TOPIC OUTLINE UNDER THE SYLLABUS: The authority to settle justiciable controversies or
disputes involving rights that are enforceable and
A. CONCEPT OF JUDICIAL POWER demandable before the courts of justice or the
B. JUDICIAL REVIEW redress of wrongs for violations of such rights and to
1. Requisites determine whether or not there has been grave
2. Political question doctrine abuse of discretion amounting to lack or excess of
3. Moot questions jurisdiction on the part of any branch or
4. Operative fact doctrine instrumentality of the government. (Lopez v. Roxas,
C. JUDICIAL INDEPENDENCE AND G.R. No. L-25716, July 28, 1966).
FISCAL AUTONOMY
D. APPOINTMENTS TO THE JUDICIARY Where Vested
1. Qualifications of Members Vested in the Supreme Court and such lower courts
2. Judicial and Bar Council as may be established by law. (PHIL. CONST., art.
(composition and powers) VIII, § 1.)
E. THE SUPREME COURT
1. Composition, Powers, and Hence, they may neither attempt to assume or be
Functions compelled to perform non-judicial functions. They
2. En Banc and Division Cases may not be charged with administrative functions,
3. Administrative Supervision Over except when reasonably incidental to the fulfillment
Lower Courts of their duties (Meralco v. Pasay Transportation Co.,
4. Original and Appellate Jurisdiction G.R. No. L-37878, Nov. 25, 1932).
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Judicial Power includes the duty of the courts:
(PHIL. CONST., art. VIII, § 1.)
● To settle actual controversies involving
rights which are legally demandable and
enforceable;
bit.ly/BN23Corrections ● To determine whether or not there has

been a grave abuse of discretion
amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality
of the government.
Necessity of Applicable Law

Before a tribunal, board, or officer may exercise
judicial or quasi-judicial acts, it is necessary that
there be a law that give rise to some specific rights
of persons or property under which adverse claims
to such rights are made, and the controversy
ensuing therefrom is brought, in turn, before the
tribunal, board or officer clothed with power and
authority to determine what that law is and
thereupon adjudicate the respective rights of the
contending parties. (Santiago Jr. v. Bautista, G.R.
No. L-25024, March 30, 1970).
Thus, an award of honors to a student by a board of

teachers may not be reversed by a court where the
awards are governed by no applicable law. (Id)
The court has no authority to entertain an action for

judicial declaration of citizenship because there was
no law authorizing such proceeding (Channie Tan v.
Republic, G.R. No. L-14159, April 18, 1960).
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Courts cannot reverse the award of a board of committed grave abuse of discretion amounting to
judges in an oratorical contest (Felipe v. Leuterio, lack or excess of jurisdiction.
G.R. No. L-4606, May 30, 1952).
Under this expanded jurisdiction conferred to the
Jurisdiction Supreme Court, the political question doctrine is no
The power to hear and decide a case. longer the insurmountable obstacle to the exercise
● Who Defines: Congress shall have the of judicial power or the impenetrable shield that
power to define, prescribe and apportion protects executive and legislative actions from
the jurisdiction of the various courts, but judicial inquiry or review (Oposa v. Factoran, Jr.
may not deprive the Supreme Court of its G.R. No. 101083, July 30, 1993)
jurisdiction over cases enumerated in Sec.
5, Art. VIII (PHIL. CONST., art. VIII, § 2.), B. JUDICIAL REVIEW
● No law shall be passed increasing the
appellate jurisdiction of the Supreme Court Judicial Review
as provided in the Constitution without its ● The power of the Supreme Court to declare
advice and concurrence (PHIL. CONST., art. a law, treaty, ordinance, etc.
VI, § 30.) unconstitutional (PHIL. CONST., art. VIII, §
4(2).)
Scope of Jurisdiction ● Lower courts may also exercise the power
The power to control the execution of its decision is of judicial review, subject to the appellate
an essential aspect of jurisdiction. It cannot be the jurisdiction of the SC. (PHIL. CONST., art.
subject of substantial subtraction, for our VIII, § 5(2).)
Constitution vests the entirety of judicial power in ● Only Supreme Court decisions set
one Supreme Court and in such lower courts as may precedents. As thus, only SC decisions are
be established by law. (Echegaray v. SOJ, G.R. No. binding on all.
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132601, Jan. 19, 1999)
1. REQUISITES
Limitations of Judicial Power
1. Political Questions: A question, the
Requisites of Judicial Review: (EARLS)
resolution of which has been vested by the
1. The question of constitutionality must be
Constitution exclusively In the people, in
raised in the first instance, or at the Earliest
the exercise of their sovereign capacity, or
opportunity.
In which full discretionary authority has
2. The question involved must be Ripe for
been delegated to a co-equal branch of the
adjudication, e.g. the challenged
Government (Tanada v. Cuenco, G.R. No.
government act must have had an adverse
L-10520, Feb. 28, 1957).
effect on the person challenging it.
2. Separation of Powers: The Supreme
3. An Actual case calling for the exercise of
Court and its members should not and
judicial power.
cannot be required to exercise any power
4. Resolution of the issue of constitutionality is
or to perform any trust or to assume any
unavoidable or is the very Lis mota of the
duty not pertaining to or connected with the
case.
administering of judicial functions. (Manila
5. The person challenging the governmental
Electric Co. v Pasay Transportation, G.R.
act must have ‘Standing’ (Locus Standi).
No. 37878, Nov. 25, 1932)
3. Not the function of the judiciary to give
Exception: The Court can waive the procedural rule
advisory opinion: The function of the
on standing in cases that raise issues of
courts is to determine controversies
transcendental importance.
between litigants. They do not give
advisory opinions. (Director of Prisons v
Functions of Judicial Review
Ang Cho Kio, G.R. No. 30001, June 23,
1. Checking — invalidating a law or executive
1970)
act that is found to be contrary to the
Constitution
Expanded Jurisdiction and Authority of the
2. Legitimating — upholding the validity of
Supreme Court
the law that results from a mere dismissal
Art. VIII, Sec.1, par. 2, of the Constitution expanded
of a case challenging the validity of the law
the power, authority and jurisdiction of the courts of
3. Symbolic — to educate the bench and bar
justice, particularly the Supreme Court, to determine
as to the controlling principles and
whether any branch of the government has
concepts on matters of grave public
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importance for the guidance of and restraint Advisory Opinions

upon the future (Salonga v. Cruz Paño, ● Even the expanded jurisdiction of this Court
G.R. No. 59524, Feb. 18, 1985). under Article VIII, Section 1 does not
provide license to provide advisory
Doctrine of Judicial Supremacy opinions. An advisory opinion is one
When the judiciary allocates constitutional where the factual setting is conjectural or
boundaries, it neither asserts superiority nor nullifies hypothetical. (PBOAP v. DOLE, G.R. No.
an act of the Legislature. It only asserts the solemn 202275, July 17, 2018)
and sacred obligation assigned to it by the o In such cases, the conflict will not
Constitution to determine conflicting claims of have sufficient concreteness or
authority under the Constitution and to establish for adversariness so as to constrain
the parties in an actual controversy the rights which the discretion of this Court. After
that instrument secures and guarantees to them. all, legal arguments from
concretely lived facts are chosen
Justiciable Controversy narrowly by the parties. Those who
A definite and concrete dispute touching on the legal bring theoretical cases will have no
relations of parties having adverse legal interests, such limits. (Id.)
which may be resolved by a court of law through the ● The Court generally declines to issue
application of a law (Cutaran v. DENR, G.R. No advisory opinions or to resolve hypothetical
134958, Jan. 31, 2001). or feigned problems, or mere academic
questions. The limitation of the power of
Requirements for Justiciability judicial review to actual cases and
1. That there be an actual controversy controversies assures that the courts will
between or among the parties to the not intrude into areas specifically confined
dispute; to the other branches of government.
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2. That the interests of the parties be adverse; (PHILCONSA v Philippine Government,
3. That the matter in controversy be capable G.R. No. 218406, Nov. 29, 2016)
of being adjudicated by judicial power; and
4. That the determination of the controversy Ripe for Adjudication
will result in practical relief to the ● A constitutional question is ripe for
complainant.
Actual Case/Controversy
● An actual case or controversy involves a
adjudication when the governmental act
being challenged has had a direct adverse
effect on the individual challenging it. It is
also necessary that there be a law that
conflict of legal rights, an assertion of gives rise to some specific rights of persons
opposite legal claims, susceptible of judicial or property, under which adverse claims
resolution as distinguished from a are made. (Santiago Jr. v. Bautista, GR No.
hypothetical or abstract difference or 25024, March 30, 1970)
dispute. (PHILCONSA v Philippine ● For a case to be considered ripe for
Government, G.R. No. 218406, Nov. 29, adjudication, it is a prerequisite that:
2016) o an act had then been
● There must be a contrast of legal rights that accomplished or performed by
can be interpreted and enforced on the either branch of government
basis of existing law and jurisprudence. before a court may interfere, and
(Id.) o the petitioner must allege the
● It is the parties' duty to demonstrate actual existence of an immediate or
cases or controversies worthy of judicial threatened injury to himself as a
resolution. Pleadings must show a violation result of the challenged action.
of an existing legal right or a controversy (PHILCONSA v. Philippine
that is ripe for judicial determination. (Falcis Government, G.R. No. 218406,
v. Civil Registrar General, G.R. No. Nov. 29, 2016)
217910, Sept. 3, 2019)
● Facts are the basis of an actual case or Locus Standi/Legal Standing
controversy. There must be sufficient facts ● Definition: a personal and substantial
to enable the Court to intelligently interest in the case such that the party has
adjudicate the issues. (Id.) sustained or will sustain direct injury as
a result of the governmental act that is
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being challenged. (Francisco v. HOR, G.R. any improper

No. 160261, Nov. 10, 2003) purpose (Id.)
● The term "interest" is material interest, an ● there is a wastage
interest in issue and to be affected by the of public funds
decree, as distinguished from mere interest through the
in the question involved, or a mere enforcement of an
incidental interest. (Joya v. PCGG, G.R. invalid or
No. 96541, Aug. 24, 1993) unconstitutional law
o Moreover, the interest of the party (Id.)
plaintiff must be personal and not ● the tax measure is
one based on a desire to vindicate unconstitutional
the constitutional right of some (David v. Arroyo,
third and related party. (Id.) G.R. No. 171396,
● Test: whether a party alleges such May 3, 2006)
personal stake in the outcome of the
controversy as to assure that concrete Before he can invoke the
adverseness which sharpens the power of judicial power, he
presentation of issues upon which the court must specifically prove that
depends for illumination of difficult he has sufficient interest in
constitutional questions. (Id.) preventing the illegal
● Elements (ITR) expenditure of money raised
o The petitioner must have by taxation and that he
personally suffered some actual or would sustain a direct injury
threatened Injury which can be as a result of the
legal, economic, or environmental; enforcement of the
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o The injury is fairly Traceable to the questioned statute or
challenged action; and contract. (Francisco v. HOR,
o The injury is likely to be Redressed G.R. No. 160261, Nov. 10,
by a favorable action (TELEBAP v. 2003)
COMELEC, GR No. 132922, April VOTERS There must be a showing of
21, 1998) obvious interest in the
validity of the election law in
Requisites for Third Party Standing (jus tertii) question (David v. Arroyo,
(IRH) G.R. No. 171396, May 3,
1. The litigant must have suffered an injury-in- 2006)
fact, thus giving him or her a "sufficiently CONCERNED There must be a showing
concrete interest" in the outcome of the CITIZENS that the issues raised are of
issue in dispute; transcendental importance
2. The litigant must have a close Relation to which must be settled early
the third party; and (Id.)
3. There must exist some Hindrance to the LEGISLATORS There must be a claim that
third party's ability to protect his or her own the official action
interests. (White Light v. City of Manila, complained of infringes upon
G.R. No. 122846, Jan. 20, 2009) their prerogatives as
legislators (Biraogo v.
Rules on the Liberal Approach on Locus Standi Philippine Truth
TAXPAYER Allowed to sue where there Commission, G.R. No.
is a claim of any of the 192935, Dec. 7, 2010)
following:
● public funds are Standing in Environmental Cases
illegally disbursed The Rules of Procedure for Environmental Cases
(Information liberalized the requirements on standing, allowing
Technology v. the filing of a citizen's suit by any Filipino citizen in
COMELEC, G.R. representation of others, including minors or
No. 159139, Jan. generations yet unborn, may file an action to enforce
13, 2004) rights or obligations under environmental laws.
● public money is (Resident Marine Mammals v. Reyes, G.R. No.
being deflected to 180771, April 21, 2015; Segovia v. The Climate
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Change Commission, G.R. No. 211010, March 7, A political question arises in constitutional issues
2017) relating to the powers or competence of different
agencies and departments of the executive or those
Guidelines in determining whether or not a of the legislature. The political question doctrine is
matter is of transcendental importance: used as a defense when the petition asks this court
● The character of the funds or other assets to nullify certain acts that are exclusively within the
involved in the case; domain of their respective competencies, as
● The presence of a clear case of disregard provided by the Constitution or the law. In such a
of a constitutional or statutory prohibition by situation, presumptively, this court should act with
the public respondent agency or deference. It will decline to void an act unless the
instrumentality of the government; and exercise of that power was so capricious and
● The lack of any other party with a more arbitrary so as to amount to grave abuse of
direct and specific interest in the questions discretion.
being raised (Chamber of Real Estate and ● The existence of constitutionally
Builders’ Association, Inc. v. Energy imposed limits justifies subjecting the
Regulatory Commission, et al., G.R. No. official actions of the body to the scrutiny
174697, July 8, 2010). and review of the Court.
● Furthermore, the concept of a political
Rule on Raising at the Earliest Opportunity question never precludes judicial review
General Rule: The earliest opportunity to raise a when the act of a constitutional organ
constitutional issue is to raise it in the pleadings infringes upon a fundamental individual
before a competent court that can resolve the same. or collective right. (The Diocese of
(Matibag v. Benipayo, G.R. No. 149036, April 2, Bacolod v. Commission on Elections, G.R.
2002) No. 205728, Jan. 21, 2015)
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Exceptions: While courts can determine questions of legality with
1. In criminal cases — at any time at the respect to governmental action, they cannot review
discretion of the court government policies and the wisdom behind
2. In civil cases — at any stage of the such policies. These questions are vested by the
proceedings if necessary for the Constitution in the Executive and Legislative
determination of the case itself; or
3. In every case (Except where there is
estoppel) — at any stage if it involves the
jurisdiction of the court (People v. Vera,
Departments.
Examples of political questions in jurisprudence

Interpretation of the meaning of “disorderly
G.R. No. 45685, Nov. 16, 1937) behavior” and the legislature’s power to suspend a
4. Operative fact doctrine member (there is no procedure for the imposition of
the penalty of suspension nor did the 1935
Constitution define what “disorderly behavior is).
2. POLITICAL QUESTION DOCTRINE The matter is left to the discretion of the legislature
(Osmeña, Jr. v. Pendatun, G.R. No. L-17144, Oct.
Political Question 28, 1960).
A question, the resolution of which has been vested
by the Constitution exclusively: Whether the court could intervene in a case where
1. In the people, in the exercise of their the House of Representatives was said to have
sovereign capacity, or disregarded its own rule. The court was held to have
2. In which full discretionary authority has been without authority to intervene (Arroyo v. De
been delegated to a co-equal branch of the Venecia, G.R. No. 127255, Aug. 14, 1997).
Government (Tanada v. Cuenco, G.R. No.
L-10520, Feb. 28, 1957). Recognition of diplomatic immunity (ICMC v. Hon.
Calleja, G.R. No. 85750, Sept. 28, 1990).
The judiciary is NOT precluded from reviewing
“political questions”. Under the second clause of The determination of what constitutes “betrayal of
Sec. 1, Art. VIII (the power to determine whether or public trust” or “other high crimes” is a political
not there has been a grave abuse of discretion) the question. A determination of what constitutes an
Courts may now determine whether there has been impeachable offense is a purely political question,
grave abuse of discretion amounting to lack or which the Constitution has left to the sound
excess of jurisdiction on the part of any branch or discretion of the legislature (Gutierrez v. The House
instrumentality of government.
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of Representatives Committee on Justice, et al., 4. OPERATIVE FACT DOCTRINE

G.R. No. 193459, Feb. 15, 2011).
Effect of a Declaration of Unconstitutionality
Examples of cases in jurisprudence where the An unconstitutional act is not a law; it confers no
Court held that there was no political question rights; it imposes no duties; it affords no protection;
involved. it creates no office; it is inoperative as if it has not
Apportionment of representative districts (because been passed at all. (Film Development Council of
there are constitutional rules governing the Philippines v. Colon Heritage Realty Corp., G.R.
apportionment) (Bagabuyo v. COMELEC, G.R. No. Nos. 203754 & 204418, Oct. 15, 2019)
176970, Dec. 8, 2008).
The exception is the doctrine of operative fact,
Suspension of the privilege of the writ of habeas which applies as a matter of equity and fair play. (Id.)
corpus because the Constitution sets limits to ● This doctrine nullifies the effects of an
executive discretion on the matter (Montenegro v. unconstitutional law or an executive act by
Castañeda, G.R. No. L-4221, Aug. 30, 1952). recognizing that the existence of a statute
prior to a determination of
Manner of forming the Commission on unconstitutionality is an operative fact and
Appointments may have consequences that cannot
(Daza v. Singson, G.R. No. 86344, Dec. 21, 1989; always be ignored. (Id.)
Coseteng v. Mitra, G.R. No. 86649, July 12, 1990; ● Hence, it legitimizes otherwise invalid acts
Guingona v. Gonzales, G.R. No. 106971, Oct. 20, done pursuant thereto because of
1992). considerations of practicality and fairness.
In this regard, certain acts done pursuant to
3. MOOT QUESTIONS a legal provision which was just recently
declared as unconstitutional cannot be
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● An action is considered moot when it no anymore undone because not only would it
longer presents a justiciable controversy be highly impractical to do so, but more so,
because the issues involved have become unfair to those who have, in good faith,
academic or dead or when the matter has relied on the said legal provision prior to the
already been resolved. There is nothing for time it was struck down. (Id.)
the court to resolve as the determination
thereof has been overtaken by subsequent
events (Atty. Evillo C. Pormento v. Estrada
and COMELEC, G.R. No. 191988, Aug. 31,
● It applies only to cases where
extraordinary circumstances exist, AND
only when the extraordinary
circumstances have met the stringent
2010). conditions that will permit its
● However, the “moot and academic” application. (Araullo v. Aquino III, G.R. No.
principle is not a magical formula that 209287, July 1, 2014)
automatically dissuades courts in resolving
a case. The Court may still take C. JUDICIAL INDEPENDENCE AND
cognizance of an otherwise moot case, FISCAL AUTONOMY
if it finds that:
o there is a grave violation of the Concepts of Judicial Independence
Constitution;
DECISIONAL
o the situation is of exceptional
INDEPENDENCE OR INSTITUTIONAL
character and paramount public
INDIVIDUAL (JUDICIAL)
interest is involved;
JUDICIAL INDEPENDENCE
o the constitutional issue raised
INDEPENDENCE
requires formulation of controlling
Refers to a judge's Describes the
principles to guide the bench, the
ability to render separation of the
bar, and the public; and
decisions free from judicial branch from the
o the case is capable of repetition
political or popular executive and
yet evading review. (Narra Nickel
influence based solely legislative branches of
Mining and Development Corp. v.
on the individual facts government
Redmont Consolidated Mines
and applicable law
Corp., G.R. No. 195580, Jan. 28,
2015)
Focuses on each Focuses on the
particular judge and independence of the
seeks to insure his or judiciary as a branch of
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her ability to decide government and quasi-judicial or administrative

cases with autonomy protects judges as a functions. (PHIL. CONST., art. VIII, § 12.)
within the constraints class o The Presidential Electoral Tribunal
of the law (PET) does not exercise quasi-
judicial functions. When the
A judge has this kind of Refers to the collective Supreme Court, as the PET,
independence when he independence of the resolves a presidential or vice-
can do his job without judiciary as a body presidential election contest, it
having to hear — or at performs what is essentially a
least without having to judicial power (Macalintal v. PET,
take it seriously if he G.R. No. 191618, Nov. 23, 2010).
does hear — criticisms ● The salaries of Justices and judges
of his personal morality shall be fixed by law and cannot be
and fitness for judicial decreased during their continuance in
office office. (PHIL. CONST., art. VIII, § 10.)
o However, their salaries are
properly subject to a general
A truly independent judiciary is possible only when income tax law applicable to all
both concepts of independence are preserved — income earners and that the
wherein public confidence in the competence and payment of such income tax does
integrity of the judiciary is maintained, and the public not fall within the constitutional
accepts the legitimacy of judicial authority. (Re: protection against decrease of
COA Opinion on Computation of Appraised Value of their salaries during their
Properties Purchased by SC Justices, A.M. No. 11- continuance in office. (Nitafan v.
7-10-SC, July 31, 2012; In the Matter of the CIR, G.R. No. 78780, July 23,
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Allegations Contained in the Columns of Mr. Amado 1987).
P. Macasaet, A.M. No. 07-09-13-SC, Aug. 8, 2008) ● The right to criticize the courts and judicial
officers must be balanced against the
Judiciary in General equally primordial concern that the
● Creation and abolition of courts independence of the Judiciary be protected
o Congress’ power to create courts
implies the power to abolish and
even re-organize courts. But this
power cannot be exercised in a ●
from due influence or interference. (In re
Letter of UP Law Faculty, A.M. No. 10-10-
4-C, March 8, 2011)
The Judiciary shall enjoy fiscal autonomy.
manner that would undermine the Appropriations for the Judiciary may not be
security of tenure of the judiciary. reduced by the legislature below the
If the abolition or re-organization is amount appropriated for the previous year
done in good faith and not for and, after approval, shall be automatically
political or personal reasons, it and regularly released. (PHIL. CONST., art.
is valid. (De La Llana v. Alba, G.R. VIII, § 3.)
No. L-57883, March 12 1982) o The grant of fiscal autonomy to the
o Congress may enact laws Judiciary is more extensive than
prohibiting courts from issuing the mere automatic and regular
restraining orders against release of its approved annual
administrative acts in appropriations. Real fiscal
controversies involving facts or the autonomy covers the grant to the
exercise of discretion. However, Judiciary of the authority to use
on issues involving questions of and dispose of its funds and
law, courts cannot be prohibited properties at will, free from any
from exercising their power to outside control or interference.
restrain such acts. (Malaga v. (Re: COA Opinion on Computation
Penachos, Jr., G.R. No. 86695, of Appraised Value of Properties
Sept. 3, 1992) Purchased by SC Justices, A.M.
● Members of the judiciary enjoy security No. 11-7-10-SC, July 31, 2012)
of tenure. (PHIL. CONST., art. VIII, § 2.) o Fiscal autonomy contemplates a
● Members of the judiciary may not be guarantee on full flexibility to
designated to any agency performing allocate and utilize their resources
with the wisdom and dispatch that
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the Judiciary’s needs require. It questioning his title to the office he

recognizes the power and holds. (Republic v. Sereno, G.R.
authority to levy, assess and No. 237428, June 19, 2018)
collect fees, fix rates of
compensation not exceeding the ● Jurisdiction
highest rates authorized by law for o It may not be deprived of minimum
compensation and pay plans of the and appellate jurisdiction
government and allocate and o Congress may not increase the
disburse such sums as may be Supreme Court’s appellate
provided by law or prescribed by jurisdiction without its advice or
them in the course of the concurrence (PHIL. CONST., art. VI,
discharge of their functions. § 30.)
(Bengzon v. Drilon, G.R. No. o Congress cannot deprive the
103524, April 15, 1992) Supreme Court of its jurisdiction
o Legal fees constitute not only a over cases provided for in the
vital source of the Court’s financial Constitution (PHIL. CONST., art.
resources but also comprise an VIII, § 2.) and may only do the
essential element of the Court’s following:
fiscal independence. Any ▪ Define enforceable and
exemption from the payment of demandable rights;
legal fees granted by Congress to prescribing remedies for
GOCCs and LGUs will necessarily violations of such rights
reduce the Judiciary Development ▪ Determine the court with
Fund (JDF) and the Special jurisdiction to hear and
Allowance for the Judiciary Fund decide controversies or
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(SAJF). Such situation is disputes arising from
constitutionally infirm for it impairs legal rights (Lopez v.
the Court’s guaranteed fiscal Roxas, G.R. No. L-
autonomy, which recognizes the 25716,1966)
power and authority of the Court to ● It has administrative supervision over all
levy, assess and collect fees inferior courts and personnel. (PHIL.
including legal fees. (Re: In the CONST., art. VIII, § 6.)
Matter of Clarification Of ● It has exclusive power to discipline or
Exemption from Payment of All dismiss judges/ justices of inferior courts.
Court and Sheriff's Fees of (PHIL. CONST., art. VIII, § 11.)
Cooperatives, A.M. No. 12-2-03-0, ● The Court alone may initiate the Rules of
March 13, 2012) Court. (PHIL. CONST., art. VIII, § 5(5).)
● The Court alone may order temporary
Supreme Court in General detail of judges. (PHIL. CONST., art. VIII, §
● Being a Constitutional body, it may not 5(3).)
be abolished by law. ● The Court can appoint all officials and
● In GENERAL, its members may only be employees of the Judiciary. (PHIL.
removed through impeachment. (PHIL. CONST., art. VIII, § 5(6).)
CONST., art. XI, § 2.)
o Members of the Supreme Court D. APPOINTMENTS TO THE
may now be removed from office JUDICIARY
through a petition for quo
warranto. Section 2, Article XI of
the Constitution allows the
1. QUALIFICATIONS OF MEMBERS
institution of a quo warranto action
against an impeachable officer. A Every prospective appointee to the judiciary must
quo warranto petition is predicated apprise the appointing authority of every matter
on grounds distinct from those of bearing on his fitness for judicial office including
impeachment. The former such circumstances as may reflect on his integrity
questions the validity of a public and probity (In Re: JBC v. Judge Quitain, JBC No.
officer's appointment while the 013, Aug. 22, 2007).
latter indicts him for the so-called
impeachable offenses without Until a correction of existing records on one’s birth
and citizenship, one cannot accept an appointment
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to the judiciary, as that would be a violation of the Lower Non-Collegiate Courts

Constitution. For this reason, he can be prevented RTC MTC
by injunction from doing so (Kilosbayan v. Ermita, At least 35 years old At least 30 years old
G.R. No. 177721, July 3, 2007). Engaged for at least 10 Engaged for at least 5
years in the practice of years in the practice of
Qualifications for Judges and Justices law in the Philippines law in the Philippines
LOWER or or
COLLEGIATE
LOWER NON-
SUPREME COURTS (CA, Has held public office Has held public office
COLLEGIATE
COURT CTA, in the Philippines in the Philippines
COURTS
SANDIGANBA requiring admission to requiring admission to
YAN) the practice of law as a the practice of law as a
Natural-born citizen of the Citizen of the requisite requisite
Philippines Philippines
(may be Term (PHIL. CONST., art. VIII, § 11.)
naturalized) Members of the Supreme Court and judges of the
At least 40 Possesses other qualifications lower courts hold office during good behavior until:
years old prescribed by Congress 1. The age of 70 years old
At least 15 Member of the Philippine Bar 2. They become incapacitated to discharge
years of their duties
experience
as a judge 2. JUDICIAL AND BAR COUNCIL
or in the
practice of a. Composition (Phil. Const., art.
law in the
VIII, § 8.)
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Philippines
A person of proven competence, integrity,
1. Chief Justice, as ex-officio chairman
probity, and independence
2. Secretary of Justice, as ex-officio member
(PHIL. CONST., art. VIII, § 7.)
3. Representative of Congress, as ex-officio
member
A Supreme Court Justice, who is required under the 4. Representative of the Integrated Bar
Constitution to be a Member of the Philippine Bar as 5. A professor of law
a qualification for the office held by him and who 6. A retired member of the Supreme Court
may be removed from office only by impeachment, 7. Private sector representative
cannot be charged with disbarment during his
incumbency. Further, during his incumbency, he Regular Members of the JBC
cannot be charged criminally before the ● The last four in the enumeration above are
Sandiganbayan or any other court with any offence the regular members of the JBC.
which carries with it the penalty of removal from ● The President, with the consent of the
office, or any penalty service of which would amount Commission on Appointments, appoints
to removal from office. (In Re Gonzalez, A.M. No. regular members who serve for 4 years, in
88-4-5433, April 15, 1988) staggered terms. (PHIL. CONST., art. VIII, §
8(2).)
The Constitution requires that members of the ● They shall receive such emoluments as
Judiciary must be of proven integrity. To be of may be determined by the Supreme Court.
proven integrity means that the applicant must have (PHIL. CONST., art. VIII, § 8(4).)
established steadfast adherence to moral and
ethical principles. One who chronically fails to file his Clerk of the Supreme Court – serves as the
or her SALN violates the Constitution and the laws; secretary ex officio of the Council and shall keep
and one who violates the Constitution and the laws a record of its proceedings (PHIL. CONST., art. VIII, §
cannot rightfully claim to be person of integrity and 8(3).)
may thus be removed through a quo warranto
petition. (Republic v. Sereno, G.R. No. 237428, The JBC is composed of 7 members coming from
June 19, 2018) different sectors. Thus, while we do not lose sight of
the bicameral nature of our legislative department, it
is beyond dispute that the Constitution is explicit that
we have only “a representative”. Thus, two (2)
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representatives from Congress would increase the from a list of at least three (3) nominees for
number of JBC members to eight (8), a number each vacancy, as prepared by the JBC.
beyond what the Constitution has contemplated. 2. No CA confirmation is needed for
The lone representative of Congress is entitled to appointments to the Judiciary.
one full vote. This effectively disallows the scheme 3. Vacancies in SC should be filled within 90
of splitting the said vote into half between two days from the occurrence of the vacancy.
representatives of Congress. (Chavez v. JBC, G.R. 4. Vacancies in lower courts should be filled
No. 202242, April 16, 2013) within 90 days from submission to the
President of the JBC list.
Thus, any inclusion of another member, whether 5. Midnight Appointments – Explicit
with one whole vote or 1/2 of it, goes against that prohibition against midnight appointments
mandate. Section 8(1), Article VIII of the is already unnecessary due to the
Constitution, providing Congress with an equal intervention of and screening made by
voice with other members of the JBC in Judicial Bar Council (JBC) (De Castro v.
recommending appointees to the Judiciary is JBC, G.R. No. 191002, April 20, 2010)
explicit. (Id.)
The Supreme Court has supervision over the JBC,
The JBC can still perform its mandated task of and this authority covers the overseeing of the
submitting the list of nominees to the President JBC’s compliance with its own rules. (Jardeleza v.
despite a vacancy in the position of Chief Justice or Sereno, G.R. No. 213181, Aug. 19, 2014)
the ex-officio Chairman (as a result, for example, of
impeachment). In such case, the most Senior The primary limitation to the JBC's exercise of
Justice of this Court who is not an applicant for the discretion is that the nominee must possess the
position of Chief Justice should participate in the minimum qualifications required by the Constitution
deliberations for the selection of nominees for the and the laws relative to the position. While the
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said vacant post and preside over the proceedings. resolution of who to nominate as between two
(Dulay v. JBC, G.R. No. 202143, July 3, 2012) candidates of equal qualification cannot be dictated
by this Court upon the JBC, such surrender of
The Supreme Court shall provide in its annual choice presupposes that whosoever is nominated is
budget the appropriations for the Council. (PHIL. not otherwise disqualified. The question of whether
CONST., art. VIII, § 8(4)). or not the nominee possesses the requisite
qualifications is determined based on facts and
therefore does not depend on, nor call for, the
b. Powers exercise of discretion on the part of the nominating
body. Thus, the nomination by the JBC is not
Functions of The JBC (PHIL. CONST., art. VIII, § accurately an exercise of policy or wisdom as to
8(5).) place the JBC's actions in the same category as
Primary Function: Recommend appointees to the political questions that the Court is barred from
Judiciary. resolving. (Republic v. Sereno, G.R. No. 237428,
Secondary Function: It may also exercise such June 19, 2018)
other functions as the SC may assign to it.
Mandamus will not lie to compel the JBC to select
Incidental Functions and recommend nominees for vacant judicial
The functions of searching, screening, and positions, which is a discretionary function. There is
selecting are necessary and incidental to the JBC's no legal right to be included in the list of nominees
principal function of choosing and recommending for judicial vacancies. Possession of the
nominees for vacancies in the judiciary for constitutional and statutory qualifications for
appointment by the President. In carrying out its appointment to the judiciary may not be used to
main function, the JBC has the authority to set the legally demand that one's name be included in the
standards/criteria in choosing its nominees for list of candidates for a judicial vacancy. (Villanueva
every vacancy in the judiciary, subject only to the v. JBC, G.R. No. 211833, April 7, 2015)
minimum qualifications required by the Constitution
and law for every position. (Villanueva v. JBC, G.R. The clustering of nominees for the six vacancies in
No. 211833, April 7, 2015) the Sandiganbayan by the JBC impaired the
President's power to appoint members of the
Judiciary and to determine the seniority of the
Rules on Appointments/Clustering of Nominees
newly-appointed Sandiganbayan Associate
1. The President shall appoint Members of the
Justices. The clustering by the JBC of nominees for
Supreme Court and judges of lower courts
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simultaneous or closely successive vacancies in Any vacancy should be filled within 90 days from the
collegiate courts can actually be a device to favor or occurrence thereof.
prejudice a particular nominee. A favored nominee
can be included in a cluster with no other strong Decisions in General
contender to ensure his/her appointment; or No decision shall be rendered by any court without
conversely, a nominee can be placed in a cluster expressing therein clearly and distinctly the facts
with many strong contenders to minimize his/her and the law on which it is based. (PHIL. CONST., art.
chances of appointment. (Aguinaldo v. Aquino, VIII, § 14.)
G.R. No. 224302, November 29, 2016) ● It is a requirement of due process that the
parties to a litigation be informed of how it
E. THE SUPREME COURT was decided, with an explanation of the
factual and legal reasons that led to the
1. COMPOSITION, POWERS, AND conclusions of the court. (NICOS Industrial
FUNCTIONS Corp. v. Court of Appeals, G.R. No. 88709,
Feb. 11, 1992)
A Constitutional Court ● The purpose [of this Constitutional
The Supreme Court is the only constitutional court, requirement is] to inform the person
all the lower courts being of statutory creation. reading the decision, and especially the
parties, of how it was reached by the court
Members (PHIL. CONST., art. VIII, § 4(1).) after consideration of the pertinent facts
● Chief Justice, and and examination of the applicable laws.
● 14 Associate Justices (Francisco v. Permskul, G.R. No. 81006,
May 12, 1989)
The President cannot appoint a temporary member ● The [provision] does not apply to
of the Supreme Court. There can be no doubt that interlocutory orders, such as one granting a
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the Chief Justice and Associate Justices required by motion for postponement or quashing a
the Constitution to compose the Supreme Court are subpoena, because it refers only to
regular members of the Court. A temporary member decisions on the merits and not to orders of
would be a misnomer, implying a position not the trial court resolving incidental matters.
(NICOS Industrial Corp. v. Court of
contemplated by the Constitution. Thus, a law which
authorizes the President to designate any judge of Appeals, G.R. No. 88709, Feb. 11, 1992)
the lower court or cadastral judge to act as member ● So long as the decision contains the
of the Supreme Court is void (Vargas vs. Rillaroza, necessary facts to warrant its conclusions,
G.R. No. L-1612, Feb. 26, 1948). it is no error for [the court] to withhold any
specific finding of facts with respect to the
The members of the judiciary perform judicial evidence for the defense. The mere failure
functions. This function is exclusive. They cannot to specify (in the decision) the contentions
perform non- judicial functions. For this reason, the of the appellant and the reasons for
Constitution provides that the members of the refusing to believe them is not sufficient to
Supreme Court and of other courts shall not be hold the same contrary to the requirements
delegated to any agency performing quasi-judicial or of the provisions of law and the
administrative functions. (PHIL. CONST., art. VIII, § Constitution. (Air France v. Carrascoso,
12.) G.R. No. L-21438, Sept. 28, 1986)
● The significance of factual findings lies in
Primus Inter Pares the value of the decision as a precedent.
Literally, first among equals; the maxim indicates How will the ruling be applied in the future,
that a person is the most senior of a group of people if there is no point of factual comparison?
sharing the same rank or office. The phrase has (Velarde v. Social Justice Society, G.R. No.
been used to describe the status, condition or role 159357, April 28, 2004)
of the Chief Justice in many supreme courts around
the world. No petition for review or motion for reconsideration
of a decision of the court shall be refused due course
Hearing Of Cases In The Supreme Court (PHIL. or denied without stating the legal basis therefor.
CONST., art. VIII, § 4(1).) (PHIL. CONST., art. VIII, § 14).)
● Divisions of 3, 5, or 7 members
● En Banc
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Decisions by The Supreme Court (PHIL. CONST., another subject matter (even with the same parties
art. VIII, § 13.) and issues) is involved, the minute resolution is not
● The conclusions of the Court in any case binding precedent. (Id.)
submitted to it for decision en banc or in
division shall be reached in consultation There are substantial, not simply formal, distinctions
before the case is assigned to a Member between a minute resolution and a decision. The
for the writing of the opinion of the Court. constitutional requirement that the facts and the law
● A certification to this effect must be signed on which the judgment is based must be expressed
by the Chief Justice and attached to the clearly and distinctly applies only to decisions, not to
record of the case, and served upon the minute resolutions. A minute resolution is signed
parties. only by the clerk of court by authority of the justices,
o Absence of a certification does not unlike a decision. It does not require the certification
mean that there was no of the Chief Justice. Moreover, unlike decisions,
consultation prior to assignment of minute resolutions are not published in the
the case to a member. The Philippine Reports. Finally, the proviso of Section
presumption of regularity prevails 4(3) of Article VIII speaks of a decision. Indeed, as
but the erring officer will be liable a rule, this Court lays down doctrines or principles
administratively (Consing v. CA, of law which constitute binding precedent in a
G.R. No. 78272, Aug. 29, 1989). decision duly signed by the members of the Court
● Any Member who took no part, or and certified by the Chief Justice. (Id.)
dissented, or abstained from a decision or
resolution must state the reason therefor. Memorandum Decisions
The same requirements shall be observed Memorandum decisions, where the appellate court
by all lower collegiate courts. adopts the findings of fact and law of the lower court,
are allowed as long as the decision adopted by
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All lower collegiate courts shall observe the same reference is attached to the Memorandum for easy
procedure (e.g., CA, CTA, and Sandiganbayan). reference (Oil and Natural Gas Commission v. CA,
G.R. No. 114323, July 23, 1998).
Minute Resolutions
The adjudication of a case by minute resolution is Sin Perjuico Judgments
an exercise of judicial discretion and constitutes One that is rendered without a statement of the facts
sound and valid judicial practice. (Agoy v. Araneta in support of its conclusions, to be later
Center, Inc., G.R. No. 196358 (Resolution), March supplemented by the final judgment. The Supreme
21, 2012) Court expressed its disapproval of the practice of
rendering of sin perjuico judgments. (NACHURA)
Minute resolutions are issued for the prompt
dispatch of the actions of the Court. While they are Timeframe for Deciding
the results of the deliberations by the Justices of the SUPREME COLLEGIATE LOWER
Court, they are promulgated by the Clerk of Court or COURT COURTS COURTS
his assistants whose duty is to inform the parties of 24 months 12 months 3 months from
the action taken on their cases by quoting verbatim from from submission
the resolutions adopted by the Court. Neither the submission submission
Clerk of Court nor his assistants take part in the (PHIL. CONST., art. VIII, § 15.)
deliberations of the case. They merely transmit the
Court's action in the form prescribed by its Internal The periods above commence from the date of
Rules. (Id.) submission for decision or resolution.
When a minute resolution denies or dismisses a A case or matter shall be deemed submitted for
petition for failure to comply with formal and decision or resolution upon the filing of the last
substantive requirements, the challenged decision, pleading, brief, or memorandum required by the
together with its findings of fact and legal Rules of Court or by the Court itself.
conclusions, are deemed sustained. (Philippine
Health Care Providers v. CIR, G.R. No. 167330, Upon expiration of the period without decision or
June 12, 2009) resolution, a certification stating why no decision or
resolution has been rendered shall be issued and
With respect to the same subject matter and the signed by the Chief Justice or presiding judge.
same issues concerning the same parties, it
constitutes res judicata. However, if other parties or
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A copy of the certification shall be attached to the o Cases where SC modifies or

record of the case or matter, and served upon the reverses a doctrine or principle of
parties. The certification shall state why a decision law laid down by the SC en banc
or resolution has not been rendered or issued within or by a division
said period. o Administrative cases to discipline
or dismiss judges of lower courts
The expiration of the period notwithstanding, the o Election contests for President and
court shall decide or resolve the case or matter Vice-President
without further delay.
Cases required to be heard en banc shall be
Being the court of last resort, the Supreme Court decided with the concurrence of a majority of the
should be given an ample amount of time to Members who:
deliberate on cases pending before it. While the 24- ● actually took part in the deliberations on the
month period provided under the 1987 Constitution issues in the case and
is persuasive, it does not summarily bind this Court ● voted thereon
to the disposition of cases brought before it. It is a
mere directive to ensure this Court's prompt No doctrine or principle of law laid down by the court
resolution of cases, and should not be interpreted as in a decision rendered en banc or in division may be
an inflexible rule. (Re: Elvira N. Enalbes, A.M. No. modified or reversed except by the court sitting en
18-11-09-SC (Resolution, Jan. 22, 2019) banc.
The Sandiganbayan falls under the 3-month rule Division (PHIL. CONST., art. VIII, § 4(3).)
because it is a trial-court, not a collegiate court (Re: ● Cases or matters heard by a division shall
Problems of Delays in Cases Before the be decided or resolved with:
Sandiganbayan, A.M. No. 00- 8-05-SC, Jan. 31, o the concurrence of a majority of
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2002). the Members who actually took
part in the deliberations on the
A judge who fails to resolve cases within the period issues in the case and voted
prescribed may be held liable for gross inefficiency, thereon and,
unless he explains his predicament and asked for o in no case without the concurrence
extensions of time from the Supreme Court. (OCA
v. Quiñanola, A.M. No. MTJ-99-1216, Oct. 20, 1999)
2. EN BANC AND DIVISION CASES

of at least three of such Members.
● When the required number is not obtained,
the case shall be decided en banc.
There is a distinction between cases, on the one

En banc (PHIL. CONST., art. VIII, § 4(2).) hand, and matters, on the other hand, such that
● All cases involving constitutionality of cases are "decided" while matters, which include
a: (LIT) motions, are "resolved", applying the rule of
o Law reddendo singula singulis. (Fortich v. Corona, G.R.
o International or executive No. 131457, Aug. 19, 1999)
agreement ● Only cases are referred to the Court en
o Treaty banc for decision whenever the required
● All cases involving the constitutionality, number of votes is not obtained.
application or operation of: (POPORI) ● Conversely, the rule does not apply where
o Presidential decrees the required three votes is not obtained in
o Orders the resolution of a motion for
o Proclamations reconsideration.
o Ordinances ● Hence, “when the required number is not
o Other Regulations obtained, the case shall be decided en
o Instructions banc” only speaks of “case” and not
● Cases required to be heard en banc “matter.”
under the Rules of Court: ● Article VIII, Section 4(3) pertains to the
o Appeals from Sandiganbayan and disposition of cases by a division. If there is
from the Constitutional a tie in the voting, there is no decision. The
Commissions only way to dispose of the case then is to
o Cases heard by a division where refer it to the Court en banc. On the other
required majority of 3 was not hand, if a case has already been decided
obtained by the division and the losing party files a
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motion for reconsideration, the failure of the process for enforcing rights and duties recognized
division to resolve the motion because of a by substantive law and for justly administering
tie in the voting does not leave the case remedy and redress for a disregard or infraction of
undecided. There is still the decision which them. If the rule takes away a vested right, it is not
must stand in view of the failure of the procedural. If the rule creates a right such as the
members of the division to muster the right to appeal, it may be classified as a substantive
necessary vote for its reconsideration. matter; but if it operates as a means of implementing
Quite plainly, if the voting results in a tie, the an existing right then the rule deals merely with
motion for reconsideration is lost. procedure. (Estipona v. Lobrigo, G.R. No. 226679,
Aug. 15, 2017)
The Supreme Court sitting en banc is not an
appellate court vis-à-vis its Divisions, and it The rules on plea bargaining neither create a right
exercises no appellate jurisdiction over the latter. nor take away a vested right. Instead, it operates as
Each division of the Court is considered not a body a means to implement an existing right by regulating
inferior to the Court en banc, and sits veritably as the judicial process for enforcing rights and duties
the Court en banc itself. It bears to stress further that recognized by substantive law and for justly
a resolution of the Division denying a party’s motion administering remedy and redress for a disregard or
for referral to the Court en banc of any Division case, infraction of them. Sec. 23 of the Comprehensive
shall be final and not appealable to the Court en Dangerous Drugs Act, which states that “[a]ny
banc. (Apo Fruits v. CA, G.R. No. 164195, 2008) person charged under any provision of this Act
regardless of the imposable penalty shall not be
PROCEDURAL RULE-MAKING (PHIL. CONST., art. allowed to avail of the provision on plea-bargaining,”
VIII, § 5(5).) is unconstitutional as it encroaches on the
constitutional rule-making power of the Court. (Id.)
The Supreme Court has the power to promulgate
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rules concerning the: A legislative grant of exemption from the payment of
● Protection and enforcement of legal fees under RA 8291 was held to be
constitutional rights unconstitutional since the payment of legal fees is
● Pleading, practice and procedure in all an integral part of the rules promulgated by the court
courts pursuant to its rule-making power under the
● Admission to the practice of law Constitution. The other branches cannot trespass
● The Integrated Bar upon this prerogative by enacting laws or issue
● Legal assistance to the underprivileged orders that effectively repeal, alter or modify any of
the procedural rules (Re: Petition for Recognition of
Limitations on Judicial Rule-Making: the GSIS from Payment of Legal Fees, A.M. No. 08-
1. It should provide a simplified and 2-01-0, Feb. 11, 2010).
inexpensive procedure for the speedy
disposition of cases. Rule-making power also includes the inherent
2. It should be uniform for all courts of the power to suspend its own rules in particular cases in
same grade. the interest of justice. (Philippine Blooming Mills
3. It should not diminish, increase, or modify Employment v. Philippine Blooming Mills Co., G.R.
substantive rights. No. L-31195, June 5, 1973)
It is possible for a substantive matter to be The constitutional grant to promulgate rules carries
nonetheless embodied in a rule of procedure. Yet with it the power, inter alia, to determine whether to
the absorption of the substantive point into a give the said rules prospective or retroactive effect.
procedural rule does not prevent the substantive (People v. Lacson, G.R. No. 149453, April 1, 2003)
right from being superseded or amended by statute,
for the creation of property rights is a matter for the 3. ADMINISTRATIVE SUPERVISION
legislature to enact on, and not for the courts to OVER LOWER COURTS
decide upon. (Republic v. Gingoyon, G.R. No. (PHIL. CONST., art. VIII, § 6.)
166429, Feb. 1, 2006).
The Supreme Court has administrative supervision
In determining whether a rule prescribed by the over all inferior courts and personnel.
Supreme Court, for the practice and procedure of
the lower courts, abridges, enlarges, or modifies any Administrative supervision merely involves
substantive right, the test is whether the rule overseeing the operations of agencies to ensure
really regulates procedure, that is, the judicial that they are managed effectively, efficiently and
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economically, but without interference with day-to- interest; such assignment shall not exceed
day activities. Thus, to effectively exercise its power six (6) months without the consent of the
of administrative supervision over all courts as judge concerned (PHIL. CONST., art. VIII, §
prescribed by the Constitution, P.D. No. 828, as 5(3).)
amended, created the Office of the Court ● Order a change of venue or place of trial to
Administrator. Nowhere in the functions of the avoid a miscarriage of justice (PHIL. CONST.,
several offices in the Office of the Court art. VIII, § 5(4).)
Administrator is it provided that the Supreme Court
can assume jurisdiction over a case already pending The administrative function of the Court to transfer
with another court. (Agcaoili v. Fariñas, G.R. No. cases is a matter of venue, rather than jurisdiction.
232395, July 3, 2018) The Court may transfer the trial of cases from one
court to another of equal rank in a neighboring site,
Administrative jurisdiction over a court employee whenever the imperative of securing a fair and
belongs to the Supreme Court, regardless of impartial trial, or of preventing a miscarriage of
whether the offense was committed before or after justice, so demands. (Agcaoili v. Fariñas, G.R. No.
employment in the judiciary. (Ampong v CSC, G.R. 232395, July 3, 2018)
No. 167916, Aug. 26, 2008)
POWER TO DISCIPLINE (PHIL. CONST., art. VIII, §
It is only the Supreme Court that can oversee the 11.)
judges’ and court personnel’s compliance with all The Supreme Court en banc shall have the power
laws, and take the proper administrative action to discipline judges of lower courts, or order their
against them if they commit any violation thereof. No dismissal by a vote of a majority of the Members
other branch of government may intrude into this who actually took part in the deliberations on the
power, without running afoul of the doctrine of issues in the case and voted thereon.
separation of powers. (Maceda v. Vasquez, G.R.
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No. 102781, April 22, 1993) Decisions of the SC on disciplinary cases en banc
is needed only when the penalty imposed is
Thus: dismissal of a judge, disbarment of a lawyer,
● The Ombudsman cannot justify its suspension of either for more than 1 year or a fine
investigation of a judge on the powers exceeding 10,000 pesos. Otherwise, the case may
granted to it by the Constitution. It cannot
compel the Court, as one of the three
branches of government, to submit its
records, or to allow its personnel to testify
be decided by a division. (People v. Gacott, G.R.
No. 116049, July 13, 1995)
The rule prohibiting the institution of disbarment

on this matter. (Id.) proceedings against an impeachable officer applies
● The Ombudsman cannot determine for only during his or her tenure and does not create
itself and by itself whether a criminal immunity from liability for possibly criminal acts or
complaint against a judge, or court for alleged violations of the Code of Judicial Conduct
employee, involves an administrative or other supposed violations. Provided that the
matter. The Ombudsman is duty bound to requirements of due process are met, the Court may
have all cases against judges and court penalize retired members of the Judiciary for
personnel filed before it, referred to the misconduct committed during their incumbency. (In
Supreme Court for determination as to Re Undated Letter of Mr. Louis C. Biraogo, A.M. No.
whether and administrative aspect is 09-2-19-SC, Feb. 24, 2009)
involved therein. (Caoibes, Jr. v.
Ombudsman, G.R. No. 132177, July 19, POWER TO APPOINT
2001) The Supreme Court has the power to appoint all
● The CSC must likewise bring its complaint officials and employees of the Judiciary in
against a judicial employee before the accordance with the Civil Service Law.
OCA. However, such employee may be
estopped from questioning the jurisdiction 4. ORIGINAL AND APPELLATE
of the CSC under specific circumstances. JURISDICTION
(Ampong v CSC, G.R. No. 167916, Aug. (PHIL. CONST., art. VIII, §5(1) and (2))
26, 2008)
The Supreme Court has original jurisdiction over:
Administrative supervision also includes: 1. Cases affecting:
● Power to temporarily assign lower court a. Foreign ambassadors
judges to other stations in the public b. Other foreign public ministers
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c. Consuls stationed in the i.e. if they were made in the attempt to

Philippines reach a final conclusion.
2. Petitions for: ● Deliberative – if it reflects the give-and-
a. Certiorari take of the consultative process. The key
b. Prohibition question in determining whether the
c. Mandamus material is deliberative in nature is whether
d. Quo Warranto disclosure of the information would
e. Habeas Corpus discourage candid discussion within the
agency.
The Supreme Court has appellate jurisdiction (i.e.
review, revise, reverse, modify, or affirm on appeal Summary of privileged documents or
or certiorari) over final judgments and orders of communications not subject to disclosure: (Id.)
lower courts in: ● Court actions such as the result of the raffle
1. All cases involving constitutionality or of cases and the actions taken by the Court
validity of any Law, International on each case included in the agenda of the
agreement or Treaty (LIT) Court’s session on acts done material to
2. All cases involving the constitutionality or pending cases, except where a party
validity of any Presidential decree, Order, litigant requests information on the result of
Proclamation, Ordinance, Regulation or the raffle of the case, pursuant to Rule 7,
Instruction (POPORI) Section 3 of the Rules of Court of the
3. All cases involving the legality of any: Tax, Supreme Court (IRSC);
Impost, Toll, Assessment or any Penalty ● Court deliberations or the deliberations of
imposed in relation thereto (TITAP) the Members of the court sessions on
4. All cases in which the jurisdiction of any cases and matters pending before the
lower court is in issue Court;
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5. Criminal cases where the penalty imposed ● Court records which are “pre-decisional”
is reclusion perpetua or higher and “deliberative” in nature;
6. All cases where only errors or questions of ● Confidential Information secured by
law are involved justices, judges, court officials and
employees in the course of their official
Judicial Privilege functions mentioned in the 2 preceding
Judicial privilege insulates the Judiciary from an enumerations, are privileged even after
improper intrusion into the functions of the judicial their term of office;
branch and shields justices, judges, and court ● Records of cases that are still pending for
officials and employees from public scrutiny or the decision are privileged materials that
pressure of public opinion that would impair a cannot be disclosed, except only for
judge’s ability to render impartial decisions. (In Re: pleadings, orders and resolutions that have
Production of Court Records and Documents and been made available by court to the general
the Attendance of Court Officials and Employees as public.
Witnesses under the Subpoenas of February 10, ● The principle of comity or inter-
2012 and the Various Letters of Impeachment departmental courtesy demands that the
Prosecution Panel dated January 19 and 25, 2012, highest officials of each department be
Notice of Resolution, February 14, 2012). exempt from the compulsory processes of
the other departments;
Deliberative Process Privilege (Id.) ● These privileges belong to the Supreme
This privilege guards against the disclosure of Court as an institution, not to any justice or
information/communication involving as it does the judge in his or her individual capacity. Since
deliberative process of reaching a decision. This the Court is higher than the individual
enables the Members of the Court to freely discuss justices or judges, no sitting or retired
the issues without fear of criticism for holding justice or judge, not even the Chief Justice,
unpopular positions or fear of humiliation for one's may claim exception without the consent of
comments. the Court.
To qualify for protection under the deliberative

process privilege, the agency must show that the
document is both predecisional and deliberative.
● Predecisional – if it precedes, in temporal
sequence, the decision to which it relates
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The Internal Rules of the Supreme Court (IRSC)

prohibits the disclosure of:
1. Result of the raffle of cases;
2. Actions taken by the Court on each case
included in the agenda of the Court’s
session;
3. Deliberations of the Members in court
sessions on cases and matters pending
before it;
4. The privilege against disclosure of these
kinds of information/communication is
known as deliberative process privilege
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VI. CONSTITUTIONAL COMMISSIONS A. CONSTITUTIONAL SAFEGUARDS

TO ENSURE INDEPENDENCE OF
TOPIC OUTLINE UNDER THE SYLLABUS: COMMISSIONS
VI. CONSTITUTIONAL COMMISSIONS Constitutional Safeguards

(COMELEC, COA, CSC) ● The commissions are constitutionally
created, and may not be abolished by law
A. CONSTITUTIONAL SAFEGUARDS TO (PHIL. CONST. art. IX-A, §1)
ENSURE INDEPENDENCE OF ● Each is expressly described as
COMMISSIONS ‘independent’
B. COMMON PROVISIONS ● Each is conferred certain powers and
C. POWERS AND FUNCTIONS functions by the Constitution which cannot
D. COMPOSITION AND QUALIFICATION be reduced by statute (PHIL. CONST. art. IX-
OF MEMBERS B, C, and D)
E. PROHIBITED OFFICES AND INTERESTS ● The Chairmen and members cannot be
removed, except by impeachment (PHIL.
CONST. art. XI, § 2)
● The Chairmen and the members are given
a fairly long term of office of 7 years (PHIL.
CONST. art. IX-B, C, and D, § 1, ¶ 2)
● The Chairmen and members may not be re-
appointed or appointed in an acting
capacity
● The salaries of the Chairmen and members
are relatively high and may not be
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decreased during continuance in office
(PHIL. CONST. art. IX, § 3; art. XVIII, § 117)
● The Commissions enjoy fiscal autonomy
(PHIL. CONST. art. IX-A, § 5).
● Each Commission en banc may
promulgate its own procedural rules,
provided they do not diminish, increase or
modify substantive rights (PHIL. CONST. art.
IX, § 6)
o In case of conflict between the
Rules of Court and the Rules
promulgated by the commission,
the prevailing rule will depend on
where the case is filed. If before
the commission, the rule of the
commission prevails, if before a
regular court, the Rules of Court
will prevail.
o The power of the Supreme Court
to review the rules of quasi-judicial
agencies does not apply to
Constitutional Commissions
● The Chairmen and members are subject to
certain disqualifications calculated to
strengthen their integrity (PHIL. CONST. art.
IX, § 2)
● The Commissions may appoint their own
officials and employees in accordance with
Civil Service Law (PHIL. CONST. art. IX, § 4).
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B. COMMON PROVISIONS Jurisprudence on Sec.1(2), Art.IX-D

1. Term of Appointment: The appointment of
Fiscal Autonomy members of any of the three constitutional
Fiscal autonomy means that there is automatic and commissions, after the expiration of the
regular release as opposed to the fiscal autonomy uneven terms of office of the first set of
of the judiciary, which includes the rule that commissioners, shall always be for a fixed term
appropriation may not be less than the previous of seven (7) years; an appointment for a lesser
year. period is void and unconstitutional.
Rotational Scheme of Appointments The appointing authority cannot validly shorten

This scheme provides that the first appointees shall the full term of seven (7) years in case of the
serve terms of 7, 5 and 3 years, respectively. “There expiration of the term as this will result in the
appears to be near unanimity as to the purpose/s of distortion of the rotational system prescribed
the rotational system, as originally conceived, i.e., to by the Constitution.
place in the commission a new appointee at a fixed
interval (every two years presently), thus preventing 2. Rule on Appointment to Vacancies:
a four-year administration appointing more than one Appointments to vacancies resulting from
permanent and regular commissioner, or to borrow certain causes (death, resignation, disability or
from Commissioner Monsod of the 1986 CONCOM, impeachment) shall only be for the unexpired
‘to prevent one person (the President of the portion of the term of the predecessor; such
Philippines) from dominating the commissions’” appointments cannot be less than the
(Funa v. Chairman of COA, G.R. No. 192791, April unexpired portion [as it will disrupt the
24, 2012). staggering].
The 2 conditions for the workability of the 3. Members of Commission who served Full
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“Rotational Scheme” are: Term: Members of the Commission who were
● The terms of the first batch of appointed for a full term of seven years and
commissioners should start on a common who served the entire period, are barred from
date; and reappointment to any position in the
● Any vacancy due to the death, resignation Commission. The first appointees in the
or disability before the expiration of the term Commission under the Constitution are also
should be filled only for the unexpired covered by the prohibition against
balance of the term (Funa v. Chairman of reappointment.
COA, G.R. No. 192791, Apr. 24, 2012 citing
Republic v. Imperial, G.R. No. L-8684, 4. Eligibility for Appointment as Chairman of
March 31, 1955). Commissioner who resigns: A commissioner
who resigns after serving in the Commission
Where the Rotational Scheme Applies: for less than seven years is eligible for an
● Civil Service Commission (CSC) appointment as Chairman for the unexpired
● Commission on Elections (COMELEC) portion of the term of the departing chairman.
● Commission on Audit (COA) Such appointment is not covered by the ban on
● Judicial and Bar Council (JBC) reappointment, provided that the aggregate
period of the length of service will not exceed
Promotional Appointment of Commissioner to seven (7) years and provided further that the
Chairman vacancy in the position of Chairman resulted
Article IX-D, Sec. 1(2) does not prohibit a from death, resignation, disability or removal
promotional appointment from commissioner to by impeachment. This is not a reappointment,
chairman as long as: but effectively a new appointment.
(a) The commissioner has not served the full
term of 7 years; and 5. Rule on Temporary Appointments: Any
(b) The appointment to any vacancy shall be member of the Commission cannot be
only for the unexpired portion of the term of appointed or designated in a temporary or
the predecessor. (PHIL. CONST. art. IX-D, acting capacity.
Sec. § 1(2)) .
(c) The promotional appointment must Term of Office of Each Commission Member
conform to the rotational plan or the The terms of the first Chairmen and Commissioners
staggering of terms in the commission of the Constitutional Commissions under the 1987
membership. Constitution must start on a common date,
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irrespective of the variations in the dates of by government employees. (Cruz v. CSC,

appointments and qualifications of the appointees, G.R. No. 144464, Nov. 27, 2001)
in order that the expiration of the first terms of seven, 4. It is the intent of the Civil Service Law, in
five and three years should lead to the regular requiring the establishment of a grievance
recurrence of the two-year interval between the procedure, that decisions of lower level
expiration of the terms. This common appropriate officials (in cases involving personnel
starting point must be on February 02, 1987, the actions) be appealed to the agency head,
date of the adoption of the 1987 Constitution. then to the Civil Service Commission.
(a) Term – the time during which the officer (Olanda v.Bugayong G.R. No. 140917, Oct.
may claim to hold office as of right, and 10, 2003).
fixes the interval after which the several 5. As the central personnel agency of the
incumbents shall succeed one another. government, shall establish a career
(b) Tenure – term during which the incumbent service and adopt measures to promote
actually holds the office. morale, efficiency, integrity,
responsiveness, progressiveness and
The term of office is not affected by the holdover. courtesy in the Civil Service.
The tenure may be shorter than the term for reasons a. It may revoke a certificate of
within or beyond the power of the incumbent. eligibility motu proprio and
(Gaminde v. Commission on Audit, G.R. No. consequently, the power to revoke
140335, Dec. 13, 2000) one that has been given.
b. Where the case simply involves
C. POWERS, FUNCTIONS, AND the rechecking of examination
JURISDICTION papers and nothing more than a
re-evaluation of documents
already in the records of the CSC
CIVIL SERVICE COMMISSION
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according to a standard answer
key previously set by it, notice and
The Civil Service Commission, as the central
hearing is not required. Instead,
personnel agency of the Government, shall
what will apply in such a case is
establish a career service and adopt measures to
the rule of res ipsa loquitur (Lazo
promote morale, efficiency, integrity,
v. Civil Service Commission, G.R.
responsiveness, progressiveness, and courtesy in
No. 108824, Sept. 14, 1994).
the civil service. It shall strengthen the merit and
6. Strengthen the merit and rewards system
rewards system, integrate all human resources
7. Integrate all human resources development
development programs for all levels and ranks, and
programs for all levels and ranks
institutionalize a management climate conducive to
8. Institutionalize a management climate
public accountability. It shall submit to the President
conducive to public accountability
and the Congress an annual report on its personnel
9. Submit to the President and the Congress
programs. (PHIL. CONST. art. IX-B, § 3)
an annual report of personnel programs
FUNCTIONS OF THE CSC
Scope of the Civil Service Commission (BIGAS)
1. In the exercise of its powers to implement
1. Branches
R.A. 6850 (granting civil service eligibility to
2. Instrumentalities
employees under provisional or temporary
3. GOCCs with original charters
status who have rendered seven years of
4. Agencies of the government
efficient service), the CSC enjoys a wide
5. Subdivisions
latitude of discretion, and may not be
(PHIL. CONST. art. IX-B, § 2(1))
compelled by mandamus (Torregoza v.
Civil Service Commission, G.R. No.
Classes of Service
101526, July 3, 1992).
1. Career Service: characterized by entrance
2. Under the Administrative Code of 1987, the
(a) based on merit and fitness to be
Civil Service Commission has the power to
determined, as far as practicable, by
hear and decide administrative cases
competitive examinations; or (b) based on
instituted before it directly or on appeal,
highly technical qualifications; with
including contested appointments.
opportunity for advancement to higher
3. The Commission has original jurisdiction to
career positions and security of tenure.
hear and decide a complaint for cheating in
the Civil Service examinations committed
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a. Open Career Positions: where Exceptions:

prior qualification in an appropriate 1. Policy determining – Where the officer lays
examination is required down principal or fundamental guidelines or
b. Closed career positions: scientific rules; or formulates a method of action for
or highly technical in nature; government or any of its subdivisions; e.g.
c. Career Executive Service: department head.
undersecretaries, bureau directors 2. Primarily confidential – Denoting not only
d. Career Officers: other than those confidence in the aptitude of the appointee
belonging to the Career Executive for the duties of the office but primarily
Service who are appointed by the close intimacy which ensures freedom of
President (e.g. those in the foreign intercourse without embarrassment or
service) freedom from misgivings or betrayals on
e. Positions in the AFP although confidential matters of state (De los Santos
governed by a different merit v. Mallare, G.R. No. L-3881, Aug. 31,
system 1950); OR one declared to be so by the
f. Personnel of GOCCs with original President of the Philippines upon the
charters recommendation of the CSC (Salazar v.
g. Permanent laborers, whether Mathay, G.R. No. L-44061, Sept. 20, 1976)
skilled, semiskilled or unskilled 3. Highly technical – Requires possession of
technical skill or training in supreme
2. Non-Career Service: characterized by degree. (De los Santos v. Mallare, supra)
entrance on bases other than those of the
usual tests utilized for the career service, Types of Appointment
tenure limited to a period specific by law, or 1. Permanent Status: A permanent
which is co-terminus with that of the appointment shall be issued to a person
FOR ONE ATENEO

appointing authority or subject to his who meets all the requirements for the
pleasure, or which is limited to the duration positions to which he is being appointed,
a. Elective officials, and their including the appropriate eligibility
personal and confidential staff; prescribed, in accordance with the
b. Department heads and officials of provisions of law, rules and standards
Cabinet rank who hold office at the promulgated in pursuance thereof.
pleasure of the President, and 2. Temporary Status: In the absence of
their personal and confidential appropriate eligibles and when it becomes
staff; necessary in the public interest to fill a
c. Chairmen and members of vacancy, a temporary appointment shall be
commissions and bureaus with issued to a person who meets all the
fixed terms; requirements for the position to which he is
d. Contractual personnel; being appointed except the appropriate civil
e. Emergency and seasonal service eligibility; provided that such
personnel temporary appointment shall not exceed 12
months, but the appointee may be replaced
The CSC cannot disallow an appointment to a sooner if a qualified civil service eligible
position authorized by law but not included in becomes available.
the Index of Occupational Service. Although the
CSC rules limit appointments to positions within the CSC may not terminate the employment of a civil
Index of Occupational Service, nevertheless, it is servant
limited to the implementation of the laws it is tasked The CSC may not terminate the employment of a
to enforce. RA 8494 exempted the Trade and civil servant. The CSC is not a co-manager or
Investment Corporation from conforming to the surrogate administrator of government offices and
position classification; thus, the appointment is valid agencies. Its functions and authority are limited to
(Trade and Investment v. CSC, G.R. No. 182249, approving or reviewing appointments to determine
March 5, 2013). their compliance with requirements of the Civil
Service Law. On its own, the Commission does not
Appointments in the Civil Service have the power to terminate employment or drop
General Rule: Made only according to merit and members from the rolls (UP and Torres v. CSC,
fitness to be determined, as far as practicable, by G.R. No. 132860, April 3, 2001).
competitive examination
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Security of Tenure in Civil Service Law (Pollo v. Constantino-David, G.R. No. 181881, Oct.
The concept of security of tenure in the Civil Service 18, 2011)
Law is embraced in Section 2(3), Article XI-B. “No
officer or employee of the civil service shall be Rule on Security of Tenure
removed or suspended except for cause provided No officer or employee of the CSC shall be removed
by law.” or suspended except for causes provided by law
(PHIL. CONST. art. IX-B, § 2, ¶ 3). Security tenure is
Classes of non-competitive positions available even to positions which are considered
● Policy determining – where the officer highly technical, policy-determining and primarily
lays down principal or fundamental confidential.
guidelines or rules or formulates a method
of action for government or any of its Rule on Partisan Political Activity
subdivisions. (Nachura, p. 418) Joint Circular No.001 d. 2016 of the COMELEC and
● Primarily confidential – when the nature CSC reiterated art. IX, § 2(4) that no officer or
of the office requires close intimacy employee in the civil service shall engage, directly
between the appointee and appointing or indirectly, in any electioneering or partisan
authority which insures freedom of political campaign. However, the prohibition of
intercourse without embarrassment or engaging in partisan political activity does not apply
freedom from misgiving of betrayal of to department secretaries. (Santos v. Yatco, G.R.
personal trust on confidential matters of No. L013932, Dec. 24, 1959)
state.
● Highly technical – it means something Right to Self-Organization
beyond the ordinary requirements of the The right to self-organization shall not be denied to
profession. Hence, its determination is government employees. But employees in the civil
always a question of fact. (CSC v. Javier, service may not resort to strikes, walkouts, and
FOR ONE ATENEO

G.R. No. 173264, Feb. 22, 2008) other temporary work stoppages, like workers in the
private sector, to pressure the government to
When Position Primarily Confidential accede to their demands. Thus, their right to
A position is considered primarily confidential if the organize does not include the right to strike. (SSS v.
nature of the office requires close intimacy between CA, G.R. No. 85279, July 28, 1989)
the appointee and appointing authority which
ensures freedom of intercourse
embarrassment or freedom from misgiving or
without
betrayal of personal trust on confidential matters of

Prohibition against Additional and Double
Compensation
Rule: No elective or appointive public officer or
state. employee shall receive additional, double, or
indirect compensation, unless specifically
The Guarantee of Security of Tenure for authorized by law, nor accept without the consent of
Primarily Confidential Positions the Congress, any present, emolument, office or title
They are covered by the guarantee of security of of any kind from any foreign government.
tenure but the termination of their official relation can Note that pensions or gratuities shall not be
be justified on the ground of loss of confidence considered as additional, double or indirect
because in that case their cessation from office compensation. (PHIL. CONST. art. IX-B, § 8)
involves no removal but the expiration of the term of a. Additional Compensation: when for one
office. and the same office for which
compensation has been fixed there is
The CSC cannot take back-up files in the computer added to such fixed compensation an
of an employee to determine if he was acting as extra reward in the form of bonus and the
counsel for employees with cases before the like (BERNAS)
Commission when such employee has a reasonable b. Double Compensation: refers to two sets
expectation of privacy. In determining such, the of compensation for two different offices
following factors should be considered: (RAC) held concurrently by one officer
1. The Employee’s Relationship to the item
seized; Can ex officio members receive per diems?
2. Whether the employee took Action to No, ex officio members of a board are not entitled to
maintain his privacy in the item per diems. (PEZA v COA, G.R. No. 189767, July 3,
3. Whether the item was in the immediate 2012)
Control of the employee;
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Jurisdiction Election contests in the Sangguniang Kabataan

Scope: All branches, subdivisions, (SK) are not under COMELEC jurisdiction but under
instrumentalities, agencies of the government, the jurisdiction of the DILG.
including government owned and controlled
corporations with original charters. Exercise appellate jurisdiction over all contests
involving:
● “With Original Charter” means that the 1. Elective municipal officials decided by
GOCC was created by special law or by trial courts of general jurisdiction
Congress 2. Elective barangay officials decided by
● If incorporated under the Corporation trial courts of limited jurisdiction
Code, it does not fall within the Civil Service a. A petition for certiorari questioning
and is not subject to the CSC jurisdiction an interlocutory order of a trial
● If previously government-controlled, but is court in an electoral protest was
later privatized, it ceases to fall under CSC within the appellate jurisdiction of
● Jurisdiction is determined as of the time of the COMELEC. The Court
filing the complaint. recognizes the COMELEC’s
appellate jurisdiction over petitions
COMMISSION ON ELECTIONS for certiorari against all acts or
omissions of courts in election
Enforce and administer cases (Bulilis v. Nuez, G.R. No.
● All laws and regulations relative to the 195953, Aug. 9, 2011).
conduct of an election, plebiscite, initiative, b. Petition for certiorari questioning
referendum, and recall. e.g., COMELEC the decision of COMELEC division
can enjoin construction of public works is premature as there is a plain and
within 45 days of an election. speedy remedy before COMELEC
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● The COMELEC can take cognizance of any En Banc (Villarosa v. Festin, G.R.
question on the conduct of plebiscite such No. 212953, Aug. 5, 2014).
as to correct or check what the Board of 3. Decisions, final orders, or rulings of the
Canvassers erroneously or fraudulently did COMELEC contests involving elective
during the canvassing, verify or ascertain municipal and barangay offices shall be
the results of the plebiscite either through final, executory, and not appealable.
pre-proclamation case or through revision a. Exception: May be appealed to
of ballots. The power of the COMELEC to the SC EN BANC on questions of
ascertain the results of the plebiscite is law When the decision is brought
implicit in the power to enforce all laws on a special civil action for
relative to the conduct of plebiscite. certiorari, prohibition, or
● COMELEC can take jurisdiction over cases mandamus under Rule 64 for
involving party identity and leadership or grave abuse of discretion under
controversy as to leadership in the party. Article IX-A Section 7.
Such jurisdiction is sourced from the
general power of the Commission to Issue writs of certiorari, prohibition and
administer laws and rules involving the mandamus in the exercise of its appellate
conduct of election. jurisdiction.
● here is no need for a special legislation for
the authorization of the conduct of recall Contempt powers
elections because it is deemed included in COMELEC can exercise this power only in relation
the constitutional function of COMELEC, to its adjudicatory or quasi-judicial functions. It
hence, contemplated in its budget in the CANNOT exercise this in connection with its purely
GAA (Goh v. Bayron, G.R. No. 212584, executive or ministerial functions.
Nov. 25, 2014).
If it is a pre-proclamation controversy, the
Exercise exclusive original jurisdiction over all COMELEC exercises quasi-judicial or
contests relating to the elections, returns, and administrative powers.
qualifications of all elective regional, provincial
and city officials Its jurisdiction over ‘contests’ (after proclamation) is
in exercise of its judicial functions.
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Decide, except those involving the right to vote, all Recommend to the President the removal of any
questions affecting elections, including officer or employee it has deputized, or the
determination of the number and location of polling imposition of any other disciplinary action, for
places, appointment of election officials and violation or disregard of, or disobedience to its
inspectors, and registration of voters. These directive, order, or decision.
petitions are cognizable by the Regular Courts
(MTC). Submit to the President and the Congress a
comprehensive report on the conduct of each
Deputize, with the concurrence of the President, election, plebiscite, initiative, referendum, or recall
law enforcement agencies and instrumentalities of (PHIL. CONST. art. IX-C, § 2).
the Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring The vote requirement for a valid COMELEC en Banc
free, orderly, honest, peaceful, and credible resolution is a majority of the votes of all members,
elections. or 4 votes. If the six members are evenly divided,
● This power is NOT limited to the election the Commission on Elections should rehear the
period. case (Sevilla v. COMELEC, G.R. 203833, March 19,
● Applies to both criminal and administrative 2013).
cases.
Powers not given to COMELEC
Register political parties, organizations, or ● Decide questions involving the right to vote
coalitions, accredit citizens’ arms of the Commission (placed under jurisdiction of courts);
on Elections. ● Transfer municipalities from one
● Political parties, etc. must present their congressional district to another for the
platform or program of government. purpose of preserving proportionality.
● There should be sufficient publication.
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● Groups that cannot be registered: Cases decided by COMELEC subject to judicial
1. Religious denominations/ sects review:
2. Those that seek to achieve their goals Decisions or determinations by COMELEC in the
through violence or unlawful means exercise of its administrative (not quasi-judicial)
3. Those that refuse to uphold and power may be questioned in an ordinary civil action
adhere to the Constitution
4. Those supported by any foreign
government e.g. receipt of financial
contributions related to elections
before the trial court. (Filipinas Engineering &
Machine Shop v. Ferrer, G.R. No. L-31455, Feb. 28,
1985).
● The Court has no power to review on
certiorari an interlocutory order or even a
File, upon a verified complaint, or on its own final resolution issued by a DIVISION of the
initiative, petitions in court for inclusion or exclusion COMELEC. The Court can only review a
of voters; investigate and, where appropriate, final decision or resolution of the
prosecute cases of violations of election laws, COMELEC en banc (Cagas vs.
including acts or omissions constituting elections COMELEC, G.R. No. 194139, Jan. 24,
frauds, offenses and malpractices. 2012).
● COMELEC has jurisdiction to determine
COMELEC has exclusive jurisdiction to investigate the presence of “probable cause” in
and prosecute cases for violations of election laws. election cases. The finding of probable
cause and the prosecution of election
COMELEC can deputize prosecutors for this offenses rests in the COMELEC’s sound
purpose. The actions of the prosecutors are the discretion (Baytan v. COMELEC, G.R. No.
actions of the COMELEC. 153945, Feb. 4, 2003).
● The Chief State Prosecutor, who may have
COMELEC can conduct preliminary investigations been designated by the COMELEC to
on election cases falling within its jurisdiction. prosecute a criminal action, merely derives
his authority from the COMELEC. It is
Recommend to the Congress effective measures beyond his power to oppose the appeal
to minimize election spending, including limitation of made by COMELEC (Comelec v. Silva,
places where propaganda materials shall be posted, G.R. No. 129417, Feb. 10, 1998).
and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance The COMELEC cannot itself, in the same
candidacies. cancellation (of certificate of candidacy) case,
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decide the qualification or lack thereof of the The COMELEC’s power to motu proprio deny due
candidate if such issues are yet undecided or course to a certificate of candidacy is subject to the
undetermined by the proper authority. candidate’s opportunity to be heard. Under Article II,
Section 26 of the Constitution, “the state shall
● The provisions in Article IX-C, Section 2, guarantee equal access to opportunities for public
enumerating the powers and functions of service.” (PHIL. CONST. art. II, § 26). This, however,
COMELEC does not have the same does not guarantee a constitutional right to run for
exactitude of the provisions of Art. VI, Sec. or hold public office. To run for public office is a mere
17, which provides for the HRET and SET, privilege subject to limitations imposed by law, such
or that of Art. VII, Sec. 4, which provides as prohibition on nuisance candidates. To minimize
that the SC en banc shall be the sole judge logistical confusion caused by nuisance candidates,
of all contests regarding the Presidency their COC’s may be denied due course by the
and Vice-Presidency. These tribunals have COMELEC, through motu proprio or upon verified
jurisdiction over the question of petition of an interested party, subject to an
qualifications of the President, VP, opportunity to be heard. (Timbol v Commission on
Senators, and the HoR. Elections, G.R. No. 206004, Feb. 24, 2015)
o Not one of the enumerated powers
of the COMELEC as stated in Regulation of Public Utilities, Media and
Article IX-C, Sec. 2 of the Franchises
Constitution grants the The COMELEC may, during the election period,
commission the power to supervise or regulate the utilization of all franchises
determine the qualifications of a or permits for the operation of transportation and
candidate. other public utilities, media, all grants, privileges and
● A COMELEC rule or resolution cannot concessions, granted by the Government. (PHIL.
supplant or vary the legislative enactments CONST. art. IX-C, § 4)
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that distinguish the grounds for
disqualification from those of ineligibility, The aim is to ensure equal opportunity, time, and
and the appropriate proceedings to raise space, and the right to reply, including reasonable
the said grounds. (Fermin v. COMELEC, equal rates for public information campaigns and
G.R. No. 179695, Dec. 18, 2008) forums among candidates. (PHIL. CONST. art. IX-C,
● Insofar as the qualification of a candidate is § 4).
concerned, Rule 25 and Rule 23 of the
COMELEC rules do not allow authorization Can print media be compelled to allocate free
and do not constitute vestment of space?
jurisdiction for the COMELEC to determine No. Print media may not be compelled to allocate
the qualification of a candidate. free space to the Commission. Such would amount
● The facts of qualification must first be to a taking of property without just compensation.
established in a prior proceeding before an (Philippine Press Institute v. COMELEC, G.R. No
authority vested with jurisdiction. Prior 119694, May 22, 1995)
determination of qualification may be by
statute, by an executive order or by a Can the COMELEC regulate expressions made
judgment of a competent court or tribunal. by private citizens?
● Lacking this prior determination, the No. COMELEC had no legal basis to regulate
certificate of candidacy cannot be expressions made by private citizens. As such,
cancelled or denied due course on ground COMELEC’s order to remove the tarpaulin posted
of false representations regarding a by the Diocese of Bacolod bearing the heading
candidate’s qualifications except if there ‘Conscience Vote’ was unconstitutional. (Diocese of
exists self-evident facts of unquestioned or Bacolod v COMELEC, G.R. No 205728, Jan. 21,
unquestionable veracity and judicial 2015)
confessions.
● In this light the COMELEC cannot cancel Are the functions under R.A. No. 8436
Poe’s certificate of candidacy lacking prior mandatory?
determination of her qualifications by a Yes. The minimum functional capabilities
competent body. (Poe-Llamanzares v. enumerated under Section 6 of R.A. No. 8436, as
Comelec et al, G.R. Nos. 221697 & amended, are mandatory. These functions
221698-700, March 8, 2016) constitute the most basic safeguards to ensure the
transparency, credibility, fairness and accuracy of
the upcoming elections. The law is clear. A “voter-
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verified paper audit trail” requires the following: (a) COMMISSION ON AUDIT
individual voters can verify whether the machines Examine, audit, and settle all accounts
have been able to count their votes; and (b) that the pertaining to:
verification at minimum should be paper based. 1. Revenue and receipts of funds or property
There appears to be no room for further 2. Expenditures and uses of funds or
interpretation of a “voter-verified paper audit trail.” property owned or held in trust by, or
The paper audit trail cannot be considered the pertain to:
physical ballot, because there may be instances a. The Government
where the machine may translate the ballot b. Any of its subdivisions, agencies
differently, or the voter inadvertently spoils his or her or instrumentalities
ballot. (Bagumbayan-VNP Movement, Inc. vs c. GOCCs with original charters.
COMELEC, G.R. No. 222731, March 8, 2016)
COA is endowed with enough latitude to determine,
Jurisdiction prevent and disallow irregular, unnecessary,
EXCLUSIVE ORIGINAL jurisdiction over all excessive, extravagant or unconscionable
contests relating to the elections, returns, and expenditures of government funds. In resolving
qualifications of all elective REGIONAL, cases brought before it on appeal, respondent COA
PROVINCIAL and CITY officials is not required to limit its review only to the grounds
relied upon by a government agency’s auditor with
Election contests in the Sangguniang Kabataan respect to disallowing certain disbursements of
(SK) are not under COMELEC jurisdiction but under public funds. In consonance with its general audit
the jurisdiction of the DILG. power, respondent COA is not merely legally
● APPELLATE jurisdiction over all contests permitted, but is also duty-bound to make its own
involving: assessment of the merits of the disallowed
o ELECTIVE MUNICIPAL officials disbursement and not simply restrict itself to
FOR ONE ATENEO

decided by trial courts of general reviewing the validity of the ground relied upon by
jurisdiction the auditor of the government agency concerned. To
o ELECTIVE BARANGAY officials hold otherwise would render COA’s vital
decided by trial courts of limited constitutional power unduly limited and thereby
jurisdiction useless and ineffective (Yap v. Commission on
● A petition for certiorari questioning an
interlocutory order of a trial court in an
electoral protest was within the appellate
jurisdiction of the COMELEC. The Court
Audit, G.R. No.158562, April 23, 2010).
Funds cannot be released without auditing in pre-

audit while in post-audit, the auditing is done only
recognizes the COMELEC’s appellate after the funds are released. (Maritime Industry
jurisdiction over petitions for certiorari Authority v. Commission on Audit, G.R. No. 185812,
against all acts or omissions of courts in Jan. 13, 2015)
election cases (Bulilis v. Nuez, G.R. No.
195953, Aug. 9, 2011). COA is not required to limit its review only to the
● The COMELEC HAS jurisdiction over intra- grounds relied upon by the auditor with respect to
party disputes. The ascertainment of the disallowing certain disbursements of public funds. In
identity of a political party and its legitimate consonance with its general audit power, COA is not
officers is a matter that is well within its merely legally permitted but is also duty-bound to
authority. The COMELEC has the power to make its own assessment of the merits of the
enforce and administer all laws and disallowed disbursement and not simply restrict to
regulations relative to the conduct of an reviewing the validity of the ground relied upon by
election. the auditor of the government agency concerned.
● To resolve the issue, the COMELEC need
only refer to the Party Constitution. It need To settle government accounts
not go as far as to resolve the root of the This means the power to settle liquidated accounts
conflict between the parties. It need only i.e. accounts which may be adjusted simply by an
resolve issues as may be necessary in the arithmetical process. It does not include the power
exercise of its enforcement powers. to fix the amount of an unfixed or undetermined
debt.
To define the scope and techniques for its own

auditing procedures
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To promulgate accounting and auditing rules determining possible criminal liability. This is
including those for the prevention and disallowance because COA’s interest in such accounts is merely
of irregular, unnecessary, excessive, extravagant, administrative.
or unconscionable expenditures;
Exclusive Authority to Define Scope of Audit
Conduct post-audit with respect to the and Examination
following: Pursuant to its mandate as the guardians of public
1. Constitutional bodies, commissions, and funds, the COA has the exclusive authority to define
offices granted fiscal autonomy the scope of its audit and examination, establish the
2. Autonomous state colleges and universities techniques and methods for such review and
3. GOCCs and their subsidiaries incorporated promulgate accounting and auditing rules and
under the Corporation Code regulations (Veloso v. Commission on Audit, G.R.
4. Non-governmental entities receiving No. 193677, Sept. 6, 2011).
subsidy or equity, directly or indirectly, from
or through the government, which are What are Considered Private Corporations
required by law, through the granting Note that not all corporations, which are not
institution, to submit to such audit. government owned or controlled, are ipso facto to
5. To decide administrative cases involving be considered private corporations as there exists
expenditure of public funds another distinct class of corporations or chartered
(PHIL. CONST. art. IX-D, § 2) institutions which are otherwise known as “public
corporations.” These corporations are treated by law
If COA finds the internal control system of audited as agencies or instrumentalities of the government.
agencies inadequate, COA may adopt measures, As presently constituted, the BSP is a public
including temporary or special pre-audit, as corporation created by law for a public purpose, and
necessary to correct deficiencies. being such the funds of the BSP fall under the
FOR ONE ATENEO

jurisdiction of the Commission on Audit. (Boy Scouts
Keep the general accounts of the government of the Philippines v. COA, G.R. No. 177131, June 7,
2011)
Preserve vouchers and other supporting papers
pertaining thereto for such period as may be Complete Discretion afforded to COA
provided by law COA is generally accorded complete discretion in
the exercise of its constitutional duty and
The functions of COA can be classified as: responsibility to examine and audit expenditures of
1. Examining and auditing all forms of public funds. Only in instances when COA acts
government revenues and expenditures without or in excess of jurisdiction or with grave
2. Settling government accounts abuse of discretion amounting to lack or excess of
3. Promulgating accounting and auditing rules jurisdiction shall the Court interfere. Thus, COA can
4. Deciding administrative cases involving disallow TESDA from paying a healthcare allowance
expenditures of public funds. to their employees. (TESDA v. COA, G.R. No.
196418, Feb. 10, 2015)
COA’s non-exclusive power to audit
The COA does not have the exclusive power to Jurisdiction
examine and audit government entities. As such, COA is endowed with enough latitude to determine,
public corporations under COA jurisdiction may prevent, and disallow irregular, unnecessary,
employ private auditors. However, COA’s findings excessive, extravagant or unconscionable
and conclusions necessarily prevail over those of expenditures of government funds. In resolving
private auditors, at least insofar as government cases brought before it on appeal, respondent COA
agencies and officials are concerned (DBP v COA, is not required to limit its review only to the grounds
G.R. No. 88435, Jan. 16, 2002) relied upon by a government agency’s auditor with
respect to disallowing certain disbursements of
Thus, private auditors can be hired but if there is a public funds. In consonance with its general audit
conflict, COA audit prevails. power, respondent COA is not merely legally
permitted, but is also duty-bound to make its own
assessment of the merits of the disallowed
Prosecutors Power to Review Accounts Settled disbursement and not simply restrict itself to
by COA reviewing the validity of the ground relied upon by
Prosecutors may still review accounts already the auditor of the government agency concerned. To
settled and approved by COA for the purpose of hold otherwise would render COA’s vital
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constitutional power unduly limited and thereby original charters’. GOCCs with original
useless and ineffective (Yap v. Commission on charters are subject to COA pre-audit,
Audit, G.R. No.158562, April 23, 2010). while GOCCs without original charters are
subject to COA post-audit. The determining
COA has authority not just over accountable officers factor of COA’s audit jurisdiction is
but also over other officers who perform functions government ownership or control of the
related to accounting such as verification of corporation.
evaluations and computation of fees collectible, and 3. Over LGUs: LGUs, through granted local
the adoption of internal rules of control. COA has the fiscal autonomy are still within the audit
authority to define the scope of its audit and jurisdiction of the COA (Veloso v.
examination, establish the techniques and methods Commission on Audit, G.R. No. 193677,
for such review and promulgate accounting and Sept. 6, 2011).
auditing rules and regulations (Veloso v.
Commission on Audit, G.R. No. 193677, Sept. 6, COA authority in Public Bidding
2011). COA has the power to determine the meaning of
‘public bidding’ and what constitutes failure of the
The Boy Scout of the Philippines (“BSP”) is a same when regulations require public bidding for the
government-owned and controlled corporation sale of government property.
under the jurisdiction of COA. The BSP Charter
(Commonwealth Act 111), entitled “An Act to Create D. COMPOSITION AND
a Public Corporation to be Known as the Boy Scouts QUALIFICATION OF MEMBERS
of the Philippines, and to Define its Powers and
Purposes” created the BSP as a “public corporation”
CIVIL SERVICE COMMISSION
(Boy Scouts of the Philippines v. COA, G.R. No.
177131, June 7, 2011)
Composition
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A Chairman, and 2 Commissioners
The Manila Economic and Cultural Office (“MECO”)
is subject to audit by the COA. The MECO is sui
Qualifications (PHIL. CONST., art. IX-B, § 1(1))
generis. It was established when the Philippines
1. Natural-born citizens of the Philippines;
severed diplomatic relations with Taiwan upon
2. At the time of their appointment, at least 35
recognition of China. None of its members are
years of age
government officials. It is not a GOCC nor an
3. With proven capacity for public
instrumentality. Its functions are of a kind that would
administration; and
otherwise be performed by the diplomatic and
4. Must not have been candidates for any
consular offices of the Philippines. Nevertheless, the
elective position in the election immediately
consular fees collected by the MECO may be
preceding their appointment
audited by the COA. (Funa v. Manila Economic and
Cultural Office, G.R. 193462, Feb. 4, 2014)
Disqualifications
1. No candidate who has lost in any election
Water districts are within the coverage of the COA.
shall, within 1 year after such election, be
A water district is a GOCC with a special charter
appointed to any office in the Government
since it is created pursuant to a special law. Thus,
of any GOCC or in any of their subsidiaries.
COA has the authority to investigate whether
(PHIL. CONST. Art. IX-B, §6)
directors, officials or employees of GOCCs receiving
2. No elective official shall be eligible for
allowances and bonuses are entitled to such
appoint or designation in any capacity to
benefits under applicable laws. (Feliciano v.
any public office or position during his
Commission on Audit, G.R. 147402, Jan. 14, 2004)
tenure. (PHIL. CONST. Art. IX-B, § 7, ¶ 1)
Exceptions:
1. Of the Commission in General: No law shall a. the Vice President may be
be passed exempting any entity of the appointed as member of the
Government, or any investment of public Cabinet
funds, from the jurisdiction of the COA b. Member of the Congress is
(PHIL. CONST. art. IX-D, § 3) designated to sit in the JBC
2. Over GOCCs: The Constitution vests in the 3. Unless otherwise allowed by law or by the
COA audit jurisdiction over ‘government- primary functions of his position, no
owned and controlled corporations with appointive official shall hold any other office
original charters, as well as government or employment in the government or any
owned or controlled corporations without subdivision, agency or instrumentality
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thereof including GOCCs or their Qualifications

subsidiaries. (PHIL. CONST. art. IX-B, § 7, ¶ 1. Natural born citizen;
2) 2. At least 35 years old at the time of
4. No officer or employee in the civil service appointment
shall engage, directly or indirectly, in any 3. CPAs with at least 10 years auditing
electioneering or partisan political experience or members of the Bar with at
campaign, (PHIL. CONST. art.IX-B, § 2, ¶ 4) least 10 years of experience in the practice
of law; at no time shall all members belong
Appointment and Term to the same profession, and
Appointed by the President with the consent of the 4. Not a candidate in any election immediately
Commission on Appointments. The term is 7 years, preceding appointment
without reappointment. The prohibition of (PHIL. CONST. art. IX-D, § 1, ¶ 1)
reappointment applies even if the Commissioner
has served for less than 7 years. (BERNAS) Appointment and Term
Appointed by the President with the consent of the
Appointment to any vacancy shall be only for the Commission of Appointments for a term of 7 years,
unexpired term of the predecessor. In no case shall without reappointment.
any member be appointed or designated in a
temporary or acting capacity. (PHIL. CONST., art. IX- Appointment to any vacancy shall only be for the
B, § 1, ¶ 2) unexpired portion of the term of the predecessor.
COMMISSION ON ELECTIONS In no case shall any member be appointed or

designated in a temporary or acting capacity. (PHIL.
Composition CONST. art. IX-D, § 1, ¶ 2)
One Chairman and 6 Commissioners
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Qualifications (NTCIM)
1. Natural-born citizen;
2. At least 35 years old at the time of
appointment;
E. PROHIBITED OFFICES AND
INTERESTS
Prohibited Offices and Interests (BEEH)
3. College degree holder; No member of a Constitutional Commission shall,
4. Not a candidate in any election Immediately during his tenure:
preceding the appointment; and ● Be financially interested, directly or
5. Majority, including the chairman, must be indirectly, in any contract with, or in any
members of the Philippine Bar who have franchise or privilege granted by the
been engaged in the practice of law for at Government, any of its subdivisions,
least 10 years agencies or instrumentalities
(PHIL. CONST., art. IX-C, § 1, ¶ 1). ● Engage in the Practice of any profession;
● Engage in the Active management and
Appointment and Term control of any business which in any way
Appointed by the President with the consent of the may be affected by the functions of his
commission of Appointment, for a term of 7 years, office; and
without reappointment. (PHIL. CONST. art. IX-C, § 1, ● Hold any other Office or Employment.
¶ 2)
If the appointment was ad interim, a subsequent F. JUDICIAL REVIEW OF FINAL

renewal of the appointment does not violate the ORDERS, RESOLUTIONS, AND
prohibition on reappointment because no previous DECISIONS
appointment was confirmed by the Commission on
Appointment. Further, the total term of both How Commission decides Matters or Cases
appointments must not exceed the 7-year limit. Each commission shall decide matters or cases by
(Matibag v. Benipayo, G.R. No. 149036, April 2, a majority vote of all its members within 60 days
2002) from submission. The rule on majority vote shall
COMMISSION ON AUDIT apply both in a division or en banc.
Composition Who constitutes ‘majority’

1 Chairman, 2 Commissioners This provision is clear when it says that the voting
should be a majority vote of all its members and not
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only of those who participated in the deliberation amount exceeding 30 days’ salary, demotion,
and voted therein. transfer, removal, or dismissal from office shall be
appealable to the CSC.
Effect of Resignation of a Commissioner • Decision may be executed pending appeal
When a commissioner resigns, it does not • Decision of CSC may be brought on appeal
automatically invalidate the decision. So long as the to the CA under Rule 43
required majority of the commission is still achieved • Decision of CA may be brought on appeal
despite the withdrawal of the vote of the one who to the SC under Rule 45.
resigned, the decision shall stand. • Exoneration of officers or employees from
● Exception: COMELEC may sit en banc or administrative charges does not bar
in 2 divisions. appeal. The CSC is the proper party to
bring the appeal (PD 807, §37- 39); (CSC
How Election cases are decided on v. Dacoycoy, G.R. No. 135805, April 29,
Election cases, including pre-proclamation 1999).
controversies are decided in division, with motions
for reconsideration filed to the COMELEC en banc. Enforcement - It has been held that the CSC can
issue a writ of execution to enforce judgments,
Majority Decision of a Division which is deemed final.
A majority decision decided by a division of the
COMELEC is valid.
No One member can decide a case for the
Commission
As collegial bodies, each commission must act as
one, and no one member can decide a case for the
FOR ONE ATENEO

entire commission. (e.g. Chairman cannot ratify a
decision that would otherwise have been void.)
1. Rendered in the exercise of quasi-
judicial functions
● Decisions, orders or rulings of the

COMELEC or the COA may be brought on
certiorari to the SC under Rule 64.
● Decisions, orders or ruling of the CSC
should be appealed to the CA under Rule
43.
● Period for appeals is 30 days from receipt
of a copy of the decision, order, or ruling.
● It is however a requirement, that a motion
for reconsideration must first be filed before
the commission en banc, before resort to
court is taken.
● The certiorari jurisdiction of the court is
limited only to cases and matters rendered
by a commission in the exercise of its
adjudicatory power, or those relating to an
election dispute and not to cases and
matters purely administrative or executive
in nature.
2. Rendered in the Exercise of

Administrative Functions
Administrative disciplinary cases involving penalty

of suspension for more than 30 days, or fine in an
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I. CITIZENSHIP CITIZENSHIP
What is Citizenship
Citizenship is a legal device denoting political
TOPIC OUTLINE UNDER THE SYLLABUS
affiliation. (David v. Senate Electoral Tribunal, G.R.
No. 221538, September 20, 2016.)
A. WHO ARE FILIPINOS
B. MODES OF ACQUIRING CITIZENSHIP
C. LOSS AND RE-ACQUISITION OF It is one's "personal and … permanent membership
PHILIPPINE CITIZENSHIP in a political community. … The core of citizenship
D. DUAL CITIZENSHIP AND DUAL is the capacity to enjoy political rights, that is, the
ALLEGIANCE right to participate in government principally through
E. FOUNDLINGS the right to vote, the right to hold public office[,] and
1. Foundling Recognition and the right to petition the government for redress of
grievance.” (Go v. Republic of the Philippines, G.R.
Protection Act (RA 11767)
202809, July 2, 2014, citing Bernas, The 1987
Commentary, 2009)
NOTE: This portion may still be subject to updates.
A supplementary reviewer shall be issued, if
necessary.
A. WHO ARE FILIPINOS
The following are citizens of the Philippines:

(a) Those who are citizens of the Philippines at
the time of the adoption of the 1987
Constitution.
(b) Those whose fathers or mothers are
FOR ONE ATENEO

citizens of the Philippines.
(c) Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority.
(d) Those who are naturalized in accordance
with law. (PHIL CONST., art. IV, § 1)
Citizens at the time of adoption of the 1987

Constitution
Philippine citizens at the time of the adoption of the
1987 Constitution were those who were citizens
under the 1973 Constitution. In turn, citizens of the
Philippines at the time of adopting the 1973
Constitution were citizens under the 1935
Constitution. Thus, what determines citizenship is
the Constitution in effect at the time of a person’s
birth.
Children of Filipino fathers or mothers (Jus

Sanguinis)
If a child is born under the 1973 or 1987 Constitution
and either his father or mother is a Filipino citizen at
the time the child is born, the child is a Filipino citizen
no matter where he may be born. This is how the
principle of jus sanguinis is applied in the 1987
Constitution. (Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011)
Illegitimate Child of a Filipina Mother

The citizenship of an illegitimate child of a Filipina
mother is Filipino. This is true whether the child is
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born under the 1935 or the 1973 or 1987 Cabiling v. Commissioner Fernandez Jr., G.R. No.
Constitution. (Bernas, The 1987 Philippine 183133, July 26, 2010, Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer, 2011) Constitution: A Comprehensive Reviewer, 2011)
Illegitimate Child of a Foreign Mother Kinds of citizenship

• If the father is unknown → Follow the (a) Natural born citizens
mother's citizenship. (b) Naturalized citizens
• If the father is known and is Filipino → The
illegitimate child is considered Filipino after Who are Natural Born Citizens
proving the paternity. (Tecson v. (a) Those who are citizens of the Philippines
COMELEC, G.R. No. 161434, March 3, from birth without having to perform any act
2004) to acquire or perfect their Philippine
citizenship (Phil Const., art. IV, § 2)
Election of Philippine Citizenship
Those born under the 1935 Constitution whose
mothers were Philippine citizens (at the time at least “Having to perform an act” means that the act must
of their marriage to an alien father) may elect be personally done by the citizen.
Philippine citizenship.
The process is certainly not analogous to
The Court interprets Section 1, Par. 3 of Article IV of naturalization proceedings to acquire Philippine
the Philippine Constitution as applying not only to citizenship, or the election of such citizenship by one
those who elect Philippine citizenship after February born of an alien father and a Filipino mother under
2, 1987 but also to those who, having been born of the 1935 Constitution, which is an act to perfect it.
Filipino mothers, elected citizenship before that (Poe-Llamanzares v. COMELEC, G.R. No. 221697,
date. March 8, 2016)
FOR ONE ATENEO

The provision in Paragraph 3 was intended to
correct an unfair position which discriminates
against Filipino women. (Co v. House of
Representatives Electoral Tribunal, G.R. Nos.
(a) Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority (Phil Const., art. IV, § 2)
92191-92 & 92202-03, July 30, 1991.)
(a) Prior to the 1973 Constitution - If a Filipina

married an alien, she loses her Filipino
(b) Those who were repatriated and were
originally natural born citizens (Bengzon v.
HRET, G.R. No. 142840, May 7, 2001)
citizenship. Hence, her child would have to
elect Filipino citizenship upon reaching the Who are Naturalized Citizens
age of majority. Foreigners adopted into the political body of a nation
(b) Under the 1973 Constitution - Children born and clothed with the privileges of a citizen. (So v.
of Filipino mothers were already considered Republic, G.R. No. 170603, Jan. 29, 2007)
Filipinos.
(c) Therefore, the provision on election of Natural Born Citizens v. Naturalized Citizens
citizenship under the 1987 Constitution only In general, the law cannot treat Natural Born
applies to those persons who were born Citizens and those who were naturalized differently
under the 1935 Constitution. except in the instances where the Constitution itself
makes a distinction. Otherwise there would be a
violation of the equal protection clause. (Bernas,
In order for the children to elect Filipino citizenship, The 1987 Constitution of the Republic of the
the mother must have been Filipinos at the time of Philippines: A Commentary, 2009)
their marriage (Cu v. Republic, G.R. No. L-3018,
July 18, 1951; Villahermosa v. Commissioner of Natural Born Citizens & Public Office
Immigration, G.R. No. L-1663, Mar. 31, 1948) Under the Constitution, the following must be
natural-born citizens:
The election must be made within a reasonable 1. President (PHIL CONST., art. VII, § 2)
period after reaching the age of majority. The phrase
2. Vice-President (PHIL CONST., art. VII, § 3)
"reasonable time" has been interpreted to mean that
the elections should be made within three (3) years 3. Members of Congress (PHIL CONST., art. VI §
from reaching the age of majority. (Cuenco v. Sec. 3 & 6)
of Justice, G.R. No. L-18069, May 26, 1962;
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4. Justices of SC and lower collegiate courts Naturalization is a mode for both acquisition
(PHIL CONST., art. VIII, § 7(1)) (governed by CA 473) and reacquisition (governed
5. Ombudsman and his deputies (PHIL CONST., by CA 63) of Philippine citizenship.
art. XI, § 8)
6. Members of Constitutional Commissions: NATURALIZATION
● CSC (PHIL CONST., art. IX-B, §1(1)) What is naturalization
● COMELEC (PHIL CONST., art. IX-C, §1) Naturalization signifies the act of formally adopting
● COA (PHIL CONST., art. IX-D, § 1(1)) a foreigner into the political body of a nation by
● Members of the central monetary authority clothing him or her with the privileges of a citizen.
(PHIL CONST., art. XII, § 20) (So v. Republic, G.R. No. 170603, Jan. 29, 2007)
● Members of the Commission on Human
Rights (PHIL CONST., art. XIII, § 17(2)) Three Modes of Naturalization
(a) Administrative Naturalization (R.A. No.
Former Filipino Citizens Running for Public 9139)
Office
(b) Judicial Naturalization (C.A. No. 473)
Natural-born Filipinos who have been naturalized
elsewhere and wish to run for elective public office (c) Legislative Naturalization in the form of a
must comply with all of the following requirements: law enacted by Congress granting
1. Taking the oath of allegiance to the Republic. Philippine citizenship to an alien
This effects the retention or reacquisition of
one's status as a natural-born Filipino. This also C.A. No. 473 v. R.A. No. 9139
enables the enjoyment of full civil and political C.A. No. 473 and R.A. No. 9139 are separate and
rights, subject to all attendant liabilities and distinct laws—the former covers all aliens
regardless of class while the latter covers native-
responsibilities under existing laws, provided the
FOR ONE ATENEO

born aliens who lived here in the Philippines all their
solemnities recited in Section 5 of Republic Act
lives, who never saw any other country and all along
No. 9225 are satisfied. thought that they were Filipinos; who have
2. Making a personal and sworn renunciation of demonstrated love and loyalty to the Philippines and
any and all foreign citizenship before any public affinity to the customs and traditions. (So v.
officer authorized to administer an oath. This, Republic, G.R. No. 170603, Jan. 29, 2007)
along with satisfying the other qualification
requirements under relevant laws, makes one a. C.A. No. 473
eligible for elective public office.
Qualifications
B. MODES OF ACQUIRING 1. Not less than twenty-one years of age on the day
CITIZENSHIP of the hearing of the petition;
2. Resided in the Philippines for a continuous
(a) Jus sanguinis - acquisition of citizenship period of 10 years or more;
on the basis of blood relationship 3. Of good moral character; believes in the
(b) Jus soli - acquisition of citizenship on the principles underlying the Philippine Constitution;
basis of place of birth conducted himself in a proper and
(c) Naturalization - the legal act of adopting an irreproachable manner during the entire period
alien and clothing him with the privilege of a of his residence towards the government and
native born-citizen community
(Bernas, The 1987 Constitution of the Republic 4. Must own real estate in the Philippines worth
of the Philippines: A Commentary, 2009) P5,000 or more OR must have lucrative trade,
profession, or lawful occupation;
Two ways of acquiring citizenship in the 5. Able to speak or write English or Spanish or
Philippines anyone of the principal languages; and
Basic Philippine law follows the rule of jus sanguinis 6. Enrolled his minor children of school age in any
and provides for naturalization. (Bernas, The 1987
of the recognized schools where Philippine
Reviewer, 2011) history, government and civics are taught or
prescribed as part of the school curriculum,
during the entire period of the residence in the
Philippines required of him. (C.A. 473, § 2)
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Special Qualifications the exercise, use or enjoyment of a right,

(ANY will result to reduction of the 10-year period of franchise or privilege (C.A. No. 473, § 18)
continuous residency requirement to 5 years under b. R.A. No. 9139
no. 2 above)
1. Having honorably held office under the Qualifications
Government of the Philippines or under that of 1. The applicant must be born in the Philippines
any of the provinces, cities, municipalities, or and residing therein since birth;
political subdivisions thereof; 2. The applicant must not be less than eighteen
2. Established a new industry or introduced a (18) years of age, at the time of filing of his/her
useful invention in the Philippines; petition;
3. Married to a Filipino woman; 3. The applicant must be of good moral character
4. Engaged as a teacher in the Philippines in a and believes in the underlying principles of the
public or recognized private school not Constitution, and must have conducted
established for the exclusive instruction of himself/herself in a proper and irreproachable
children of persons of a particular nationality or manner during his/her entire period of residence
race, in any of the branches of education or in the Philippines in his relation with the duly
industry for a period of 2 years or more; or constituted government as well as with the
5. Born in the Philippines (C.A. 473, § 3) community in which he/she is living;
4. The applicant must have received his/her
Denaturalization: Cancellation of Certificate of primary and secondary education in any public
Naturalization school or private educational institution dully
a. If it is shown that said naturalization certificate recognized by the Department of Education,
was obtained fraudulently or illegally. Culture and Sports, where Philippine history,
FOR ONE ATENEO

b. If the person naturalized shall, within the five government and civics are taught and
years next following the issuance of said prescribed as part of the school curriculum and
naturalization certificate, return to his native where enrollment is not limited to any race or
country or to some foreign country and establish nationality: Provided, That should he/she have
his permanent residence there: Provided, That minor children of school age, he/she must have
the fact of the person naturalized remaining for enrolled them in similar schools;
more than one year in his native country or the 5. The applicant must have a known trade,
country of his former nationality, or two years in business, profession or lawful occupation, from
any other foreign country, shall be considered which he/she derives income sufficient for
as prima facie evidence of his intention of taking his/her support and if he/she is married and/or
up his permanent residence in the same. has dependents, also that of his/her family:
c. If the petition was made on an invalid Provided, however, That this shall not apply to
declaration of intention. applicants who are college degree holders but
d. If it is shown that the minor children of the are unable to practice their profession because
person naturalized failed to graduate from a they are disqualified to do so by reason of their
public or private high schools recognized by the citizenship;
Office of Private Education of the Philippines, 6. The applicant must be able to read, write and
where Philippine history, government and civics speak Filipino or any of the dialects of the
are taught as part of the school curriculum, Philippines; and
through the fault of their parents either by 7. The applicant must have mingled with the
neglecting to support them or by transferring Filipinos and evinced a sincere desire to learn
them to another school or schools. A certified and embrace the customs, traditions and ideals
copy of the decree cancelling the naturalization of the Filipino people (R.A No. 9139, § 3)
certificate shall be forwarded by the clerk of the
Court to the Department of the Interior and the Disqualifications
Bureau of Justice. a. Those opposed to organized government
e. If it is shown that the naturalized citizen has or affiliated with any association of group of
allowed himself to be used as a dummy persons who uphold and teach doctrines
requiring Philippine citizenship as a requisite for opposing all organized governments;
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b. Those defending or teaching the necessity naturalized and his wife. The minor children, in the
of or propriety of violence, personal assault words of Letter of Presidential Decree No. 836,
or assassination for the success or follow the acquired Filipino citizenship of their
predominance of their ideas; mother. (Republic v. Lao, G.R. Nos. 205218 &
c. Polygamists or believers in the practice of 207075, Feb. 10, 2020)
When Res Judicata Applies
polygamy;
Res judicata may only be applied in cases of
d. Those convicted of crimes involving moral citizenship when the following concur:
turpitude; 1. A person's citizenship must be raised as a
e. Those suffering from mental alienation or material issue in a controversy where said
incurable contagious diseases; person is a party;
f. Those who, during the period of their 2. The Solicitor General or his authorized
residence in the Philippines, have not representative took active part in the resolution
mingled socially with Filipinos, or who have thereof;
not evinced a sincere desire to learn and
embrace the customs, traditions and ideals The finding on citizenship is affirmed by the
of the Filipinos; Supreme Court. (Go v. Bureau of Immigration and
g. Citizens or subjects with whom the Deportation, G.R. no. 191810, Jun. 22, 2015)
Philippines is at war, during the period of
such war; and
h. Citizens or subjects of a foreign country C. LOSS AND REACQUISITION OF
whose laws do not grant Filipinos the right CITIZENSHIP
to be naturalized citizens or subjects
thereof. (R.A. No. 9139, § 4) Philippine citizenship may be lost or reacquired in
FOR ONE ATENEO

the manner provided by law (PHIL CONST., art. IV, §
c. Effects of Judicial Naturalization 3)
Effects Citizens of the Philippines who marry aliens shall

retain their citizenship, unless by their act or
a. The legitimate minor children of the
naturalized father become Filipinos as well. omission they are deemed, under the law, to have
renounced it. (PHIL CONST., art. IV, § 4)
b. The wife also becomes a Filipino citizen,
provided that she does not have any
a. Losing Citizenship
disqualification which would bar her from
being naturalized. (C.A. No. 473, § 15,
a. Naturalization in a foreign country (C.A. 63,
Tuang v. Galang, G.R. No. L-18775, Nov.
§ 1(1))
30, 1963)
b. Express renunciation or expatriation (CA
63, §1(2)
Naturalization & Res Judicata
A naturalization proceeding not being a judicial c. Taking an oath of allegiance to another
adversary proceeding, the decision rendered country upon reaching the age of majority;
therein is not res judicata as to any of the reasons d. Marriage by a Filipino woman to an alien, if
or matters which would support a judgment by the laws of her husband’s country, she
cancelling the certificate of naturalization for illegal becomes a citizen thereof.
or fraudulent procurement (Republic v. Go Bon Lee, e. Accepting a commission and serving in the
G.R. No. L-11499, Apr. 29, 1966) armed forces of another country, unless
there is an offensive/defensive pact with
Pursuant to P.D. No. 836 and 923, naturalization the country, or it maintains armed forces in
extends to the alien wife and minor children of the
RP with RP’s consent;
person naturalized upon the wife's showing that she
does not suffer from any of the disqualifications f. Denaturalization;
under Letter of Instructions No. 270, and that she g. Being found by final judgment to be a
and her minor children reside permanently in the deserter of the AFP
Philippines at the time of her husband's
naturalization. In other words, the only persons to
undergo the proceeding before the Special
Committee on Naturalization will only be the person
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b. Reacquiring Citizenship 2. Registration in the proper civil registry and

in the Bureau of Immigration.
Citizenship may be Reacquired by:
a. Repatriation The Bureau of Immigration shall thereupon cancel
b. Naturalization the pertinent alien certificate of registration and
c. Legislative Act issue the certificate of identification as Filipino
citizen to the repatriated citizen (R.A. No. 8171, § 2)
REPATRIATION
Who Cannot be Repatriated (OVM2)
Repatriation results in the recovery of the original a. Person Opposed to organized government
nationality. This means that a naturalized Filipino or affiliated with any association or group of
who lost his citizenship will be restored to his prior persons who uphold and teach doctrines
status as a naturalized Filipino citizen. On the other opposing organized government;
hand, if he was originally a natural-born citizen b. Person defending or teaching the necessity
before he lost his Philippine citizenship, he will be or propriety of Violence, personal assault,
restored to his former status as a natural-born or association for the predominance of their
Filipino. (Bengzon v. HRET, G.R. No. 142840, May ideas;
7, 2001)
c. Person convicted of crimes involving Moral
turpitude; or
Natural-born Filipinos who are deemed to have lost
their citizenship may re-acquire the same via d. Person suffering from Mental alienation or
repatriation proceedings. This involves taking an incurable contagious diseases. (R.A. No.
oath of allegiance and filing the same with the civil 8171, § 1)
registry. (C.A. No. 63, sec. 4)
Effective Date of Repatriation
FOR ONE ATENEO

Repatriation Not a Matter of Right The effective date is the date of application for
Repatriation is not a matter of right, but it is a repatriation not the date when repatriation was
privilege granted by the State. The State has the approved (Lee v. Commission on Elections &
power to prescribe by law the qualifications, Frivaldo, G.R. No. 120295, June 28, 1996)
procedure, and requirements for repatriation. It has
the power to determine if an applicant for Repatriation under R.A. No. 9225
repatriation meets the requirements of the law for it Citizens who lost their citizenship by reason of their
is an inherent power of the State to choose who will naturalization as citizens of a foreign country are
be its citizens, and who can reacquire citizenship deemed to have reacquired their Philippine
once it is lost. (Tabasa v. CA, G.R. No. 125793, Aug. citizenship upon taking the oath of allegiance.
29, 2006)
This reacquisition works to restore natural-born
As distinguished from the lengthy process of status as though it was never lost at all.
naturalization, repatriation simply consists of the
taking of an oath of allegiance to the Republic of the Reacquisition v. Retention
Philippines and registering said oath in the Local Natural-born Filipinos who have lost their citizenship
Civil Registry of the place where the person by naturalization in a foreign country shall re-acquire
concerned resides or last resided. He would not their Philippine citizenship upon taking the oath of
even need to file a petition in court. (Bengson III v. allegiance to the Republic of the Philippines.
HRET, G.R. No.142840, May 7, 2001)
Natural-born Filipinos who became foreign citizens
Who May be Repatriated: after R.A. 9225 took effect, shall retain their
a. Filipino women who have lost their Philippine citizenship upon taking the same oath.
Philippine citizenship by marriage to aliens The taking of oath of allegiance is required for both
b. Natural-born Filipinos who have lost their categories of natural-born Filipino citizens who
became citizens of a foreign country. (David v.
Philippine citizenship, including their minor
Agbay, G.R. No, 199113, March 18, 2015)
children, on account of political or
economic necessity (R.A. No. 8171, § 1) Repatriation and Domicile
To reacquire domicile he must provide proof of
How is Repatriation Effected intent to stay in the Philippines. After he does that,
1. By taking the necessary oath of allegiance his occasional absence from the recovered domicile
to the Republic of the Philippines. does not have the effect of removing him from the
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domicile for as long as he manifests animus To the extent, however, that dual citizenship also
manendi et revertendi. imports dual allegiance, then it must also be "dealt
with by law." In other words, the Constitution leaves
The domicile is not established strictly from the time the disposition of the problem of dual citizenship and
that a person was repatriated under R.A. No. 9225. dual allegiance to ordinary legislation.
The Court said that other evidence may be admitted
to determine the time that domicile is established. Unlike those with dual allegiance, who must,
Also, issue of residence could be decided therefore, be subject to strict process with respect to
particularly on the facts-of-the-case basis, as what the termination of their status, for candidates with
would a series of jurisprudence would also dictate. dual citizenship, it should suffice if, upon the filing of
Hence, domicile cannot strictly be established only their certificates of candidacy, they elect Philippine
from a person’s repatriation. (Poe-Llamanzares v. citizenship to terminate their status as persons with
Comelec et al., G.R. Nos. 221697 & 221698-700, dual citizenship considering that their condition is
March 8, 2016) the unavoidable consequence of conflicting laws of
different states. (Mercado v. Manzano, G.R. No.
D. DUAL CITIZENSHIP AND DUAL 135083, May 26, 1999)
ALLEGIANCE
R.A. 9225
Dual allegiance of citizens is inimical to the national R.A. 9225 provides that a Filipino who has
interest and shall be dealt with by law. (PHIL CONST., previously renounced his Filipino citizenship can
art. 4, § 5) reacquire it without renouncing his foreign
citizenship. Likewise, a Filipino who acquires foreign
Dual Citizenship citizenship after the effectivity of R.A. 9225 retains
Allows a person who acquires foreign citizenship to his Filipino citizenship. R.A. 9225 is a law about dual
simultaneously enjoy the rights he previously held citizenship not dual allegiance. (AASJS v.
FOR ONE ATENEO

as a Filipino citizen. This is completely voluntary, Datumanong, G.R. No. 160869, May 11, 2007)
and results in the application of different laws of two
or more states to a dual citizen. R.A. 9225, however, requires that those who
acquired dual citizenship must specifically renounce
foreign citizenship upon filing of candidacy. (R.A.
Dual Allegiance
a. Aliens who are naturalized as Filipinos but 9225 § 5[2])
remain loyal to their country of origin;
The continued use of foreign passport render the
b. Public officers who, while serving the renunciation of foreign citizenship nugatory. The
government, seek citizenship in another renunciation of foreign citizenship must be complete
country. and unequivocal. The requirement that the
renunciation must be made through an oath
Dual Citizenship vs. Dual Allegiance emphasizes the solemn duty of the one making the
Dual citizenship arises when, as a result of the oath of renunciation to remain true to what he has
concurrent application of the different laws of two or sworn to. Allowing the subsequent use of a foreign
more states, a person is simultaneously considered passport because it is convenient for the person to
a national by the said states, as is the case of do so is rendering the oath a hollow act. It devalues
respondent. the act of taking of an oath, reducing it to a mere
ceremonial formality. (Maquiling v. COMELEC, G.R.
Dual allegiance, on the other hand, refers to the No. 195649, April 16, 2013)
situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. Derivative Citizenship
The unmarried child, whether legitimate, illegitimate
While dual citizenship is involuntary, dual allegiance or adopted, below eighteen (18) years of age, of
is the result of an individual's volition. (Mercado v. those who re-acquire Philippine citizenship upon
Manzano, G.R. No. 135083, May 26, 1999) effectivity of this Act shall be deemed citizenship of
the Philippines. (R.A. 9225 § 4)
Prohibition against Dual Allegiance
The constitution prohibits dual allegiance not dual E. FOUNDLINGS
citizenship. Dual allegiance arising from e.g., mixed
marriages or birth in foreign soil was seen as more Natural Born Citizens
insidious than dual citizenship. As a matter of law, foundlings are as a class,
natural-born citizens. While the 1935 Constitution’s
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enumeration is silent as to foundlings, there is no circumstances and conditions which are most
restrictive language which would definitely exclude congenial to the survival, protection and feelings of
foundlings either. security of the child and most encouraging to the
child's physical, psychological and emotional
No such intent or language in the Constitution development."
permits discrimination against foundlings. On the
contrary, all three Constitutions (1935, 1973, 1987) Consistent with this statute is our ratification of the
guarantee the basic right to equal protection of the United Nations Convention on the Rights of the
laws. All exhort the State to render social justice. Child. This specifically requires the states-parties'
protection of: first, children's rights to immediate
Domestic laws on adoption also support the registration and nationality after birth; second,
principle that foundlings are Filipinos. against statelessness; and third, against
discrimination on account of their birth status. The
Foundlings are likewise citizens under international Philippines likewise ratified the 1966 International
law: Covenant on Civil and Political Rights. As with the
● A foundling is presumed to have the Convention on the Rights of the Child, this treaty
"nationality of the country of birth”. (Article requires that children be allowed immediate
14, 1930 Hague Convention on Certain registration after birth and to acquire a nationality.
Questions Relating to the Conflict of (David v. SET, G.R. No. 221538, Sept. 20, 2016)
Nationality Laws)
● A foundling is presumed born of citizens of
the country where he is found. (Article 2, ————- end of topic ————-
1961 UN Convention on the Reduction of
Statelessness.) (Poe-Llamanzares v.
COMELEC, G.R. Nos. 221697 & 221698-
FOR ONE ATENEO

700, March 8, 2016)
The conclusion that Petitioner is a natural-born

Filipina is based on fair and reasonable reading of
constitutional provisions, statutes, and international
norms having the effect of law, and on the evidence
presented before the COMELEC.
Llamanzares v. COMELEC, G.R. No. 221697,
221698-70, March 6, 2018; Leonen, J., Concurring
(Poe-
Opinion)
The words of our most fundamental law cannot be

read so as to callously exclude all foundlings from
public service. When the names of the parents of a
foundling cannot be discovered despite a diligent
search, but sufficient evidence is presented to
sustain a reasonable inference that satisfies the
quantum of proof required to conclude that at least
one or both of his or her parents is filipino, then this
should be sufficient to establish that he or she is a
natural-born citizen. (David v. SET, G.R. No.
221538, Sept. 20, 2016)
Treaties & Status of Foundlings

Congress has enacted statutes founded on the
premise that foundlings are Filipino citizens at birth.
It has adopted mechanisms to effect the
constitutional mandate to protect children. Likewise,
the Senate has ratified treaties that put this mandate
into effect.
Section 4(b) of the Republic Act No. 9344 defines

the "best interest of the child" as the "totality of the
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FOR ONE ATENEO

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I. RIGHT TO INFORMATION
II. BILL OF RIGHTS
1. Scope and limitations
J. EMINENT DOMAIN
TOPIC OUTLINE UNDER THE SYLLABUS 1. Concept
2. Public Use
A. PRIVATE ACTS AND THE BILL OF 3. Just compensation
RIGHTS 4. Expropriation by local government
B. DUE PROCESS units
1. Procedural and substantive K. RIGHT TO ASSOCIATION
2. Void-for-vagueness 1. Scope and limitations
3. Judicial and administrative due L. NON-IMPAIRMENT OF CONTRACTS
process 1. Concept and limitations
C. EQUAL PROTECTION M. FREE ACCESS TO COURTS AND
1. Requisites for valid classification ADEQUATE LEGAL ASSISTANCE
2. Standards of Judicial Review N. CUSTODIAL INVESTIGATION
a. Rational Basis Test 1. Meaning of custodial investigation
b. Strict Scrutiny Test 2. Rights of a person under custodial
c. Intermediate Scrutiny Test investigation
D. ARRESTS, SEARCHES AND SEIZURES 3. Requisites of a valid waiver
1. Requisites of a valid warrant 4. Exclusionary doctrine
a. Arrest Warrant O. RIGHTS OF THE ACCUSED
b. Search Warrant 1. Criminal due process
2. Warrantless arrests and detention 2. Bail
3. Warrantless searches 3. Presumption of innocence
4. Administrative Arrests 4. Right to be heard
5. Exclusionary rule
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5. Right to counsel
E. PRIVACY OF COMMUNICATIONS AND 6. Right to be informed of the nature and
CORRESPONDENCE cause of accusation
1. Private and public communications 7. Right to speedy, impartial and public
2. When Intrusion is Allowed trial
3. Exclusionary rule 8. Right of confrontation
F. FREEDOM OF SPEECH AND 9. Right to compulsory processes
EXPRESSION 10. Trial in absentia
1. Prior restraint and subsequent P. RIGHT TO SPEEDY TRIAL AND SPEEDY
punishment DISPOSITION OF CASES
2. Content-based and content-neutral Q. RIGHT AGAINST SELF-INCRIMINATION
regulations 1. Scope and Limitations
3. Facial challenges and overbreadth 2. Immunity statutes
doctrine R. RIGHT AGAINST DOUBLE JEOPARDY
4. Tests to determine the validity of 1. Requisites and limitations
governmental regulation S. RIGHT AGAINST INVOLUNTARY
5. State regulation of different types of SERVITUDE
mass media T. RIGHT AGAINST EXCESSIVE FINES,
6. Commercial Speech AND CRUEL AND INHUMAN
7. Unprotected speech PUNISHMENTS
G. FREEDOM OF RELIGION U. NON-IMPRISONMENT FOR DEBTS
1. Non-establishment and free exercise V. EX POST FACTO LAWS AND BILLS OF
clauses ATTAINDER
2. Benevolent neutrality and W. WRITS OF HABEAS CORPUS,
conscientious objectors KALIKASAN, HABEAS DATA, AND
3. Tests to determine the validity of AMPARO
governmental regulation
a. Clear and Present Danger
b. Compelling State Interest
NOTE: This portion may still be subject to updates.
H. LIBERTY OF ABODE AND RIGHT TO
A supplementary reviewer shall be issued, if
TRAVEL
necessary.
1. Scope and limitations
2. Watch-list and hold departure orders
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A. PRIVATE ACTS AND THE BILL OF 1. Procedural And Substantive

RIGHTS
PROCEDURAL
The Bill of Rights does not govern relationships
Procedural due process refers to the procedures
between individuals. It cannot be invoked against
that the government must follow before it deprives a
the acts of private individuals. (Remegio v. People
person of life, liberty, or property. Procedural due
of the Philippines, G.R. No. 227038, July 31, 2017)
process concerns itself with government action
adhering to the established process when it makes
B. DUE PROCESS OF LAW an intrusion into the private sphere. (White Light
Corporation v. City of Manila, G.R. No. 122846, Jan.
No person shall be deprived of life, liberty, or 20, 2009)
property without due process of law, nor shall any
person be denied the equal protection of the laws. Essence
(PHIL. CONST., art. III, § 1) The essence of procedural due process is embodied
in the basic requirement of [1] notice and [2] a real
Concept and Purpose opportunity to be heard. (Vivo v. PAGCOR, G.R. No.
Due process of law means simply, first, that there 187854, Nov. 12, 2013)
shall be a law prescribed in harmony with the
general powers of the legislative department of the While it is true that the right to due process
Government; second, that this law shall be safeguards the opportunity to be heard and to
reasonable in its operation; third, that it shall be submit any evidence one may have in support of his
enforced according to the regular methods of claim or defense, where the opportunity to be heard
procedure prescribed; and fourth, that it shall be is accorded, and the party can “present its side” or
applicable alike to all the citizens of the state or to “defend its interest in due course”, there is no denial
all of a class. (Rubi v. Provincial Board of Mindoro, of due process because what the law proscribes is
FOR ONE ATENEO

G.R. No. L-14078, March 7, 1919)
Due process evades a precise definition. The

purpose of the guaranty is to prevent arbitrary
the lack of opportunity to be heard. (Oca v Custodio,
GR 199825, July 26, 2017)
Publication
governmental encroachment against the life, liberty Every agency shall file with the Office of the National
and property of individuals. The due process Administrative Register ONAR in the University of
guaranty serves as a protection against arbitrary the Philippines Law Center three (3) certified copies
regulation or seizure. Even corporations and of every rule adopted by it. Rules in force on the date
partnerships are protected by the guaranty insofar of effectivity of this Code which are not filed within
as their property is concerned. (White Light three (3) months from the date shall not thereafter
Corporation v. City of Manila, G.R. No. 122846, Jan. be the basis of any sanction against any party or
20, 2009) persons. (Section 3 of Chapter 2, Book VII of the
Administrative Code of 1987)
Scope
The guarantees of the Bill of Rights are universal in These requirements of publication and filing were
their application to all persons within the territorial put in place as safeguards against abuses on the
jurisdiction, without regard to any differences of part of lawmakers and as guarantees to the
race, color, or nationality. All natural persons, and constitutional right to due process and to information
artificial persons, only in so far as their property is on matters of public concern and, therefore, require
concerned, are protected by the Due Process strict compliance. (Republic v. Pilipinas Shell, G.R.
clause. (Smith, Bell & Co. v. Natividad, G.R. No. No. 173918, April 8, 2008)
15574, Sept. 17, 1919)
However, not all rules and regulations adopted by
Relativity every government agency are to be filed with the UP
The concept of due process is not a static one. What Law Center. Only those of general or of permanent
is due process of law depends on circumstances. It character are to be filed. According to the UP Law
varies with the subject-matter and necessities of the Center’s guidelines for receiving and publication of
situation. (Rubi v. Provincial Board, citing Moyer vs. rules and regulations, interpretative regulations and
Peabody [1909], 212 U. S., 82) those merely internal in nature, that is, regulating
only the personnel of the Administrative agency and
not the public, need not be filed with the UP Law
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Center. (The Board of Trustees of the GSIS v. A city enacted an ordinance classifying certain
Velasco, G.R. No. 170463, Feb. 2, 2011) areas as agricultural lands. A landowner filed an
Late Petitions application for exemption and an Order was issued
Rules of procedure are intended to ensure the by the Secretary of Agrarian Reform, granting the
orderly administration of justice and the protection exemption. Farmers of landowner’s landholdings
of substantive rights in judicial and extrajudicial filed an MR of the Order, which was subsequently
proceedings. It is a mistake to suppose that granted by the judge, thereby revoking the first
substantive law and adjective law are contradictory Order. However, this Order was sent to another city
to each other or, as has often been suggested, that and not to the correct address of the landowner. The
enforcement of procedural rules should never be Court ruled that the landowner’s right to due process
permitted if it will result in prejudice to the was not violated. She was still able to file her MR
substantive rights of the litigants. This is not exactly from the Order, albeit beyond the allowable period
true; the concept is much misunderstood. As a to file and was still given due course. While it may
matter of fact, the policy of the courts is to give effect be true that she was prevented from filing a timely
to both kinds of law, as complementing each other, MR, it would be erroneous to conclude that she had
in the just and speedy resolution of the dispute been completely denied her opportunity to be heard.
between the parties. Observance of both In administrative proceedings, procedural due
substantive and procedural rights is equally process means that one is given the opportunity to
guaranteed by due process, whatever the source of explain one’s side and the opportunity to seek a
such rights, be it the Constitution itself or only a reconsideration of the action or ruling complained of,
statute or a rule of court. (Tupas v. CA, G.R. No. not only through verbal arguments in court but also
89571, Feb. 6, 1991) through pleadings. When she filed her MR, she was
able to completely and exhaustively present her
A party having forfeited the right to appeal cannot arguments. (Espiritu v. Del Rosario, G.R. No.
claim that he/she has been denied due process. 204964. Oct. 15, 2014)
FOR ONE ATENEO

(Tupas v. CA, G.R. No. 89571, Feb. 6, 1991)
There is no denial of the right to due process if there
In a case of falsification of public documents, the was an opportunity for the parties to defend their
accused claimed that his constitutional rights were interests in due course. Petitioner had been able to
violated when the Sandiganbayan denied his motion file a Motion for Reconsideration Ad Cautelam
for new trial and motion to allow him to present before the trial court, and later elevated its case
additional witnesses. The Court ruled that his right before the Court of Appeals. There is no denial of
to due process was not violated. The accused had due process if a party was given an opportunity to
4 years to present evidence yet he only asked for be heard in a Motion for Reconsideration. Petitioner
the opportunity to present additional evidence via a did not take advantage of the opportunities it was
motion for reconsideration after the Sandiganbayan given to lead a responsive pleading. It allowed the
had already admitted all the formal offers of periods it was given for the filing of pleadings to
evidence of the accused. Further, he failed to lapse. (Philippine National Construction Corporation
present the witness through the compulsory process v. Asiavest Merchant Bankers (M) Berhad, GR. No.
of subpoena, during all the time that he testified for 172301, Aug. 19, 2015)
his defense for a period of six (6) months. Moreover,
his motion to present additional witness was denied SUBSTANTIVE
due to his failure to comply with Sections 4-5 of Rule
15. In addition, the evidence he seeks to present is If due process were confined solely to its procedural
not a newly discovered evidence since it was aspects, there would arise absurd situation of
already presented by the other parties. All this points arbitrary government action, provided the proper
out to the conclusion that he was given ample formalities are followed. Substantive due process
opportunity to be heard. (Escobar v. People. G.R. completes the protection envisioned by the due
No. 205576, Nov. 20, 2017) process clause. It inquires whether the government
has sufficient justification for depriving a person of
Motion for Reconsideration life, liberty, or property. (White Light Corporation v.
Due process is satisfied when the parties are City of Manila, G.R. No. 122846, January 20, 2009)
afforded fair and reasonable opportunity to explain
their side of the controversy or an opportunity to Substantive due process requires that laws be [1]
move for a reconsideration of the action or ruling grounded on reason and [2] be free from
complained of. (Elenita S. Binay v. Office of the arbitrariness. The government must have sufficient
Ombudsman, 213957-58, Aug. 7, 2019) justification for depriving a person of life, liberty, or
property. Essentially, substantive due process is
satisfied if the deprivation is done in the exercise of
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the police power of the State. (Provincial Bus 1. It must not contravene the constitution or any
Operators Association of the Philippines v. DOLE, statute;
G.R. No. 202275, July 17, 2018) 2. It must not be unfair or oppressive;
Requisites 3. It must not be partial or discriminatory;
Laws which interfere with life, liberty, and property 4. It must not prohibit but may regulate trade;
satisfy substantive due process when there is:
5. It must not be unreasonable; and
a. Lawful Subject – The interests of the
6. It must be general and consistent with public
public generally, as distinguished from
policy.
those of a particular class, require such
interference; and
Publication
b. Lawful Means – The means are Due process, which is a rule of fairness, requires
reasonably necessary for the that those who must obey a command must first
accomplishment of the purpose, and not know the command. Thus, Art. 2 of the Civil Code
unduly oppressive upon individuals. prescribes a 15-day period of publication of laws
before they take effect, unless otherwise provided.
The legislature may not, under the guise of
protecting the public interests, arbitrarily interfere The omission of publication of laws would offend
with private business, or impose unusual and due process insofar as it would deny the public
unnecessary restrictions upon lawful occupations. knowledge of the laws that are supposed to govern
In other words, its determination as to what is a it. The term "laws" should refer to all laws and not
proper exercise of its police powers is not final or only to those of general application, but including
conclusive, but is subject to the supervision of the those of local application and private laws. Covered
court. (US v. Toribio, G.R. No. L-5060, Jan. 26, by this rule are presidential decrees and executive
1910) orders promulgated by the President. Administrative
rules and regulations must also be published if their
FOR ONE ATENEO

License to Own and Operate Firearms
With the bearing of arms being a mere privilege,
there could not have been a deprivation of right to
due process in requiring a license for the possession
purpose is to enforce or implement existing law
pursuant also to a valid delegation. However, no
publication is required for internal regulations issued
by administrative agencies. Publication must be in
of firearms. Article III, Section 1 of the Constitution full or it is no publication at all since its purpose is to
is clear that only life, liberty, or property is protected inform the public of the contents of the laws.
by the due process clause. It is settled that the (Tañada v. Tuvera, G.R. No. L-63915, Dec. 29,
license to possess a firearm is neither a property nor 1986)
a property right.
2. VOID-FOR-VAGUENESS
Assuming, for the sake of argument, that the right to
possess a firearm were considered a property right, Concept
it is doctrine that property rights are always subject A statute or act may be said to be vague when it
to the State's police power. Further, the PNP lacks comprehensible standards that men of
Guidelines, which suspended the issuance of common intelligence must necessarily guess at its
permits to carry firearms outside of residence, was meaning and differ in its application.
a valid police power measure. The interest of the
general public was satisfied, since the Guidelines The test in determining whether a criminal statute is
were issued in response to the rise in high-profile void for uncertainty is whether the language
crimes. As to the means employed to retain peace conveys a sufficiently definite warning as to the
and order in society, the revocation of all permits to proscribed conduct when measured by common
carry firearms outside of residence would make it understanding and practice. It must be stressed,
difficult for criminals to commit gun violence and however, that the "vagueness" doctrine merely
victimize others. Therefore, the license requirement requires a reasonable degree of certainty for the
to own and operate a firearm is a valid exercise of statute to be upheld - not absolute precision or
police power and not a violation of the right to due mathematical exactitude.
process. (Acosta v. Ochoa, G.R. Nos. 211559,
211567, 212570 & 215634, Oct. 15, 2019) An act will not be held invalid merely because it
might have been more explicit in its wordings or
Requisites of a Valid Ordinance (Police Power of detailed in its provisions, especially where, because
LGUs) (Must NOT CUPPU, Must be GC) of the nature of the act, it would be impossible to
provide all the details in advance as in all other
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statutes. (Estrada v. Sandiganbayan, G.R. No. 3. Judicial and Administrative Due

148560, November 19, 2001) Process
In determining whether the words used in a statute
are vague, words must not only be taken in Administrative Proceeding; Dead Respondent
accordance with their plain meaning alone, but also In administrative cases, the essence of procedural
in relation to other parts of the statute. It is a rule that due process is one’s right to given the opportunity to
every part of the statute must be interpreted with be heard. This opportunity to be heard must be
reference to the context, that is, every part of it must present at every single stage of proceedings.
be construed together with the other parts and kept Administrative proceedings require that the
subservient to the general intent of the whole respondent be informed of the charges and be given
enactment. (Imbong v. Ochoa, G.R. No. 204819, an opportunity to refute them. Even after judgement
April 8, 2014) is rendered, due process requires that the
respondent not only be informed of the judgement
Purpose but also given the opportunity to seek
A vague statute is repugnant to the Constitution in reconsideration of that judgement. The opportunity
two (2) respects: to be heard can only be exercised by those who
a. It violates due process for failure to accord have resigned or retired. The reason is obvious:
persons, especially the parties targeted by They are still alive. Even if they cease to hold public
it, fair notice of what conduct to avoid; and office, they can still be made aware of the
b. It leaves law enforcers unbridled discretion proceedings and actively submit pleadings.
in carrying out its provisions and becomes However, death forecloses any opportunity to be
an arbitrary flexing of the Government heard. Dead respondents will never know how the
muscle. (Estrada v. Sandiganbayan, G.R. proceedings will continue. They cannot submit
No. 148560, November 19, 2001) responsive pleadings or plead innocence of beg
clemency. To continue with the proceedings is a
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violation of the right to due process. (Flores-
VOID FOR VAGUENESS V. OVERBREADTH
Concepcion v. Castañeda, A.M. No. RTJ-15-2438
1. Vagueness and overbreadth are distinct from (Resolution), Sept. 15, 2020)
each other; a vague law must lack clarity and
precision, while an overbroad law need not.
Standard for Different Types of Proceedings
2. It is submitted that while the defect of PROCEEDING STANDARD
overbreadth as an analytical tool is applicable Judicial Proceedings (Ju3NO)
only to cases involving speech, this is not so 1. There must be a
about vagueness. court or tribunal
clothed with judicial
Void for Vagueness v. Overbreadth power to hear and
VOID FOR OVERBREADTH determine the
VAGUENESS matter before it;
Unconstitutional 2. Jurisdiction must be
Statute or act Gov't regulation of free lawfully acquired
speech over the person of
Lacks comprehensible Means sweep the defendant or
standards unnecessarily broadly over the property
which is the subject
People guess at its Not necessarily of the proceeding;
meaning; differ in unclear 3. The defendant must
application be given an
Violates due process; Invades protected opportunity to be
creates unbridled freedoms
heard; and
discretion
4. Judgment must be
rendered upon
lawful hearing.
(El Banco Español –
Filipino v. Palanca, G.R.
No. L-11390, March 26,
1918)
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Administrative/ (HESS-PIK) (Ang Tibay v. CIR, G.R.

Quasi-Judicial 1. The right to a No. L-46496)
Proceedings Hearing, which
includes the right to A lack of formal hearing
present one’s case in the administrative
and submit level does not violate
procedural due process.
evidence in support
The due process
thereof; requirement before
2. The tribunal must administrative bodies
consider the are not as strict
Evidence compared to judicial
presented; tribunals in that it
3. The decision must suffices that a party is
have something to given a reasonable
Support itself; opportunity to be heard.
4. Evidence (Saunar v. Ermita, G.R.
No. 186502)
supporting the
Academic (WAEEC)
finding or
Disciplinary 1. The students must
conclusion must be Proceedings be informed in
Substantial;
Writing of the
5. The decision must
nature and cause of
be based on the
any accusation
evidence
against them;
FOR ONE ATENEO

Presented at the
2. That they shall have
hearing or at least
the right to Answer
contained in the
the charges against
record and
them with the
disclosed to the
assistance of
parties affected;
counsel, if desired;
6. The tribunal or body
3. They shall be
or any of its judges
informed of the
must act on its or his
Evidence against
own Independent
them;
consideration of the
4. They shall have the
law and facts of the
right to adduce
controversy, and
Evidence in their
not simply accept
own behalf; and
the views of a
5. The evidence must
subordinate in
be duly Considered
arriving at a
by the investigating
decision;
committee or official
7. The board or body
designated by the
should, in all
school authorities to
controversial
hear and decide the
questions, render its
case.
decision in such a
manner that the
Disciplinary cases
parties to the
involving students need
proceeding can not necessarily include
Know the various the right to cross
issues involved, and examination. An
the reasons for the administrative
decision rendered. proceeding conducted
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to investigate students' (Lao Gi v. CA, G.R. No.

participation in a hazing 81798)
activity need not be Extradition If bail can be granted in
clothed with the Proceedings deportation cases, there
attributes of a judicial (Granting of bail) is no justification why it
proceeding. Thus, it is should not also be
not subject to the allowed in extradition
rigorous requirements cases. After all, both are
of criminal due process, administrative
particularly with respect proceedings where the
to the specification of innocence or guilt of the
the charge involved. person detained is not in
(ADMU v. Capulong, issue. (Government of
G.R. No. 99327) Hongkong v. Olalia,
Deportation (GIHO) G.R. No. 153675)
Proceedings 1. There should be a
prior determination While our extradition
by the Board of law does not provide for
Commissioners of the grant of bail to an
extraditee, however,
the existence of the
there is no provision
Ground as charged prohibiting him or her
against the alien; from filing a motion for
2. The alien should be bail, a right to due
Informed of the process under the
FOR ONE ATENEO

specific grounds for Constitution. The
deportation; applicable standard of
3. A Hearing should due process, however,
be conducted should not be the same
as that in criminal
pursuant to the
proceedings.
Rules of Procedure
(Government of
presented by the Hongkong v. Olalia,
Commissioner of G.R. No. 153675)
Immigration; and
4. Order of Bail may be granted to a
deportation based possible extraditee only
on the upon a clear and
determination of the convincing showing:
Commissioner of 1. That he will not be a
Immigration. flight risk or a
danger to the
Although a deportation community; and
proceeding does not 2. That there exist
partake of the nature of special,
a criminal action, humanitarian and
however, considering compelling
that it is a harsh and circumstances.
extraordinary (Rodriguez v. Presiding
administrative Judge of RTC Manila,
proceeding affecting the G.R. No. 157977)
freedom and liberty of a
person, the The grant of the bail
constitutional right of presupposes that the
such person to due extraditee has already
process should not be presented evidence to
denied. prove his/her right to be
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on bail, that she is no its own independent conclusions. (Gutierrez v COA,

flight risk, and the trial GR. No. 200628, Jan. 13, 2015)
court had already
exercised its sound No Hearing in Provisional Price-fixing
discretion and had Such a relaxed procedure is especially true in
already determined that administrative bodies, such as the ERB which in
under the Constitution matters of rate or price fixing is considered as
and laws in force, the exercising a quasi-legislative, not quasi-judicial
extraditee is entitled to function. As such administrative agency, it is not
provisional release.
bound by the strict or technical rules of evidence
(Rodriguez v. Presiding
governing court proceedings Relaxed procedures
Judge of RTC Manila,
G.R. No. 157977) adopted could not have resulted in the denial of due
process. (Maceda v. ERB, G.R. No. 96266, Jul. 18,
Thus, the cancellation of 1991)
an extraditee’s bail,
without prior notice and Pilotage is considered a property right Thus, the
hearing, could be exercise of one's profession falls within the
considered a violation of constitutional guarantee against wrongful
his/her right to due deprivation of, or interference with, property rights
process tantamount to without due process. However, it is important to note
grave abuse of
that a regulation of professions does not per se
discretion.
entail a wrongful deprivation. It is only when a
(Rodriguez v. Presiding
Judge of RTC Manila, vested right is taken away without due process of l
aw that it falls under the aegis of Article III, Sec. 1.
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G.R. No. 157977)
(Corona v. UHPAP, G.R. No. 111953)
Instances when hearing is not necessary:
(a) When administrative agencies are Due Process Standards in Student Disciplinary
exercising their quasi-legislative functions. Cases
(b) When administrative agencies are
exercising their quasi-judicial functions if
temporary pending hearing.
(c) Abatement of nuisance per se.
Due process in disciplinary cases involving students
does not entail proceedings and hearings similar to
those prescribed for actions and proceedings in
courts of justice. The proceedings may be summary.
Cross-examination is not an essential part of the
(d) Granting by courts of provisional remedies. investigation or hearing. The required proof in a
(e) Cases of preventive suspension. student disciplinary action, which is an
(f) Removal of temporary employees in the administrative case, is neither proof beyond
government. reasonable doubt nor preponderance of evidence
(g) Issuance of warrants of distraint and/or levy but only substantial evidence or such relevant
by the BIR Commissioner. evidence as a reasonable mind might accept as
(h) Cancellation of the passport of a person adequate to support a conclusion. What is crucial is
charged with a crime. that official action must meet minimum standards of
fairness to the individual, which generally
(i) Suspension of a bank’s operations by the
encompass the right of adequate notice and a
Monetary Board upon a prima facie finding meaningful opportunity to be heard.
of liquidity problems in such bank.
A cadet facing dismissal from the military academy
Due Process Standards in Administrative for misconduct has constitutionally protected private
Proceedings interests (life, liberty, or property); hence,
Due process in administrative proceedings does not disciplinary proceedings conducted within the
necessarily require a trial type of hearing. Neither bounds of procedural due process is a must. For
does it require an exchange of pleadings between that reason, the PMA is not immune from the
or among the parties. Due process is satisfied if the strictures of due process. Where a person's good
party who is properly notified of allegations against name, reputation, honor, or integrity is at stake
him or her is given an opportunity to defend himself because of what the government is doing to him, the
or herself against those allegations, and such minimal requirements of the due process clause
defense was considered by the tribunal in arriving at must be satisfied.
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Where the dismissal is for a just cause, the lack of

The statement that "a cadet can be compelled to statutory due process should not nullify the
surrender some civil rights and liberties in order for dismissal, or render it illegal, or ineffectual.
the Code and System to be implemented" simply However, the employer should indemnify the
pertains to what cadets have to sacrifice in order to employee for the violation of his statutory rights.
prove that they are men or women of integrity and (Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004)
honor, such as the right to entertain vices and the
right to freely choose what they want to say or do. In Although the closure was done in good faith and for
the context of disciplinary investigation, it does not valid reasons, we find that ITC did not comply with
contemplate a surrender of the right to due process the notice requirement. While an employer is under
but, at most, refers to the cadets' rights to privacy no obligation to conduct hearings before effecting
and to remain silent. (Cudia v. Superintendent of the termination of employment due to authorized cause,
PMA, G.R. No. 211362, Feb. 24, 2015) however, the law requires that it must notify the
DOLE and its employees at least one month before
CONSTITUTIONAL AND STATUTORY DUE the intended date of closure. (Timber Co. v Ababon,
PROCESS G.R. No. 164518, Jan. 25, 2006)
Preliminary Investigation
What is often said about statutory due process is a The purpose of a preliminary investigation is to
procedure created by law, which upholds the secure the innocent against hasty, malicious and
constitutional right of a person to due process. oppressive prosecution, and to protect him from an
open and public accusation of crime, from the
Dismissal of Employees trouble, expense and anxiety of a public trial, and
To be sure, the Due Process Clause in Article III, also to protect the State from useless and expensive
Sec. 1 of the Constitution embodies a system of trials. The right to a preliminary investigation is a
rights based on moral principles so deeply
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statutory grant, and to withhold it would be to
imbedded in the traditions and feelings of our people transgress constitutional due process. However, in
as to be deemed fundamental to a civilized society order to satisfy the due process clause, it is not
as conceived by our entire history. Due process is enough that the preliminary investigation is
that which comports with the deepest notions of conducted in the sense of making sure that a
what is fair and right and just. It is a constitutional transgressor shall not escape with impunity. A
restraint on the legislative as well as on the preliminary investigation serves not only the
executive and judicial powers of the government purposes of the State. More importantly, it is a part
provided by the Bill of Rights. of the guarantees of freedom and fair play, which
are birthrights of all who live in our country. (Salonga
Due process under the Labor Code, like v. Panon, G.R. No. L-59524, Feb. 18, 1985)
constitutional due process, has two aspects:
substantive, (i.e., the valid and authorized causes of
employment termination under the Labor Code) and
C. EQUAL PROTECTION
procedural, (i.e., the manner of dismissal).
Procedural due process requirements for dismissal The equal protection of the law clause merely
are found in the Implementing Rules of P.D. 442, as requires that all persons shall be treated alike, under
amended, otherwise known as the Labor Code of like circumstances and conditions both as to
the Philippines in Book VI, Rule I, Sec. 2, as privileges conferred and liabilities enforced.
amended by Department Order Nos. 9 and 10.
Breaches of these due process requirements violate The equal protection of the law clause is against
the Labor Code. Therefore, statutory due process undue favor and individual or class privilege, as well
should be differentiated from failure to comply with as hostile discrimination or the oppression of
constitutional due process. inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is
Constitutional due process protects the individual directed or by territory within which is to operate. It
from the government and assures him of his rights does not demand absolute equality among
in criminal, civil or administrative proceedings; while residents. (Ichong v. Hernandez, G.R. No. L-7995,
statutory due process found in the Labor Code and May 31, 1957)
Implementing Rules protects employees from being
unjustly terminated without just cause after notice Scope
and hearing. The guarantees of the Bill of Rights are universal in
their application to all persons within the territorial
jurisdiction, without regard to any differences of
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race, color, or nationality. All natural persons, and Section 6 of the Cybercrime Prevention Act
artificial persons, only in so far as their property is Section 6 of the Cybercrime Prevention Act
concerned, are protected by the Equal Protection imposing a penalty one degree higher than that
clause. (Smith, Bell & Co. v. Natividad, G.R. No. provided in the RPC for acts committed by, through
15574, Sept. 17, 1919) and with the use of information and communications
technologies was assailed for violating equal
The Constitution does not require absolute equality protection. The Court upheld the section and
among persons. It is enough that all persons under explained that Section 6 merely makes commission
like circumstances or conditions are given the same of existing crimes through the internet a qualifying
privileges and required to follow the same circumstance. There exists a substantial distinction
obligations. In short, a classification based on valid between crimes committed through the use of
and reasonable standards does not violate the equal information and communications technology and
protection clause. (Tiu v. Court of Appeals, G.R. No. similar crimes committed using other means. In
127410, Jan. 20, 1999) using the technology in question, the offender often
evades identification and is able to reach far more
1. REQUISITES FOR VALID victims or cause greater harm. The distinction,
CLASSIFICATION therefore, creates a basis for higher penalties for
The equal protection of the laws clause of the cybercrimes. (Disini v. Sec. of Justice, G.R. No.
Constitution allows classification. Classification in 203335, Feb. 18, 2014)
law, as in the other departments of knowledge or
practice, is the grouping of things in speculation or Disbursement Acceleration Program
practice because they agree with one another in The DAP was challenged as “unfair as it [was]
certain particulars. selective” because the funds released under the
DAP was not made available to all the legislators,
All that is required of a valid classification is that with some of them refusing to avail themselves of
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it be reasonable, which means that the the DAP funds, and others being unaware of the
classification should be: (GEES) availability of such funds. The Court held that the
challenge based on the contravention of the Equal
1. Be Germane to the purposes of the law; Protection Clause, which focuses on the release of
2. Not limited to Existing conditions only; funds under the DAP to legislators, lacks factual and
3. Applied Equally to all members of the same legal basis. The denial of equal protection of any law
class; and should be an issue to be raised only by parties who
4. Rest on Substantial distinctions which make for supposedly suffer it, and, in these cases, such
real differences. (Victoriano v. Elizalde Rope parties would be the few legislators claimed to have
Workers’ Union, G.R. No. L-2524, Sept. 12, been discriminated against in the releases of funds
1974) under the DAP. The requirement was not met here.
(Araullo v. Aquino III, G.R. No. 209287, July 1, 2014)
APPLICATION
Classification Freeze Provision
General Banking Law of 2002 The classification freeze provision does not violate
The General Banking Law provides a shorter period the equal protection and uniformity of taxation. Even
for redemption of three (3) months or earlier to though it failed to promote fair competition among
juridical entities compared to the one (1) year the players in the industry, the classification freeze
redemption period given to natural persons. provision was not precipitated by a veiled attempt or
However, this does not violate the equal protection hostile attitude on the part of Congress to unduly
clause. Equal protection permits of reasonable favor older brands. Since the provision was done in
classification. The difference in the treatment of good faith and is germane to the purpose of the law,
juridical persons and natural persons was based on the Court cannot declare it unconstitutional nor
the nature of the properties foreclosed — whether question its wisdom. (British American Tobacco v.
these are used as residence, for which the more Camacho, G.R. No. 163583, Aug. 20 2009)
liberal one-year redemption period is retained, or
used for industrial or commercial purposes, in which Cityhood Laws
case a shorter term is deemed necessary to reduce The Cityhood laws were constitutional. Based on the
the period of uncertainty in the ownership of deliberations by Congress on R.A. 9009, Congress
property and enable mortgagee banks to dispose intended that those with pending cityhood bills
sooner of these acquired assets. (Zomer during the 11th Congress would not be covered by
Development Co. v. Special 20th Division of the CA, the new and higher income requirement of P100
G.R. No. 194461, Jan. 07, 2020) million imposed by RA 9009. The exemption clauses
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found in the individual Cityhood Laws are the rendered. The equal protection clause recognizes a
express articulation of that intent to exempt valid classification, that is, a classification that has a
respondent municipalities from the coverage of RA reasonable foundation or rational basis and not
9009. Such Cityhood Laws are, therefore, also arbitrary. With respect to R.A. No. 9442, its
amendments to the LGC itself. In the enactment of expressed public policy is the rehabilitation, self-
the Cityhood Laws, Congress merely took the 16 development and self-reliance of PWDs. Persons
municipalities covered thereby from the with disability form a class separate and distinct
disadvantaged position brought about by the abrupt from the other citizens of the country. Indubitably,
increase in the income requirement (from 20 million such substantial distinction is germane and
to 100 million) of RA 9009, acknowledging the intimately related to the purpose of the law. Hence,
“privilege” that they have already given to those the classification and treatment accorded to the
newly-converted component cities, which prior to PWDs fully satisfy the demands of equal protection.
the enactment of RA 9009, were undeniably in the Thus, Congress may pass a law providing for a
same footing or “class” as the respondent different treatment to persons with disability apart
municipalities. But in effect, the Cityhood Laws from the other citizens of the country. (Drugstores
granted to 33 municipalities amended RA 9009 Association of the Philippines, Inc. and Northern
through the exemption clauses found therein. Luzon Drug Corporation v. National Council on
(League of Cities of the Phil. et al. v. COMELEC, et Disability Affairs, et al., G.R. No. 194561, Sept. 4,
al. G.R. Nos. 176951, 177499, 178056, April 12, 2016)
2011)
Elective and Appointive Officials
VAWC There is a substantial distinction between elective
RA 9262 (An Act Defining Violence Against Women and appointive officials. The former occupy their
and Their Children - VAWC) is not violative of the office by virtue of the mandate of the electorate.
equal protection clause. There is a valid They are elected to an office for a definite term and
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classification. The unequal power relationship that may be removed therefrom only upon stringent
women are more likely to be victims of violence and conditions. On the other hand, appointive officials
the widespread gender bias and prejudice against hold their office by virtue of their designation thereto
women make for real differences justifying the by an appointing authority. Some appointive officials
classification. The distinction is germane to the hold their office in a permanent capacity and are
purpose of the law to address violence committed entitled to security of tenure while others serve at
against women. The law applies to women and the pleasure of the appointing authority. (Eleazar P.
children who suffer violence and abuse. (Garcia v. Quinto and Gerino A. Tolentino, Jr., vs. COMELEC,
Hon. Drilon, G.R. No. 179267, June 25, 2013) G.R. No. 189698, Feb. 22, 2010)
RH Law Tax Ordinance Specific to an Entity

The RH Law, in providing that the poor are to be When the taxing ordinance was enacted, Ormoc
given priority in the government's reproductive Sugar Co., Inc. was the only sugar central in the
health care program, does not violate the equal City. A reasonable classification should be in terms
protection clause. In fact, it is pursuant to Section applicable to future conditions as well. The taxing
11, Article XIII of the Constitution which recognizes ordinance should not be singular and exclusive as
the distinct necessity to address the needs of the to exclude any subsequently established sugar
underprivileged by providing that they be given central from the coverage of the tax. A subsequently
priority in addressing the health development of the established sugar central cannot be subject to tax
people. It should be noted that Section 7 of the RH because the ordinance expressly points to Ormoc
Law prioritizes poor and marginalized couples who Sugar Company, Inc. as the entity to be levied upon.
are suffering from fertility issues and desire to have (Ormoc Sugar Company v. Ormoc City, G.R. No. L-
children. (Imbong v. Ochoa, G.R. 204819, April 8, 23794, Feb. 17, 1968)
2014)
5 Years of Experience as a Lower Court Judge
Discounts to PWDs as Requirement for RTC Judge
The Supreme Court upheld the constitutionality of Consideration of experience by JBC as one factor in
R.A. No. 9442 or the Magna Carta for Persons with choosing recommended appointees does not
Disability granting the PWDs a 20% discount on the constitute a violation of the equal protection clause.
purchase of medicine, and a tax deduction scheme The JBC does not discriminate when it employs
was adopted wherein covered establishments may number of years of service to screen and
deduct the discount granted from gross income differentiate applicants from the competition. The
based on the net cost of goods sold or services number of years of service provides a relevant basis
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to determine proven competence which may be Juridical entities cannot be considered a "suspect
measured by experience, among other factors. The class." Juridical entities enjoy certain advantages
difference in treatment between lower court judges that natural persons do not, such as limited liability.
who have served at least five years and those who The properties of juridical entities are also often
have served less than five years is upheld in order used for commercial purposes. In contrast, the
to meet the requirements of proven competence, properties of natural persons are more often used
experience, integrity, probity, and independence. for residential purposes. They are also directly
The foregoing shows that substantial distinctions do responsible for the liabilities they incur and, often,
exist between lower court judges with five year are not equipped with the same resources that
experience and those with less than five years of juridical entities may have. Juridical entities, thus,
experience and the classification enshrined in the cannot be considered a "suspect class." (Zomer
assailed policy is reasonable and relevant to its Development Co. v. Special 20th Division of the CA,
legitimate purpose. The Court, thus, rules that the G.R. No. 194461, Jan. 07, 2020)
questioned policy does not infringe on the equal
protection clause as it is based on reasonable 2. STANDARDS OF JUDICIAL REVIEW
classification intended to gauge the proven
competence of the applicants. Therefore, the said Philippine jurisprudence has developed three (3)
policy is valid and constitutional. (Villanueva v. JBC, tests of judicial scrutiny to determine the
G.R. No. 211833, April 07, 2015) reasonableness of classifications.
Doctrine of Relative Unconstitutionality a. Strict Scrutiny Test

A statute valid at one time may become void at
another time because of altered circumstances.
The most demanding of all the three tests. Under the
Thus, if a statute in its practical operation becomes
strict scrutiny test, the legislative classification is
arbitrary or confiscatory, its validity, even though
presumed to be unconstitutional and the
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affirmed by a former adjudication, is open to inquiry
government has the burden of proving that the
and investigation in the light of changed conditions.
classification is necessary to achieve a compelling
State interest, and is the least restrictive means to
This doctrine was invoked in a case to invalidate RA
protect such interest or the means chosen is
7653, which started as a valid measure of legislative
narrowly tailored to accomplish the interest.
power applicable to Central Bank employees, but,
(Serrano v. Gallant, G.R. NO. 167614, Mar. 24,
with the enactment of subsequent laws exempting
2009)
all rank and file employees of all GFIs from the
Salary Standardization Law, was rendered void on
The strict scrutiny test applies when a classification
account of a violation of the equal protection clause.
either (i) interferes with the exercise of fundamental
(Central Bank Employees Association, Inc. v.
rights, including the basic liberties guaranteed under
Bangko Sentral ng Pilipinas, G.R. No. 148208, Dec.
the Constitution, or (ii) burdens suspect classes.
15, 2004)
(Spark v. Quezon City, G.R. No. 225442, Aug. 08,
2017)
Suspect Classification
A suspect classification is one where distinctions are
made based on the most invidious bases for b. Intermediate Scrutiny Test
classification that violate the most basic human
rights, i.e., on the basis of race, national origin, alien The intermediate scrutiny test requires the
status, religious affiliation and, to a certain extent, government to show that the challenged
sex and sexual orientation. (Serrano v. Gallant, G.R. classification serves an important state interest and
No. 167614, Mar. 24, 2009) that the classification is at least substantially related
to serving the interest. (Serrano v. Gallant, G.R. No.
A "suspect class" is defined as "a class saddled with 167614, Mar. 24, 2009)
such disabilities, or subjected to such a history of
purposeful unequal treatment, or relegated to such The intermediate scrutiny test applies when a
a position of political powerlessness as to command classification does not involve suspect classes or
extraordinary protection from the majoritarian fundamental rights, but requires heightened
political process. (Zomer Development Co. v. scrutiny, such as in classifications based on gender
Special 20th Division of the CA, G.R. No. 194461, and legitimacy. (Spark v. Quezon City, G.R. No.
Jan. 07, 2020) 225442, Aug. 08, 2017)
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c. Rational Basis Test he must issue a warrant or order for his arrest. (Sec.
6, Rule 112, Revised Rules of Criminal Procedure)
Under the rational basis test, a legislative
classification, to survive an equal protection Probable cause for issuance of warrant of arrest
challenge, must be shown to rationally further a Such facts and circumstances which would lead a
legitimate state interest. (British American Tobacco reasonably discreet and prudent man to believe that
v. Camacho, G.R. No. 163583, Aug. 20 2009) an offense has been committed by the person
sought to be arrested.
The rational basis test applies to all other subjects
not covered by the first two tests. (Spark v. Quezon
City, G.R. No. 225442, Aug. 08, 2017) Judicial determination of probable cause for
warrants of arrest
Before issuing a warrant of arrest, the judge must be
satisfied that based on the evidence submitted,
D. ARRESTS, SEARCHES AND there is sufficient proof that a crime has been
SEIZURES committed and that the person to be arrested is
probably guilty thereof. At this stage of the criminal
Section 2 is not just a circumscription of the power proceeding, the judge is not yet tasked to review in
of the State over a person’s home and possessions. detail the evidence submitted during the preliminary
More importantly, it protects the privacy and sanctity investigation. It is sufficient that he personally
of the person himself. It is a guarantee of the right of evaluates the evidence in determining probable
the people to be secure in their “persons… against cause to issue a warrant of arrest. (Pestillos v.
unreasonable searches and seizures.” It is therefore Generoso, G.R. No. 182601, Nov. 10, 2014)
also a guarantee against unlawful arrests and other
forms of restraint on the physical liberty of the What the Constitution underscores is the exclusive
person. (Bernas, The 1987 Constitution of the
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and personal responsibility of the issuing judge to
Republic of the Philippines, 2009) satisfy himself the existence of probable cause. In
satisfying himself of the existence of probable cause
Under our Constitution, the same is declared a for the issuance of a warrant of arrest, the judge is
popular right of the people and, of course, not required to personally examine the complainant
indisputably it equally applies to both citizens and and his witnesses. (Soliven v. Makasiar, G.R. No.
foreigners in this country. (Qua Chee Gan v 82585 Nov. 14, 1988
Deportation Board, G.R. No. L-10280, September
30, 1963). A judge may rely upon the fiscal's certification of the
existence of probable cause and, on the basis
1. REQUISITES OF A VALID thereof, issue a warrant of arrest. However, the
WARRANT certification does not bind the judge to come out with
the warrant of arrest.
a. Warrant of Arrest
To be sure, the Judge must go beyond the
Arrest is the taking of a person into custody in order Prosecutor’s certification and investigation report
that he may be bound to answer for the commission whenever necessary. He should call for the
of an offense. (ROC, Sec. 1, Rule 113) complainant and witnesses themselves to answer
the court’s probing questions when the
An arrest is made by an actual restraint of a person circumstances of the case so require. (Lim Sr. v.
to be arrested, or by his submission to the custody Felix G.R. Nos. 94054-57, Feb. 19, 1991)
of the person making the arrest. No violence or
unnecessary force shall be used in making an b. Search Warrants
arrest. The person arrested shall not be subject to a
greater restraint than is necessary for his detention. A search warrant is an order in writing, issued in the
(ROC, Sec. 2. Rule 113) name of the People of the Philippine Islands, signed
by a judge or a justice of the peace, and directed to
If the judge is satisfied from the preliminary a peace officer, commanding him to search for
examination conducted by him or by the personal property and bring it before the court. (Sec.
investigating officer that the offense complained of 1, Rule 126, Revised Rules of Criminal Procedure)
has been committed and that there is reasonable
ground to believe that the accused has committed it,
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The requisites for the issuance of a search warrant conducting the examination. However, the findings
are: (POJEWS) of the judge should not disregard the facts before
1. Probable cause is present (in connection with him nor run counter to the clear dictates of reason.
one specific offense); (Laud v. People, G.R. No. 199032, Nov. 19, 2014)
2. Such probable cause must be determined
personally by the judge; Probability, Not Absolute or Moral Certainty
3. The judge must examine, in writing and under Probable cause is concerned with probability, not
oath or affirmation, the complainant and the absolute or even moral certainty. What is required is
witnesses he or she may produce; not proof beyond reasonable doubt but merely
4. The applicant and the witnesses testify on the probable cause. (Bernas, The 1987 Constitution of
facts personally known to them; and the Republic of the Philippines, 2009)
5. The warrant specifically describes the place to
be searched and the things to be seized. (People Conclusions of law unsupported by particulars are
v. Mamaril, G.R. No. 171980, Oct. 6, 2010) not sufficient to establish probable cause to be used
as basis for the issuance of a warrant. (Bernas, The
A search warrant shall not issue except upon 1987 Philippine Constitution: A Comprehensive
probable cause in connection with one specific Reviewer, 2011)
offense to be determined personally by the judge
after examination under oath or affirmation of the A tip received from a classified informant may be the
complainant and the witnesses he may produce, basis of a search. (People v. Lo Ho Wing, G.R. No.
and particularly describing the place to be searched 88017, Jan. 21, 1991)
and the things to be seized which may be anywhere
in the Philippines. (ROC, Rule 126, § 4) Personal Determination by the Judge
A search warrant must conform strictly to the Trial Court Discretion
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constitutional requirements for its issuance; There is no exact test for the determination of
otherwise, it is void. (Diaz v. People, G.R. No. probable cause in the issuance of search warrants.
188794, Sept. 2, 2015) It is a matter wholly dependent on the finding of trial
judges in the process of exercising their judicial
Although the use of the word “and” implies
function. They determine probable cause based on
conjunction or union, the CA was mistaken in giving "evidence showing that, more likely than not, a crime
the word undue importance. The primary has been committed and that it was committed" by
consideration here is the finding of probable cause. the offender. (Worldwide Web Corporation v.
It would not be necessary to examine both the People, G.R. No. 161106, Jan. 13, 2014)
applicant and other witnesses if either one is
sufficient for the judge to establish probable cause. Probing and Exhaustive Examination
(People v. Gabiosa Sr., G.R. No. 248395, Jan. 29, In determining the existence of probable cause for
2020.) the issuance of a search warrant, the examining
magistrate must make probing and exhaustive, not
Probable Cause merely routine or pro forma examination of the
applicant and the witnesses. (Nala v. Barroso, G.R.
Definition No. 153087, Aug. 7, 2003)
Probable cause for a search warrant is defined as
such facts and circumstances which would lead a Facts and Circumstances Must Be Examined in
reasonably discrete and prudent man to believe that their Totality
an offense has been committed and that the objects Ultimately, in determining the existence of probable
sought in connection with the offense are in the cause, the facts and circumstances must be
place sought to be searched. (Laud v. People, G.R. personally examined by the judge in their totality,
No. 199032, Nov. 19, 2014) together with a judicious recognition of the variable
complications and sensibilities attending a criminal
Concept case. (Laud v. People, G.R. No. 199032, Nov. 19,
A finding of probable cause needs only to rest on 2014)
evidence showing that, more likely than not, a crime
has been committed and that it was committed by Delay in Application Does Not Negate Probable
the accused. Probable cause demands more than Cause
bare suspicion; it requires less than evidence which The supposed delay in the search warrant’s
would justify conviction. The existence depends to a application does not dilute the probable cause
large degree upon the finding or opinion of the judge finding made herein. The delay may be accounted
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for by a witness’s fear of reprisal and natural Affidavits of the complainant and his witnesses are
reluctance to get involved in a criminal case. (Laud insufficient to establish the factual basis for probable
v. People, G.R. No. 199032, Nov. 19, 2014) cause. Personal examination by the judge of the
applicant and his witnesses is indispensable, and
Trial Judge Determination Accorded Great the examination should be probing and exhaustive,
Deference by the Reviewing Court not merely routinary or a rehash of the affidavits.
Generally, a judge’s determination of probable (Diaz v. People, G.R. No. 188794, Sept. 2, 2015)
cause for the issuance of a search warrant is
accorded great deference by a reviewing court, so The judge must, before issuing the warrant,
long as there was substantial basis for that personally examine in the form of searching
determination. Substantial basis means that the questions and answers, in writing and under oath,
questions of the examining judge brought out such the complainant and the witnesses he may produce
facts and circumstances as would lead a reasonably on facts personally known to them and attach to the
discreet and prudent man to believe that an offense record their sworn statements, together with the
has been committed, and the objects in connection affidavits submitted. (ROC, Rule 126, § 5)
with the offense sought to be seized are in the place
sought to be searched. (Diaz v. People, G.R. No. Depositions made by Clerk
188794, Sept. 2, 2015) The participation of respondent Judge in the
proceedings which led to the issuance of search
If the judge is satisfied of the existence of facts upon warrant was limited to listening to the
which the application is based or that there is stenographer's readings of her notes, to a few words
probable cause to believe that they exist, he shall of warning against the commission of perjury, and to
issue the warrant, which must be substantially in the administering the oath to the complainant and his
form prescribed by these Rules. (ROC, Rule 126, § witness. This cannot be considered a personal
6) examination. If there was an examination at all of the
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complainant and his witness, it was the one
Personal Examination of the Complainant conducted by the Deputy Clerk of Court. The
and the Witnesses Constitution and the Rules require a personal
examination by the judge. (Bache v. Co. v. Ruiz,
G.R. No. L-32409. Feb. 27, 1971)
Purpose
The intent was to ensure that a warrant is issued not
merely on the basis of the affidavits of the Compliance is Shown by the Depositions and
complainant and his witnesses, but only after the Transcript
examination by the judge of the complainant and his Ideally, compliance with the examination
witnesses. (Diaz v. People, G.R. No. 188794, Sept. requirement is shown by the depositions and the
2, 2015) transcript. In their absence, however, a warrant may
still be upheld if there is evidence in the records that
Personal Examination v. Personal the requisite examination was made and probable
Determination cause was based thereon. There must be, in the
What the Constitution requires is for the judge to records, particular facts and circumstances that
conduct an "examination under oath or affirmation were considered by the judge as sufficient to make
of the complainant and the witnesses he may an independent evaluation of the existence of
produce," after which he determines the existence probable cause to justify the issuance of the search
of probable cause for the issuance of the warrant. warrant. (Diaz v. People, G.R. No. 188794, Sept. 2,
(Diaz v. People, G.R. No. 188794, Sept. 2, 2015) 2015)
Personal examination by the judge of the Facts Personally Known to the Applicant
complainant and his witnesses is necessary to and the Witnesses
enable him to determine the existence or non-
existence of a probable cause. The determination of Purpose
whether or not a probable cause exists calls for the The oath required must refer to the truth of the facts
exercise of judgment after a judicial appraisal of within the personal knowledge of the applicant or his
facts and should not be allowed to be delegated in witnesses, because the purpose thereof is to
the absence of any rule to the contrary. (Bache and convince the committing magistrate, not the
Co. v. Ruiz, G.R. No. L-32409. February 27, 1971) individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable
cause. (Burgos v. Chief of Staff, G.R. No. L-6426,
Affidavits are Insufficient Dec. 26, 1984)
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detail as to leave no room for doubt on the part of

Testimony Must Not be Based on Mere Hearsay the searching authorities. If this were the rule, it
The testimony must be within the personal would be virtually impossible for the applicants to
knowledge of the complainant or the witnesses he obtain a warrant as they would not know exactly
may produce and not based on mere hearsay. (Nala what kind of things to look for. Any description of the
v. Barroso, G.R. No. 153087, Aug. 7, 2003) place or thing to be searched that will enable the
officer making the search with reasonable certainty
Testimony Must Not be Based on Personal to locate such place or thing is sufficient. (Worldwide
Belief Web Corporation v. People, G.R. No. 161106, Jan.
The applicant and the witness must testify on their 13, 2014)
personal knowledge, not personal belief. (Nala v.
Barroso, G.R. No. 153087, Aug. 7, 2003) Required Wherever and Whenever it is Feasible
The particularity of the description of the place to be
Particularity of Description searched and the things to be seized is required
The warrant must be issued in relation to one "wherever and whenever it is feasible." A search
specific offense. (ROC, Sec. 4, Rule, 126) warrant need not describe the items to be seized in
precise and minute detail. The warrant is valid when
Purpose it enables the police officers to readily identify the
The evident purpose and intent of the requirement properties to be seized and leaves them with no
is to limit the things to be seized to those, and only discretion regarding the articles to be seized.
those, particularly described in the search warrant – (Worldwide Web Corporation v. People, G.R. No.
to leave the officers of the law with no discretion 161106, Jan. 13, 2014)
regarding what articles they should seize, to the end
that unreasonable searches and seizures may not Search Warrant for an Unnamed Party; John Doe
be made and that abuses may not be committed. Search Warrant
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(People v. Go, G.R. No. 144639, Sept. 12, 2003) A warrant for the apprehension of an unnamed party
is void, except in those cases where it contains a
Test of Sufficiency descriptio personae such as will enable the officer
A description of a place to be searched is sufficient to identify the accused. The description must be
sufficient to indicate clearly the proper person upon
if the officer with the warrant can, with reasonable
effort, ascertain and identify the place intended and whom the warrant is to be served. As the search
distinguish it from other places in the community. warrant stated that John Doe had gambling
Any designation or description known to the locality apparatus in his possession in the building occupied
that points out the place to the exclusion of all by him at No. 124 Calle Arzobispo, City of Manila,
others, and on inquiry leads the officers unerringly and as this John Doe was Jose Ma. Veloso, the
to it, satisfies the constitutional requirement. (Laud manager of the club, the police could identify John
v. People, G.R. No. 199032, Nov. 19, 2014) Doe as Jose Ma. Veloso without difficulty. (People
v. Veloso, G.R. No. L-23051, Oct. 20, 1925)
Particular Description Not Required if Goods by
their Nature are Described Generally John Doe Search Warrants – Exception, Not the
The search warrant must contain a particular Rule
description of the place to be searched and the John Doe search warrants should be the exception
person or thing to be seized. These provisions are and not the rule. The police should particularly
mandatory and must be strictly complied with; but describe the place to be searched and the person or
where, by the nature of the goods to be seized, their things to be seized, wherever and whenever it is
description must be rather generally, it is not feasible. The police should not be hindered in the
required that a technical description be given, as this performance of their duties, which are difficult
would mean that no warrant could issue. (Alvarez v. enough of performance under the best of conditions,
CFI, G.R. No. L-45358, Jan. 29, 1937) by superficial adherence to technicality or farfetched
judicial interference. (People v. Veloso, G.R. No. L-
Technical Precision of Description Not Required 23051, Oct. 20, 1925)
Technical precision of description is not required. It
is only necessary that there be reasonable As said warrant is issued against 50 “John Does" not
particularity and certainty as to the identity of the one of whom the witnesses to the complaint could
property to be searched for and seized, so that the or would Identify, it is of the nature of a general
warrant shall not be a mere roving commission. warrant, one of a class of writs long proscribed as
Indeed, the law does not require that the things to unconstitutional and once anathematized as "totally
be seized must be described in precise and minute subversive of the liberty of the subject."
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(Pangandaman v. Casar, G.R. No. 71782 April 14, warrant is severable, the items not sufficiently
1988) described may be cut off without
destroying the whole warrant. (Microsoft
Mistake in the Name of the Person Does Not Corporation v. Maxicorp, G.R. No. 140946, Sept. 13,
Invalidate the Warrant 2004)
A mistake in the name of the person to be searched
does not invalidate the warrant, especially when the WHAT MAY BE SEARCHED
authorities had personal knowledge of the drug-
related activities of the accused. In fact, a "John Personal Property to be Seized
Doe" warrant satisfies the requirements so long as A search warrant may be issued for the search and
it contains a descriptio personae such as will enable seizure of personal property:
the officer to identify the accused. A mistake in the 1. Subject of the offense;
identification of the owner of the place does not 2. Stolen or embezzled and other proceeds, or
invalidate the warrant provided the place to be fruits of the offense; or
searched is properly described. (People v. Tiu Won 3. Used or intended to be used as the means of
Chua, G.R. No. 149878, July 1, 2003)
committing an offense. (ROC, Rule 126, § 3)
General Warrants are Void Ownership Not Required, But Control or
A general warrant is defined as a search or arrest Possession
warrant that is not particular as to the person to be The above rule does not require that the property to
arrested or the property to be seized. It is one that be seized should be owned by the person against
allows the seizure of one thing under a warrant whom the search warrant is directed. It may or may
describing another and gives the officer executing not be owned by him. In fact, under subsection [2]
the warrant the discretion over which items to take. of the above-quoted Section 2, one of the properties
(Worldwide Web Corporation v. People, G.R. No. that may be seized is stolen property. Necessarily,
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161106, Jan. 13, 2014) stolen property must be owned by one other than
the person in whose possession it may be at the
General warrants do not meet the requirement in time of the search and seizure. Ownership,
Art. III, Sec. 1, of the Constitution, and of Sec. 3, therefore, is of no consequence, and it is sufficient
Rule 126 of the Revised Rules of Court, that the
that the person against whom the warrant is directed
warrant should particularly describe the things to be has control or possession of the property sought to
seized. (Uy v. BIR, G.R. No. 129651, Oct. 20, 2000) be seized. (Burgos v. Chief of Staff, G.R. No. L-
6426, Dec. 26, 1984)
General Rule: A general warrant is null and void.
(Nolasco v. Paño, G.R. No. L- 69803, Oct. 8, 1985). Only Those Things Particularly Described in the
Search Warrant
Exception: The search warrant is severable, and The officers of the law are to seize only those things
those items not particularly described may be cut off particularly described in the search warrant. A
without destroying the whole warrant. (Uy v. BIR, search warrant is not a sweeping authority
G.R. No. 129651, Oct. 20, 2000) empowering a raiding party to undertake a fishing
expedition to seize and confiscate any and all kinds
Scatter-shot Warrants of evidence or articles relating to a crime. The
A warrant must be issued upon probable cause in search is limited in scope so as not to be general or
connection with one specific offense. Thus, where explanatory. Nothing is left to the discretion of the
the questioned warrant was issued for multiple officer executing the warrant. (United Laboratories
offenses, specifically Articles 171 and 213 of the v. Isip, G.R. No. 163858, June 28, 2005)
Revised Penal Code, as well as the Anti-Graft and
Corrupt Practices Act, it is void for being a scatter- The description "an undetermined amount of
shot warrant. (Vallejo v. CA, G.R. No. 156413, Apr. marijuana" must be held to satisfy the requirement
14, 2004) for particularity in a search warrant. What is to be
seized in the instant case is property of a specified
No provision of law exists which requires that a character, i.e., marijuana, an illicit drug. By reason
warrant, partially defective in specifying some items of its character and the circumstances under which
sought to be seized yet particular with respect to the it would be found, said article is illegal. A further
other items, should be nullified as a whole. A description would be unnecessary and ordinarily
partially defective warrant remains valid as to the impossible, except as to such character, the place,
items specifically described in the warrant. A search and the circumstances. It is not required that
technical precision of description be required,
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particularly where, by the nature of the goods to be known as the “knock and announce” principle which
seized, their description must be rather general, is embodied in Anglo-American Law. The method of
since the requirement of technical description would entry of an officer into a dwelling and the presence
mean that no warrant could issue. (People v. Tee, or absence of such notice are as important
G.R. Nos. 140546-47, January 20, 2003) considerations in assessing whether subsequent
entry to search and/or arrest is constitutionally
CONDUCT OF A SEARCH reasonable. (People v. Huang Zhen Hua, G.R. No.
139301, Sept. 29, 2004)
Place to be Searched Unannounced Intrusion When Permissible
What is material in determining the validity of a Unannounced intrusion into the premises is
search is the place stated in the warrant itself, not permissible when:
what the applicants had in their thoughts, or had 1. A party whose premises or is entitled to the
represented in the proofs they submitted to the court possession thereof refuses, upon demand, to
issuing the warrant. (People v. CA, G.R. No. open it;
126379, June 26, 1998) 2. When such person in the premises already knew
of the identity of the officers and of their authority
Time of Making Search and persons;
The warrant must direct that it be served in the day 3. When the officers are justified in the honest
time, unless the affidavit asserts that the property is belief that there is an imminent peril to life or
on the person or in the place ordered to be limb; and
searched, in which case a direction may be inserted 4. When those in the premises, aware of the
that it be served at any time of the day or night. presence of someone outside (because, for
(ROC, Rule 126, § 9) example, there has been a knock at the door),
are then engaged in activity which justifies the
Period of the Validity of a Search Warrant
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officers to believe that an escape or the
A search warrant shall be valid for 10 days from its destruction of evidence is being attempted.
date. Thereafter it shall be void. (ROC, Rule 126,
Sec. 10) Suspects have no constitutional right to destroy
evidence or dispose of evidence. However, the
Search of House, Room, or Premises to Be exceptions above are not exclusive or conclusive. At
Made in Presence of Two Witnesses times, without the benefit of hindsight and ordinarily
No search of a house, room, or any other premises on the spur of the moment, the officer must decide
shall be made except in the presence of the lawful whether or not to make an unannounced intrusion
occupant thereof or any member of his family or in into the premises. Although a search and seizure of
the absence of the latter, two witnesses of sufficient a dwelling might be constitutionally defective, if the
age and discretion residing in the same locality. police officers’ entry was without prior
(ROC, Rule 126, § 3) announcement, law enforcement interest may also
establish the reasonableness of an unannounced
This requirement is mandatory to ensure regularity entry.
in the execution of the search warrant. The Rules of
Court clearly and explicitly establishes a hierarchy Indeed, there is no formula for the determination of
among the witnesses in whose presence the search reasonableness. Each case is to be decided on its
of the premises must be conducted. Thus, Section own facts and circumstances. In determining the
8, Rule 126 provides that the search should be lawfulness of an unallowed entry and the existence
witnessed by “two witnesses of sufficient age and of probable cause, the courts are concerned only
discretion residing in the same locality” only in the with what the officers had reason to believe and the
absence of either the lawful occupant of the time of the entry. (People v. Huang Zhen Hua, G.R.
premises or any member of his family (People v. Go, No. 139301, Sept. 29, 2004)
G.R. No. 144639, Sept. 12, 2003)
When Forcible Entry Justified
“Knock and Announce” Principle in the Service The officer, if refused admittance to the place of
of a Search Warrant directed search after giving notice of his purpose
Police officers are obliged to give notice, show their and authority, may break open any outer or inner
authority, and demand that they be allowed entry. door or window of a house or any part of a house or
They may only break open any outer or inner door anything therein to execute the warrant or liberate
or window of a house to execute the search warrant himself or any person lawfully aiding him when
if, after such notice and demand, such officers are unlawfully detained therein. (ROC, Rule 126, § 7)
refused entry to the place of directed search. This is
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(People v. Doria, G.R. No. 125299 January 22,

The police authorities’ claim that they had to use 1999)
some force in order to gain entry cannot be doubted.
The occupants of the house, especially accused- Instances When Warrantless Arrest May Be
appellant, refused to open the door despite the fact Made
that the searching party knocked on the door several A peace officer or a private person may, without a
times. Furthermore, the agents saw the suspicious warrant, arrest a person:
movements of the people inside the house. These 1. In Flagrante Delicto: When, in his presence,
circumstances justified the searching party's forcible the person to be arrested has committed, is
entry into the house, founded as it is on the actually committing, or is attempting to commit
apprehension that the execution of their mission an offense;
would be frustrated unless they do so. (People v. 2. Hot Pursuit Arrest: When an offense has just
Salanguit, G.R. No. 133254-55, April 19, 2001) been committed and he has probable cause to
believe based on personal knowledge of facts
or circumstances that the person to be
2. WARRANTLESS ARRESTS AND arrested has committed it; and
DETENTION 3. When the person to be arrested is a prisoner
Purpose who has escaped from a penal establishment
To hold that no criminal can, in any case, be or place where he is serving final judgment or
arrested and searched for the evidence and tokens
is temporarily confined while his case is
of his crime without a warrant, would be to leave
pending, or has escaped while being
society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved transferred from one confinement to another.
of criminals, facilitating their escape in many (ROC, Rule 113, § 5)
instances. (Umil v. Ramos, G.R. No. 81567 July 9,
a. In Flagrante Delicto
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1990)
In warrantless arrests, it is not enough that there is Requisites (OP)

reasonable ground to believe that the person to be 1. The person to be arrested must execute an
arrested has committed a crime. A crime must in fact Overt act indicating that he has just committed,
or actually have been committed first. (People v. is actually committing, or is attempting to commit
Burgos, G.R. No. L-68955) a crime; and
2. Such overt act is done in the Presence or within
Entrapment the view of the arresting officer.
It is recognized that in every arrest, there is a certain
amount of entrapment used to outwit the persons Reliable information alone is insufficient to support
violating or about to violate the law. Not every the arrest absent any overt act from the person to
deception is forbidden. The type of entrapment the be arrested indicating a crime has just been
law forbids is the inducing of another to violate the committed, was being committed, or is about to be
law, the "seduction" of an otherwise innocent person committed. (Sapi v. People, G.R. No. 200370, June
into a criminal career. 7, 2017)
Where the criminal intent originates criminal in the Officer Sees the Offense, Although at a Distance
mind of the entrapping person and the accused is When the illegal act was committed in the presence
lured into the commission of the offense charged in of the arresting officers, a warrantless arrest may be
order to prosecute him, there is entrapment and no effected. An offense is committed in the presence of
conviction may be had. an officer when the officer sees the offense,
although at a distance, or hears the disturbances
Where, however, the criminal intent originates in the created thereby and proceeds at once to the scene
mind of the accused and the criminal offense is of the crime. Police officers have personal
completed, the fact that a person acting as a decoy knowledge of the actual commission of the crime
for the state, or public officials furnished the accused when they had earlier conducted surveillance
an opportunity for commission of the offense, or that activities of the accused. (People v. Sucro, G.R. No.
the accused is aided in the commission of the crime 93239, March 18, 1991)
in order to secure the evidence necessary to
prosecute him, there is no entrapment and the For an arrest of a suspect in flagrante delicto, two
accused must be convicted.27 The law tolerates the elements must concur, namely: (a) the person to be
use of decoys and other artifices to catch a criminal. arrested must execute an overt act indicating that he
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has just committed, is actually committing, or is estimation is criminally seditious can justify
attempting to commit a crime; and (b) such overt act warrantless arrest in flagrante delicto even if upon
is done in the presence or within the view of the prosecution the officer is proved wrong. The criminal
arresting officer. The officer's personal knowledge of character of speech is something that is not easily
the fact of the commission of an offense is determined and must await court estimation.
absolutely required. The officer himself must (Bernas, The 1987 Philippine Constitution: A
witness the crime. Furthermore, the facts do not give Comprehensive Reviewer, 2011)
rise to a reasonable suspicion that X was in
possession of shabu. From a meter away, even with b. Hot Pursuit Arrest
perfect vision a police officer would not have been
able to identify with reasonable accuracy the Requisites (BC-PC-PK)
contents of the plastic sachet. X's acts of standing 1. An offense has just Been Committed; and
on the street and holding a plastic sachet in his 2. The arresting officer has Probable Cause to
hands, are not by themselves sufficient to incite believe based on Personal Knowledge of facts
suspicion of criminal activity or to create probable
or circumstances that the person to be arrested
cause enough to justify a warrantless arrest.
(Dominguez y Argana v. People, G.R. 235898, Mar. has committed it. (People v. Comprado, G.R.
13, 2019) No. 213225, April 4, 2018)
Continuing Offense Element of Immediacy

The crimes of rebellion, subversion, conspiracy or The clincher in the element of ''personal knowledge
proposal to commit such crimes, and crimes or of facts or circumstances" is the required element of
offenses committed in furtherance thereof or in immediacy within which these facts or
connection therewith constitute direct assaults circumstances should be gathered. This required
against the State and are in the nature of continuing time element acts as a safeguard to ensure that the
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crimes. Thus, a rebel may be arrested without a police officers have gathered the facts or perceived
warrant at any time for he is deemed to be in the act the circumstances within a very limited time frame.
of committing a crime. (Umil v. Ramos, G.R. No. This guarantees that the police officers would have
81567 July 9, 1990) no time to base their probable cause finding on facts
or circumstances obtained after an exhaustive
Buy-Bust investigation.
In buy-bust operations, the arresting officers catch
the malefactor in flagrante delicto. But the arresting The reason for the element of the immediacy is this
officers must neither instigate nor induce the - as the time gap from the commission of the crime
arrestee to commit a crime. Entrapment is the to the arrest widens, the pieces of information
employment of such ways and means for the gathered are prone to become contaminated and
purpose of capturing a lawbreaker from whose mind subjected to external factors, interpretations and
the criminal intent originated. In such cases, a hearsay. On the other hand, with the element of
search warrant is not necessary because a search immediacy imposed under Section 5(b), Rule 113 of
pursuant to a buy-bust operation is one made the Revised Rules of Criminal Procedure, the police
incidental to a lawful arrest – the arrestee is caught officer's determination of probable cause would
in flagrante delicto. (People v. De La Cruz, G.R. No. necessarily be limited to raw or uncontaminated
101315, May 12, 1993) facts or circumstances, gathered as they were within
a very limited period of time. The same provision
Stop and Frisk adds another safeguard with the requirement of
When a policeman observes suspicious activity, probable cause as the standard for evaluating these
which leads him to believe that a crime is about to facts of circumstances before the police officer could
be committed, he can investigate the suspicious effect a valid warrantless arrest. (Pestilos v.
looking person and may frisk him for weapons as a Generoso, G.R. No. 182601, Nov. 10, 2014)
measure of self-protection. Should he find, however,
a weapon on the suspect, which is unlicensed, he Manlulu was arrested without a warrant for allegedly
can arrest such person for having committed an having killed another person at around 1:00AM in
offense in his presence. the morning. The warrantless arrest was made
around 7:00PM or about 19 hours later. The SC held
For the arrest of one in flagrante delicto to be valid that for there to be a lawful warrantless arrest, the
under Rule 112, Section 5(a), the law tilts in favor of arresting officer must have personal knowledge of
authority. Thus, speech which in an officer's the offense, which has in fact just been committed.
In other words, the arrest has to immediately follow
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the commission of the offense. If a sufficient amount containing white crystalline substance, to create a
of time lapses as to allow him to procure a warrant, reasonable suspicion that the sachet did indeed
then the police officer must do so. In this case, not contain shabu. From all indications — the time of the
only was the arrest 19 hours after the alleged crime, arrest being 11:30 p.m., the Policeman's location,
but the arresting officer also did not have any and the tinted front windshield of the van through
personal knowledge of the facts. The SC also held which he was looking — it was highly doubtful that
that personal gathering of information is different the Policeman saw, let alone deciphered, the
from personal knowledge. (People v. Manlulu, G.R. contents of the sachet. For sure, it was only when
No. 102140, Apr. 22, 1994) he held the hand of the accused and confiscated the
plastic sachet that he was able to verify its contents.
Probable Cause (Villasana y Cabahug v. People, G.R. No. 209078,
In determining probable cause, the arresting officer Sept. 4, 2019)
may rely on all the information in his possession, his
fair inferences therefrom, including his c. Escapee
observations. Mere suspicion does not meet the An arrest without warrant is lawful when the person
requirements of showing probable cause to arrest to be arrested is a prisoner who has escaped from
without warrant especially if it is a mere general a penal establishment or place where he is serving
suspicion. Probable cause may rest on reasonably final judgment or temporarily confined while his case
trustworthy information as well as personal is pending, or has escaped while being transferred
knowledge. Thus, the arresting officer may rely on from one confinement to another. (ROC, Sec. 5(c),
information supplied by a witness or a victim of a Rule 113)
crime; and under the circumstances, the arresting
officer need not verify such information. Waiver of Right
The arresting officer should base his determination Objection to Illegal Arrest Must be Made Before
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of probable cause on his personal knowledge of Plea
facts and circumstances that the person sought to Appellant is estopped from questioning the legality
be arrested has committed the crime. In other of his arrest considering that he never raised this
words, the arresting officer operates on the basis of before entering his plea. Any objection involving a
more limited facts, evidence or available information
warrant of arrest or the procedure in the acquisition
that he must personally gather within a limited time of jurisdiction over the person of an accused must
frame. be made before he enters his plea, otherwise, the
objection is deemed waived. Consequently, any
One should not expect too much of an ordinary irregularity attendant to his arrest, if any, had been
policeman. He is not presumed to exercise the cured by his voluntary submission to the jurisdiction
subtle reasoning of a judicial officer. Oftentimes, he of the trial court when he entered his plea and
has no opportunity to make proper investigation but participated during the trial. (People v. Salvatierra,
must act in haste on his own belief to prevent the G.R. No. 104663, July 24, 1997)
escape of the criminal. (Pestilos v. Generoso, G.R.
No. 182601, Nov. 10, 2014) Accused was seen having a pot session and that the
police who arrested him were conducting a “stake-
Personal Knowledge: Hearsay Tip Insufficient out” operation. When accused tested positive for
The rule requires that an offense had just been drugs, he was charged with violation of RA 9165.
committed. It connotes immediacy in point of time. Accused did not deny that he was positive for drugs
Law enforcers need not personally witness the but rather, he questions the alleged illegality of his
commission of a crime. However, they must have arrest. The Court ruled that accused had already
personal knowledge of facts and circumstances waived the right to question the arrest. He was
indicating that the person sought to be arrested assisted by counsel when he entered his plea and
committed it. A hearsay tip by itself is not personal was able to present his evidence. The right to
knowledge required by the rule. (Sapi v. People, question the validity of an arrest may be waived if
G.R. No. 200370, June 7, 2017) the accused, assisted by counsel, fails to object to
its validity before arraignment. (Lapi v. People, G.R.
The requirement of personal knowledge is absent in No. 210731, Feb. 13, 2019)
this case. The Policeman was about 6-10 meters
away when he saw the accused emerge from an Waiver of an Illegal Arrest, Not a Waiver of an
alley holding a plastic sachet. His testimony fails to Illegal Search
state that he had personal knowledge that the A waiver of an illegal arrest, however, is not a waiver
sachet contained shabu, or that he saw the sachet of an illegal search. While the accused has already
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waived his right to contest the legality of his arrest, Requisites

he is not deemed to have equally waived his right to There is an effective waiver of rights against
contest the legality of the search. (Villanueva v. unreasonable searches and seizures if the
People, G.R. No. 199042, Nov. 17, 2014) following requisites are present: (EKI)
1. It must appear that the rights Exist;
A waiver of an illegal warrantless arrest does not 2. The person involved had Knowledge, actual or
also mean a waiver of the inadmissibility of evidence constructive, of the existence of such right;
seized during an illegal warrantless arrest. (Valdez 3. Said person had an actual Intention to
v. People, G.R. No. 170180, Nov. 23, 2007) relinquish the right. (People v. Tudtud, G.R. No.
144037, Sept. 26, 2003)
The right to question the validity of an arrest may be
waived if the accused, assisted by counsel, fails to
object to its validity before arraignment. This waiver, Who May Waive
however, does not carry with it a waiver of the The constitutional immunity from unreasonable
inadmissibility of the evidence seized during the searches and seizures, being personal one, cannot
illegal arrest. (Lapi v. People, G.R. No. 210731, Feb. be waived by anyone except:
13, 2019) 1. The person whose rights are invaded; or
2. One who is expressly authorized to do so in his
or her behalf. (People v. Damaso, G.R. No.
Application for Bail, Not a Waiver
93516, Aug. 12, 1992)
An application for or admission to bail shall not bar
the accused from challenging the validity of his
arrest or the legality of the warrant issued therefor, Prosecution Must Prove the Waiver with Clear
provided that he raises them before entering his and Convincing Evidence
plea. (ROC, Rule 114, § 26) Silence or lack of resistance can hardly be
considered as consent to the warrantless search.
Although the right against unreasonable searches
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3. WARRANTLESS SEARCHES and seizures may be surrendered through a valid
waiver, the prosecution must prove that the waiver
There are exceptional circumstances when
was executed with clear and convincing evidence.
searches are reasonable even when warrantless.
Consent to a warrantless search and seizure must
There are recognized instances of permissible
be unequivocal, specific, intelligently given and
warrantless searches laid down in jurisprudence.
unattended by duress or coercion. (Sapi v. People,
(Sapi v. People, G.R. No. 200370, June 7, 2017)
G.R. No. 200370, June 7, 2017)
Warrantless searches are allowable in the following
It is the State that has the burden of proving, by clear
circumstances: (WIPE MS CACP)
and positive testimony, that the necessary consent
a. Waiver of right
was obtained, and was freely and voluntarily given.
b. Search Incidental to a lawful arrest (Valdez v. People, G.R. No. 170180, Nov. 23, 2007)
c. Seizure of evidence in Plain view
d. During exigent and Emergency Determined by the Totality of the Circumstances
circumstances The validity of a consented warrantless search is
e. Search of a Moving vehicle determined by the totality of the circumstances. This
f. Stop and frisk rule (Terry Search) may involve an inquiry into the environment in which
g. Customs search the consent was given such as the presence of
h. Airport searches coercive police procedures. (Sapi v. People, G.R.
No. 200370, June 7, 2017)
i. Checkpoint Search
j. Warrantless search by a Private individual
Waiver Not Presumed
[Note: This is found in Sec. 5, Rule 113 of Mere passive conformity or silence to the
the Rules of Court where a private person warrantless search is only an implied acquiescence,
may arrest a person without a warrant, and which amounts to no consent at all. Silence or lack
in turn such private individual may validly of aggressive objection is a natural reaction to a
conduct a search incidental to a lawful coercive environment brought about by the police
arrest] (People v. Aruta, G.R. No. 120915, officer's excessive intrusion into his private space.
April 3, 1998) The prosecution and the police carry the burden of
showing that the waiver of a constitutional right is
one which is knowing, intelligent, and free from any
a. Waiver of Right coercion. In all cases, such waivers are not to be
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presumed. (Sapi v. People, G.R. No. 200370, June 2. The item to be searched was within the
7, 2017) arrestee’s Custody or area of immediate control;
and
Invalid Waiver Under RA 10951 3. The search was Contemporaneous with the
RA No. 10591 authorizes warrantless inspections of arrest.
houses, which are unreasonable and, therefore,
require a search warrant. Signing the Consent of
Lawful Arrest Must Precede the Search
Voluntary Presentation for Inspection in the pro
General Rule: A search incidental to a lawful arrest
forma Individual Application for New Firearm
requires that there must first be a lawful arrest
Registration cannot be considered a valid waiver of
before a search is made. Otherwise stated, a lawful
the right against unreasonable searches under
arrest must precede the search; the process cannot
Article III, Section 2 of the Constitution. There is a
be reversed. (Sapi v. People, G.R. No. 200370,
legitimate, almost absolute, expectation of privacy in
June 7, 2017)
one's residence. The inspection contemplated may
only be done with a search warrant. Therefore, the
Exception: A search substantially
signing of the Consent of Voluntary Presentation for
contemporaneous with an arrest can precede the
Inspection is violative of the protection against
arrest if the police has probable cause to make the
unreasonable searches and seizures. (Acosta v.
arrest at the outset of the search. (People v.
Ochoa, G.R. Nos. 211559, 211567, 212570 &
Mariacos, G.R. No. 188611, June 16, 2010)
215634, Oct. 15, 2019)
Scope of Warrantless Search
Any objection to the legality of the search warrant
The scope of allowable warrantless search is limited
and the admissibility of the evidence obtained
to the area within which the person arrested could
thereby was deemed waived when no objection was
reach for a weapon or reach for evidence to destroy
raised by appellant during trial. (People v. Nunez,
it. (Chimel v. California, 395 U.S. 752, June 23,
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G.R. No. 177148, G.R. No. 177148 June
1969)
30, 2009)
Moreover, in lawful arrests, it becomes both the duty
a. Search Incidental to a Lawful and the right of the apprehending officers to conduct
Arrest
a warrantless search not only on the person of the
suspect, but also in the permissible area within the
A person lawfully arrested may be searched for latter’s reach. Otherwise stated, a valid arrest allows
dangerous weapons or anything which may have the seizure of evidence or dangerous weapons
been used or constitute proof in the commission of either on the person of the one arrested or within the
an offense without a search warrant. (ROC, Rule area of his immediate control. The phrase "within the
126, § 13) area of his immediate control" means the area from
within which he might gain possession of a weapon
Purpose or destructible evidence. A gun on a table or in a
The purpose of allowing a warrantless search and drawer in front of one who is arrested can be as
seizure incident to a lawful arrest is to protect the dangerous to the arresting officer as one concealed
arresting officer from being harmed by the person in the clothing of the person arrested. (People v.
arrested, who might be armed with a concealed Calantiao, G.R. No. 203984, June 18, 2014)
weapon, and to prevent the latter from destroying
evidence within reach. It is therefore a reasonable In Valeroso, however, the Court held that the
exercise of the State’s police power to protect (1) evidence searched and seized from him could not
law enforcers from the injury that may be inflicted on be used against him because they were discovered
them by a person they have lawfully arrested; and in a room, different from where he was being
(2) evidence from being destroyed by the arrestee. detained, and was in a locked cabinet. Thus, the
It seeks to ensure the safety of the arresting officers area searched could not be considered as one
and the integrity of the evidence under the control within his immediate control that he could take any
and within the reach of the arrestee. (People v. weapon or destroy any evidence against him.
Calantiao, G.R. No. 203984, June 18, 2014) (People v. Calantiao, G.R. No. 203984, June 18,
2014)
Requisites The better and established rule is a strict application

Test for a valid warrantless search incidental to of the exception provided in Rule 126, sec. 12 [now
a lawful arrest: (LCC) Sec. 13] and that is to absolutely limit a warrantless
1. The arrest must be Lawful; search of a person who is lawfully arrested to his or
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her person at the time of and incident to his or her test does not require an unduly high degree of
arrest and to "dangerous weapons or anything certainty as to the incriminating character of the
which may be used as proof of the commission of evidence. (United Laboratories v. Isip, G.R. No.
the offense." Such warrantless search obviously 163858, June 28, 2005)
cannot be made in a place other than the place of
arrest.” (Nolasco v. Pano, G.R. No. L- 69803, Jan. It is undeniable that the seizure of the prohibited
30, 1987) items in this case was valid under the "plain view"
doctrine, for which the following requisites concur:
What May Be Searched (a) the law enforcement officer in search of the
Assuming a valid arrest, the arresting officer may evidence has a prior justification for an intrusion or
search the person of the arrestee and the area is in a position from which he can view a particular
within which the latter may reach for a weapon or for area; (b) the discovery of evidence in plain view is
evidence to destroy, and seize any money or inadvertent; (c) it is immediately apparent to the
property found which was: officer that the item he observes may be evidence
(a) Used in the commission of the crime, or of a crime, contraband or otherwise subject to
(b) The fruit of the crime, or seizure.
(c) That which may be used as evidence, or
(d) Which might furnish the arrestee with the In this case all the elements of plain view were
means of escaping or committing violence. established. First, the police officers were
conducting a routine checkpoint when they flagged
(People v. Comprado, G.R. No. 213225,
down X, because he was committing several traffic
April 4, 2018) infractions. Thus, the police officers had a prior
justification for their act of flagging down X and their
b. Seizure of Evidence in Plain subsequent intrusion. Second, upon asking X for his
View registration papers, he voluntarily opened his utility
FOR ONE ATENEO

box, and the two (2) sachets of shabu were plainly
Concept visible to the police officer Z. The discovery of the
Objects in the "plain view" of an officer who has the sachets was inadvertent and the illicit items were
right to be in the position to have that view are immediately apparent. Lastly, sachets containing
subject to seizure without a warrant. white crystalline substance were confiscated since
Requisites
The following elements must be present before
the doctrine may be applied: (VIAJ)
it appeared that the same could be evidence of a
crime, contraband, or otherwise subject to seizure.
This seizure of evidence justified the subsequent
searches and the arrest of Danilo. If not for the said
1. A prior Valid intention based on the valid plastic sachets, there would have been no valid
warrantless arrest in which the police are reason to search or frisk Danilo as his traffic
legally present in the pursuit of their official violations were punishable only by fine. His traffic
violations per se did not justify a search incidental to
duties;
a lawful arrest as there was as yet no lawful arrest
2. The evidence was Inadvertently discovered to speak of. (De Villa y Guinto v. People, G.R. No.
by the police who have the right to be where 224039, Sept. 11, 2019.)
they are;
3. The evidence must be immediately Apparent; Exception to the Inadmissibility of Evidence
and Obtained in a Warrantless Search Incident to a
Lawful Arrest Outside the Suspect’s Person and
4. "Plain view" Justified were seizure of
Premises under his Immediate Control
evidence without further search. (People v. The Plain View Doctrine is actually the exception to
Compacion, G.R. No. 124442, July 20, 2001) the inadmissibility of evidence obtained in a
warrantless search incident to a lawful arrest outside
Immediately Apparent Requirement; Probable the suspect’s person and premises under his
Cause immediate control. It serves to supplement the prior
The immediate requirement means that the justification – whether it be a warrant for another
executing officer can, at any time of discovery of the object, hot pursuit, search incident to lawful arrest,
object or the facts therein available to him, or some other legitimate reason for being present
determine probable cause of the object’s unconnected with a search directed against the
incriminating evidence. Probable cause must be the accused – and permits the warrantless seizure.
direct result of the officer’s instantaneous sensory (People v. Calantiao, G.R. No. 203984, June 18,
perception of the object. The immediately apparent 2014)
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Applied Where a Police Officer is Not Searching report that it housed large quantities of ammunition.
for Evidence During the operations, the car of the surveillance
The doctrine is usually applied where a police officer team was fired upon by 5 persons from a crowd
is not searching for evidence against the accused, within the vicinity of the EUROCAR Building. The
but nonetheless inadvertently comes across an team proceeded to the building without a warrant
incriminating object. (Valeroso v. CA, G.R. No. and was able to seize de Gracia and plenty of
164815, Sept. 3, 2009) explosives and ammunition. The SC held that the
arrests were impelled by the exigencies of the
Object Seized Inside a Closed Package situation, which concerned the very survival of
General Rule: An object is in plain view if the object society and the government. In this case, the military
itself is plainly exposed to sight. Where the object operatives had reasonable ground to believe that a
seized was inside a closed package, the object itself crime was being committed. The team had no
is not in plain view and therefore cannot be seized opportunity to apply for a search warrant from the
without a warrant. courts, as the court with jurisdiction, at that time,
was closed due to disorder. (People v. De Gracia,
Exception: However, if the package proclaims its G.R. Nos. 102009-10, July 6, 1994).
contents, whether by its distinctive configuration, its
transparency, or if its contents are obvious to an d. Search of a Moving Vehicle
observer, then the contents are in plain view and
may be seized. Concept
The rules governing searches and seizures have
In other words, if the package is such that an been liberalized when the object of a search is a
experienced observer could infer from its vehicle for practical purposes. Police officers cannot
appearance that it contains the prohibited article, be expected to appear before a judge and apply for
then the article is deemed in plain view. It must be a search warrant when time is of the essence
FOR ONE ATENEO

immediately apparent to the police that the items considering the efficiency of vehicles in facilitating
that they observe may be evidence of a crime, transactions involving contraband or dangerous
contraband or otherwise subject to seizure. articles. However, the inherent mobility of vehicles
(Caballes v. CA, G.R. No. 136292, Jan. 15, 2002) cannot justify all kinds of searches. Law enforcers
must act on the basis of probable cause. (Sapi v.
Plain View Doctrine Not Applicable When People, G.R. No. 200370, June 7, 2017)
Evidence Discovered in the Course of a Search
The seizure of the passports, bankbooks, checks, Rationale
typewriter, check writer, dry seals and stamp pads Securing a search warrant is not practicable to
and other assorted documents does not fall within secure a warrant because the vehicle can be quickly
the “plain view” exception. The assertions of the moved out of the locality or jurisdiction in which the
police officers that said objects were “inadvertently” warrant must be sought. (Papa v. Mago, G.R. No. L-
seized within their “plain view” are mere legal 27360, Feb. 28, 1968)
conclusions which are not supported by any clear
narration of the factual circumstances leading to Visual Search – No Probable Cause Required
their discovery. The supposed illegal character of Thus, routinary and indiscriminate searches of
the items claimed to have been seized within the moving vehicles are allowed if they are limited to a
“plain view” of the policemen was not readily and visual search. This holds especially true when the
immediately apparent. Rather, the suspicions of the object of the search is a public vehicle where
policemen appear to have been aroused by the individuals have a reasonably reduced expectation
presence of the numerous passports and of privacy. (Sapi v. People, G.R. No. 200370, June
immigration documents which they discovered in the 7, 2017)
course of their search. (People v. Go, G.R. No.
144639, Sept. 12, 2003) A search of a moving vehicle may either be a mere
routine inspection or an extensive search. The
search in a routine inspection is limited to the
c. Exigent and Emergency following instances:
Circumstances a. Where the officer merely draws aside the
curtain of a vacant vehicle which is parked
In the event of a coup d’etat conducted by the on the public fair grounds;
“Reform the Armed Forces Movement Soldiers of b. Simply looks into a vehicle;
the Filipino People”, the EUROCAR Building was c. Flashes a light therein without opening the
put under surveillance pursuant to an intelligence car's doors;
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d. Where the occupants are not subjected to Requisites (URIRA)

a physical or body search; 1. Police Officer observes Unusual conduct.
e. Where the inspection of the vehicles is 2. Reasonable suspicion that person is engaged in
limited to a visual search or visual some type of criminal activity in light of
inspection; and experience.
f. Where the routine check is conducted in a 3. Identifies himself as a policeman upon
fixed area. (Macad v. People, G.R. No. approach.
227366, Aug. 1, 2018) 4. Makes Reasonable inquiries.
5. There is reasonable fear for one’s own, or
Extensive Search – Probable Cause Required others’ safety. Thus, he is entitled to conduct a
On the other hand, extensive searches are limited search of the outer clothing of such
permissible only when they are founded upon persons in an Attempt to discover weapons that
probable cause. Any evidence obtained will be might be used for assault. (Terry v. Ohio, 392
subject to the exclusionary principle under the U.S. 1, June 10, 1968)
Constitution. (Sapi v. People, G.R. No. 200370,
June 7, 2017)
Scope
The allowable scope of a "stop and frisk" search is
That the object of a warrantless search is allegedly
limited to a protective search of outer clothing for
inside a moving vehicle does not justify an extensive
weapons. (Sapi v. People, G.R. No. 200370, June
search absent probable cause. Moreover, law
7, 2017)
enforcers cannot act solely on the basis of
confidential or tipped information. A tip is still
Totality of Suspicious Circumstances; At Least
hearsay no matter how reliable it may be. It is not
2 or More Suspicious Circumstances
sufficient to constitute probable cause in the
For a “stop and frisk” search to be valid, it must be
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absence of any other circumstance that will arouse
supported by evidence such that the totality of the
suspicion. (Sapi v. People, G.R. No. 200370, June
suspicious circumstances observed by the arresting
7, 2017)
officer led him/her to believe that an accused was
committing an illicit act. (Telen v. People, G.R.
When a vehicle is stopped and subjected to an
228107, Oct. 9, 2019)
extensive search, such a warrantless search has
been held to be valid only as long as the officers
To sustain the validity of a stop and frisk search, the
conducting the search have reasonable or probable
arresting officer should have personally observed
cause to believe before the search that they will find
two (2) or more suspicious circumstances, the
the instrumentality or evidence pertaining to a crime,
totality of which would then create a reasonable
in the vehicle to be searched. (Macad v. People,
inference of criminal activity to compel the arresting
G.R. No. 227366, Aug. 1, 2018)
officer to investigate further. (Manibog vs People,
G.R. No. 211214, March 20, 2019)
A confidential informer tipped the police that a
Gemini car was going to deliver shabu. When they
The police officer must observe at least 2 or more
stopped the car, they saw a gun tucked in Tuazon’s
suspicious circumstances. In this case, the
waist. He did not have any documents, which
prosecution failed to prove the legality of the
strengthened the police’s suspicion. After he was
warrantless arrest and the bare assertion that they
told to step out of the car, they found plastic sachets
caught X in flagrante delicto of illegal possession of
containing shabu on the driver’s seat. These
a hand grenade is insufficient to cloth the police
circumstances are sufficient to establish probable
officers with the authority to restrain X’s liberty. PO3
cause for the warrantless search of the car. Hence,
Y suspicion based on the sight of a metal object is
the sachets of shabu may be admitted as evidence.
not sufficient to defeat X’s constitutional right to
(People v. Tuazon, G.R. No. 175783, Sept. 3, 2007)
privacy. More importantly, the prosecution in this
case failed to prove the existence of a hand grenade
e. Stop and Frisk Rule (Terry as no evidence was proffered on its chain custody.
Search) (Telen v. People, G.R. 228107, Oct. 9, 2019)
Concept Probable Cause Not Required; But Genuine

A "stop and frisk" search is the act of a police officer Reason Based on Experience
to stop a citizen on the street, interrogate him, and Law enforcers do not have unbridled discretion in
pat him for weapon(s) or contraband. (Sapi v. conducting "stop and frisk" searches. While
People, G.R. No. 200370, June 7, 2017) probable cause is not required, a "stop and frisk"
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search cannot be validated on the basis of a agents, inspectors and guards of the
suspicion or hunch. Law enforcers must have a Bureau;
genuine reason to believe, based on their b. Upon authorization of the Commissioner,
experience and the particular circumstances of each officers and members of the Armed Forces
case, that criminal activity may be afoot. Reliance of the Philippines (AFP) and national law
on one (1) suspicious activity alone, or none at all,
enforcement agencies; and
cannot produce a reasonable search. (Sapi v.
People, G.R. No. 200370, June 7, 2017) c. Officials of the BIR on all cases falling
within the regular performance of their
f. Customs Search duties, when payment of internal revenue
taxes is involved. (Customs Modernization
The Tariff and Customs Code of 1957 authorizes And Tariff Act, § 214)
persons having police authority under Section 2203
of the Tariff and Customs Code to enter, pass Authority to Enter Properties
through or search any land, inclosure, warehouse, Any person exercising police authority may, at any
store or building, not being a dwelling house; and time, enter, pass through, and search any land,
also to inspect, search and examine any vessel or enclosure, warehouse, store, building or structure
aircraft and any trunk, package, or envelope or any not principally used as a dwelling house.
person on board, or to stop and search and examine
any vehicle, beast or person suspected of holding or When a security personnel or any other employee
conveying any dutiable or prohibited article lives in the warehouse, store, or any building,
introduced into the Philippines contrary to law, structure or enclosure that is used for storage of
without mentioning the need of a search warrant in goods, it shall not be considered as a dwelling
said cases. But in the search of a dwelling house, house for purposes of this Act. (Customs
the Code provides that said dwelling house may be Modernization And Tariff Act, § 219)
FOR ONE ATENEO

entered and searched only upon warrant issued by
a judge or justice of the peace. Thus, except in the Authority to Search Dwelling House
case of the search of a dwelling house, persons A dwelling house may be entered and searched only
exercising police authority under the customs law upon warrant issued by a Judge of a competent
may effect search and seizure without a search court, the sworn application thereon showing
warrant in the enforcement of customs laws. (Papa
v. Mago, G.R. No. L-27360, Feb. 28, 1968)
Requisites:
probable cause and particularly describing the place
to be searched and the goods to be seized.
(Customs Modernization And Tariff Act, § 220)
Customs searches are allowed when persons Authority to Search Vessels or Aircrafts and
exercising police authority under the customs law Persons or Goods Conveyed Therein
effect search and seizure in the enforcement of Any person exercising police authority under this Act
customs laws. To be valid, the requirements are: may board, inspect, search and examine a vessel or
(ACH) aircraft and any container, trunk, package, box or
1. The person conducting the search is envelope found on board, and physically search and
exercising police Authority under customs examine any person thereon. In case of any
probable violation of this Act, the person exercising
law;
police authority may seize the goods, vessel,
2. The search was for the enforcement of aircraft, or any part thereof.
Customs law; and
3. The place searched is not a dwelling place or Such power to search includes removal of any false
House. (Dela Cruz v People of the bottom, partition, bulkhead, or any other obstruction
Philippines, G.R. No. 209387, Jan. 11, 2016) for the purpose of uncovering any concealed
dutiable or forfeitable goods.
CUSTOMS MODERNIZATION AND TARIFF
The proceeding herein authorized shall not give rise
ACT
to any claim for damage caused to the goods, vessel
or aircraft, unless there is gross negligence or abuse
Persons Exercising Police Authority
of authority in the exercise thereof. (Customs
The following persons are authorized to effect
Modernization And Tariff Act, § 221)
search, seizure, and arrest:
a. Officials of the Bureau, District Collectors,
Deputy District Collectors, police officers,
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Authority to Search Vehicles, Other Carriers, her apprehensiveness and her obviously false
Persons and Animals statement that the packages contained only money,
Upon reasonable cause, any person exercising aroused the suspicion of the frisker that SUSAN was
police authority may open and examine any box, hiding something illegal. It must be repeated that
trunk, envelope, or other container for purposes of R.A. No. 6235 authorizes search for prohibited
determining the presence of dutiable or prohibited materials or substances. To limit the action of the
goods. This authority includes the search of airport security personnel to simply refusing her
receptacles used for the transport of human remains entry into the aircraft and sending her home (as
and dead animals. Such authority likewise includes suggested by appellant), and thereby depriving
the power to stop, search, and examine any vehicle them of "the ability and facility to act accordingly,
or carrier, person or animal suspected of holding or including to further search without warrant, in light of
conveying dutiable or prohibited goods. (Customs such circumstances, would be to sanction
Modernization And Tariff Act, § 222) impotence and ineffectivity in law enforcement, to
the detriment of society." Thus, the strip search in
Authority to Search Persons Arriving From the ladies’ room was justified under the
Foreign Countries circumstances. (People v. Canton, G.R. No.
Upon reasonable cause, travelers arriving from 148825, Dec. 27, 2002)
foreign countries may be subjected to search and
detention by the customs officers. The dignity of the h. Checkpoint Search
person under search and detention shall be
respected at all times. Female inspectors may be Concept
employed for the examination and search of A checkpoint search is a variant of a search of a
persons of their own sex. (Customs Modernization moving vehicle. Checkpoints per se are not invalid.
And Tariff Act, § 223) They are allowed in exceptional circumstances to
protect the lives of individuals and ensure their
FOR ONE ATENEO

g. Airport Searches safety. They are also sanctioned in cases where the
government's survival is in danger. Considering that
The search was made pursuant to routine airport routine checkpoints intrude on a motorist's right to
security procedure, which is allowed under Section 'free passage’ to a certain extent, they must be
9 of Republic Act No. 6235 reading as follows: conducted in a way least intrusive to motorists. (Sapi
v. People, G.R. No. 200370, June 7, 2017)
SEC. 9. Every ticket issued to a passenger by the
airline or air carrier concerned shall contain among Requisites (No body LAV)
others the following condition printed thereon: 1. Passengers Not subjected to Body search;
"Holder hereof and his hand-carried luggage(s) are 2. Limited to visual search
subject to search for, and seizure of, prohibited 3. Abnormal times; and
materials or substances. Holder refusing to be 4. Vehicle not searched. (Valmonte v. Gen. De
searched shall not be allowed to board the aircraft," Villa, G.R. No. 83988, September 29, 1989)
which shall constitute a part of the contract between
the passenger and the air carrier. Limited to a Visual Search; Vehicle and Body
Search Not Allowed
This constitutes another exception to the The extent of routine inspections must be limited to
proscription against warrantless searches and a visual search. Routine inspections do not give law
seizures. As admitted by SUSAN and shown in enforcers carte blanche to perform warrantless
Annex "D" of her Brief, the afore-quoted provision is searches. (Sapi v. People, G.R. No. 200370, June
stated in the "Notice to All Passengers" located at 7, 2017)
the final security checkpoint at the departure lounge.
From the said provision, it is clear that the search, For as long as the vehicle is neither searched nor its
unlike in the Terry search, is not limited to weapons. occupants subjected to a body search, and the
Passengers are also subject to search for prohibited inspection of the vehicle is limited to a visual search,
materials or substances. said routine checks cannot be regarded as violative
of an individual's right against unreasonable
In this case, after the metal detector alarmed searches. Thus, a search where an officer merely
SUSAN consented to be frisked, which resulted in draws aside the curtain of a vacant vehicle which is
the discovery of packages on her body. It was too parked on the public fair grounds, or simply looks
late in the day for her to refuse to be further into a vehicle, or flashes a light therein is not
searched because the discovery of the packages unreasonable. (Sapi v. People, G.R. No. 200370,
whose contents felt like rice granules, coupled by June 7, 2017)
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exclusive. While both State intrusions are valid even

Unannounced Checkpoints without a warrant, the underlying reasons for the
We see no need for checkpoints to be announced, absence of a warrant are different. (Saluday v.
as the accused have invoked. Not only would People, G.R. No. 215305, April 3, 2018)
announcements be impractical, it would also
forewarn those who intend to violate the ban. Even Reasonable Search
so, badges of legitimacy of checkpoints may still be A reasonable search arises from a reduced
inferred from their fixed location and the regularized expectation of privacy, for which reason Section 2,
manner in which they are operated. (People v. Article III of the Constitution finds no application.
Escano, G.R. Nos. 129756-58, Jan. 28, 2000) Examples include searches done at airports,
seaports, bus terminals, malls, and similar public
Extensive Search Allowed When Probable places. (Saluday v. People, G.R. No. 215305, April
Cause Present 3, 2018)
However, an extensive search may be conducted on
a vehicle at a checkpoint when law enforcers have Warrantless Search
probable cause to believe that the vehicle's In contrast, a warrantless search is presumably an
passengers committed a crime or when the vehicle "unreasonable search," but for reasons of
contains instruments of an offense. (Sapi v. People, practicality, a search warrant can be dispensed with.
G.R. No. 200370, June 7, 2017) Examples include search incidental to a lawful
arrest, search of evidence in plain view, consented
Exclusive reliance on information tipped by search, and extensive search of a private moving
informants goes against the very nature of probable vehicle. (Saluday v. People, G.R. No. 215305, April
cause. A single hint hardly amounts to the existence 3, 2018)
of such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that REASONABLE SEARCH: BUS SEARCHES
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an offense has been committed and that the objects
sought in connection with the offense are in the (Saluday v. People, G.R. No. 215305, April 3, 2018)
place to be searched. The finding of should be
premised on more than just the initial information Prior to Entry
relayed by assets. It was the confluence of initial tips Prior to entry, passengers and their bags and
and a myriad of other occurrences that ultimately luggages can be subjected to a routine inspection
sustained probable cause. In this case, a radio akin to airport and seaport security protocol. In this
message cannot be the sole basis of the finding of regard, metal detectors and x-ray scanning
probable cause to warrant the extensive search of machines can be installed at bus terminals.
the vehicle of the accuse on the police checkpoint. Passengers can also be frisked. In lieu of electronic
(People v. Yanson, G.R. No. 238453, July 31, 2019) scanners, passengers can be required instead to
open their bags and luggages for inspection, which
i. Warrantless Search by a inspection must be made in the passenger's
Private Individual presence. Should the passenger object, he or she
can validly be refused entry into the terminal.
If the search is made at the behest or initiative of the
proprietor of a private establishment for its own and While in Transit
private purposes, and without the intervention of While in transit, a bus can still be searched by
police authorities, the right against unreasonable government agents or the security personnel of
search and seizure cannot be invoked for only the the bus owner in the following three instances:
act of a private individual, not the law enforcers, is (IPC)
involved. In sum, the protection against a. Upon receipt of information that a
unreasonable searches and seizures cannot be passenger carries contraband or Illegal
extended to acts committed by private individuals so articles, the bus where the passenger is
as to bring it within the ambit of alleged unlawful aboard can be stopped en route to allow for
intrusion by the government. (People v. Marti, G.R. an inspection of the person and his or her
No. 81561, Jan. 18, 1991) effects. This is no different from an airplane
that is forced to land upon receipt of
REASONABLE SEARCH V. information about the contraband or illegal
WARRANTLESS SEARCH articles carried by a passenger onboard.
b. Whenever a bus picks passengers en
A reasonable search, on the one hand, and a
warrantless search, on the other, are mutually route, the Prospective passenger can be
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frisked and his or her bag or luggage be

subjected to the same routine inspection by Does Not Apply to Privately-Owned Cars
government agents or private security The guidelines do not apply to privately-owned cars.
personnel as though the person boarded Neither are they applicable to moving vehicles
the bus at the terminal. This is because dedicated for private or personal use, as in the case
of taxis, which are hired by only one or a group of
unlike an airplane, a bus is able to stop and
passengers such that the vehicle can no longer be
pick passengers along the way, making it flagged down by any other person until the
possible for these passengers to evade the passengers on board alight from the vehicle.
routine search at the bus terminal.
c. A bus can be flagged down at designated REASONABLE SEARCH: PORT SEARCHES
military or police Checkpoints where State
Searches pursuant to port security measures are
agents can board the vehicle for a routine not unreasonable per se. The security measures of
inspection of the passengers and their bags x-ray scanning and inspection in domestic ports are
or luggages. akin to routine security procedures in airports. The
reason behind the exception to the prohibition
Requisites against warrantless searches is that there is a
In both situations (prior to entry and while in transit), reasonable reduced expectation of privacy when
the inspection of passengers and their effects prior coming into airports or ports of travel.
to entry at the bus terminal and the search of the bus
while in transit must also satisfy the following Actual inspection upon showing of probable cause
conditions to qualify as a valid reasonable search: that a crime is being or has been committed is part
(LIDSE) of reasonable security regulations to safeguard the
1. First, as to the manner of the search, it must passengers passing through ports or terminals. Any
be the Least Intrusive and must uphold the perceived curtailment of liberty due to the
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dignity of the person or persons being presentation of person and effects for port security
searched, minimizing, if not altogether measures is a permissible intrusion to privacy when
measured against the possible harm to society
eradicating, any cause for public caused by lawless persons.
embarrassment, humiliation or ridicule.
2. Second, neither can the search result from
any Discriminatory motive such as insidious
profiling, stereotyping and other similar
Thus, when the results of the x-ray scan revealed
the existence of firearms in the bag, the port
authorities have probable cause to conduct a search
of the person’s bag. (Dela Cruz v People of the
motives. In all instances, the fundamental
Philippines, GR 209387, Jan. 11, 2016)
rights of vulnerable identities, persons with
disabilities, children and other similar groups
4. ADMINISTRATIVE ARRESTS
should be protected.
3. Third, as to the purpose of the search, it must Deportation Proceedings
be confined to ensuring public Safety. Section 37 of the Immigration Law, empowering the
4. Fourth, as to the Evidence seized from the Commissioner of Immigration to issue warrants for
reasonable search, courts must be convinced the arrest of overstaying aliens is constitutional. The
that precautionary measures were in place to arrest is a step preliminary to the deportation of the
aliens who had violated the condition of their stay in
ensure that no evidence was planted against
this country. The requirement of probable cause, to
the accused. be determined by a Judge, does not extend to
deportation proceedings. There need be no
Applies to Other Vehicles "truncated" recourse to both judicial and
Aside from public transport buses, any moving administrative warrants in a single deportation
vehicle that similarly accepts passengers at the proceeding. (Harvey v. Miriam Defensor Santiago,
terminal and along its route is likewise covered by G.R. No. 82544, June 28, 1988)
these guidelines. Hence, whenever compliant with
these guidelines, a routine inspection at the terminal Drug, Alcohol, and Blood Test
or of the vehicle itself while in transit constitutes a The Court acknowledged that compelled urinalysis
reasonable search. Otherwise, the intrusion was a form of search but its “reasonableness” must
becomes unreasonable, thereby triggering the be judged by balancing the intrusion on the
constitutional guarantee under Section 2, Article III individual’s interests against the promotion of
of the Constitution.
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legitimate government interests. What was essential 4. Persons charged before the public
was the school’s custodial responsibility and prosecutor's office – Unconstitutional
authority, the nature of the intrusion, the Defendants in a criminal complaint are not randomly
confidentiality of the test results and the legitimate picked; neither are they beyond suspicion. Certain
government interest. (Vernonia School District v. persons are singled out and are impleaded against
Acton, 515 U.S. 64, June 26, 1995; Board of their will, making a medical test a tool for criminal
Education v. Earls, 536 U.S. 22, June 27, 2002) prosecution. (Social Justice Society v. Dangerous
Drugs Board, G.R. Nos. 157870, 158633, 161658,
The Philippine courts followed the ruling in Vernonia Nov. 3, 2008)
when it decided a case involving the mandatory drug
testing of candidates for public office, students of 5. EXCLUSIONARY RULE
secondary and tertiary schools, officers and
employees of public and private offices, and Concept
persons charged before the prosecutor’s office with Any evidence obtained in violation of the right
certain offenses. The SC held that the right to against unreasonable searches and seizure shall be
privacy has been accorded as a facet of the right to inadmissible for any purpose in any proceeding.
unreasonable searches and seizures. (PHIL. CONST., art. III, § 3[2])
On the case of mandatory drug testing provided for Any evidence obtained in violation of the right
in the Dangerous Drug Act, the Supreme Court held against unreasonable searches and seizures shall
the following: be inadmissible for any purpose in any proceeding.
This exclusionary rule instructs that evidence
1. Candidates for Constitutional Offices – obtained and confiscated on the occasion of such
Unconstitutional unreasonable searches and seizures are deemed
A law cannot provide additional qualifications other tainted and should be excluded for being the
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than those outlined in the Constitution. proverbial fruit of a poisonous tree. In other words,
evidence obtained from unreasonable searches and
2. Employees – Constitutional seizures shall be inadmissible in evidence for any
The random drug testing would be undertaken in purpose in any proceeding. (People v. Comprado,
such a manner as to protect the privacy of the
G.R. No. 213225, April 4, 2018)
employees involved. Also, the privacy interest in an
office is circumscribed by the company’s work To Whom Directed: The State
policies, CBAs, and the right of the employer to The constitutional proscription against unlawful
maintain discipline and efficiency in the workplace. searches and seizures therefore applies as a
The right to privacy must yield to the necessary and restraint directed only against the government and
reasonable requirements of police power. its agencies tasked with the enforcement of the law.
Thus, it could only be invoked against the State to
3. Students – Constitutional whom the restraint against arbitrary and
It is within the prerogative of schools to require unreasonable exercise of power is imposed.
compliance with reasonable school regulations, as (People v. Marti, G.R. No. 81561, Jan. 18, 1991)
a condition for admission or enrollment. The court
found: If the search is made at the behest or initiative of the
a. Schools and their administrators stand in loco proprietor of a private establishment for its own and
parentis with respect to their students; private purposes, and without the intervention of
b. Minor students have contextually fewer rights police authorities, the right against unreasonable
than an adult, and are subject to the custody search and seizure cannot be invoked for only the
and supervision of their parents, guardians, act of private individual, not the law enforcers, is
and schools; involved. In sum, the protection against
c. Schools, acting in loco parentis, have a duty unreasonable searches and seizures cannot be
to safeguard the health and well-being of extended to acts committed by private individuals so
their students and may adopt such measures as to bring it within the ambit of alleged unlawful
as may reasonably be necessary to intrusion by the government. (People v. Marti, G.R.
discharge such duty; and No. 81561, Jan. 18, 1991)
d. Schools have the right to impose conditions
on applicants for admission that are fair, just,
and non- discriminatory.
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E. PRIVACY OF COMMUNICATIONS password on his computer, did not share his office
AND CORRESPONDENCE with co-workers and kept the same locked.
However, the existence of a workplace privacy
1. PRIVATE AND PUBLIC policy may limit or erode the reasonable expectation
of privacy. (Pollo v. Constantino-David, G.R. No.
COMMUNICATIONS
181881, Oct. 18, 2011)
Concept
Private Communications Can Be Made Public
Forms of communication and correspondence
Private communications can be made public where
considered private and protected by this provision
a secret involves public questions which the State
include:
should and ought to know, the State may infringe
a. Letters
that privacy of communication by some process or
b. Messages by appealing to the Court for the purpose of
c. Telephone calls determining whether or not the privacy should be
d. Telegrams and the like (Bernas, The 1987 maintained. The court may allow intrusions on
Constitution of the Republic of the privacy of communication and correspondence only
Philippines, 2009) on the ground of probable cause. (Bernas, The 1987
Constitution of the Republic of the Philippines, 2009)
Reasonable Expectation of Privacy Test
In ascertaining whether there is a violation of the Public Figure
right to privacy, courts use the "reasonable The right of privacy of a "public figure" is necessarily
expectation of privacy" test. This test determines narrower than that of an ordinary citizen. (Ayer v.
whether a person has a reasonable expectation of Capulong, G.R. No. 82380, April 29, 1988)
privacy and whether the expectation has been
violated. Personal Matters
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Section 7, Article III of the 1987 Constitution grants
The reasonableness of a person’s expectation of the right of the people to information on matters of
privacy depends on a two-part test: public concern. Personal matters are exempt or
a. Subjective: Whether, by his conduct, the outside the coverage of the people’s right to
information on matters of public concern. The data
individual has exhibited an expectation of
privacy; and treated as "strictly confidential" under EO 420 being
b. Objective: This expectation is one that private matters and not matters of public concern,
these data cannot be released to the public or the
society recognizes as reasonable. (Pollo v.
press. (KMU v. Dir. Gen. of NEDA, G.R. No.
Constantino-David, G.R. No. 181881, Oct. 167798, April 19, 2006)
18, 2011)
2. INTRUSION, WHEN ALLOWED
Customs, community norms, and practices may, The privacy of communication and correspondence
therefore, limit or extend an individual’s reasonable shall be inviolable except:
expectation of privacy. Hence, the reasonableness a. Upon lawful order of the court, or
of a person’s expectation of privacy must be b. When public safety or order requires
determined on a case-to-case basis since it
otherwise as prescribed by law. (PHIL.
depends on the factual circumstances surrounding
the case. (Sps. Hing v. Choachuy, G.R. No. 179736, CONST., art. III, § 3[1])
June 26, 2013)
a. Upon Lawful Order of the Court
In assessing the challenge that the State has
impermissibly intruded into these zones of privacy, Probable Cause Required
a court must determine whether a person has The constitutional text does not give any ground. It
exhibited a reasonable expectation of privacy and, if is submitted that the requirement of probable cause
so, whether that expectation has been violated by in the preceding section (Art. III, Sec. 2) should be
unreasonable government intrusion. (Disini v. Sec. followed. After all, the privacy right is but an aspect
of Justice, G.R. No. 203335, Feb. 18, 2014) of the right to be secure in one’s person. (Bernas,
The 1987 Constitution of the Republic of the
A government employee has a burden of proving Philippines, 2009)
that he has legitimate expectation of privacy either
in his office or computer files. He can prove this by
alleging and demonstrating the following: he used a
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b. When Public Safety or Order extended to acts committed by private individuals.

Requires Otherwise as Prescribed (People v. Marti, G.R. No. 81561)
by Law
However, applied to wife who took documents
Prescribed by Law and papers from husband’s clinic without the
It should be based upon a government official’s latter's knowledge and consent
assessment that public safety and order demand The constitutional injunction declaring the privacy of
such intrusion, as provided by law. It is not only that communication and correspondence to be inviolable
the discretion of the executive officer is limitable by is no less applicable simply because it is the wife
law but also that a public officer who exercises this (who thinks herself aggrieved by her husband's
power must be able to point to a law under which he infidelity) who is the party against whom the
acts. (Bernas, The 1987 Constitution of the Republic constitutional provision is to be enforced. The only
of the Philippines, 2009) exception to the prohibition in the Constitution is if
there is a lawful order from a court or when public
Public Order and Safety safety or order requires otherwise, as prescribed by
The security of human lives, liberty, and property law. Any violation of this provision renders the
against the activities of invaders, insurrectionists, evidence obtained inadmissible for any purpose in
and rebels. (1971 Constitutional Convention, Nov. any proceeding.
25, 1972)
The intimacies between husband and wife do not
justify any one of them in breaking the drawers and
3. EXCLUSIONARY RULE
cabinets of the other and in ransacking them for any
telltale evidence of marital infidelity. A person, by
Concept
contracting marriage, does not shed his/her integrity
Any evidence obtained in violation of the right to
or his right to privacy as an individual and the
privacy of communication and correspondence shall
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constitutional protection is ever available to him or
be inadmissible for any purpose in any proceeding.
to her.
(Phil. Const., art. III, § 3[2])
The law insures absolute freedom of communication
To Whom Directed: The State between the spouses by making it privileged.
To come under the exclusionary rule, however, the Neither husband nor wife may testify for or against
evidence must be obtained by government agents the other without the consent of the affected spouse
and not by private individuals acting on their own. while the marriage subsists. Neither may be
examined without the consent of the other as to any
This does not mean however that private individuals communication received in confidence by one from
cannot be held liable. Almost all these liberties are the other during the marriage, save for specified
also guaranteed by Article 32 of the Civil Code, exceptions. But one thing is freedom of
making private violations actionable even if the communication; quite another is a compulsion for
violation does not have a constitutional each one to share what one knows with the other.
consequence such as the applicability of the And this has nothing to do with the duty of fidelity
exclusionary rule. (Bernas, The 1987 Constitution of that each owes to the other. (Zulueta v. CA, G.R.
the Republic of the Philippines, 2009) No. 107383, Feb. 20, 1996)
Exclusionary rule will not apply if the recipient of the R.A. 10175 (CYBERCRIME PREVENTION ACT)
message granted access to the message(s) sent.
(Office of the Court Administrator v. Judge Eliza B. Certain Cybercrime Offenses under RA 10175 were
Yu, A.M. No. MTJ-12-1813, Mar. 14, 2017) assailed for violating both the right against
unreasonable searches and seizures and the right
General rule: The constitutional proscription to privacy. The court held that relevant to any
against unreasonable search and seizure applies as discussion of the right to privacy is the concept
a restraint against the government and its agencies. known as the Zones of Privacy, as discussed earlier.
It can only be invoked against the State. If the
search is made at the initiative of a private person In assessing the challenge that the State has
for private purposes, without the intervention of impermissibly intruded into these zones of privacy,
police authorities, the right cannot be invoked a court must determine whether a person has
because only the act of a private individual is exhibited a reasonable expectation of privacy and, if
involved and not of law enforcers. The protection of so, whether that expectation has been violated by
unreasonable search and seizure cannot be unreasonable government intrusion. The usual
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identifying information regarding a person includes 7. Kidnapping

his name, his citizenship, his residence address, his 8. Violations of C.A. No. 616
contact number, his place and date of birth, the (punishing espionage and other
name of his spouse, if any, his occupation, and offenses against national security)
similar data. The law punishes those who acquire or i. R.A. 4200 does not distinguish
use such identifying information without right, between a party to the private
implicitly to cause damage. Petitioners failed to communication or a third person.
show how government effort to curb computer- Hence, both could be held liable
related identity theft violates the right to privacy and under R.A. 4200 if they commit
correspondence as well as the right to due process any of the prohibited acts under
of law. R.A. 4200. (Ramirez v. CA, G.R.
No. 93833, Sept. 28, 1995)
However, Section 12 on real-time collection of traffic ii. The use of a telephone extension
data was declared unconstitutional for the authority to overhear a private
that Section 12 gives law enforcement agencies is conversation is not a violation of
too sweeping and lacks restraint. While it says that R.A. 4200 because it is not
traffic data collection should not disclose identities similar to any of the prohibited
or content data, such restraint is but an illusion. devices under the law. Also, a
Admittedly, nothing can prevent law enforcement telephone extension is not
agencies holding these data in their hands from purposely installed for the
looking into the identity of their sender or receiver purpose of secretly intercepting
and what the data contains. This will unnecessarily or recording private
expose the citizenry to leaked information or, worse, communication. (Gaanan v. IAC,
to extortion from certain bad elements in these G.R. No. L- 69809, Oct. 16,
agencies. Section 12, of course, limits the collection 1986)
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of traffic data to those “associated with specified
communications.” But this supposed limitation is no Online Social Network Privacy
limitation at all since, evidently, it is the law Before one can have an expectation of privacy in his
enforcement agencies that would specify the target or her Online Social Network activity, it is first
communications. The power is virtually limitless, necessary that said user manifest the intention to
enabling law enforcement authorities to engage in
“fishing expedition,” choosing whatever specified
communication they want. This evidently threatens
the right of individuals to privacy. (Disini v. Sec. of
keep certain posts private. In the cyber world,
utilization of privacy tools is the manifestation of the
user’s invocation of his or her right to informational
privacy.
Justice, G.R. No. 203335, Feb. 18, 2014)
That the photos are viewable by “friends only” does
R.A. 4200 (ANTI-WIRETAPPING ACT) not necessarily bolster the contention to the right to
privacy. In this regard, the cyber community is
a. Only protects letters, messages, telephone agreed that the digital images under this setting still
calls, telegrams and the like. remain to be outside the confines of the zones of
b. The substance of the conversation need privacy in view of the following:
not be specifically alleged in the
information. a. Facebook “allows the world to be more
c. Under Section 3 of R.A. 4200, a peace open and connected by giving its users the
officer, who is authorized by a written order tools to interact and share in any
of the Court, may execute any of the acts conceivable way”
declared to be unlawful in the said law in b. A good number of Facebook users
cases involving the crimes of: “befriend” other users who are total
1. Treason strangers;
2. Espionage c. The sheer number of “Friends” one user
3. Provoking war and disloyalty in case has, usually by the hundreds; and
of war d. A user’s Facebook friend can “share” the
4. Piracy and mutiny in the high seas former’s post, or “tag” others who are not
5. Rebellion (conspiracy and proposal Facebook friends with the former, despite
to commit; inciting to commit) its being visible only to his or her own
6. Sedition (conspiracy to commit and Facebook friends.
inciting to commit)
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Setting a post’s or profile detail’s privacy to “Friends” (Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
is no assurance that it can no longer be viewed by 2008)
another user who is not Facebook friends with the
source of the content. Essence of Censorship
The Session Law of Minnesota mandated the
Therefore, a Facebook user who opts to make use abatement, as public nuisances, of malicious,
of a privacy tool to grant or deny access to his or her scandalous, and defamatory publications. After
post or profile detail should not be denied the publishing articles that criticized certain local public
informational privacy right which necessarily officials and personalities, The Saturday Press,
accompanies said choice. Otherwise, using these owned by the petitioner Near, was enjoined from
privacy tools would be a feckless exercise, such that further publication. The court held that the operation
if, for instance, a user uploads a photo or any and effect of the statute in substance is that public
personal information to his or her Facebook page authorities may bring the owner or publisher of a
and sets its privacy level at "Only Me" or a custom newspaper or periodical before a judge upon a
list so that only the user or a chosen few can view it, charge of conducting a business of publishing
said photo would still be deemed public by the scandalous and defamatory matter...and unless the
courts as if the user never chose to limit the photo’s owner or publisher is able to disposed to bring
visibility and accessibility. Such position, if adopted, competent evidence to satisfy the judge that the
will not only strip these privacy tools of their function charges are true and are published with good
but it would also disregard the very intention of the motives and for justifiable ends, his newspaper or
user to keep said photo or information within the periodical is suppressed and further publication is
confines of his or her private space. (Vivares v. St. made punishable as a contempt. This is of the
Theresa’s College, G.R. No. 202666, Sept. 29, essence of censorship. (Near v. Minnesota, 283
2014) U.S. 697, June 1, 1931; Bernas, The 1987
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F. FREEDOM OF SPEECH AND
EXPRESSION
Presumed Invalid and Unconstitutional
General Rule: Any system of prior restraints of
expression comes to court bearing a heavy
Presumption against its constitutional validity. The
The doctrine on freedom of speech was formulated
Government thus carries a heavy burden of showing
primarily for the protection of “core” speech such as
justification for in enforcement of such restraint.
speech which communicates political, social, or
There, thus a reversal of the normal presumption of
religious ideas. Those enjoy the same degree of
validity that inheres in every legislation. (SWS v.
protection. (Bernas, The 1987 Philippine
COMELEC, G.R. No. 147571, May 5, 2001)
Constitution: A Comprehensive Reviewer, 2011).
Exception: The technical effect of Article IX (C) (4)
Includes every form of expression, whether oral,
of the Constitution may be seen to be that no
written, tape, or disc recorded. It also includes
presumption of invalidity arises in respect of
movies, symbolic speech (wearing of arm-bands),
exercises of supervisory or regulatory authority on
peaceful picketing, and conduct which amounts to
the part of the Comelec for the purpose of securing
speech. (Bernas, The 1987 Philippine Constitution:
equal opportunity among candidates for political
A Comprehensive Reviewer, 2011).
office, although such supervision or regulation may
result in some limitation of the rights of free speech
1. PRIOR RESTRAINT AND and free press. For supervision or regulation of the
SUBSEQUENT PUNISHMENT operations of media enterprises is scarcely
conceivable without such accompanying limitation.
PRIOR RESTRAINT (CENSORSHIP) Thus, the applicable rule is the general, time-
honored one — that a statute is presumed to be
Concept constitutional and that the party asserting its
Prior restraint refers to official governmental unconstitutionality must discharge the burden of
restrictions on the press or other forms of clearly and convincingly proving that assertion.
expression in advance of actual publication or (National Press Club v. COMELEC, G.R. No.
dissemination. Freedom from prior restraint is 102653 March 5, 1992)
largely freedom from government censorship of
publications, whatever the form of censorship, and Any prior restraint upon the freedom of the press
regardless of whether it is wielded by the executive, bears a heavy presumption against its
legislative or judicial branch of the government. constitutionality. In other words, the government
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must clearly make out a case to overcome this obstructed the “recruiting or enlistment service”
presumption, which it failed to do in this case. The during World War I.
word “security” is so broad that it should not be used
to abrogate the fundamental law. The publication The ruling established that Congress has more
would not cause an inevitable, immediate, and direct latitude in limiting speech in times of war than in
event that would imperil the safety of the American peacetime. When a nation is at war, many things
forces, such that there was no grave and irreparable that might be said in time of peace are such a
danger. The US Supreme Court also held that the hindrance to its effort that their utterance will not be
1st Amendment does not tolerate prior restraints endured so long as men fight, and that no Court
predicated upon beliefs that untoward could regard them as protected by any constitutional
consequences may result therefrom. The press right.
must be left free to publish news, whatever the
source, without censorship or restraint because only In many places and in ordinary times, the
a free and unrestrained press can effectively expose defendants, in saying all that was said in the circular,
government deception to the people. (New York would have been within their constitutional rights.
Times v. United States, 403 U.S. 713, June 30, But the character of every act depends upon the
1971) circumstances in which it is done.
Government Acts Precluded The question in every case is whether the words
Freedom from prior restraint precludes used are used in such circumstances and are of
governmental acts that: such a nature as to create a clear and present
1. Requires approval of a proposal to publish; danger that they will bring about the substantive
2. Licensing or permits as prerequisites to evils that Congress has a right to prevent. It is a
publication including the payment of license question of proximity and degree. (Schenck v.
taxes for the privilege to publish; and United States, 249 U.S. 47, March 3, 1919)
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3. Injunctions against publication.
SUBSEQUENT PUNISHMENT
Even the closure of the business and printing offices
of certain newspapers, resulting in the
discontinuation of their printing and publication, are Concept
deemed as previous restraint or censorship. The aspect of freedom from liability subsequent to
publication precludes liability for completed
Any law or official that requires some form of publications of views traditionally held innocent.
permission to be had before publication can be Otherwise, the prohibition on prior restraint would be
made, commits an infringement of the constitutional meaningless, as the unrestrained threat of
right, and remedy can be had at the courts. (Chavez subsequent punishment, by itself, would be an
v. Gonzales, G.R. No. 168338, Feb. 15, 2008) effective prior restraint.
When Prohibition on Prior Restraint Does Not Thus, opinions on public issues cannot be punished
Apply (WOS) when published, merely because the opinions are
a. When the nation is at War. (Chavez v. novel or controversial, or because they clash with
Gonzales, G.R. No. 168338, Feb. 15, 2008) current doctrines. This fact does not imply that
publishers and editors are never liable for what they
(e.g., The government can prevent
print. Such freedom gives no immunity from laws
publication about the number or location of punishing scandalous or obscene matter, seditious
its troops) or disloyal writings, and libelous or insulting words.
b. Obscene publications
c. Security of community life may be As classically expressed, the freedom of the press
protected against incitements to acts of embraces at the very least the freedom to discuss
violence or overthrow by force of orderly truthfully and publicly matters of public concern,
government. (Near v. Minnesota, 283 U.S. without previous restraint or fear of subsequent
697, June 1, 1931) punishment. For discussion to be innocent, it must
be truthful, must concern something in which people
Speech During War Time in general take a healthy interest, and must not
In the landmark case of Schenck v. United States, endanger some important social end that the
the Supreme Court affirmed the conviction of government by law protects. (Bernas, The 1987
Charles Schenck and Elizabeth Baer for violating Constitution of the Republic of the Philippines, 2009)
the Espionage Act of 1917 through actions that
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2. CONTENT-BASED AND CONTENT CONTENT-NEUTRAL REGULATION

NEUTRAL REGULATIONS
Concept
CONTENT-BASED REGULATION A content-neutral regulation is merely concerned
with the incidents of the speech, or one that merely
Concept controls the time, place or manner, and under well-
A content-based restraint or censorship is where the defined standards. (Chavez v. Gonzales, G.R. No.
restriction is based on the subject matter of the 168338, Feb. 15, 2008)
utterance or speech. (Chavez v. Gonzales, G.R. No.
168338, Feb. 15, 2008) Subject to Intermediate Approach
When the speech restraints take the form of a
Subject to the Clear and Present Danger Rule content-neutral regulation, only a substantial
A governmental action that restricts freedom of governmental interest is required for its validity.
speech or of the press based on content is given the Because regulations of this type are not designed to
strictest scrutiny in light of its inherent and invasive suppress any particular message, they are not
impact. Only when the challenged act has overcome subject to the strictest form of judicial scrutiny but an
the clear and present danger rule will it pass intermediate approach—somewhere between the
constitutional muster, with the government having mere rationality that is required of any other law and
the burden of overcoming the presumed the compelling interest standard applied to content-
unconstitutionality. Unless the government can based restrictions. The test is called intermediate
overthrow this presumption, the content-based because the Court will not merely rubberstamp the
restraint will be struck down. (Chavez v. Gonzales, validity of a law but also require that the restrictions
G.R. No. 168338, Feb. 15, 2008) be narrowly-tailored to promote an important or
significant governmental interest that is unrelated to
Clear and Present Danger Test the suppression of expression. (Chavez v.
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Whether the words used are used in such Gonzales, G.R. No. 168338, Feb. 15, 2008)
circumstances and are of such a nature as to create
a clear and present danger that they will bring about Intermediate Approach: O’Brien Test for a Valid
the substantive evils that Congress has a right to Content-Neutral Regulation
prevent. It is a question of proximity and degree. A governmental regulation is sufficiently justified if:
2008)
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
Requisites of a Valid Content-Based Regulation

(CISUNOG)
1. It is within the Constitutional power of the
Government;
2. It furthers an Important or Substantial
With respect to content-based restrictions, the
government must: (HIIR) governmental interest;
1. The government must show the type of Harm 3. The governmental interest is Unrelated to the
the speech sought to be restrained would suppression of free expression; and
bring about — especially the gravity and the 4. The incident restriction on alleged freedom of
imminence of the threatened harm – speech & expression is NO Greater than is
otherwise the prior restraint will be invalid; essential to the furtherance of that interest.
2. The regulation which restricts the speech (Chavez v. Gonzales, G.R. No. 168338, Feb.
content must serve an important or 15, 2008)
substantial government Interest, which is
unrelated to the suppression of free 3. FACIAL CHALLENGES AND
expression; and OVERBREADTH DOCTRINE
3. The Incidental Restriction on speech must
Specificity of Regulation and Vagueness
be no greater than what is essential to the Doctrine
furtherance of that interest. (Chavez v. The vagueness doctrine is an analytical tool
Gonzales, G.R. No. 168338, Feb. 15, 2008) developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law,
First Amendment cases. A facial challenge is
allowed to be made to a vague statute and also to
one which is overbroad because of possible
"'chilling effect' on protected speech that comes
from statutes violating free speech. A person who
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does not know whether his speech constitutes a Overbreadth Doctrine

crime under an overbroad or vague law may simply Under the overbreadth doctrine, a proper
restrain himself from speaking in order to avoid governmental purpose, constitutionally subject to
being charged of a crime. The overbroad or vague state regulation, may not be achieved by means that
law thus chills him into silence. (Lagman v. unnecessarily sweep its subject broadly, thereby
Medialdea, G.R. No. 231658) invading the area of protected freedoms.
It is best to stress that the vagueness doctrine has Prohibiting placing of campaign decals on private
a special application only to free-speech cases. cars is overbroad, and thus invalid prohibition.
They are not appropriate for testing the validity of (Adiong v. COMELEC, G.R. No. 103956 March 31,
penal statutes. (Lagman v. Medialdea, G.R. No. 1992)
231658)
Banning the publishing of survey results is also
A facial challenge is allowed to be made to a vague overbroad because it does not meet the O’Brien
statute and to one which is overbroad because of test, since it suppresses one type of expression
possible 'chilling effect' upon protected speech. The while allowing others like editorials. (SWS v.
theory is that when statutes regulate or proscribe COMELEC, G.R. No. 147571, May 5, 2001)
speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the Summary of Rules
statutes in a single prosecution, the transcendent General Rule: The overbreadth and vagueness
value to all society of constitutionally protected doctrines then have special application only to free
expression is deemed to justify allowing attacks on speech cases. They are inapplicable for testing the
overly broad statutes with no requirement that the validity of penal statutes.
person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn Rationale: All penal laws, like the cybercrime
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with narrow specificity. This rationale does not apply law, have of course an inherent chilling effect, an
to penal statutes. in terrorem effect or the fear of possible
prosecution. But to prevent the State from
In sum, the doctrines of strict scrutiny, overbreadth, legislating criminal laws because they instill such
and vagueness are analytical tools developed for kind of fear is to render the state powerless in
testing 'on their faces' statutes in free speech cases
or, as they are called in American law, First
Amendment cases. They cannot be made to do
service when what is involved is a criminal statute.
addressing and penalizing socially harmful
conduct.
Exceptions:
With respect to such statute, the established rule is a. When a penal statute is challenged as
that one to whom application of a statute is applied
constitutional will not be heard to attack the statute b. When a penal statute encroaches upon the
on the ground that impliedly it might also be taken freedom of speech, a facial challenge
as applying to other persons or other situations in
grounded on the overbreadth and
which its application might be unconstitutional. As
vagueness doctrine is acceptable. (Disini v.
has been pointed out, vagueness challenges in the
First Amendment context, like overbreadth Sec. of Justice, G.R. No. 203335, Feb. 18,
challenges typically produce facial invalidation, 2014)
while statutes found vague as a matter of due
process typically are invalidated only 'as applied' to The facial challenge has expanded its scope to
a particular defendant. cover statutes not only regulating free speech, but
also those involving religious freedom, and other
"On its face" invalidation of statutes results in fundamental rights because of the expanded scope
striking them down entirely on the ground that they of judicial power. (Imbong v. Ochoa, G.R. No.
might be applied to parties not before the Court 204819, April 8, 2014)
whose activities are constitutionally protected. It
constitutes a departure from the ‘case and As Applied v. Facial Challenge
controversy’ requirement of the Constitution and Distinguished from an as-applied challenge which
permits decisions to be made without concrete considers only extant facts affecting real litigants, a
factual settings and in sterile abstract contexts. facial invalidation is an examination of the entire law,
(Estrada v. Sandiganbayan, G.R. No. 148560, Nov. pinpointing its flaws and defects, not only on the
19, 2001) basis of its actual operation to the parties, but also
on the assumption or prediction that its very
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existence may cause others not before the court to utterance questioned. “Present” refers to the time
refrain from constitutionally protected speech or element that is identified with imminent and
activities. immediate danger. (Gonzales v. COMELEC, G.R.
No. L-27833, April 18, 1969)
General Rule: In an "as applied" challenge, the
petitioner who claims a violation of his constitutional Applies to Content-Based Regulation;
right can raise any constitutional ground – absence Presumed Unconstitutional
of due process, lack of fair notice, lack of A governmental action that restricts freedom of
ascertainable standards, overbreadth, or speech or of the press based on content is given the
vagueness. Here, one can challenge the strictest scrutiny in light of its inherent and invasive
constitutionality of a statute only if he asserts a impact. Only when the challenged act has overcome
violation of his own rights. It prohibits one from the clear and present danger rule will it pass
assailing the constitutionality of the statute constitutional muster, with the government having
based solely on the violation of the rights of the burden of overcoming the presumed
third persons not before the court. This rule is unconstitutionality. Unless the government can
also known as the prohibition against third-party overthrow this presumption, the content-based
standing. restraint will be struck down. (Chavez v. Gonzales,
G.R. No. 168338, Feb. 15, 2008)
Exception: A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute As Applied to Broadcast Media
even if he claims no violation of his own rights under Radio station DYRE was summarily closed for
the assailed statute where it involves free speech national security reasons because it allegedly aired
on grounds of overbreadth or vagueness of the subversive programs. The Court ruled that all forms
statute. of media are entitled to the protection of the freedom
of speech and expression clause. The clear and
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Rationale: To counter the "chilling effect" on present danger test may be applied to test the limits
protected speech that comes from statutes of free speech. That the words are used in such
violating free speech. (Disini v. Sec. of circumstances and are of such nature as to create a
Justice, G.R. No. 203335, Feb. 18, 2014) clear and present danger that they will bring about
the substantive evils that Congress has a right to
4. TESTS TO DETERMINE THE prevent. The SC recognized that the government
also has a right to be protected against broadcasts
VALIDITY OF GOVERNMENTAL
that incite the listeners to violently overthrow it.
REGULATION
However, the clear and present danger test is not an
Generally, restraints on freedom of speech and all-embracing interpretation that is applicable to all
expression are evaluated by either or a combination utterances in all forums. Freedom of television and
of three tests. As articulated in our jurisprudence, radio broadcasting is lesser in scope than the
the Court has applied either the dangerous freedom accorded to newspaper and print media.
tendency doctrine or clear and present danger test Radio broadcasting receives the most limited
to resolve free speech challenges. More recently, protection from the free expression clause.
the Court has concluded that it has generally Broadcast media have a uniquely pervasive
adhered to the clear and present danger test. presence in the lives of all citizens – it reaches even
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15, the privacy of the home. Broadcast media is
2008) uniquely accessible to all, even children – selectivity
is more difficult in radio and TV. In other words, the
a. Clear and Present Danger Test audiences of radio and TV have lesser opportunity
to cogitate, analyze, and reject the utterances.
Concept (Eastern Broadcasting v. Dans Jr., G.R. No. L-
This test is used for statements against lower courts. 59329, July 19, 1985)
Whether the words used are used in such
circumstances and are of such a nature as to create Applied to Cases involving the Court’s Power of
a clear and present danger that they will bring about Contempt
the substantive evils that Congress has a right to The power of contempt should be balanced with the
prevent. It is a question of proximity and degree. right to freedom of expression, especially when it
may have the effect of stifling comment on public
“Clear” connotes a causal connection with the matters. The power to punish for contempt is not
danger of the substantive evil arising from the exercised without careful consideration of the
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circumstances of the allegedly contumacious act, contempt. (Cabansag v. Fernandez, G.R. No. L-
and the purpose of punishing the act. Especially 8974, Oct. 18, 1957)
where freedom of speech and press is involved, this
Court has given a restrictive interpretation as to Applied to Seditious Speech
what constitutes contempt. An article which does not Citizen Perez made this remark at a political
impede, obstruct, or degrade the administration of discussion at a town municipio: “and the Filipinos,
justice is not contumacious. The question in every like myself, must use bolos for cutting off Wood’s
case is whether the words used are used in such head for having recommended a bad thing for the
circumstances and are of such a nature as to create Philippines.” The court held that criticism, no matter
a clear and present danger that they will bring about how severe, on the Executive, the Legislature, and
the substantive evils that congress has a right to the Judiciary, is within the range of liberty of speech,
prevent. It is a question of proximity and degree. unless the intention and effect be seditious. In this
(Roque v. Chief of Staff, G.R. No. 214986, February case, the Court found a seditious tendency which
15, 2017) could easily produce disaffection among the people
and a state of feeling incompatible with a disposition
b. Dangerous Tendency Rule to remain loyal to the Government and obedient to
the laws. (People v. Perez, G.R. No. L-21049, Dec.
Concept 22, 1923; Bernas, The 1987 Constitution of the
If the words uttered create a dangerous tendency Republic of the Philippines, 2009)
which the state has a right to prevent, then such
words are punishable. It is not necessary that some c. Balancing of Interests Test
definite or immediate acts of force, violence, or
unlawfulness be advocated. It is sufficient that such Concept
acts be advocated in general terms. Nor is it The balancing of interests test is used as a standard
necessary that the language used be reasonably when courts need to balance conflicting social
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calculated to incite persons to acts of force, violence values and individual interests, and requires a
or unlawfulness. It is sufficient if the natural conscious and detailed consideration of the
tendency and probable effect of the utterance be to interplay of interests observable in a given situation
bring about the substantive evil the utterance be to of type of situation. (Chavez v. Gonzales, G.R. No.
bring about the substantive evil which the legislative 168338, Feb. 15, 2008)
body seeks to prevent. (Cabansag v. Fernandez,
G.R. No. L-8974, Oct. 18, 1957) Republic Act 4880 among other things prohibits the
too early nomination of political candidates and
This is used for statements against the Supreme limits the period for partisan political activity. Its
Court and permits the application of restrictions purpose is to prevent the debasement of the political
when: process. In determining the validity of the law, free
a. There is a rational connection between the speech as a social value must be weighed against
speech restrained and the danger the political process as a social value. (Gonzales v.
apprehended; and COMELEC, G.R. No. L-27833, April 18, 1969)
b. The tendency of one to create the other is
shown. (Gonzales v. COMELEC, G.R. No. The dangerous tendency rule and the clear and
L-27833, April 18, 1969) present danger rule were evolved in the context of
prosecution for seditious speech. They are thus
couched in terms of degree of evil and proximity of
Applied to the Cases Involving Independence of
the evil. But not all evils easily lend themselves, like
the Court
sedition to measurement of proximity and degree.
The "dangerous tendency" rule has been adopted in
For legislation therefore whose object is not the
cases where extreme difficulty is confronted
prevention of evil measurable in terms of proximity
determining where the freedom of expression ends
and degree, another test had to be evolved. The
and the right of courts to protect their independence
balancing of interests serves this purpose. It is used,
begins. There must be a remedy to borderline cases
for instance, for commercial speech. (People v.
and the basic principle of this rule lies in that the
Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas,
freedom of speech and of the press, as well as the
The 1987 Constitution of the Republic of the
right to petition for redress of grievance, while
Philippines, 2009)
guaranteed by the constitution, are not absolute.
They are subject to restrictions and limitations, one
of them being the protection of the courts against
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Factors to Consider danger apprehended

Although the urgency of the public interest sought to and the tendency of
be secured by Congressional power restricting the one to create the other
individual's freedom, and the social importance and is shown.
value of the freedom so restricted, are to be judged Balancing of Interests Courts need to
in the concrete, not on the basis of abstractions, a balance conflicting
wide range of factors are necessarily relevant in social values and
ascertaining the point or line of equilibrium. Among individual interests,
these are: and requires a
a. The social values and importance of the conscious and
specific aspect of the particular freedom detailed consideration
restricted by the legislation; of the interplay of
b. The specific thrust of the restriction, i.e., interests observable in
whether the restriction is direct or indirect, a given situation of
whether or not the persons affected are type of situation.
few;
c. The value and importance of the public 5. STATE REGULATION OF
interest sought to be secured by the DIFFERENT TYPES OF MASS
legislation — the reference here is to the MEDIA
nature and gravity of the evil which
Four Aspects of Freedom of the Press
Congress seeks to prevent;
a. Freedom from prior restraint
d. Whether the specific restriction decreed by
b. Freedom from punishment subsequent to
Congress is reasonably appropriate and
publication
necessary for the protection of such public
c. Freedom of access to information
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interest; and
d. Freedom of circulation. (Chavez v.
e. Whether the necessary safeguarding of the
Gonzales, G.R. No. 168338, Feb. 15, 2008)
public interest involved may be achieved by
some other measure less restrictive of the
Print v. Broadcast Media
protected freedom. (J. Castro, Separate While all forms of communication are entitled to the
Opinion in Gonzales v. COMELEC, G.R. broad protection of freedom of expression clause,
No. L-27833, April 18, 1969) the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the
Summary freedom accorded to newspapers and other print
TEST CRITERION media.
Clear and Present Whether the words
Danger used are used in such According to U.S. Courts, the three major reasons
circumstances and are why broadcast media stands apart from print media
of such a nature as to are:
create a clear and a. The scarcity of the frequencies by which the
present danger that medium operates [i.e., airwaves are
they will bring about physically limited while print medium may
the substantive evils be limitless];
that Congress has a b. Its "pervasiveness" as a medium; and
right to prevent. It is a c. Its unique accessibility to children.
question of proximity
and degree.
According to Philippine jurisprudence, first, the
Dangerous Tendency If the words uttered difference in treatment, in the main, is in the
create a dangerous regulatory scheme applied to broadcast media that
tendency which the is not imposed on traditional print media, and
state has a right to narrowly confined to unprotected speech (e.g.,
prevent, then such obscenity, pornography, seditious and inciting
words are punishable. speech), or is based on a compelling government
There should be a interest that also has constitutional protection, such
rational connection as national security or the electoral process.
between the speech
restrained and the
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Second, regardless of the regulatory schemes that (Gonzales v. Katigbak, G.R. No. L-69500 July 22,
broadcast media is subjected to, the Court has 1985)
consistently held that the clear and present danger
test applies to content-based restrictions on media, A limited intrusion into a person's privacy has long
without making a distinction as to traditional print or been regarded as permissible where that person is
broadcast media. (Chavez v. Gonzales, G.R. No. a public figure and the information sought to be
168338, Feb. 15, 2008) elicited from him or to be published about him
constitute of a public character. The right of privacy
Clear and Present Danger Rule: Applicable to cannot be invoked resist publication and
Broadcast Media IF Content-Based Regulation dissemination of matters of public interest. The
All forms of media, whether print or broadcast, are interest sought to be protected by the right of privacy
entitled to the broad protection of the freedom of is the right to be free from unwarranted publicity,
speech and expression clause. The test for from the wrongful publicizing of the private affairs
limitations on freedom of expression continues to be and activities of an individual which are outside the
the clear and present danger rule. (Eastern realm of legitimate public concern. (Ayer v.
Broadcasting v. Dans, G.R. No. L-59329 July 19, Capulong, G.R. No. 82380 April 29, 1988, On the
1985) proposed motion picture entitled "The Four Day
Revolution" involving Sen. Juan Ponce Enrile)
However, the clear and present danger rule applies
to all media, including broadcast, but only when the Television Censorship
challenged act is a content-based regulation that PD No. 1986 gives the MTRCB the power to screen,
infringes on free speech, expression and the press. review and examine all "television programs." By the
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15, clear terms of the law, the Board has the power to
2008) approve, delete and/or prohibit the exhibition and/or
television broadcast of television programs. The law
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Motion Pictures Censorship also directs the MTRCB to apply contemporary
When the MTRCB classified the movie Kapit sa Filipino cultural values as standard to determine
Patalim as "For-Adults-Only," the Supreme Court those which are objectionable for being immoral,
dismissed this petition for certiorari solely on the indecent, contrary to law and/or good customs,
ground that there are not enough votes for a ruling injurious to the prestige of the Republic of the
that there was a grave abuse of discretion in the
classification.
The test to determine whether freedom of

Philippines and its people, or with a dangerous
tendency to encourage the commission of violence
or of a wrong or crime.
expression may be limited is the clear and present It is significant to note that in Iglesia ni Cristo v. CA,
danger of an evil of a substantive character that the the Court declared that freedom of religion has been
State has a right to prevent. Such danger must not accorded a preferred status by the framers of our
only be clear but also present. fundamental laws. Yet despite the fact that freedom
a. There should be no doubt that what is of religion has been accorded a preferred status, still
feared may be traced to the expression the Court, did not exempt the Iglesia ni Cristo’s
complained of. The causal connection must religious program from petitioner’s review power.
be evident.
b. Also, there must be reasonable If the Court, in Iglesia ni Cristo, did not exempt
religious programs from the jurisdiction and review
apprehension about its imminence. The
power of petitioner MTRCB, with more reason, there
time element cannot be ignored. Nor does is no justification to exempt therefrom "The Inside
it suffice if such danger be only probable. Story" which, is protected by the constitutional
provision on freedom of expression and of the press,
The basic postulate, wherefore, is that where the a freedom bearing no preferred status.
movies, theatrical productions radio scripts,
television programs, and other such media of Thus, MTRCB has power to review both religious
expression are concerned — included as they are in shows like the INC program, as well as public affairs
freedom of expression — censorship, especially so and documentary programs like The Inside Story.
if an entire production is banned, is allowable only (MTRCB v. ABS-CBN, G.R. No. 155282, Jan. 17,
under the clearest proof of a clear and present 2005)
danger of a substantive evil to public morals, public
health or any other legitimate public interest. Live TV coverage of a criminal case may be
allowed...“mere fear of possible undue influence is
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not tantamount to actual prejudice resulting in the 6. COMMERCIAL SPEECH

deprivation of the right to a fair trial.” (In Re: Petition
For Radio And TV Coverage Of The Multiple Murder Commercial speech is speech that does no more
Case Against Zaldy Ampatuan et al., A.M. No. 10- than propose a commercial transaction. (Central
11-5-SC, June 14, 2011) Hudson Gas v. Public Service Commission, 447
U.S. 557, June 20, 1980)
Radio Censorship
In Santiago v. Far Eastern Broadcasting, the case Advertising, however tasteless and excessive it
hinges on whether the petitioner has a clear legal sometimes may seem, is nonetheless dissemination
right to broadcast any speech over one of the radio of information as to who is producing and selling
stations owned and operated by the respondent what product, for what reason, and at what price. So
without first submitting the manuscript, and whether long as we preserve a predominantly free enterprise
there is a corresponding duty devolved by law upon economy, the allocation of our resources in large
the respondent to permit the petitioner to do so. measure will be made through numerous private
The Court ruled that it is not the duty of the economic decisions. It is a matter of public interest
respondent as a public service corporation to that those decisions, in the aggregate, be intelligent
broadcast speeches without requiring the and well informed. To this end, the free flow of
submission of the manuscript thereof in advance, commercial information is indispensable. And if it is
but that, on the contrary, the laws and regulations indispensable to the proper allocation of resources
expressly authorize the respondent to make such in a free enterprise system, it is also indispensable
requirement. to the formation of intelligent opinions as to how that
a. Section 2 of Act No. 3180, which is the system ought to be regulated or altered. (Virginia
franchise of the respondent corporation, State Board of Pharmacy v. Virginia Citizens
provides that the broadcasting service shall Consumer Council, 425 U.S. 748, May 24, 1976)
be open to the general public subject to the
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general regulations of the grantee for the Accorded Lesser Protection
allotment of time and the class of Although the Constitution accords a lesser
protection to commercial speech than to other
communications acceptable for
constitutionally guaranteed expression,
broadcasting. nevertheless the First Amendment protects
b. Commonwealth Act No. 98, where the commercial speech from unwarranted
Secretary of the Interior "shall examine governmental regulation. (Central Hudson Gas v.
all programs, sustaining or sponsored, of Public Service Commission, 447 U.S. 557, June 20,
all broadcasting stations," with the power 1980)
"to eliminate or cancel from the program
Central Hudson Test for a Valid Commercial
such number or parts thereof as in his
Speech Regulation
opinion are neither moral, educational
nor entertaining, and prejudicial to public For commercial speech to come within the First
interest." Amendment: (FISDO)
c. Department Order No. 13, which requires 1. Speech must not be False or misleading or
all broadcasting stations to submit daily proposing an illegal activity;
to the Secretary of the Interior at least 2. Governmental Interest sought to be served by
twenty-four hours in advance of the the regulation must be Substantial;
actual broadcasting hour, two copies of 3. The regulation must Directly advance the
all programs to be broadcasted by the governmental interest asserted; and
stations. Further, it is provided that if a 4. The regulation must not be Overbroad – not
more extensive than is necessary to serve that
program contains any speeches, ...
interest. (Central Hudson Gas v. Public Service
copies of these or a gist thereof, may be
Commission, 447 U.S. 557, June 20, 1980)
required by the Secretary of the Interior
to be submitted together with the
program. (Santiago v. Far Eastern
Broadcasting, G.R. No. L-48683, Nov. 8,
1941)
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7. UNPROTECTED SPEECH Without a law punishing the actual utterance or

publication of an expression, an expression cannot
a. Hate Speech and Fighting be subject to prior restraint because such
Words expression is not unlawful or illegal. (J. Carpio,
Separate Opinion in Soriano v. Laguardia, G.R. No.
164785, April 29, 2009; citing Cohen v. California,
HATE SPEECH
403 U.S. 15, June 7, 1971)
Speech that demeans on the basis of race, ethnicity,
gender, religion, age, disability, or any other similar
Summary
ground is hateful. (Matal v. Tam, 582 U.S., June 19,
HATE SPEECH FIGHTING WORDS
2017)
Speech that demeans Words which by their
on the basis of race, very utterance, inflict
Speech that carries no meaning other than the
ethnicity, gender, injury or tend to incite
expression of hatred for some group, such as a
religion, age, disability, an immediate breach
particular race, esp. in circumstances in which the
or any other similar of the peace.
communication is likely to provoke violence. (Black’s
ground is hateful.
Law Dictionary, 10th ed.)
Protected Speech Unprotected Speech
No Hate Speech Exception to Free Speech (if defamatory or
The proudest boast of our free speech jurisprudence tortious)
is that we protect the freedom to express “the
thought that we hate.” (Matal v. Tam, 582 U.S., June b. Defamation and Libel
19, 2017)
Definition
FIGHTING WORDS A libel is a public and malicious imputation of a
Words which by their very utterance, inflict injury or crime, or of a vice or a defect, real or imaginary, or
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tend to incite an immediate breach of the peace. It any act, omission, condition, status, or circumstance
has been well observed that such utterances are no tending to cause the dishonor, discredit, or contempt
essential part of any exposition of ideas, and are of of a natural or juridical person, or to blacken the
such slight social value as a step to truth that any memory of one who is dead. (REVISED PENAL CODE,
benefit that may be derived from them is clearly art. 353)
outweighed by the social interest in order and
morality. (Chaplinsky v. New Hampshire, 315 U.S. Libel Not a Constitutionally Protected Speech
568, March 9, 1942) Libel is not a constitutionally protected speech and
that the government has an obligation to protect
Test private individuals from defamation. (Disini v. Sec.
The test is what men of common intelligence would of Justice, G.R. No. 203335, Feb. 18, 2014)
understand would be words likely to cause an
average addressee to fight. (Chaplinsky v. New Elements
Hampshire, 315 U.S. 568, March 9, 1942) The elements of libel are: (APIM)
1. The Allegation of a discreditable act or
Fighting Words – No Constitutional Protection condition concerning another;
IF Defamatory or Tortious 2. Publication of the charge;
"Fighting words" are not entitled to constitutional 3. Identity of the person defamed; and
protection and may be penalized. (Chavez v. 4. Existence of Malice.
Gonzales, G.R. No. 168338, Feb. 15, 2008) (Disini v. Sec. of Justice, G.R. No. 203335, Feb.
18, 2014)
Fighting words are not subject to subsequent
punishment unless they are defamatory or tortious. Proof that Statement is False
Fighting words refer to profane or vulgar words that In the absence of proof that the defendant knew that
are likely to provoke a violent response from an the statement was false or published with reckless
audience. Profane or vulgar words like "Fuck the disregard of whether or not it was true, the
draft," when not directed at any particular person, defendant cannot be held liable for libel.
ethnic or religious group, are not subject to (Guingguing v. Court of Appeals, G.R. No. 128959,
subsequent punishment. As aptly stated, "one Sept. 30, 2005)
man’s vulgarity may be another man’s lyric." If
profane or vulgar language like "Fuck the draft" is
not subject to subsequent punishment, then with
more reason it cannot be subject to prior restraint.
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When is Malice Present expression. (Disini v. Sec. of Justice, G.R. No.

There is malice when the author of the imputation is 203335, Feb. 18, 2014)
prompted by ill-will or spite and speaks not in
response to duty but merely to injure the reputation Contempt is Akin to a Case of Libel
of the person who claims to have been defamed. Contempt is akin to a case of libel for both constitute
(Alonzo v. CA, G.R. No. 110088, Feb. 1, 1995) limitations upon freedom of the press or freedom of
expression guaranteed by our Constitution. What is
Every Defamatory Imputation Presumed considered a privilege in one may likewise be
Malicious considered in the other. The principle of privileged
communications can also be invoked in contempt
General Rule: Every defamatory imputation is charges.
presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is When a lawyer has become a public figure for being
shown. involved in a public issue, the controversy involving
such individual becomes a matter of public interest.
Exceptions: Therefore, the media has the right to report the
a. A private communication made by any disciplinary case as legitimate news. Such will not
person to another in the performance of any be considered as a violation of the confidentiality
legal, moral or social duty; and rule in disciplinary proceedings against lawyers.
b. A fair and true report, made in good faith, (Atty. Raymund P. Palad v. Lolit Solis, et al., G.R.
without any comments or remarks, of any No. 206691, Oct. 3, 2016)
judicial, legislative or other official
proceedings which are not of confidential Privileged Communications
nature, or of any statement, report or
speech delivered in said proceedings, or of
a. Absolutely Privileged
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any other act performed by public officers
Communications
in the exercise of their functions. (REVISED
Those which are not actionable even if the author
PENAL CODE, art. 354) has acted in bad faith.
Doctrine of Fair Commentaries
The enumeration under Art. 354 is not an exclusive
list of qualifiedly privileged communications since
fair commentaries on matters of public interest are
This classification includes statements made by
members of Congress in the discharge of their
functions as such, official communications made by
public officers in the performance of their duties, and
likewise privileged. allegations or statements made by the parties or
their counsel in their pleadings or motions or during
The doctrine of fair commentaries means "that while the hearing of judicial proceedings, as well as the
in general every discreditable imputation publicly answers given by witnesses in reply to questions
made is deemed false, because every man is propounded to them, in the course of said
presumed innocent until his guilt is judicially proved, proceedings, provided that said allegations or
and every false imputation is deemed malicious, statements are relevant to the issues, and the
nevertheless, when the discreditable imputation is answers are responsive or pertinent to the questions
directed against a public person in his public propounded to said witnesses.
capacity, it is not necessarily actionable. In order
that such discreditable imputation to a public official b. Qualifiedly Privileged
may be actionable, it must either be a false
allegation of fact or a comment based on a false
Communications
supposition. (Yuchengco v. The Manila Chronicle,
Those which contain defamatory imputations but are
G.R. No. 184315, Nov. 25, 2009)
not actionable unless found to have been made
without good intention justifiable motive.
Cyberlibel – Only the Original Author is Liable
Only the original author of the statement should be
To this genre belong "private communications" and
prosecuted for libel. Because of the unique culture
"fair and true report without any comments or
of cyberspace, the inclusion of those who just
remarks” under article 354 of the Revised Penal
shared the statement in the case would have a
Code. (Manila Bulletin v. Domingo, G.R. No.
chilling effect upon them. This makes the law
170341, July 5, 2017)
overbroad and therefore in violation of freedom of
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While generally every defamatory imputation is fundamental interests involved in libel cases.
presumed malicious, if the communication is (MVRS Publication v. Islamic Da’wah Council of
privileged, the presumption does not arise. The the Philippines, G.R. No. 135306. Jan. 28, 2003)
plaintiff assumes the burden of proving malice.
(Bernas, The 1987 Constitution of the Republic of LIBEL AGAINST PUBLIC OFFICIALS AND
the Philippines, 2009) PUBLIC FIGURES
Requisites of a Qualifiedly Privileged Public Figure

Communication under Article 354, No. 1 of the Those who, by reason of the notoriety of their
Revised Penal Code – “Private Communications achievements or the vigor and success with which
they seek the public's attention. (Gertz v. Welch, 418
In order to prove that a statement falls within the U.S. 323, June 25, 1974)
purview of a qualified privileged communication
under Article 354, No. 1, the following requisites Public Official
must concur: (DAG) Those who hold governmental office. (Gertz v.
1. The person who made the communication had a Welch, 418 U.S. 323, June 25, 1974)
legal, moral, or social Duty to make the
communication, or at least, had an interest to
protect, which interest may either be his own or New York Times Standard – Actual Malice
of the one to whom it is made; Public officials/figures must prove that the statement
2. The communication is Addressed to an officer was made with ‘actual malice’ in order to recover
damages for a defamatory falsehood relating to his
or a board, or superior, having some interest or
official conduct.
duty in the matter, and who has the power to
furnish the protection sought; and Actual malice means there was knowledge that it
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3. The statements in the communication are made was false or with reckless disregard of whether it
in Good faith and without malice. (Syhunliong v. was false or not. (NY Times v. Sullivan, 376 U.S.
Rivera, G.R. No. 200148, June 4, 2014) 254, 1964).
General Rule: Every defamatory imputation is
Group/Class Libel
Where the defamation is alleged to have been presumed to be malicious, even if it be true, if no
directed at a group or class, it is essential that the good intention and justifiable motive for making it is
statement must be so sweeping or all-embracing as shown.
to apply to every individual in that group or class, or
sufficiently specific so that each individual in the Exception: If the defamed is a public figure/official,
class or group can prove that the defamatory there is no presumption of malice. Instead, the
statement specifically pointed to him, so that he can public official/figure defamed must prove ‘actual
bring the action separately, if need be. (Newsweek malice.’
v. IAC, G.R. No. L-63559, May 30, 1986)
Fair Commentaries
If the group is a very large one, then the alleged These are privileged and constitute a valid defense
libelous statement is considered to have no in an action for libel or slander. When the
application to anyone in particular, since one might discreditable imputation is directed against a public
as well defame all mankind. Not only does the group person in his public capacity, it is not necessarily
as such have no action; the plaintiff does not actionable. In order for it to be actionable, it must
establish any personal reference to himself. As the either be a false allegation of fact or a comment
size of these groups increases, the chances for based on a false supposition.
members of such groups to recover damages on
tortious libel become elusive. This principle is said If the comment is an expression of opinion based on
to embrace two (2) important public policies: established facts, then it is immaterial that the
a. First, where the group referred to is large, the opinion happens to be mistaken, as long as it might
courts presume that no reasonable reader would reasonably be inferred. The insertion of an old
take the statements as so literally applying to picketing footage in a news report was not libelous
each individual member; and because it did not convey anything derogatory in
b. Second, the limitation on liability would nature, and it was actually simultaneously voiced
satisfactorily safeguard freedom of speech and over by the narration of the news report. The report
expression, as well as of the press, effecting a was also merely quoted from the contents and
sound compromise between the conflicting allegations in the petition and is merely a summary
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of the petition. (GMA Network v. Bustos, G.R. No. to punitive measures designed to maintain the
146848, Oct. 17, 2006) prestige of constituted authority, the supremacy of
the constitution and the laws, and the existence of
LIBEL AGAINST PRIVATE INDIVIDUALS the State. (People v. Perez, G.R. No. L-21049, Dec.
22, 1923)
New York Times Standard Not Applicable to
Defamed Private Individuals The freedom of speech secured by the Constitution
So long as they do not impose liability without fault, does not confer an absolute right to speak or publish
the States may define for themselves the without responsibility whatever one may choose. It
appropriate standard of liability (less demanding is not unbridled license that gives immunity for every
than the New York Times standard – actual malice) possible use of language and prevents the
for a publisher or broadcaster of defamatory punishment of those who abuse this freedom. So
falsehood injurious to a private individual. statutes against sedition have guaranty, although
they should not be interpreted so as to agitate for
The States, however, may not permit recovery of institutional changes. Thus, another limit of free
presumed or punitive damages when liability is not speech and writing is seditious speech which is
based on knowledge of falsity or reckless disregard prohibited under Art. 142 of the Revised Penal
for the truth, and the private defamation plaintiff who Code. (Mendoza v. People, G.R. No. L-2990, Dec.
establishes liability under a less demanding 17, 1951)
standard than the New York Times test may recover
compensation only for actual injury. (Gertz v. Welch, When a fictitious suicide photo and letter were
418 U.S. 323, June 25, 1974) published in newspapers of general circulation
expressing disappointment in the Roxas
Rationale administration and instructing a fictitious wife to
Because private individuals characteristically have teach their children to burn photos of the President,
FOR ONE ATENEO

less effective opportunities for rebuttal than do the Court held that such act constitutes inciting to
public officials and public figures, they are more sedition. It suggests or incites rebellious
vulnerable to injury from defamation. Because they conspiracies or riots and tends to turn the people
have not voluntarily exposed themselves to against the constituted authorities, or to provoke
increased risk of injury from defamatory falsehoods, violence from opposition groups who may seek to
they are also more deserving of recovery. The state silence the writer, which is the sum and substance
interest in compensating injury to the reputation of of the offense under consideration. (Mendoza v.
private individuals is therefore greater than for public People, G.R. No. L-2990, Dec. 17, 1951)
officials and public figures.
Reason Why Seditious Utterances are
To extend the New York Times standard to media Prohibited
defamation of private persons whenever an issue of Manifestly, the legislature has authority to forbid the
general or public interest is involved would abridge advocacy of a doctrine designed and intended to
to an unacceptable degree the legitimate state overthrow the Government without waiting until
interest in compensating private individuals for injury there is a present and immediate danger of the
to reputation and would occasion the additional success of the plan advocated. If the State were
difficulty of forcing courts to decide on an ad hoc compelled to wait until the apprehended danger
basis which publications and broadcasts address became certain, then its right to protect itself would
issues of general or public interest and which do not. come into being simultaneously with the overthrow
(Gertz v. Welch, 418 U.S. 323, June 25, 1974) of the Government, when there would be neither
prosecuting officers nor courts for the enforcement
a. Sedition and Speech in of the law. (Gitlow vs. New York, 268 U.S. 652, June
Relation to Rebellion 7, 1925)
Seditious Speech is an Unprotected Speech Tests Applied to Seditious Words

Criticism is permitted to penetrate even to the 1. Clear and Present Danger Test
foundations of Government. Criticism, no matter A political party applied for a permit to hold a public
how severe, on the Executive, the Legislature, and meeting in Manila. The Mayor refused to grant
the Judiciary, is within the range of liberty of speech, permit. The refusal of the Mayor to grant permit for
unless the intention and effect be seditious. But the holding of a public meeting was predicated upon
when the intention and effect of the act is seditious, fear that in view of the bitterness of the speeches
the constitutional guaranties of freedom of speech expected from the minority men who were fresh
and press and of assembly and petition must yield from a political defeat and were smarting with
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charges of fraud against those in power, there might b. Obscenity/Pornography

be breach of the peace and of public order. The
Court ruled that the danger apprehended was not Concept; Miller Test for Obscenity
imminent and the evil to be prevented was not a
serious one. Thus, the Mayor was ordered by the There is no perfect definition of "obscenity" but the
Supreme Court in mandamus proceedings to issue latest word is that of Miller v. California which
a permit. (Primicias v. Fugoso, G.R. No. L-1800, established basic guidelines, to wit: (PILV)
Jan. 27, 1948) 1. Whether to the average person, applying
contemporary standards would find the work,
2. Dangerous Tendency Test taken as a whole, appeals to the Prurient
Citizen Perez made this remark at a political Interest;
discussion at a town municipio: “and the Filipinos,
2. Whether the work depicts or describes, in a
like myself, must use bolos for cutting off Wood’s
head for having recommended a bad thing for the patently offensive way, sexual conduct
Philippines.” The court held that criticism, no matter specifically defined by the applicable state Law;
how severe, on the Executive, the Legislature, and and
the Judiciary, is within the range of liberty of speech, 3. Whether the work, taken as a whole, lacks
unless the intention and effect be seditious. In this serious literary, artistic, political, or scientific
case, the Court found a seditious tendency which Value. (Fernando v. CA, G.R. No. 159751, Dec.
could easily produce disaffection among the people 6, 2006; Miller v. California, 413 U.S. 15, June
and a state of feeling incompatible with a disposition 21, 1973)
to remain loyal to the Government and obedient to
the laws. (People v. Perez, G.R. No. L-21049, Dec.
But, it would be a serious misreading of Miller to
22, 1923)
conclude that the trier of facts has the unbridled
discretion in determining what is "patently offensive.
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Utterances Must Incite the Public to Commit
No one will be subject to prosecution for the sale or
Sedition
exposure of obscene materials unless these
It is not inciting to sedition when it is not proved that
materials depict or describe patently offensive "hard
the defendant incited the people to rise publicly and
core" sexual conduct. Examples included (a)
tumultuously in order to attain any of the ends
patently offensive representations or descriptions of
mentioned in Art. 139 (sedition), which are:
ultimate sexual acts, normal or perverted, actual or
a. To prevent the promulgation or execution of
simulated; and (b) patently offensive
any law or the holding of any popular representations or descriptions of masturbation,
election; excretory functions, and lewd exhibition of the
b. To prevent the National Government, or genitals. What remains clear is that obscenity is an
any provincial or municipal government, or issue proper for judicial determination and should be
any public officer thereof from freely treated on a case to case basis and on the judge’s
exercising its or his functions, or prevent sound discretion. (Fernando v. CA, G.R. No.
the execution of any administrative order; 159751, Dec. 6, 2006)
c. To inflict any act of hate or revenge upon
Sex and obscenity are not synonymous. Obscene
the person or property of any public officer
material is material which deals with sex in a manner
or employee;
appealing to prurient interest. The portrayal of sex,
d. To commit, for any political or social end, (e.g., in art, literature and scientific works), is not
any act of hate or revenge against private itself sufficient reason to deny material the
persons or any social class; and constitutional protection of freedom of speech and
e. To despoil, for any political or social end, press. Sex, a great and mysterious motive force in
any person, municipality or province, or the human life has indisputably been a subject of
National Government of all its property or absorbing interest to mankind through the ages; it is
any part thereof. (People vs. Arrogante, 39 one of the vital problems of human interest and
O.G. 1974) public concern. (Gonzales v. Kalaw-Katigbak, G.R.
No. L-69500, Jul. 22, 1985)
Relative Obscenity
The Court noted that there was “no perfect definition
of obscenity” and that ultimately therefore “obscenity
is an issue proper for judicial determination and
should be treated on a case to case basis and on
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the judge’s sound discretion.” (Soriano v. Laguardia, to the public. (Fernando v. CA, G.R. No. 159751,
G.R. No. 164785, April 29, 2009) Dec. 6, 2006)
Obscenity is an Unprotected Speech G. FREEDOM OF RELIGION

As obscenity is an unprotected speech which the
State has the right to regulate, the State in pursuing No law shall be made respecting an establishment
its mandate to protect, as parens patriae, the public of religion, or prohibiting the free exercise thereof.
from obscene, immoral and indecent materials must The free exercise and enjoyment of religious
justify the regulation or limitation. One such profession and worship, without discrimination or
regulation is Article 201 of the Revised Penal Code. preference, shall forever be allowed. No religious
(Fernando v. CA, G.R. No. 159751, Dec. 6, 2006) test shall be required for the exercise of civil or
political rights. (PHIL. CONST., art. III, § 5)
Necessarily, that the confiscated materials are The constitutional assurance of religious freedom
obscene must be proved. (Fernando v. CA, G.R. No. provides two guarantees:
159751, Dec. 6, 2006) 1. The Establishment Clause
2. The Free Exercise Clause (Imbong v. Ochoa,
Procedure for Conviction Under Art. 201 G.R. No. 204819, April 8, 2014)
a. The authorities must apply for the issuance
of a search warrant from a judge, if in their In Philippine jurisprudence, religion, for purposes of
opinion, an obscenity rap is in order; the religion clauses, has thus far been interpreted as
b. The authorities must convince the court theistic. In 1937, the Philippine case of Aglipay v.
that the materials sought to be seized are Ruiz involving the Establishment Clause, defined
"obscene", and pose a clear and present religion as a profession of faith to an active power
danger of an evil substantive enough to that binds and elevates man to his Creator.
warrant State interference and action;
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Twenty years later, the Court cited the Aglipay
c. The judge must determine whether or not
definition in American Bible Society v. City of Manila,
the same are indeed "obscene:" the a case involving the Free Exercise clause. The latter
question is to be resolved on a case-to- also cited the American case of Davis v. Beason in
case basis and on His Honor's sound
defining religion, viz: it has reference to one’s views
discretion. of his relations to His Creator and to the obligations
d. If, in the opinion of the court, probable they impose of reverence to His being and character
cause exists, it may issue the search and obedience to His Will.
warrant prayed for;
e. The proper suit is then brought in the court The Davis definition, however, has been expanded
under Article 201 of the Revised Penal in U.S. jurisprudence to include non-theistic beliefs.
(Estrada v. Escritor, A.M. NO. P-02-1651, June 22,
Code;
2006)
f. Any conviction is subject to appeal. The
appellate court may assess whether or not Every violation of the free exercise clause involves
the properties seized are indeed compulsion, whereas a violation of the non-
"obscene." (Pita v. CA, G.R. No. 80806, establishment clause need not involve compulsion.
Oct. 5, 1989) (Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
Mere Possession Not Punishable; Publicity is
Necessary Accorded Preferred Status
Mere possession of obscene materials, without Freedom of religion is accorded preferred status by
intention to sell, exhibit, or give them away, is not the framers of our fundamental law. And the
punishable under Article 201 of the RPC, Supreme Court has consistently affirmed this
considering the purpose of the law is to prohibit the preferred status, well aware that it is designed to
dissemination of obscene materials to the public. protect the broadest possible liberty of conscience,
The offense in any of the forms under Article 201 is to allow each man to believe as his conscience
committed only when there is publicity. The law directs, to profess his beliefs, and to live as he
does not require that a person be caught in the act believes he ought to live, consistent with the liberty
of selling, giving away or exhibiting obscene of others and with the common good. (Re: Letter of
materials to be liable, for as long as the said Tony Valenciano, A.M. No. 10-4-19-SC, March 7,
materials are offered for sale, displayed or exhibited 2017)
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Religious freedom, although not unlimited, is a establishment thus calls for government neutrality in
fundamental personal right and liberty and has a religious matters to uphold voluntarism and avoid
preferred position in the hierarchy of values. breeding interfaith dissension. (Estrada v. Escritor,
Contractual rights, therefore, must yield to freedom A.M. NO. P-02-1651, June 22, 2006)
of religion. It is only where unavoidably necessary to
prevent an immediate and grave danger to the Prohibited Acts of the State Under the
security and welfare of the community that Establishment Clause
infringement of religious freedom may be justified, The non-establishment clause reinforces the wall of
and only to the smallest extent necessary. (Estrada separation between Church and State. It simply
v. Escritor, A.M. NO. P-02-1651, June 22, 2006) means that:
a. The State cannot set up a Church.
1. NON-ESTABLISHMENT CLAUSE b. The State cannot pass laws which aid one
AND FREE EXERCISE CLAUSES religion, aid all religion, or prefer one
religion over another.
Non-establishment clause c. The State cannot force nor influence a
person to go to or remain away from church
Concept against his will or force him to profess a
The establishment clause principally prohibits the belief or disbelief in any religion.
State from sponsoring any religion or favoring any
d. The State cannot punish a person for
religion as against other religions. It mandates a
entertaining or professing religious beliefs
strict neutrality in affairs among religious groups.
Essentially, it prohibits the establishment of a state or disbeliefs, for church attendance or
religion and the use of public resources for the nonattendance.
support or prohibition of a religion. (Imbong v. e. No tax in any amount, large or small, can
Ochoa, G.R. No. 204819, April 8, 2014) be levied to support any religious activity or
FOR ONE ATENEO

institution whatever they may be called or
Basis whatever form they may adopt or teach or
In Philippine jurisdiction, there is substantial practice religion.
agreement on the values sought to be protected by f. The State cannot openly or secretly
the Establishment Clause, namely, voluntarism and participate in the affairs of any religious
insulation of the political process from interfaith
organization or group and vice versa.
dissension:
a. Voluntarism Its minimal sense is that the State cannot establish

Voluntarism, has both a personal and a social or sponsor an official religion. (Re: Letter of Tony
dimension. As a personal value, it refers to the Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
inviolability of the human conscience which is also
protected by the free exercise clause. From the In effect, what non-establishment calls for is
religious perspective, religion requires voluntarism government neutrality in religious matters. Such
because compulsory faith lacks religious efficacy. government neutrality may be summarized in four
Compelled religion is a contradiction in terms. general propositions:
a. Government must not prefer one religion
As a social value, it means that the growth of a over another or religion over irreligion
religious sect as a social force must come from the because such preference would violate
voluntary support of its members because of the voluntarism and breed dissension.
belief that both spiritual and secular society will b. Government funds must not be applied to
benefit if religions are allowed to compete on their religious purposes because this too would
own intrinsic merit without benefit of official violate voluntarism and breed interfaith
patronage. dissension.
c. Government action must not aid religion
b. Insulation of the Political because this too can violate voluntarism
Process From Interfaith and breed interfaith dissension.
Dissension d. Government action must not result in
excessive entanglement with religion
Such voluntarism cannot be achieved unless the
political process is insulated from religion and because this too can violate voluntarism
unless religion is insulated from politics. Non- and breed interfaith dissension. (Re: Letter
of Tony Valenciano; citing Bernas, The
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1987 Constitution of the Republic of the Permitted Acts of the State Under the
Philippines, 2009) Establishment Clause
Limiting the prohibition for religious use of the a. Constitutionally Created

structure to 20 years obviously opens the facility to
use for any purpose at the end of that period. It
Tax Exemptions
cannot be assumed that a substantial structure has
Charitable institutions, churches and parsonages or
no value after that period and hence the unrestricted
convents appurtenant thereto, mosques, non-profit
use of a valuable property is in effect a contribution
cemeteries, and all lands, buildings, and
of some value to a religious body. Congress did not
improvements, actually, directly, and exclusively
base the 20-year provision on any contrary
used for religious, charitable, or educational
conclusion. If, at the end of 20 years, the building is,
purposes shall be exempt from taxation. (PHIL.
for example, converted into a chapel or otherwise
CONST., art. VI, § 28[3])
used to promote religious interests, the original
federal grant will in part have the effect of advancing
Limited Public Aid to Chaplaincies
religion. To this extent the Act therefore trespasses
No public money or property shall be appropriated,
on the Religion Clauses. The restrictive obligations
applied, paid, or employed, directly or indirectly, for
of a recipient institution under §751 (a) (2) cannot,
the use, benefit, or support of any sect, church,
compatibly with the Religion Clauses, expire while
denomination, sectarian institution, or system of
the building has substantial value. The limitation of
religion, or of any priest, preacher, minister, or other
federal interest in the facilities to a period of 20 years
religious teacher, or dignitary as such, except when
violates the Religion Clauses of the First
such priest, preacher, minister, or dignitary is
Amendment, as the unrestricted use of valuable
assigned to the armed forces, or to any penal
property after 20 years is in effect a contribution to
institution, or government orphanage or
a religious body. (Tilton v. Richardson, 403 U.S.
leprosarium. (PHIL. CONST., art. VI, § 29[2])
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672, June 28, 1971)
Religious Instruction in Public Elementary and
When viewed in its overall context, the creche
High Schools
display violates the Establishment Clause. The
At the option expressed in writing by the parents or
creche angel's words endorse a patently Christian
guardians, religion shall be allowed to be taught to
message: Glory to God for the birth of Jesus Christ.
their children or wards in public elementary and high
Moreover, nothing in the creche's setting detracts
schools within the regular class hours by instructors
from that message. Although the government may
designated or approved by the religious authorities
acknowledge Christmas as a cultural phenomenon,
of the religion to which the children or wards belong,
it may not observe it as a Christian holy day by
without additional cost to the Government. (PHIL.
suggesting that people praise God for the birth of
CONST., art. XIV, § 3[3])
Jesus. (County of Allegheny v. ACLU, 492 U.S. 573,
July 2, 1989)
Ownership of Sectarian Educational Institutions
Educational institutions, other than those
It is not necessary that there be a direct
established by religious groups and mission boards,
governmental compulsion for the non-establishment
shall be owned solely by citizens of the Philippines
clause to be violated. Enactment of laws which
or corporations or associations at least sixty per
coerce or influence, directly or indirectly, any
centum of the capital of which is owned by such
individual to follow a religion or irreligion is sufficient
citizens. The Congress may, however, require
for the said clause to be violated. (Bernas, The 1987
increased Filipino equity participation in all
educational institutions. (PHIL. CONST., art. XIV,
§4[2])
The expulsion or excommunication of members of a
religious institution or organization is a matter best
left to the discretion of church officials, and the laws b. Jurisprudence
and canons of said institution or organization. It is
not for the courts to exercise control over church The holding of Catholic masses at the basement of
authorities in the performance of their discretionary the QC Hall of Justice is not a case of establishment,
and official functions. (Bernas, The 1987 but merely accommodation.
Constitution of the Republic of the Philippines, 2009) a. There is no law, ordinance or circular
issued by any duly constitutive authorities
expressly mandating that judiciary
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employees attend the Catholic masses at distributes benefits to any child qualifying as
the basement. disabled under the IDEA, without regard to the
b. When judiciary employees attend the sectarian or non-sectarian or public or non-public
masses to profess their faith, it is at their nature of the school the child attends. Neither does
own initiative, without any coercion from the the IDEA create a financial incentive for parents to
choose a sectarian school. Most cases, where
judges or administrative officers.
governmental aids were struck down, challenged
c. No government funds are being spent programs which gave direct grants of government
because the lightings and air conditioning aid, relieving sectarian schools of costs they
continue to be operational even if there are otherwise would have borne. In this case, the child
no religious rituals there. is the primary beneficiary and whatever benefits that
d. The basement has neither been converted may accrue to the school is merely incidental.
into a Roman Catholic chapel nor has it (Zobrest, et al. v. Catalina Foothills School District,
been permanently appropriated for the 509 U.S. 1, June 18, 1993)
exclusive use of its faithful.
e. The allowance of the masses has not If there is nothing unconstitutional or illegal in
holding a fiesta and having a patron saint for the
prejudiced other religions
barrio, then any activity intended to facilitate the
f. In no case shall a particular part of a public worship of the patron saint (such as the acquisition
building be a permanent place for worship and display of his image) cannot be branded as
for the benefit of any and all religious illegal. The barrio fiesta is a socio-religious affair. Its
groups. There shall also be no permanent celebration is an ingrained tradition in rural
display of religious icons in all halls of communities. The fiesta relieves the monotony and
justice in the country. In case of religious drudgery of the lives of the masses. Not every
rituals, religious icons and images may be governmental activity which involves the
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displayed but their presentation is limited expenditure of public funds and which has some
only during the celebration of such religious tint is violative of the constitutional
provisions regarding separation of church and state,
activities. After any religious affair, the
freedom of worship and banning the use of public
icons and images shall be hidden or money or property. (Garces v. Estenzo, G.R. No. L-
concealed from public view. (Re: Letter of 53487, May 25, 1981)
Tony Valenciano, A.M. No. 10-4-19-SC,
March 7, 2017) The express purpose of the statute was the
furtherance of educational opportunities for the
Aglipay of the Philippine Independent Church young, and the law merely makes available to all
sought to prohibit the issuance and sale of such children the benefits of a general program to lend
stamps commemorating a Catholic Eucharistic school books free of charge, and the financial
Congress for violating the command that no public benefit is to parents and children, not to schools.
money should be appropriated to support any Parochial schools, in addition to their sectarian
system of religion. The SC held that the statute function, perform the task of secular education, and,
contemplates no religious purpose. The stamps on the basis of this meager record, the Court cannot
were not sold for the benefit of the Catholic Church, agree with appellants that all teaching in a sectarian
but merely to advertise the Philippines as the seat school is religious or that the intertwining of secular
of the Eucharistic Congress. Thus, the resulting and religious training is such that secular textbooks
propaganda possibly in favor of the Catholic Church furnished to students are in fact instrumental in
is merely incidental and should not frustrate the teaching religion. (Board of Education v. Allen, 392
main purpose of the law, which is to generate profit U.S. 236, June 10, 1968)
and boost tourism. (Aglipay v. Ruiz, G.R. No. L-
45459, March 13, 1937) The menorah display does not have the prohibited
effect of endorsing religion, given its "particular
Government programs that neutrally provide physical setting." Its combined display with a
benefits to a broad class of citizens and without Christmas tree and a sign saluting liberty does not
reference to religion do not violate the non- impermissibly endorse both the Christian and
establishment clause, as when government Jewish faiths, but simply recognizes that both
furnishes a disabled child enrolled in a sectarian Christmas and Chanukah are part of the same
school with a sign language interpreter to facilitate winter-holiday season, which has attained a secular
his education because the service is part of a status in our society. The widely accepted view of
general government program that neutrally the Christmas tree as the preeminent secular
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symbol of the Christmas season emphasizes this Tony Valenciano, A.M. No. 10-4-19-SC, March 7,
point. The tree, moreover, by virtue of its size and 2017)
central position in the display, is clearly the
predominant element, and the placement of the Freedom to act on one's beliefs
menorah beside it is readily understood as simply a But where the individual externalizes his beliefs in
recognition that Christmas is not the only traditional acts or omissions that affect the public, his freedom
way of celebrating the season. The absence of a to do so becomes subject to the authority of the
more secular alternative to the menorah negates the State. As great as this liberty may be, religious
inference of endorsement. Similarly, the presence of freedom, like all other rights guaranteed in the
the mayor's sign confirms that in the particular Constitution, can be enjoyed only with a proper
context the government's association with a regard for the rights of others. It is error to think that
religious symbol does not represent sponsorship of the mere invocation of religious freedom will
religious beliefs but simply a recognition of cultural stalemate the State and render it impotent in
diversity. Given all these considerations, it is not protecting the general welfare. The inherent police
sufficiently likely that a reasonable observer would power can be exercised to prevent religious
view the combined display as an endorsement or practices inimical to society. (Re: Letter of Tony
disapproval of his individual religious choices. Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
(County of Allegheny v. ACLU, 492 U.S. 573, July 2, Purpose
1989) The Free Exercise Clause accords absolute
protection to individual religious convictions and
The RH Law does not violate the Establishment beliefs and proscribes government from questioning
Clause. The petitioners are misguided in their a person’s beliefs or imposing penalties or
supposition that the State cannot enhance its disabilities based solely on those beliefs. The
population control program through the RH Law Clause extends protection to both beliefs and
simply because the promotion of contraceptive use unbelief. (Estrada v. Escritor, A.M. NO. P-02-1651,
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is contrary to their religious beliefs. Indeed, the State June 22, 2006)
is not precluded to pursue its legitimate secular
objectives without being dictated upon by the However, a law advancing a legitimate
policies of any one religion. (Imbong v. Ochoa, G.R. governmental interest is not necessarily invalid as
No. 204819, April 8, 2014) one interfering with the free exercise of religion
merely because it also has an incidental and
Free Exercise Clause detrimental effect on the same. (Centeno v. Villalon-
Pornillos, G.R. No. 113092, Sept. 1, 1994)
Concept
The right to religious profession and worship has a Benevolent neutrality and claims of religious
two-fold aspect: freedom to believe and freedom to freedom cannot shield respondent judge from
act on one’s belief. The first is absolute as long as liability for misconduct under our laws. She
the belief is confined within the realm of thought. knowingly entered into a civil marriage with her first
The second is subject to regulation where the belief husband. She knew its effects under our laws. She
is translated into external acts that affect the public had sexual relations with her second husband while
welfare. (Re: Letter of Tony Valenciano, A.M. No. her first marriage was subsisting. She cannot claim
10-4-19-SC, March 7, 2017) that engaging in sexual relations with another
person during the subsistence of a marriage is an
The court determines whether an act is a religious exercise of her religious expression. Legal
ceremony and not any religious group or sect, or a implications and obligations attach to any person
follower of the said group or sect. (Bernas, The 1987 who chooses to enter civil marriages. This is
Constitution of the Republic of the Philippines, 2009) regardless of how civil marriages are treated in that
person’s religion. Also, as a lawyer and a judge, is
Freedom to believe expected to abide by the law. Her conduct affects
Absolute as long as the belief is confined within the the credibility of the courts in dispensing justice.
realm of thought. The individual is free to believe (or Thus, in finding respondent administratively liable
disbelieve) as he pleases concerning the hereafter. for violation of her marriage obligations under our
He may not be required to prove his beliefs. He may laws, this court protects the credibility of the judiciary
not be punished for his inability to do so. Religion, in administering justice. (Perfecto v. Esidera, A.M.
after all, is a matter of faith. "Men may believe what NO. RTJ-15-2417, July 22, 2015)
they cannot prove." Everyone has a right to his
beliefs and he may not be called to account because
he cannot prove what he believes. (Re: Letter of
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Basis An exemption may be accorded to the Jehovah’s

The basis of the free exercise clause is the respect Witnesses with regard to the observance of the flag
for the inviolability of the human conscience. Under ceremony out of respect for their religious beliefs,
this part of religious freedom guarantee, the State is however ‘bizarre’ those beliefs may seem to others.
prohibited from unduly interfering with the outside Nevertheless, their right not to participate in the flag
manifestations of one's belief and faith. (Imbong v. ceremony does not give them a right to disrupt such
Ochoa, G.R. No. 204819, April 8, 2014) patriotic exercises. (Ebralinag v. Division
Superintendent, G.R. No. 95770, March 1, 1993)
Permitted Acts of the State Under the Free
Exercise Clause City Ordinance No. 3000, as amended, which
The free exercise clause does not relieve one of the requires obtaining of a Mayor's permit before any
obligations to comply with a law that incidentally person can engage in any of the businesses, trades
forbids (or requires) the performance of an act that or occupations enumerated therein, does not
his religious belief requires (or forbids): impose any charge upon the enjoyment of a right
1. If the law is not specifically directed to religious granted by the Constitution, nor tax the exercise of
practice. religious practices. Hence, it cannot be considered
2. If the law is constitutional as applied to those unconstitutional, even if applied to plaintiff Society.
who engage in the specified act for non-religious (American Bible Society v. City of Manila, G.R. No.
purposes. L-9637, April 30, 1957)
If the law is not specifically directed to religious
The First Amendment does not prohibit the
practice and is applied equally to all, regardless of
challenged regulation from being applied to
whether they do the act for religious or non-religious
petitioner even though its effect is to restrict the
purposes, it does not offend the free exercise
wearing of the headgear (yarmulke) required by his
clause.
religious beliefs. That Amendment does not require
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the military to accommodate such practices as
The balancing of interests test, whereby
wearing a yarmulke in the face of its view that they
government actions that substantially burden a
would detract from the uniformity sought by dress
religious practice must be justified by a compelling
regulations. Here, the Air Force has drawn the line
governmental interest, is inapplicable to an across-
essentially between religious apparel that is visible
the-board criminal prohibition of a particular form of
and that which is not, and the challenged regulation
conduct. Otherwise, this would create an
reasonably and even-handedly regulates dress in
extraordinary right to ignore general laws in the
the interest of the military's perceived need for
name of religion for as long as no compelling State
uniformity. (Goldman v. Weinberger, 475 U.S. 503,
interest intervenes. (Employment Division v. Smith,
March 25, 1986)
494 U.S. 872, April 17, 1990)
Not all acts done by those who are priests, bishops,
A law that burdens religious practice need not be
ustadz, imams, or any other religious make such act
justified by a compelling governmental interest, if it
immune from any secular regulation. The religious
is a) neutral and b) of general applicability. However,
also have a secular existence. They exist within a
when the law is not neutral or not of general
society that is regulated by law. The tarpaulin, on its
application, the same must undergo the most
face, does not convey any religious doctrine of the
rigorous of scrutiny:
Catholic church. That the position of the Catholic
1. It must be justified by a compelling
church appears to coincide with the message of the
governmental interest. tarpaulin regarding the RH Law does not, by itself,
2. It must be narrowly tailored to advance the said bring the expression within the ambit of religious
interest. (Church of the Lukumi Babalu Aye, Inc. speech. (Diocese of Bacolod v. COMELEC, G.R.
v. Hialeah, 508 U.S. 520, June 11 1993) No. 205728, Jan. 21, 2015)
The Supreme Court upheld the exemption of Prohibited Acts of the State Under the Free
members of the Iglesia ni Cristo, from the coverage Exercise Clause
of a closed shop agreement between their employer A state statute which forbids any person to solicit
and a union because it would violate the teaching of money or valuables for any alleged religious cause,
their church not to join any group. (Victoriano v. unless a certificate therefor shall first have been
Elizalde Rope Workers’ Union, G.R. No. L-2524, procured from a designated official, who is required
Sept. 12, 1974) to determine whether such cause is a religious one
and who may withhold his approval if he determines
that it is not, is a previous restraint upon the free
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exercise of religion and a deprivation of liberty Ordinance 87-72 appears to apply to substantial
without due process of law in violation of the nonreligious conduct and not to be overbroad, it
Fourteenth Amendment. (Cantwell v. Connecticut, must also be invalidated because it functions in
310 U.S. 296, May 19, 1940) tandem with the other ordinances to suppress
Santeria religious worship. (Church of the Lukumi
The religious views espoused by respondents might Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, June 11
seem incredible, if not preposterous, to most people. 1993)
But if those doctrines are subject to trial before a jury
charged with finding their truth or falsity, then the 2. BENEVOLENT NEUTRALITY AND
same can be done with the religious beliefs of any CONSCIENTIOUS OBJECTORS
sect. When the triers of fact undertake that task,
they enter a forbidden domain. The First Benevolent neutrality protects religious realities,
Amendment does not select any one group or any tradition and established practice with a flexible
one type of religion for preferred treatment. It puts reading of the principle.
them all in that position. Thus, the District Court
ruled properly when it withheld from the jury all Accommodations are government policies that take
questions concerning the truth or falsity of the religion specifically into account not to promote the
religious beliefs or doctrines of respondents. This government’s favored form of religion, but to allow
course was required by the First Amendment's individuals and groups to exercise their religion
guarantee of religious freedom. (United States v. without hindrance. Their purpose or effect therefore
Ballard, 322 U.S. 78, April 24, 1944) is to remove a burden on, or facilitate the exercise
The provisions of City Ordinance No. 2529, as of, a person’s or institution’s religion.
amended, which requires the payment of license fee The government may take religion into account to
for conducting the business of general merchandise, exempt, when possible, from generally applicable
cannot be applied to plaintiff society, for in doing so, governmental regulation individuals whose religious
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it would impair its free exercise and enjoyment of its beliefs and practices would otherwise thereby be
religious profession and worship, as well as its rights infringed, or to create without state involvement an
of dissemination of religious beliefs. (American Bible atmosphere in which voluntary religious exercise
Society v. City of Manila, G.R. No. L-9637, April 30, may flourish. Accommodation is forbearance and
1957)
not alliance. it does not reflect agreement with the
minority, but respect for the conflict between the
The State's claim that it is empowered, as parens temporal and spiritual authority in which the minority
patriae, to extend the benefit of secondary finds itself.
education to children regardless of the wishes of
their parents cannot be sustained against a free Benevolent neutrality gives room for
exercise, for the Amish have introduced convincing accommodation of religious exercises as required
evidence that accommodating their religious by the Free Exercise Clause. It allows breaches in
objections by forgoing one or two additional years of the wall of separation to uphold religious liberty,
compulsory education will not impair the physical or which after all is the integral purpose of the religion
mental health of the child, or result in an inability to clauses.
be self-supporting or to discharge the duties and
responsibilities of citizenship, or in any other way Although the Philippines’ constitutional history and
materially detract from the welfare of society. interpretation mandate benevolent neutrality,
(Wisconsin v. Yoder, 406 U.S. 205, May 15, 1972) benevolent neutrality does not mean that the Court
ought to grant exemptions every time a free exercise
The ordinances' texts and operation demonstrate claim comes before it. But it does mean that the
that they are not neutral, but have as their object the Court will not look with hostility or act indifferently
suppression of Santeria's central element, animal towards religious beliefs and practices and that it will
sacrifice. That this religious exercise has been strive to accommodate them when it can within
targeted is evidenced by Resolution 87-66's flexible constitutional limits; it does mean that the
statements of "concern" and "commitment," and by Court will not simply dismiss a claim under the Free
the use of the words "sacrifice" and "ritual" in Exercise Clause because the conduct in question
Ordinances 87-40, 87-52, and 87-71. Moreover, the offends a law or the orthodox view for this precisely
latter ordinances' various prohibitions, definitions, is the protection afforded by the religion clauses of
and exemptions demonstrate that they were the Constitution, i.e., that in the absence of
"gerrymandered" with care to proscribe religious legislation granting exemption from a law of general
killings of animals by Santeria church members but applicability, the Court can carve out an exception
to exclude almost all other animal killings. Although when the religion clauses justify it.
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conscience is immediately burdened as he has been

The Court thus lays down the doctrine that in compelled to perform an act against his beliefs.
Philippine jurisdiction, we adopt the benevolent
neutrality approach not only because of its merits as In case of conflict between the religious beliefs and
discussed above, but more importantly, because our moral convictions of individuals, on one hand, and
constitutional history and interpretation indubitably the interest of the State, on the other, to provide
show that benevolent neutrality is the launching pad access and information on reproductive health
from which the Court should take off in interpreting products, services, procedures and methods to
religion clause cases. The ideal towards which this enable the people to determine the timing, number
approach is directed is the protection of religious and spacing of the birth of their children, the Court
liberty not only for a minority, however small – not is of the strong view that the religious freedom of
only for a majority, however large – but for each of health providers, whether public or private, should
us to the greatest extent possible within flexible be accorded primacy.
constitutional limits. (Estrada v. Escritor, A.M. NO.
P-02-1651, June 22, 2006) Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the
Sherbert Test RH Law. If he would be compelled to act contrary to
This is the applicable test for benevolent neutrality. his religious belief and conviction, it would be
The test involves the following: violative of "the principle of non-coercion" enshrined
1. Does the law burden the person of his free in the constitutional right to free exercise of religion.
exercise of religion; (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)
2. Is the person sincere in his belief; and
3. Does the State have a compelling interest in
implementing the law/regulation/policy? Conscientious Objection to Military Service
(Estrada v. Escritor, A.M. No. P-02-1651, Aug. Escritor was the court interpreter at the RTC of Las
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Pinas. A complaint for disgraceful and immoral
4, 2003)
conduct under the Revised Administrative Code was
filed against Escritor because of living with a man
Conscientious objectors not her husband. As a defense, she asserted that
A person who for moral or religious reasons is this conjugal arrangement was in conformity with
opposed to participating in any war, and who may her religious congregation which was the Jehovah’s
be excused from military conscription but remains witnesses. In discussing the Free Exercise Clause,
subject to service in civil work for the nation’s health, the court tackled United States v. Seeger, which
safety or interest. (Black’s Law Dictionary, 9th ed.) involved four men who claimed "conscientious
objector" status in refusing to serve in the Vietnam
RH Law War. One of the four, Seeger, was not a member of
Sections 7, 23 and 24 commonly mandate that a any organized religion opposed to war, but when
hospital or a medical practitioner to immediately specifically asked about his belief in a Supreme
refer a person seeking health care and services Being, Seeger stated that "you could call (it) a belief
under the law to another accessible healthcare in a Supreme Being or God. These just do not
provider despite their conscientious objections happen to be the words that I use." Forest Peter,
based on religious or ethical beliefs. another one of the four claimed that after
considerable meditation and reflection "on values
In this case, the conscientious objector's claim to derived from the Western religious and
religious freedom would warrant an exemption from philosophical tradition," he determined that it would
obligations under the RH Law, unless the be "a violation of his moral code to take human life
government succeeds in demonstrating a more and that he considered this belief superior to any
compelling state interest in the accomplishment of obligation to the state." The Court avoided a
an important secular objective. Necessarily so, the constitutional question by broadly interpreting not
plea of conscientious objectors for exemption from the Free Exercise Clause, but the statutory definition
the RH Law deserves no less than strict scrutiny. of religion in the Universal Military Training and
Service Act of 1940 which exempt from combat
The obligation to refer imposed by the RH Law anyone "who, by reason of religious training and
violates the religious belief and conviction of a belief, is conscientiously opposed to participation in
conscientious objector. Once the medical war in any form." (Estrada v. Escritor A.M. No. P-02-
practitioner, against his will, refers a patient seeking 1651, June 22, 2006. See also Gerona v. Secretary
information on modem reproductive health of Education, G.R. No. L-13954, Aug. 12, 1959)
products, services, procedures and methods, his
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As seen in U.S. v. Seeger, supra, it may also be Mitchell Test for Determining a Statute’s Effect
used as a ground for exemption from compulsory Three primary criteria for determining whether a
military service. It also includes those with a sincere statute/government aid has the effect of advancing
and meaningful belief which occupies in the life of religion:
its possessor a place parallel to that filled by the God 1. If it results in governmental indoctrination;
of those admittedly qualifying for the exemption. 2. If it defines its recipients by reference to religion;
(380 U.S. 163, March 8, 1965) or
3. If it creates an excessive entanglement.
3. TESTS TO DETERMINE THE
VALIDITY OF GOVERNMENTAL The US Supreme Court further held that under the
REGULATION neutrality principle, aid that is offered to a broad
range of groups or persons without regard to religion
TESTS FOR CONSTITUTIONALITY OF are valid. One way to assure the said neutrality is
STATUTES through the principle of private choice, wherein the
government is not considered to have provided any
Abington Test support of religion when aid to schools, even if
To withstand the strictures of the Establishment direct, is a) neutrally available and b) before
Clause: (SAIR) reaching or benefitting any religious school, first
1. There must be a Secular legislative purpose; passes through the hands of numerous private
and citizens who are free to direct the aid elsewhere.
2. A primary effect that neither Advances nor (Mitchell v. Helms, 530 US 793, June 28 2000)
Inhibits Religion.
The right of the people to information on matters of
public concern shall be recognized. (Phil Const., art.
If the purpose and the primary effect of the III, § 7)
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enactment is the advancement or inhibition of
religion, then the enactment exceeds the scope of Subject to reasonable conditions prescribed by law,
legislative power as circumscribed by the the State adopts and implements a policy of full
Constitution. (School Dist. of Abington Tp. v. public disclosure of all its transactions involving
Schempp, 374 U.S. 203, June 17, 1963)
public interest. (Phil Const., art. II, § 28)
H. LIBERTY OF ABODE AND

Lemon Test
The Lemon test requires a challenged policy to meet FREEDOM OF MOVEMENT
the following criteria to pass scrutiny under the
Establishment Clause. The test for determining The liberty of abode and of changing the same
whether a law meets the requirements of the within the limits prescribed by law shall not be
Establishment Clause is that: (SAIREE) impaired except upon lawful order of the court.
1. The statute must have a Secular legislative Neither shall the right to travel be impaired except in
purpose; the interest of national security, public safety or
public health, as may be provided by law. (PHIL.
2. Its primary or principal effect must be one that
CONST., art. III, § 6)
neither Advances nor Inhibits Religion; and
3. The statute must not foster an Excessive 1. SCOPE AND LIMITATIONS
Entanglement with religion. (Lemon v.
Kurtzman, 403 U.S. 602, June 28, 1971) Rights Guaranteed
a. Freedom to choose and change one’s
Agostini Test for Excessive Entanglement place of abode
To determine/assess excessive entanglement, the b. Freedom to travel within the country and
following must be taken into consideration: outside
1. The character and purposes of the benefitted
institutions; Liberty of Abode
2. The nature of the aid that the State provides; and But one can search in vain for any law, order, or
3. The resulting relationship between the regulation, which even hints at the right of the Mayor
government and religion, e. g., whether it was of the city of Manila or the chief of police of that city
neutral and nonideological. (Agostini v. Felton, to force citizens of the Philippine Islands — and
521 U.S. 203, June 23, 1997) these women despite their being in a sense lepers
of society are nevertheless not chattels but
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Philippine citizens protected by the same of movement and abode within the territory of a
constitutional guaranties as are other citizens — to state, the right to leave a country, and the right to
change their domicile from Manila to another enter one's country as separate and distinct rights.
locality. (Villavicencio v. Lukban, G.R. No. L-14639, The Declaration speaks of the "right to freedom of
March 25, 1919) movement and residence within the borders of each
state" separately from the "right to leave any
The order of the Court of Appeals releasing country, including his own, and to return to his
petitioner on bail constitutes such lawful order as country." (Marcos v. Manglapus, G.R. No. 88211,
contemplated by the above provision. The condition Sept. 15, 1989)
imposed by the Court of Appeals is simply
consistent with the nature and function of a bail Limitations
bond, which is to ensure that petitioner will make a. LIBERTY OF ABODE: Lawful order of the
himself available at all times whenever the Court court and within the limits prescribed by
requires his presence. Besides, a closer look at the law.
questioned condition will show that petitioner is not b. RIGHT TO TRAVEL: May be curtailed
prevented from changing abode; he is merely even by administrative officers in the
required to inform the court in case he does so. (Yap
interest of national security, public safety,
Jr. v. Court of Appeals, G.R. No. 141529, June 6,
2001) or public health, as may be provided by law.
(PHIL. CONST., art. III, § 6)
Right to Travel
AO1 does not infringe upon petitioners’ right to 2. WATCH-LIST AND HOLD
travel but merely bars motorcycles, bicycles, DEPARTURE ORDERS
tricycles, pedicabs, and any non- motorized vehicles
as the mode of traveling along limited access Watch-list Orders vs. Hold Departure Orders
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highways. The right to travel does not mean the right 1. Watch-list Orders issued against:
to choose any vehicle in traversing a toll way. The a. Accused in criminal cases (irrespective of
right to travel refers to the right to move from one nationality in RTC or below); OR
place to another. Petitioners can traverse the toll b. Any person with pending case in DOJ
way any time they choose using private or public
2. Hold Departure Orders issued against:
four-wheeled vehicles. Petitioners are not denied a. Accused on criminal cases (irrespective of
the right to move from Point A to Point B along the
nationality in courts below RTC);
toll way. Petitioners are free to access the toll way,
much as the rest of the public can. The mode by b. aliens (defendant, respondent, and witness
which petitioners wish to travel pertains to the in pending civil or labor case, or any case
manner of using the toll way, a subject that can be pending before administrative agency of
validly limited by regulation. (Mirasol v. DPWH, G.R. the government); and
No. 158793, June 8, 2006) c. Any person motu proprio by the Secretary
of Justice or request of heads of
City councils are authorized to enact curfew departments, Constitutional Commissions,
ordinances (as what respondents have done in this Congress, or Supreme Court
case) and enforce the same through their local
officials. In other words, PD 603 provides sufficient
Both issued by the Secretary of Justice (Department
statutory basis - as required by the Constitution - to
restrict the minors' exercise of the right to travel. Circular No. 41)
Considering that the right to travel is a fundamental
right in our legal system guaranteed no less by our Article III, Section 6 of the 1987 Constitution should
Constitution, the strict scrutiny test is the applicable by no means be construed as delimiting the inherent
test. (SPARK v. Quezon City, G.R. No. 225442, power of the Courts to use all means necessary to
Aug. 8, 2017) carry their orders into effect in criminal cases
pending before them. When by law jurisdiction is
No Right of Return to One’s Country conferred on a Court or judicial officer, all auxiliary
writs, process and other means necessary to carry
Essentially, the right involved is the right to return to
it into effect may be employed by such Court or
one's country, a totally distinct right under
officer. Holding an accused in a criminal case within
international law, independent from although related
the reach of the Courts by preventing his departure
to the right to travel. Thus, the Universal Declaration
from the Philippines must be considered as a valid
of Humans Rights and the International Covenant
restriction on his right to travel so that he may be
on Civil and Political Rights treat the right to freedom
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dealt with in accordance with law. The offended 1. Scope and limitations
party in any criminal proceeding is the People of the
Philippines. It is to their best interest that criminal Matters of Public Concern
prosecutions should run their course and proceed to The people have the right to information on matters
finality without undue delay, with an accused holding of public concern, and access to official records
himself amenable at all times to Court Orders and shall be allowed to citizens as may be provided by
processes. (Silverio v. CA, G.R. No. 94284, April 8, law. It is a self-executing provision.
1991)
The threshold question is, therefore, whether or not
[The DOJ] does not have inherent power to issue a the information sought is of public interest or public
hold-departure order, unlike the courts, or to restrict concern. "Public concern" like "public interest" is a
the right to travel in [any way]. It is limited to the term that eludes exact definition. Both terms
powers expressly granted to it by law and may not embrace a broad spectrum of subjects which the
extend the same on its own accord or by any public may want to know, either because these
skewed interpretation of its authority. Without a valid directly affect their lives, or simply because such
legislation, the DOJ's actions will perpetually be met matters naturally arouse the interest of an ordinary
with legal hurdles to the detriment of the due citizen. In the final analysis, it is for the courts to
administration of justice. (Genuino v. De Lima, G.R. determine in a case by case basis whether the
No. 197930, April 17, 2018) matter at issue is of interest or importance, as it
relates to or affects the public. (Legazpi v. CSC,
I. RIGHT TO INFORMATION G.R. No. L-72119, May 29, 1987)
The right of the people to information on matters of In case of conflict, there is a need to strike a balance
public concern shall be recognized. (PHIL. CONST., between the right of the people and the interest of
art. III, § 7) the Government to be protected. (Sereno v.
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Committee on Trade and Related Matters of NEDA,
Subject to reasonable conditions prescribed by law, G.R. No. 175210, Feb. 1, 2016)
the State adopts and implements a policy of full
public disclosure of all its transactions involving Examples of Matters of Public Concern
public interest. (PHIL. CONST., art. II, § 28)
according to Jurisprudence:
a. Loanable funds of GSIS
Rights Guaranteed b. Civil service eligibility of sanitarian
a. Right to information on matters of public employees
concern c. Appointments made to public offices and
b. Right of access to official records and the utilization of public property
documents d. National board examinations such as the
CPA Board Exams
These are political rights available to citizens only. e. Names of nominees of partylists
They are "subject to such limitations as may be f. Negotiations leading to the consummation
provided by law." (Bernas, The 1987 Philippine
of the transaction
Constitution: A Comprehensive Reviewer)
(Valmonte v. Belmonte, G.R. No. 74930; Legazpi v.
Not absolute CSC, G.R. No. L-72119; Gonzales v. Narvasa, G.R.
The constitutional guarantee to information does not No. 140835; Antolin v. Domondon, G.R. No.165036;
open every door to any and all information. It is Bantay Republic v. COMELEC, G.R. No. 177271;
limited to matters of public concern, and is subject Chavez v. PEA and Amari, G.R. No. 133250)
to such limitations as may be provided by law.
Likewise, the State’s policy of full public disclosure Examples of Matters of Public Information
is restricted to transactions involving public interest, according to Jurisprudence:
and is further subject to reasonable conditions a. Decision and voting slips of the MTRCB
prescribed by law. board for the classification of movies
(Sereno v. Committee on Trade and Related b. Civil Service eligibility of sanitarians
Matters of NEDA, G.R. No. 175210, Feb. 1, 2016) c. Party-list nominees through medium other
than the “Certified List”
d. GSIS loans granted to former Batasang
Pambansa members
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e. Examination papers and answer keys in the Before a definite proposition is reached by an
CPA Board Exam agency, there are no official acts, transactions, or
f. Definite propositions and “official decisions yet which can be accessed by the public
recommendations” of agencies preceding under the right to information. Only when there is an
and even before the consummation of the official recommendation can a definite proposition
arise and, accordingly, the public’s right to
contract
information attaches. (DFA v. BCA International,
(Aquino-Sarmiento v. Morato, G.R. No. 92541; G.R. No. 210858)
Legaspi v. CSC, G.R. No. L-72119; Bantay Republic
Act or BA-RA 7941 v. COMELEC, G.R. No. Without doubt, therefore, ensuring and promoting
177271,; Valmonte v. Belmonte Jr., G.R. No. the free exchange of ideas among the members of
74930,; Antolin v. Domondon, G.R. No.165036; the committee tasked to give tariff recommendations
Chavez v. Public Estates Authority, G.R. No. to the President were truly imperative. The fact that
133250) some members of the committee were not part of
the President's Cabinet was of no moment. The
The right to information is paramount, and that the Court regarded the meeting of the committee as a
wiretapping issue is subservient to this right. The Closed-door Cabinet meeting. (Sereno v.
“Hello Garci” tapes should be played, because Committee on Trade and Related Matters of NEDA,
prohibiting its airing would be prior restraint. G.R. No. 175210, supra)
(Chavez v. Gonzales, G.R. No. 168338)
The chemical composition of special lubricants is a
Limitations trade secret. The ingredients constitute the very
Restrictions to the right to information may be: fabric of the company’s business. To compel its
a. Based on kinds of information disclosure is to cripple their business and to place it
b. Based on access at an undue disadvantage. Trade secrets should
c. Based on reasonable regulation for the
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receive greater protection from discovery because
convenience of and for order in the office they deserve economic value from being generally
that has custody of the documents unknown and not readily ascertainable by the public.
(Baldoza v. Dimaano, A.M. No. 1120-MJ, (Air Philippines v. Pennswell, Inc, G.R. No. 172835)
1976)
d. Based on availability.
Based on Kinds of Information

Based on Access
a. Opportunity to inspect and copy records at
his expense (Chavez v. PEA and Amari,
supra)
The constitutional guarantee of the people's b. Not the right to compel custodians of official
right to information do not cover: (BENT DISC) records to prepare lists, abstracts,
a. Banking transactions summaries and the like (Valmonte v.
b. Executive Sessions Belmonte, supra)
c. National Security matters
A distinction has to be made between the discretion
d. Trade secrets
to refuse outright the disclosure of or access to a
e. Diplomatic correspondence particular information and the authority to regulate
f. Intelligence information the manner in which the access is to be afforded.
g. Supreme Court deliberations The first is a limitation upon the availability of access
h. Closed Door cabinet meetings to the information sought, which only the Legislature
may impose. The second pertains to the
There are certain classes of information which may government agency charged with the custody of
be withheld from the public and even from public records. (Legaspi v. CSC, G.R. No. 72119,
Congress. These are national security matters or May 29, 1987)
confidential diplomatic matters, trade secrets and
banking transactions, the identity of informants in The regulations which the Register of Deeds, or the
criminal investigations, confidential or classified Chief of the General Land Registration Office, or the
matters which come to the knowledge of public Secretary of Justice is empowered to promulgate
officials by reason of their office. (Chavez v. PCGG, are confined to prescribing the manner and hours of
G.R. No 130716) examination to the end that damage to, or loss of,
the records may be avoided, that undue interference
with the duties of the custodian of the books and
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documents and other employees may be prevented, Diplomatic Negotiations

that the right of other persons entitled to make It is clear that while the final text of the JPEPA may
inspection may be insured, and the like. (Subido v. not be kept perpetually confidential – since there
Ozaeta, G.R. No. L-1631, May 29, 1987) should be “ample opportunity for discussion before
a treaty is approved” – the offers exchanged by the
Although citizens are afforded the right to parties during the negotiations continue to be
information and, pursuant thereto, are entitled to privileged even after the JPEPA is published. It is
access to official records, the Constitution does not reasonable to conclude that the Japanese
accord them a right to compel custodians of official representatives submitted their offers with the
records to prepare lists, abstracts, summaries and understanding that “historic confidentiality” would
the like in their desire to acquire information on govern the same. Disclosing these offers could
matters of public concern. (Valmonte v. Belmonte impair the ability of the Philippines to deal not only
Jr., G.R. No. 74930, Feb. 13, 1989) with Japan but with other foreign governments in
future negotiations. (Akbayan v. Aquino, G.R. No.
Access to Court Records 170516)
The right of the public to be informed of the
proceedings in court is not founded in the desire or Negotiations for Treaties and Executive
necessity of people to know about the doing of Agreements
others, but in the necessity of knowing whether its Information regarding negotiations for treaties and
servant, the judge, is properly performing his duty. executive agreements prior to conclusion of the
agreement is privileged information. (Senate v.
Unlike court orders and decisions, however, Ermita, G.R. No. 169777, April 20, 2006)
pleadings and other documents filed by parties to a
case need not be matters of public concern or Deliberative Process Privilege
interest. For they are filed for the purpose of U.S. courts have established two fundamental
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establishing the basis upon which the court may requirements, both of which must be met, for the
issue an order or a judgment affecting their rights deliberative process privilege to be invoked:
and interests. a. Predecisional – The communication must
be predecisional, i.e., antecedent to the
In fine, access to court records may be permitted at adoption of an agency policy; and
the discretion and subject to the supervisory and b. Deliberative – The communication must
protective powers of the court, after considering the be deliberative, i.e., a direct part of the
actual use or purpose for which the request for
deliberative process in that it makes
access is based and the obvious prejudice to any of
the parties. (Hilado v. Judge Reyes, G.R. No. recommendations or expresses opinions
163155) on legal or policy matters.
Court deliberations are traditionally recognized as The deliberative process privilege exempts
privileged communications (deliberative process materials that are 'predecisional' and 'deliberative,'
privilege). This privilege may be invoked by judges but requires disclosure of policy statements and final
and also by court officials and employees who are opinions 'that have the force of law or explain
privy to these deliberations. It is understood that the actions that an agency has already taken.
rule extends to documents and other
communications which are part of or are related to As a qualified privilege, the burden falls upon the
the deliberative process. However, to invoke the government agency asserting the deliberative
privilege, there must be a showing that the process privilege to prove that the information in
document is both predecisional and deliberative. question satisfies both requirements - predecisional
Court records which can be shown to possess both and deliberative. The agency bears the burden of
these qualities cannot be the subject of subpoena. establishing the character of the decision, the
(In Re: Production of Court Records and Documents deliberative process involved, and the role played by
and the Attendance of Court officials and employees the documents in the course of that process. It may
as witnesses under the subpoenas of Feb 10,2012 be overcome upon a showing that the discoverant's
and the various letters for the Impeachment interests in disclosure of the materials outweigh the
Prosecution Panel dated Jan 19 and 25, 2012, Feb. government's interests in their confidentiality. The
14, 2012) determination of need must be made flexibly on a
case-by-case, ad hoc basis, and the factors relevant
to this balancing include: the relevance of the
evidence, whether there is reason to believe the
documents may shed light on government
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misconduct, whether the information sought is J. EMINENT DOMAIN

available from other sources and can be obtained
without compromising the government's deliberative Private property shall not be taken for public use
processes, and the importance of the material to the without just compensation. (PHIL. CONST., art. III,
discoverant's case. (DFA v. BCA International, G.R. § 9)
No. 210858, June 29, 2016)
1. CONCEPT
Presidential Communications Privilege
Applies to decision-making of the President; rooted
Eminent domain is the authority and right of the
in the constitutional principle of separation of power
State, as sovereign, to take private property for
and the President's unique constitutional role;
public use upon observance of due process of law
applies to documents in their entirety, and covers
and payment of just compensation. The State's
final and post-decisional materials as well as pre-
power of eminent domain is limited by the
deliberative ones; meant to encompass only those
constitutional mandate that private property shall not
functions that form the core of presidential authority.
be taken for public use without just compensation.
(Republic v. BPI, G.R. No. 203039, Sept. 11, 2013)
Requisites:
1. The communications relate to a "quintessential Examples of the uses to which the power of eminent
and non-delegable power" of the President; domain may be put
a. PHIL. CONST., art. XII, § 18: public utilities
2. The communications are "received" by a close
b. PHIL. CONST., art. XIII, § 4: land reform
advisor of the President; and
c. PHIL. CONST., art. XVIII, § 22: idle or
3. There is no adequate showing of a compelling
abandoned agricultural lands
need that would justify the limitation of the
(Bernas, The 1987 Philippine Constitution: A
privilege and of the unavailability of the
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information elsewhere by an appropriate Comprehensive Reviewer, 2011)
investigating authority. (Neri v. Senate
Committee, G.R. No. 180643, March 25, 2008) Scope and limitations
In the hands of Congress the scope of the power is,
Publication of Laws and Regulations like the scope of legislative power itself, plenary.
The very first clause of Section I of Commonwealth (Barlin v. Ramirez, G.R. No. L-2832, November 24,
Act 638 reads: "There shall be published in the 1906)
Official Gazette..." The word "shall" used therein
imposes upon respondent officials an imperative The exercise of such right is not unlimited, for two
duty. That duty must be enforced if the mandatory requirements should underlie the
Constitutional right of the people to be informed on Government’s exercise of the power of eminent
matters of public concern is to be given substance domain, namely:
and reality. The law itself makes a list of what should 1. that it is for a particular public purpose; and
be published in the Official Gazette. It is needless to 2. that just compensation be paid to the property
add that the publication of presidential issuances "of owner. (Mactan-Cebu International Airport
a public nature" or "of general applicability" is a Authority v. Lozada, Sr., G.R. No. 176625, 2010)
requirement of due process. It is a rule of law that
before a person may be bound by law, he must first Who May Exercise (CELPQ)
be officially and specifically informed of its contents. a. Generally, Congress
Publication is necessary to apprise the public of the b. Delegated Executive, pursuant to
contents of [penal] regulations and make the said legislation enacted by Congress
penalties binding on the persons affected thereby.
c. Local government units, pursuant to an
(Tanada v. Tuvera, G.R. No. L-63915, April 24,
1985). ordinance enacted by their respective
legislative bodies (under LGC)
Other Constitutional Provisions Related to the d. Public corporations, as may be delegated
Right to Information by law
Subject to reasonable conditions prescribed by law, e. Quasi-public corporations e.g. PNR,
the State adopts and implements a policy of full PLDT, Meralco.
public disclosure of all its transactions involving
public interest. (PHIL. CONST., art. II, § 28) The delegated power of eminent domain of local
government is strictly speaking not a power of
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eminent but of inferior domain — a share merely in unlawful detainer suit. These actions are summary
eminent domain. Hence, it is only as broad as the in nature. Therefore, in this case, the Court cannot
authority delegated to it. (Bernas, The 1987 award expropriation. Nevertheless, the resolution of
Philippine Constitution: A Comprehensive this case is without prejudice to the filing of a
Reviewer, 2011) separate case for expropriation. (PLDT v. Citi
Appliance, G.R. No. 214546, October 9, 2019)
Requisites For Valid Exercise: (TaPuCom)
1. There is a Taking of private property The exercise of the right of eminent domain,
whether directly by the State or by its authorized
2. Taking is for Public use
agents, is necessarily in derogation of private rights.
3. Payment of just Compensation It is one of the harshest proceedings known to the
law. Consequently, when the sovereign delegates
Necessity the power to a political unit or agency, a strict
a. The necessity must be of public character. construction will be given against the agency
b. Political question when power is exercised asserting the power. The authority to condemn is to
by Congress; be strictly construed in favor of the owner and
c. Generally justiciable when exercised by a against the condemnor. (Jesus is Lord School v.
delegate (except when delegation is grant Municipality of Pasig, G.R. No. 152230, Aug. 9,
of authority for special purpose). 2005)
The power of eminent domain is available only when Eminent Domain is the taking of private property for
the owner does not want or opposes the sale of his public use, thus no expropriation proceeding can
property. Thus, if a valid contract exists between the continue if the property to be expropriated will not be
government and the owner, the government cannot for public use. Considering that Corp A is no longer
exercise the power of eminent domain as a using respondent X’s properties for the purpose of
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substitute to the enforcement of the contract. building the Substation Project, it may be allowed to
discontinue with the expropriation proceedings,
Where the landowner agrees voluntarily to the subject to the approval of the court. However, in
taking of his property by the government for public order to determine whether the expropriation may
be dismissed, it must not fall under the following
use, he thereby waives his right to the institution of
a formal expropriation proceeding covering such exceptions: first, the trial court’s order already
property. Failure for a long time of the owner to became final and executory, second, the
question the lack of expropriation proceedings government already took possession of the
covering a property that the government had taken property; and lastly, the expropriation case already
constitutes a waiver of his right to gain back caused prejudice to the landowner. (National Power
possession. The landowner’s remedy in such case Corporation v. Posada, G.R. No. 191945, March 11,
is an action for the payment of just compensation, 2015)
not ejectment. (Republic of the Philippines v. Primo THERE IS TAKING OF PRIVATE PROPERTY
Mendoza and Maria Lucero, G.R. No. 185091, Aug.
8, 2010) The power of eminent domain must be distinguished
from police power. When the State exercises "police
The claim of Telephone Company A’s right of power," property is merely "regulated." There is no
eminent domain cannot be properly resolved in a transfer of ownership. By eminent domain, property
complaint for forcible entry or unlawful detainer. is "taken." There is transfer of ownership.
Eminent domain or expropriation is the inherent right "Regulation" is not compensable but "taking" must
of the state to condemn private property to public be compensated. (Bernas, The 1987 Philippine
use upon payment of just compensation. The power Constitution: A Comprehensive Reviewer, 2011).
is exercised by the legislature and may be delegated
to local governments, other public entities, and In the context of the State's inherent power of
public utilities. Expropriation may be judicially eminent domain, there is "taking" where the owner
claimed only by filing a complaint for expropriation. is actually deprived or dispossessed of his property;
An expropriation suit falls under the jurisdiction of where there is a practical destruction or a material
the regional trial court because it is a case incapable impairment of the value of his property; or when he
of pecuniary estimation. It deals with the is deprived of the ordinary use thereof. (PNOC v.
government’s exercise of its authority and right to Maglasang, G.R. No. 155407, Nov. 11, 2008)
take property for public use. The right of an
expropriator to file a complaint for expropriation is Neither can it be said that the right of eminent
not allowed in an action such as a forcible entry or domain may be exercised by simply leasing the
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premises to be expropriated. Where, as here, the the ambit of the term expropriation. The ownership
owner was compensated and not deprived of the of land extends to the surface as well as to the
ordinary and beneficial use of his property by its subsoil under it. Underground tunnels impose
being diverted to public use, there is no taking within limitations on the owner’s use of the property for an
the constitutional sense. (PNOC v. Maglasang, G.R. indefinite period and deprive them of its ordinary
No. 155407, Nov. 11, 2008) use. (NPC v. Lucman Ibrahim, G.R. No. 168732,
June 29, 2007)
Elements of Taking (BEAPP)
1. Utilization of the property must be in such a There was a full taking on the part of NPC,
way as to oust the owner and deprive him of notwithstanding that the owners were not
the Beneficial enjoyment of his property; completely and actually dispossessed. It is settled
that the taking of private property for public use, to
2. The expropriator Enters the property;
be compensable, need not be an actual physical
3. Entry is made under warrant or color of legal taking or appropriation. (NAPOCOR v. Heirs of
Authority; Macabangkit Sangkay, G.R. No. 165828, Aug. 24,
4. Property is devoted to Public use; and 2011)
5. The entrance must be Permanent
(Republic v. Ortigas & Co., Ltd. Partnership, G.R. Compensable taking includes destruction,
No. 171496, March 3, 2014) restriction, diminution, or interruption of the rights of
ownership or of the common and necessary use and
The owner of a property taken is entitled to be enjoyment of the property in a lawful manner,
compensated when there is taking of private lessening or destroying its value. (NAPOCOR v.
property for some public purpose. The Constitution Heirs of Macabangkit Sangkay, G.R. No. 165828,
proscribes taking of private property without just Aug. 24, 2011)
compensation, any taking must entail a
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corresponding appropriation for that purpose. When The Republic may, in the exercise of the sovereign
the road or street was delineated upon government power of eminent domain, require the telephone
request and taken for public use, the government company to permit interconnection of the
must compensate the owner for his or her sacrifice, government telephone system and that of the PLDT,
as the needs of the government service may
lest it violates the constitutional provision against
taking without just compensation. (Republic v. require, subject to the payment of just compensation
Ortigas & Co., Ltd. Partnership, G.R. No. 171496, to be determined by the court. Nominally, of course,
March 3, 2014) the power of eminent domain results in the taking or
appropriation of title to, and possession of, the
NPC is liable on the basis that its acquisition of a expropriated property; but no cogent reason
right-of-way easement over the portion of appears why the said power may not be availed of
respondents' land was a taking under the power of to impose only a burden upon the owner of
eminent domain. A right-of-way easement or burden condemned property, without loss of title and
becomes a "taking" under eminent domain when possession. (Republic v. PLDT, G.R. No. L-18841,
there is material impairment of the value of the Jan. 27, 1969)
property or prevention of the ordinary uses of the
property for an indefinite period. The intrusion into A regulation that deprives any person of the
the property must be so immediate and direct as to profitable use of his property constitutes a taking
subtract from the owner's full enjoyment of the and entitles him to compensation, unless the
property and to limit his or her exploitation of it. invasion of rights is so slight as to permit the
Hence, due to the nature of the easement done by regulation to be justified under the police power.
NPC in this case, which will deprive the normal use Similarly, a police regulation that unreasonably
of the land for an indefinite period and expose the restricts the right to use business property for
property owners' lives and limbs to danger, just business purposes amounts to a taking of private
compensation must be based on the full market property, and the owner may recover therefor. (OSG
value of the affected property. (NPC v Sps. Asoque, v. Ayala, G.R. No. 177056, Sept. 18, 2009)
G.R. No. 172507, September 14, 2016)
2. PUBLIC USE
Expropriation is not limited to the acquisition of real
property with a corresponding transfer of title or The "public use" requirement for the exercise of the
possession. The right-of-way easement resulting in power of eminent domain is a flexible and evolving
a restriction or limitation on property rights over the concept influenced by changing conditions. It is
land traversed by transmission lines also falls within accurate to state then that at present whatever may
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be beneficially employed for the general welfare modified where only a part of a certain property is
satisfies the requirement of public use. Specifically, expropriated. In such a case, the owner is not
urban renewal or redevelopment and the restricted to compensation for the portion actually
construction of low-cost housing is recognized as a taken, he is also entitled to recover the
public purpose, not only because of the expanded consequential damage, if any, to the remaining part
concept of public use but also because of specific of the property. (Republic v. BPI, G.R. No. 203039,
provisions in the Constitution. (Sumulong v. Sept. 11, 2013)
Guerrero, G.R. No. L-48685, Sept. 30, 1987)
The word 'just' is used to modify the meaning of the
Public use means “public usefulness, utility or word 'compensation' to convey the idea that the
advantage, or what is productive of general benefit; equivalent to be given for the property to be taken
so that any appropriating of private property by the shall be real, substantial, full and ample." (Republic
State under its right of eminent domain for purposes v. San Miguel Vda. De Ramos, G.R. No. 211576,
of great advantage to the community, is a taking for Feb. 19, 2020, citing Evergreen Manufacturing
public use.” (Gohld Realty Co. v. Hartford, 104 A. 2d Corp. v. Republic, G.R. Nos. 218628 & 218631,
365, 368-9 Conn., 1954; Bernas, The 1987 Sept. 6, 2017)
Reviewer, 2011) To stress, compensation, to be just, it must be of
such value as to fully rehabilitate the affected owner;
The City of Manila, acting through its legislative it must be sufficient to make the affected owner
branch, has the express power to acquire private whole. (Republic v. San Miguel Vda. De Ramos,
lands in the city and subdivide these lands into G.R. No. 211576, Feb. 19, 2020)
home lots for sale to bona fide tenants or occupants
thereof, and to laborers and low-salaried employees Inclusions in the Loss of the affected owner
of the city. That only a few could actually benefit The loss incurred by the affected owner necessarily
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from the expropriation of the property does not includes all incidental costs to facilitate the transfer
diminish its public use character. It is simply not of the expropriated property to the expropriating
possible to provide all at once land and shelter for authority, including the CGT due on the forced sale
all who need them. Corollary to the expanded notion and other transfer taxes. These costs must be taken
of public use, expropriation is not anymore confined into consideration in determining just compensation
to vast tracts of land and landed estates. It is in the same way these costs are factored into the
therefore of no moment that the land sought to be selling price of real property in an arm's length
expropriated in this case is less than half a hectare transaction. Notably, the value of the expropriated
only. (Phil. Columbian Association v. Hon. Panis, property, as declared by the affected owner, is one
G.R. No. L-106528, Dec. 21, 1993) of the factors listed under Section 5 of RA 8974.
(Republic v. San Miguel Vda. De Ramos, G.R. No.
The purpose in setting up the marker is essentially 211576, Feb. 19, 2020)
to recognize the distinctive contribution of the late If municipal property is acquired in its corporate or
Felix Manalo to the culture of the Philippines, rather private capacity, the State must pay just
than to commemorate his founding and leadership compensation. But if it is any other property such as
of the Iglesia ni Cristo. The practical reality that public buildings or held by the municipality for the
greater benefit may be derived by members of the State in trust for the inhabitants, the State is free to
Iglesia ni Cristo than by most others could well be dispose of it at will, without any compensation.
true but such a peculiar advantage still remains to (Land Bank v. Spouses Orilla, G.R. No. 157206,
be merely incidental and secondary in nature. June 27, 2008)
(Manosca v. CA, G.R. No. 106440, Jan. 29, 1996)
The concept of just compensation does not imply
3. JUST COMPENSATION fairness to the property owner alone. Compensation
must be just not only to the property owner, but also
Just compensation is the full and fair equivalent of to the public which ultimately bears the cost of
the property sought to be expropriated. The general expropriation. (DPWH v. Spouses Tecson, G.R. No.
rule is that the just compensation to which the owner 179334, July 1, 2013)
of the condemned property is entitled to is the
market value. Market value is that sum of money Judicial Function
which a person desirous but not compelled to buy, The final determination of just compensation is
and an owner willing but not compelled to sell, would vested in courts. In the recent case of Alfonso v.
agree on as a price to be paid by the buyer and Land Bank, this Court ruled that courts may deviate
received by the seller. The general rule, however, is from the basic formula provided by administrative
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agencies if it finds, in its discretion, that other factors v. Rural Bank of Kabacan Inc., G.R. No. 185124,
must be taken into account in the determination of Jan. 25, 2012)
just compensation. Deviation, however, must be
grounded on a reasoned explanation based on the Who Are Entitled to Just Compensation:
evidence on record. Absent this, the deviation will a. Owner of the property
be considered as grave abuse of discretion. (Land b. All owning, occupying or claiming to the
Bank of the Philippines v. Franco, G.R. No. 203242, property who have lawful interest in the
March 12, 2019) property to be condemned (e.g. mortgagee,
lessee, vendee under an executory
While it is true that "the determination of the amount
contract). (Vda. De Ouano v. Republic,
of just compensation is within the court's discretion,
it should not be done arbitrarily or capriciously. G.R. No. 168770, Feb. 9, 2011)
Rather, it must always be based on all established
rules, upon correct legal principles and competent Payment for Consequential Damages
evidence." The court cannot base its judgment on No actual taking of the building is necessary to grant
mere speculations and surmises. (Republic v. consequential damages. Consequential damages
Spouses Salvador, G.R. No. 205428, June 7, 2017) are awarded if as a result of the expropriation, the
remaining property of the owner suffers from an
Just Compensation in Expropriation by LGUs impairment or decrease in value. (Republic v. BPI,
G.R. No. 203039, Sept. 11, 2013)
The exercise of the power of eminent domain by a
local government unit is now governed by Section
To determine just compensation, the trial court
19 of Republic Act 7160. For properties under
should first ascertain the market value of the
expropriation, the law now requires the deposit of an
property, to which should be added the
amount equivalent to fifteen percent (15%) of the fair
consequential damages after deducting therefrom
market value of the property based on its current tax
the consequential benefits which may arise from the
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declaration. (Knecht v. Municipality of Cainta, G.R.
expropriation. If the consequential benefits exceed
No. 145254, 2006).
the consequential damages, these items should be
disregarded altogether as the basic value of the
Includes Payment in Full Without Delay
property should be paid in every case. (Republic v.
Just compensation does not only refer to the full and BPI, G.R. No. 203039, Sept. 11, 2013, citing B.H.
fair equivalent of the property taken; it also means, Berkenkotter & Co. v. Court of Appeals, G.R. No.
equally if not more than anything, payment in full 89980, Dec. 14, 1992)
without delay. (Land Bank of the Philippines v.
Gallego, G.R. No. 173226, July 29 2013) Consequential damages are only awarded if as a
result of the expropriation, the remaining property of
Tax Benefit as Just Compensation the owner suffers from an impairment or decrease
The tax benefit granted to the establishments can in value. In this case, no evidence was submitted to
be deemed as their just compensation for private prove any impairment or decrease in value of the
property taken by the State for public use. The subject property as a result of the expropriation.
taxation power can also be used as an implement More significantly, given that the payment of capital
for the exercise of the power of eminent domain. gains tax on the transfer of the subject property has
(Commissioner of Internal Revenue v. Central no effect on the increase or decrease in value of the
Luzon Drug Corporation, G.R. No. 159647, April 15, remaining property, it can hardly be considered as
2005) consequential damages that may be awarded to
respondents. (Republic v. Spouses Salvador, G.R.
Excludes Value of Excavated Soil No. 205428, June 7, 2017)
The Court also upheld the CA ruling, which deleted
the inclusion of the value of the excavated soil in the Likewise, the award of consequential damages is
payment for just compensation. There is no legal improper because only a portion, and not the entire
basis to separate the value of the excavated soil area, of the respondents' property was expropriated.
from that of the expropriated properties. In the It must be proven by sufficient evidence that the
context of expropriation proceedings, the soil has no remaining portion suffers from an impairment or
value separate from that of the expropriated land. decrease in value. Only 218 sqm. out of the 380
Just compensation ordinarily refers to the value of sqm. was expropriated. In order for there to be an
the land to compensate for what the owner actually award of consequential damages, there must be
loses. Such value could only be that which prevailed evidence supporting that the remaining 162 sqm.
at the time of the taking. (Republic of the Philippines, suffered from any impairment or decrease in value.
represented by the National Irrigation Administration
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(Republic v. San Miguel Vda. De Ramos, G.R. No. the Philippines v Manzano, GR 188243, January 24,
211576, Feb. 19, 2020) 2018)
Reckoning period The Special Agrarian Court is “required to consider”

The value of the property must be determined either the facts in CARL and the formula in the
as of the date of the taking of the property or the administrative issuances. Consideration of these
filing of the complaint, "whichever came first." guidelines, however, does not mean that these are
(Eslaban v. De Onorio, G.R. No. 146062, June 18, the sole bases for arriving at the just compensation.
2001) The courts are not precluded from considering other
factors. A’s argument on mandatory adherence to
If the objections to and the defenses against the the provisions of law and the administrative orders
right of the plaintiff to expropriate the property are must fail. (Landbank of the Philippines v Manzano,
overruled, or when no party appears to defend as GR 188243, January 24, 2018)
required by this Rule, the court may issue an order
of expropriation declaring that the plaintiff has a Settled is the rule that when the agrarian reform
lawful right to take the property sought to be process is still incomplete, such as in this case
expropriated, for the public use or purpose where the just compensation due the landowner has
described in the complaint, upon the payment of just yet to be settled, just compensation should be
compensation to be determined as of the date of the determined and the process be concluded under RA
taking of the property or the filing of the complaint, 6657. (Land Bank of the Philippines, v. Heirs of
whichever came first. (ROC, Rule 67, § 4) Jesus Alsua, G.R. No. 211351, Feb. 4, 2015)
Q: RP filed a Complaint for Expropriation before In determining just compensation, the cost of
the RTC against Y and Z who are co-owners of acquisition of the land, the current value of like
the property. Both Y and Z opposed the properties, its nature, actual use and income, the
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valuation made by RP because it was based on sworn valuation by the owner, the tax declarations,
the 1974 Tax declaration and not the current fair and the assessment made by government
market value for the year 1980 when the assessors, shall be considered. The social and
Complaint for expropriation was filed. Y and Z economic benefits contributed by the farmers and
the farm workers and by government to the property
further averred that under PD76, the basis for
computing just compensation of private as well as the non-payment of taxes or loans
property shall be the current and fair market secured from any government financing institution
value declared by the owner. What then is the on the said land shall be considered as additional
proper reckoning date of the computation of just factors to determine its valuation. (RA 6657, sec. 17,
compensation, the date of taking, filing of otherwise known as Comprehensive Agrarian
original complaint, or filing of amended Reform Law of 1988)
complaint?
It is not adequate to merely use the formula in an
A: Just compensation should be reckoned from the administrative order of the Department of Agrarian
time of the filing of the original complaint. There was Reform or rely on the determination of a land
no actual taking in this case prior to the filing of the assessor to show a final determination of the
Complaint, thus, the time of taking should be amount of just compensation. Courts are still tasked
reckoned from the filing of the Complaint. Hence, with considering all factors present, which may be
the value of the property at the time of filing of the stated in formulas provided by administrative
original complaint and not the filing of the amended agencies. When acting within the bounds of the
complaint should be considered in determining just Comprehensive Agrarian Reform Law, special
compensation due to the respondents. (Republic v. agrarian courts "are not strictly bound to apply the
Castillo, G.R. No.190453, Feb 26, 2020.) DAR’s formula to its minute detail, particularly when
faced with situations that do not warrant the
Just Compensation in Agrarian Cases formula's strict application; they may, in the exercise
Under CARL, the final decision on the value of just of their discretion, relax the formula's application to
compensation lies solely on the Special Agrarian fit the factual situations before them. The
Court. There is no need to exhaust administrative Comprehensive Agrarian Reform Law merely
remedies through the various Adjudication Board of provides for guideposts to ascertain the value of
the Department of Agrarian Reform before a party properties. Courts are not precluded from
can go to the Special Agrarian Court for considering other factors that may affect the value
determination of just compensation. (Landbank of of property. (Land Bank of the Philippines v. Franco,
G.R. No. 203242, March 12, 2019)
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through payment of interest on the market value of

Effect of Non-Payment of Just Compensation the land as of the time of taking from the landowner.
Non-payment of just compensation does not entitle (NAPOCOR v. Manalastas, G.R. No. 196140, Jan.
the private landowners to recover possession of 27, 2016)
their expropriated lot. But, the prolonged occupation
of the government without instituting expropriation Under Article III, Section 9 of the 1987 Constitution,
proceedings will entitle the landowner to damages. “private property shall not be taken for public use
Such pecuniary loss entitles him to adequate without just compensation.” The SC notes that for
compensation in the form of actual or compensatory almost 20 years, the DPWH had been enjoying the
damages, which in this case should be the legal use of X’s property without paying the full amount of
interest (6%) on the value of the land at the time of just compensation under the Compromise
taking, from said point up to full payment. (City of Agreement. In keeping with substantial justice, the
Iloilo v. Besana, G. R. No. 168967, Feb. 12, 2010) Court imposes the payment of legal interest on the
remaining just compensation due to X. (Republic of
While the prevailing doctrine is that "the non- the Philippines v. Fetalvero, G.R. No. 198008,
payment of just compensation does not entitle the February 4, 2019.)
private landowner to recover possession of the
expropriated lots, however, in cases where the The concept of delay does not pertain to the length
government failed to pay just compensation within of time that elapsed from the filing of the Complaint
five (5) years from the finality of the judgment in the until its resolution. Rather, it refers to the fact that
expropriation proceedings, the owners concerned property was taken for public use before
shall have the right to recover possession of their compensation was deposited with the court having
property. This is in consonance with the principle jurisdiction over the case. There will be delay if the
that "the government cannot keep the property and property was taken for public use before
dishonor the judgment." To be sure, the five-year compensation was paid or deposited with the court.
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period limitation will encourage the government to Hence, between the taking of the property and the
pay just compensation punctually. This is in keeping actual payment, legal interests accrue in order to
with justice and equity. After all, it is the duty of the place the owners in a position as good as the
government, whenever it takes property from private position they were in before the taking occurred.
persons against their will, to facilitate the payment (National Power Corporation v. Heirs of Gregorio
of just compensation. We defined just compensation
as not only the correct determination of the amount
to be paid to the property owner but also the
payment of the property within a reasonable time.
Ramoran, G.R. No. 193455, June 13, 2016)
The respondents are not entitled to legal interest on

the amount of just compensation. The rationale for
Without prompt payment, compensation cannot be imposing interest on just compensation is to
considered "just." (Republic v. Lim, G.R. No. compensate the property owners for the income that
161656, June 29, 2005) they would have made if they had been properly
compensated. In the instant case, however, the
respondents received the amount of P457,800.00
Effect of Delay in Payment of Just before petitioner Republic took possession of the
Compensation subject property. Otherwise stated, there was full
Imposition of legal interest per annum on the just and prompt payment of just compensation at the
compensation due to the landowner is in the nature time of taking. (Republic v. San Miguel Vda. De
of damages for delay of payment. If property is taken Ramos, G.R. No. 211576, Feb.19, 2020)
for public use before compensation is deposited with
the court having jurisdiction over the case, the final 4. EXPROPRIATION BY LOCAL
compensation must include interests on its just GOVERNMENT UNITS
value to be computed from the time the property is
taken to the time when compensation is actually Requisites Before an LGU Can Exercise the Power
paid or deposited with the court. (Landbank of the of Eminent Domain (OPJO):
Philippines v Manzano, GR 188243, January 24, 1. An Ordinance is enacted by the local
2018) legislative council authorizing the local chief
executive, in behalf of the LGU, to exercise
The foregoing clearly dictates that valuation of the
land for purposes of determining just compensation the power of eminent domain or pursue
should not include the inflation rate of the Philippine expropriation proceedings over a particular
Peso because the delay in payment of the price of private property.
expropriated land is sufficiently recompensed
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2. The power of eminent domain is exercised for JUDICIAL REVIEW

Public use, purpose or welfare, or for the
benefit of the poor and the landless. Matters That May be Reviewed by the Courts:
3. There is payment of Just compensation, as (PAN)
a. The Adequacy of the compensation
required under Section 9, Article III of the
b. The Necessity of the taking
Constitution, and other pertinent laws.
c. The “Public Use” character of the taking
4. A valid and definite Offer has been previously
made to the owner of the property sought to If the expropriation is pursuant to a specific law
be expropriated, but said offer was not passed by Congress, the courts cannot question the
accepted. (Local Government Code, sec. 19) public use character of the taking. Any law fixing the
amount of just compensation is not binding on the
Immediate Entry courts because it is a question of fact which is
In the case of LGUs, entry into the property may be always subject to review by the courts. (Bernas, The
made before payment provided that a deposit is 1987 Constitution: A Commentary, 2009)
made in an amount set by the court (15%). The local
government unit may immediately take possession The statements made in tax documents by the
of the property upon the filing of the expropriation assessor may serve as one of the factors to be
proceedings and upon making a deposit with the considered but they cannot exclude or prevail over
proper court of at least fifteen percent (15%) of the a court determination made after expert
fair market value of the property based on the commissioners have examined the property and all
current tax declaration of the property to be pertinent circumstances are taken into account and
expropriated. (LOCAL GOVERNMENT CODE, sec. after the parties have had the opportunity to fully
19) plead their cases before a competent and unbiased
tribunal. (Manotok v. NHA, G.R. No. L-55166, May
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Limitations on the Exercise of the Eminent 21, 1987)
Domain Powers of LGUs
Order of priority in acquiring land for socialized A previous decision is no obstacle to the legislative
housing: Private lands rank last in the order of arm of the Government in thereafter (over two years
priority for purposes of socialized housing. later in this case) making its own independent
assessment of the circumstances then prevailing as
RA No. 7279 (Urban Development & Housing Act) to the propriety of undertaking the expropriation of
lays down the mandatory priority in the acquisition the properties in question and thereafter by enacting
of lands: the corresponding legislation as it did in this case.
a. Those owned by the government (Republic v. De Knecht, G.R. No. 87335, Feb. 12,
b. Alienable lands of the public domain 1990)
c. Unregistered, idle, or abandoned lands
d. Those within declared Areas of Priority EMINENT DOMAIN V. POLICE POWER
Development, Zonal Improvement, Slum
Improvement, or Resettlement Program The two actions are radically different in nature and
purpose. The action to recover just compensation is
sites Bagong Lipunan Improvement Sites
based on the Constitution while the action for
and Services (BLISS) which have not been
damages is predicated on statutory enactments.
acquired Indeed, the former arises from the exercise by the
e. Privately owned lands (last in the priority) State of its power of eminent domain against private
f. Other modes of acquisition must first be property for public use, but the latter emanates from
exhausted. the transgression of a right.
The City of Manila failed to comply with any of the The fact that the owner rather than the expropriator
aforesaid requirements. The exercise of eminent brings the former does not change the essential
domain cannot override the guarantees of due nature of the suit as an inverse condemnation, for
process conferred upon the property owners. (Heirs the suit is not based on tort, but on the constitutional
of JBL Reyes v. City of Manila, G.R. Nos. 132431 & prohibition against the taking of property without just
137146, Feb. 13, 2004) compensation. It would very well be contrary to the
clear language of the Constitution to bar the
recovery of just compensation for private property
taken for a public use solely on the basis of statutory
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prescription. (NAPOCOR v. Heirs of Mabangkit Does Not Include the Right to Compel Others
Sangkay, G.R. No. 165828, Aug. 24, 2011) The provision guarantees the right to form
associations. It does not include the right to compel
Article III, Section 9 of the Constitution provides a others to form an association. (Bernas, The 1987
substantive guarantee that private property that is Constitution: A Commentary, 2009)
taken by the state for public use should be paid for
with just compensation. If the state does not agree Article III, Section 8 guarantees the freedom to
with the property owner on a price, the state, associate as well as the freedom not to associate.
through the competent government agency, should The provision is not a basis to compel others to form
file the proper expropriation action under Rule 67 of or join an association. (Acosta v. Ochoa, G.R. Nos.
the Revised Rules of Court. In case of a taking 211559, 211567, 212570 & 215634, Oct. 15, 2019)
without the proper expropriation action filed, the
property owner may file its own action to question Aspect of Right of Liberty
the propriety of the taking or to compel the payment The right to form associations shall not be impaired
of just compensation. Among these inverse except through a valid exercise of police power. It is
condemnation actions is a complaint for payment of therefore an aspect of the general right of liberty.
just compensation and damages. When an inverse
condemnation is filed, the provisions for the It is also an aspect of the freedom of contract.
appointment of commissioners under Rule 32 — not (Bernas, The 1987 Philippine Constitution: A
Sections 5, 6, 7, or 8 of Rule 67 of the Rules of Court Comprehensive Reviewer, 2011)
— will be followed. (NPC v. Sps. Asoque, G.R. No.
172507, Sept. 14, 2016) Aspect of Freedom of Expression and of Belief
Insofar as the associations may have for their object
MISCELLANEOUS APPLICATION the advancement of beliefs and ideas, the freedom
of association is an aspect of the freedom of speech
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and expression, subject to the same limitation.
General Rule
The value must be that as of the time of the filing of
the complaint for expropriation.
Hierarchy of Civil Liberties
Exception
The Constitution recognizes a hierarchy of values.
When the filing of the case comes later than the time
Hence, the degree of protection an association
of taking and meanwhile the value of the property
enjoys depends on the position which the
has increased because of the use to which the
association's objective or activity occupies in the
expropriator has put it, the value is that of the time
constitutional hierarchy of values. (Bernas, The
of the earlier taking.
1987 Philippine Constitution: A Comprehensive
Reviewer, 2011)
Not Absolutely Guaranteed to Top-level and

Exceptions to the Exception Middle Managers
If the value increased independently of what the The [Constitutional] Commission intended the
expropriator did, then the value is that of the FILING absolute right to organize of government workers,
of the case. supervisory employees, and security guards to be
constitutionally guaranteed. By implication, no
Even before compensation is given, entry may be similar absolute constitutional right to organize for
made upon the property condemned by depositing labor purposes should be deemed to have been
the money or an equivalent form of payment such granted to top-level and middle managers. As to
as government bonds. them the right of self-organization may be regulated
and even abridged conformably to Art. III, § 8.
K. RIGHT TO ASSOCIATION
If these managerial employees would belong to or
Scope be affiliated with a Union, the latter might not be
Persons, both in the public and private sectors, may assured of their loyalty to the Union in view of
form unions, associations, and societies. The right evident conflict of interests. The Union can also
is recognized as belonging to the people whether become company-dominated with the presence of
employed or unemployed, and whether employed in managerial employees in Union membership
the government or in the private sector. (Bernas, (United Pepsi-Cola Supervisory Union (UPSU) v.
The 1987 Constitution: A Commentary, 2009) Laguesma, G.R. No. 122226, March 25, 1998)
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Compulsory membership is an annotation on a lot

IRR of RA 10951; Sports Shooter Applicant owner's certificate of title. Hence, petitioners were
Section 4.10 of the Rules Implementing RA 10951 bound by this annotation. The constitutional
does not compel a sports shooter applicant to join a guarantee of freedom of association can only be
gun club or sports shooting association; it only invoked against the State, and does not apply to
provides that they must submit a certification from private transactions, like a sale, where a condition
the president of a recognized gun club or sports was validly imposed by the vendor. Automatic
shooting association that he or she is joining the membership in a homeowners' association does not
competition. Thus, Section 4.10 does not violate violate lot owners' right to freedom of association
Article III, Section 8 of the Constitution. (Acosta v. because they were not forced to buy their lots from
Ochoa, G.R. Nos. 211559, 211567, 212570 & the developer. (Cezar Yatco Real Estate Services,
215634, Oct. 15, 2019) Inc. v. Bel-Air Village Association, Inc., G.R. No.
211780, Nov. 21, 2018.)
Registration Not a Limitation to the Right
The registration of labor unions is not a limitation to A closed shop agreement is legal since it is a valid
the right of assembly or association, which may be form of union security. (Villar v. Inciong, G.R. No. L-
exercised with or without said registration. The latter 50283-84, April 20, 1983).
is merely a condition sine qua non for the acquisition
of legal personality by labor organizations, Organization of the Integrated Bar of the
associations or unions and the possession of the Philippines Legally Unobjectionable
"rights and privileges granted by law to legitimate Compulsory membership in the Integrated Bar of the
labor organizations". Such requirement is a valid Philippines does not violate the freedom of
exercise of the police power, because the activities association. [It] has become an imperative means
in which labor organizations, associations and union to raise the standards of the legal profession,
of workers are engaged affect public interest, which improve the administration of justice, and enable the
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should be protected. (Philippine Assoc. of Free Bar to discharge its public responsibility fully and
Labor Unions v. Sec. of Labor, G.R. No. L-22228, effectively. (In Re: Edillion, AC-1928, December 19,
Feb. 27, 1969) 1980)
State Not Obligated to Accord Official Status Right to Strike of Employees in the Public Sector
The right to organize does not equate to the state’s To grant employees of the public sector the right to
obligation to accord official status to every single strike, there must be a clear and direct legislative
association that comes into existence. It is one thing authority therefor. In the absence of any express
for individuals to galvanize themselves as a legislation allowing government employees to strike,
collective, but it is another for the group that they recognizing their right to do so, or regulating the
formed to not only be formally recognized by the exercise of the right, employees in the public service
state, but also bedecked with all the benefits and may not engage in strikes, walkouts and temporary
privileges that are attendant to official status. In work stoppages like workers in the private sector.
pursuit of public interest, the state can set (Bangalisan v. CA, G.R. No. 124678, July 31, 1997).
reasonable regulations — procedural, formal, and
substantive — with which organizations seeking In cases of CSC employees (e.g., SSS, public
state imprimatur must comply. (Quezon City PTCA school teachers)
Federation, Inc. vs DepEd, G.R. No. 188720, Government employees may, through their unions
February 23, 2016) or associations, either petition the Congress for the
betterment of the terms and conditions of
B.P. 222 employment which are within the ambit of legislation
B.P. 222, which prevents political parties and groups or negotiate with the appropriate government
from supporting directly or indirectly any barangay agencies for the improvement of those which are not
candidate’s campaign for election does not violate fixed by law. If there be any unresolved grievances,
the right to form associations. [T]he ban is narrow, the dispute may be referred to the Public Sector
not total, and has the purpose of preventing the Labor - Management Council for appropriate action.
clear and imminent danger of the debasement of the But employees in the civil service may not resort to
electoral process. It operates only on concerted or strikes, walk-outs and other temporary work
group action of political parties. (Occeña v. stoppages, like workers in the private sector, to
COMELEC, G.R. No. L-60258, 1984) pressure the Government to accede to their
demands. (Social Security System Employees
Automatic or Compulsory Membership Association (SSEA) v. Court of Appeals, G.R. No.
85279, July 28, 1989)
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What Constitutes Impairment

Other Constitutional Provisions Related to the a. If it changes the terms and conditions of a
Right to Association: legal contract either as to the time or mode
The State shall guarantee the rights of all workers to of performance.
self-organization, collective bargaining and
b. If it imposes new conditions or dispenses
negotiations, and peaceful concerted activities,
including the right to strike in accordance with law. with those expressed
(Phil Const., art. III, § 3, par. 2) c. If it authorizes for its satisfaction something
different from that provided in its terms.
The right to self-organization shall not be denied to (Bernas, The 1987 Philippine Constitution:
government employees. (Phil Const., art. IX-B, § 2, A Comprehensive Reviewer, 2011)
par. 5) (Clemens v. Nolting, 42 Phil. 702, Jan. 24,
1922)
L. NON-IMPAIRMENT OF
CONTRACTS M. ADEQUATE LEGAL ASSISTANCE
AND FREE ACCESS TO COURTS
No law impairing the obligation of contracts shall be
passed. (PHIL. CONST., art. 3, § 10) Free access to the courts and quasi-judicial bodies
and adequate legal assistance shall not be denied
The non-impairment clause is a limit on the exercise to any person by reason of poverty. (PHIL. CONST.,
of legislative power and not of judicial or quasi- art. 3, § 11)
judicial power. The SEC, through the hearing panel
that heard the petition for approval of the The new Constitution has expanded the right so that
Rehabilitation Plan, was acting as a quasi-judicial in addition to giving free access to courts it now
body and thus, its order approving the plan cannot guarantees free access also to "quasi judicial
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constitute an impairment of the right and the bodies" and to "adequate legal assistance" as well.
freedom to contract. (BPI v. SEC, G.R. No. 164641, (Bernas, The 1987 Philippine Constitution: A
2007) Comprehensive Reviewer, 2011)
Not absolute Those protected include low paid employees,
Jurisprudence has established that a valid exercise domestic servants and laborers. (Cabangis v.
of police power is superior to the obligation of Almeda Lopez, G.R. No. 47685, September 20,
contracts. (Bernas, The 1987 Philippine 1940)
‘Pauper’ vs. ‘Indigent’
Settled is the rule that the non-impairment clause of They need not be persons so poor that they must be
the Constitution must yield to the loftier purposes suppored at public expense. "It suffices that plaintiff
targeted by the Government. The right granted by is indigent... And the difference between 'paupers'
this provision must submit to the demands and and 'indigent' persons is that the latter are 'persons
necessities of the State's power of regulation. Such who have no property or sources of income
authority to regulate businesses extends to the sufficient for their support aside from their own labor
banking industry which, as this Court has time and though self-supporting when able to work and in
again emphasized, is undeniably imbued with public employment.'" (Acar v. Rosal, G.R. No. L-21707,
interest. (Goldenway v. Merchandising Corporation March 18,1967)
v. Equitable PCI Bank, G.R. No. 195540, 2013)
Indigent Party
Non-Impairment Clause Prevails: A party may be authorized to litigate his action, claim
a. Against the removal of tax exemptions, or defense as an indigent if the court, upon an ex
where the consideration for the contract is parte application and hearing, is satisfied that the
the tax exemption itself party is one who has no money or property sufficient
b. Regulation on loans and available for food, shelter and basic necessities
for himself and his family.
Such authority shall include an exemption from

payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court
may order to be furnished him. The amount of the
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docket and other lawful fees which the indigent was other court processes that would be issued relative
exempted from paying shall be a lien on any to the trial of the case. Thus, in In Re: Exemption of
judgment rendered in the case favorable to the Cooperatives from Payment of Court and Sheriff’s
indigent, unless the court otherwise provides. (ROC, Fees Payable to the Government in Actions Brought
Rule 3, § 21) Under R.A. 6938, the Court clarified that sheriff’s
expenses are not considered as legal fees. (In Re
Indigent Litigants Exempt From Payment of Letter of Chief Public Attorney Acosta, AM No. 11-
Legal Fees 10-03-O, July 30, 2013)
Indigent litigants whose gross income and that of
their immediate family do not exceed an amount N. RIGHTS UNDER CUSTODIAL
double the monthly minimum wage of an employee; INVESTIGATION
and who do not own real property with a fair market
value as stated in the current tax declaration of more (1) Any person under investigation for the
than three hundred thousand (P300,000.00) pesos commission of an offense shall have the right to be
shall be exempt from the payment of legal fees. informed of his right to remain silent and to have
competent and independent counsel preferably of
The legal fees shall be a lien on any judgment his own choice. If the person cannot afford the
rendered in the case favorable to the indigent litigant services of counsel, he must be provided with one.
unless the court otherwise provides. These rights cannot be waived except in writing and
in the presence of counsel.
To be entitled to the exemption herein provided, the
litigant shall execute an affidavit that he and his (2) No torture, force, violence, threat, intimidation, or
immediate family do not earn a gross income any other means which vitiate the free will shall be
abovementioned, and they do not own any real used against him. Secret detention places, solitary,
property with the fair value aforementioned, incommunicado, or other similar forms of detention
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supported by an affidavit of a disinterested person are prohibited.
attesting to the truth of the litigant’s affidavit. The
current tax declaration, if any, shall be attached to (3) Any confession or admission obtained in
the litigant’s affidavit. (ROC, Rule 141, § 19) violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Matter of Right
If the applicant for exemption meets the salary and (4) The law shall provide for penal and civil
property requirements under Section 19 of Rule sanctions for violations of this section as well as
141, then the grant of the application is mandatory compensation to and rehabilitation of victims of
and is a matter of right. (Algura v. The Local torture or similar practices, and their families. (PHIL.
Government Unit of the City of Naga G.R. No. CONST., art. 3, § 12)
150135, Oct. 30, 2006)
Miranda Rights Under Sec. 12(1)
Matter of Discretion 1. The right to remain silent.
On the other hand, when the application does not 2. The right to have competent and independent
satisfy one or both requirements, then the counsel preferably of his own choice.
application should not be denied outright; instead, 3. The right to be informed of such rights. (People
the court should apply the "indigency test" under v. Rapeza, G.R. No. 169431, April 3, 2007)
Section 21 of Rule 3 – that the applicant has no
money or property sufficient and available for food, 1. MEANING OF CUSTODIAL
shelter and basic necessities for himself and his INVESTIGATION
family – and use its sound discretion in determining
the merits of the prayer for exemption. (Algura v. Custodial investigation involves any questioning
The Local Government Unit of the City of Naga G.R. initiated by law enforcement officers after a person
No. 150135, Oct. 30, 2006) has been taken into custody or otherwise deprived
of his freedom of action in any significant way.
Sheriff’s Expenses
Sheriff’s expenses are not exacted for any service It is only after the investigation ceases to be a
rendered by the court; they are the amount general inquiry into an unsolved crime and begins to
deposited to the Clerk of Court upon filing of the focus on a particular suspect, the suspect is taken
complaint to defray the actual travel expenses of the into custody, and the police carries out a process of
sheriff, process server or other court-authorized interrogations that lends itself to eliciting
persons in the service of summons, subpoena and incriminating statements that the rule begins to
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operate. (People v. Marra, G.R. No. 108494, Sept. counsel, unless he waives the right, but the waiver
20, 1994) shall be made in writing and in the presence of
counsel. (Gamboa v. Judge Cruz, G.R. No. L-56291
The invocation of these rights applies during June 27, 1988)
custodial investigation. (People v. Chavez, G.R. No.
207950, Sept. 22, 2014) Investigations can be conducted by:
a. Police authorities, including:
Applies to Invitation, “Request for Appearance” i. Municipal police
& Voluntary Surrender ii. Philippine Constabulary
Republic Act No. 7438 expanded the definition of b. NBI officers
custodial investigation to “include the practice of
c. CAFGU members
issuing an ‘invitation’ to a person who is investigated
in connection with an offense he is suspected to d. Barangay Captains (People v. Ochate,
have committed, without prejudice to the liability of G.R. No. 127154, July 30, 2002, Bernas,
the ‘inviting’ officer for any violation of law. This The 1987 Constitution of the Republic of
means that even those who voluntarily surrendered the Philippines, 2009)
before a police officer must be apprised of their
Miranda rights. For one, the same pressures of a Instances when the Miranda Rights do not
custodial setting exist in this scenario. (People v. apply:
Bitancor, GR. No. 207950; Sept. 22, 2014) a. The rights are not available before
government investigators become
The circumstances surrounding the appearance of involved. Thus, admissions made in an
the accused in the police station falls within the
administrative investigation conducted by
definition of custodial investigation. He was
identified as a suspect and when he was given a officials of the Philippine Airlines do not
come under Section 12. (People v. Ayson,
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“request for appearance”, he was already singled
out as the probable culprit. When he appeared G.R. No. 85215, July 7, 1989)
before the police station, the pressure of custodial b. The rights are not available when the
setting was present. Furthermore, based on his confession or admission is made to a
testimony, the police was inside the station during private individual. (People v. Tawat, G.R.
the confrontation. A "request for appearance" issued
by law enforcers to a person identified as a suspect
is akin to an "invitation." Thus, he is covered by the
rights of an accused while under custodial
No. L-62871, May 25, 1984)
c. The rights do not apply to a person
undergoing audit because an audit
examiner is not a law enforcement officer.
investigation. Any admission obtained from the
(Navallo v. Sandiganbayan, G.R. No.
"request for appearance" without the assistance of
counsel is inadmissible in evidence. (Lopez v. 97214, July 16, 1994)
People, G.R. No. 212186, June 29, 2016) d. The rights do not apply to a verbal
admission made to a radio announcer who
Does Not Apply to Police Lineups was not part of the investigation. (People v.
As a rule, a police lineup is not part of the custodial Ordono, G.R. No. 132154, June 29, 2000)
investigation. The right to be assisted by counsel e. The rights do not apply to an admission
attaches only during custodial investigation and made to a mayor who is approached not as
cannot be claimed by the accused during mayor but as confidante. (People v. Zuela,
identification in a police line-up because it is not part
G.R. No. 112177, Jan. 28, 2000)
of the custodial investigation process. This is
f. The rights do not apply to an interview
because during a police line-up, the process has not
yet shifted from the investigatory to the accusatory recorded on video in the presence of
and it is usually the witness or the complainant who newsmen, but the Supreme Court warned
is interrogated and who gives a statement in the that trial courts should admit similar
course of the line-up. (People v. Lara, G.R. No. confessions with extreme caution. (People
199877, Aug. 13, 2012) v. Endino, G.R. No. 133026, Feb. 20, 2001)
g. The rights do not apply to persons who
However, the moment there is a move or even an voluntarily surrender, where no written
urge of said investigators to elicit admissions or confession was sought to be presented in
confessions or even plain information which may
evidence as a result of a formal custodial
appear innocent or innocuous at the time, from said
suspect, he should then and there be assisted by investigation. (People v. Taylaran, G.R. No.
L-49149, Oct. 23, 1981)
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h. The rights do not apply to spontaneous Signing and

statements, not elicited through possession of marked
questioning by the authorities, but given in money
an ordinary manner whereby the accused
orally admits having committed the crime. When Rights End
(People v. Baloloy, G.R. No. 140740, April The Criminal Process includes:
a. Investigation prior to the filing of charges
12, 2002)
b. Preliminary examination and investigation
i. Person in a police line-up not entitled to
after charges are filed
counsel. (Gamboa v. Judge Cruz, G.R. No.
c. Period of trial
L-56291 June 27, 1988)
j. Administrative proceedings. (Cudia v.
Superintendent of the PMA, G.R. No. 2. RIGHTS OF A PERSON UNDER
211362, Feb. 24, 2015) CUSTODIAL INVESTIGATION
k. Signing of arrest reports and booking
The Miranda doctrine requires that: (S3A)
sheets. It is not an extra-judicial statement
1. Any person under custodial investigation has the
and cannot be the basis of a judgment of
right to remain Silent;
conviction. The Booking Sheet is merely a
2. Anything he says can and will be used Against
statement of the accused's being booked
him in a court of law;
and of the date which accompanies the fact
3. He has the right to talk to an Attorney before
of an arrest. (People v. Bandin, G.R. No.
being questioned and to have his counsel
104494, Sept. 10, 1993)
present when being questioned; and
l. Signing of marked money. A person’s right
4. If he cannot Afford an attorney, one will be
against self-incrimination was not violated
provided before any questioning if he so desires.
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for his signing and possession of the
(People v. Cabanada, G.R. No. 221424, July 19,
marked bills did not constitute a crime;
2017)
(People v. Linsangan, G.R. No. 88589,
G.R. No. 88589 April 16, 199)
RIGHT TO REMAIN SILENT
If the individual is alone and indicates in any manner
Summary of When Rights are Available that he does not wish to be interrogated, the police
AVAILABLE NOT AVAILABLE may not question him. The mere fact that he may
1. After a person has 1. During a police line- have answered some questions or volunteered
been taken into up [Exception: some statements on his own does not deprive him
custody Once there is a of the right to refrain from answering any further
2. When a person is move among the inquiries until he has consulted with an attorney and
deprived of his investigators to thereafter consents to be questioned. (Miranda v.
freedom of action elicit admissions or Arizona, 384 U.S. 436, Jun. 13, 1966)
in any significant confessions from
way the suspect] Silence Not an Implied Admission of Guilt
3. When a person is 2. During Clearly, when appellant remained silent when
issued an invitation administrative confronted by the accusation of "AAA" at the police
for an investigation investigations station, he was exercising his basic and
in connection with 3. Confessions made fundamental right to remain silent. At that stage, his
an offense he is by an accused at silence should not be taken against him. Thus, it
suspected to have the time he was error on the part of the trial court to state that
committed voluntarily appellant’s silence should be deemed as implied
4. When a person surrendered to the admission of guilt. (People v. Guillen, G.R. No.
voluntarily police or outside 191756, Nov. 25, 2013)
surrenders to the the context of a
police formal investigation A person under investigation has the right to refuse
The investigation is 4. Statements made to answer any question. His silence, moreover, may
being conducted by to a private person not be used against him. (Bernas, The 1987
the government with 5. Signing of arrest Constitution of the Republic of the Philippines, 2009)
respect to a criminal reports and
offense (police, DOJ, booking sheets Must Include an Explanation that Anything Said
NBI) Can and Will be Used Against Him
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The warning of the right to remain silent must be the extrajudicial confession. (People v. Tomaquin,
accompanied by the explanation that anything said G.R. No. 133188, July 23, 2004)
can and will be used against the individual in court.
This warning is needed in order to make him aware Mandatory; Must be Provided if Person Cannot
not only of the privilege, but also of the Afford
consequences of forgoing it. (Miranda v. Arizona, The right to counsel is mandatory. Thus, if the
384 U.S. 436, June 13, 1966) person under custodial investigation cannot afford
the services of a competent and independent
RIGHT TO COMPETENT AND INDEPENDENT counsel, he must be provided with one. (PHIL.
COUNSEL CONST., art. III, § 12[1])
Purpose Counsel of Choice Not Exclusive

The right to counsel at all times is intended to The right to counsel does not mean that the accused
preclude the slightest coercion as would lead the must personally hire his own counsel. The
accused to admit something false. The lawyer, constitutional requirement is satisfied when a
however, should never prevent an accused from counsel is:
freely and voluntarily telling the truth. (People v. 1. Engaged by anyone acting on behalf of the
Mojello, G.R. No. 145566, March 9, 2004) person under investigation; or
2. Appointed by the court upon petition of the said
Being independent refers to those who do not have person or by someone on his behalf. (People v.
an adverse interest to that of the accused. (Bernas, Espiritu, G.R. No. 128287, Feb. 2, 1999)
The 1987 Philippine Constitution: A Comprehensive
Reviewer, 2011) The phrase "preferably of his own choice" does not
convey the message that the choice of a lawyer by
Moreover, being independent does not mean that a person under investigation is exclusive as to
FOR ONE ATENEO

the choice of a lawyer by a person under preclude other equally competent and independent
investigation is exclusive as to preclude other attorneys from handling the defense; otherwise the
equally competent and independent attorneys from tempo of custodial investigation will be solely in the
handling the defense. (People v. Mojello, G.R. No. hands of the accused who can impede, nay,
145566, March 9, 2004) obstruct the progress of the interrogation by simply
selecting a lawyer who, for one reason or another,
Non-Independent Counsel is not available to protect his interest. (People v.
The Constitution further requires that the counsel be Mojello, G.R. No. 145566, March 9, 2004)
independent; thus, he cannot be:
a. A special counsel The Miranda rights or the Section 12(1) rights were
b. Public or private prosecutor conceived for the first of these three phases, that is,
c. Counsel of the police when the inquiry is under the control of police
d. A municipal attorney whose interest is officers. It is in this situation that the psychological if
admittedly adverse to that of the accused not physical atmosphere of custodial investigations,
e. Barangay captain in the absence of proper safeguards, is inherently
f. Lawyer applying for a position in the NBI coercive. Outside of this situation, Section 12(1) no
longer applies and Sections 14 and 17 come into
where it was NBI conducting the
play instead. (Bernas, The 1987 Constitution of the
investigation (People v. Reyes, G.R. No. Republic of the Philippines, 2009)
178300, March 17, 2009; People v.
Tomaquin, G.R. No. 133188, July 23, 2004; RIGHT TO BE INFORMED OF HIS RIGHTS
People v. Januario, G.R. No. 98252, Feb. The right to be informed of his rights is more than
7, 1997) the routine-reading out of the rights. It implies a
correlative obligation on the part of the police
Competent Counsel: Effective and Vigilant investigator to explain, and contemplates an
A competent counsel is an effective and vigilant effective communication that results in
counsel. An "effective and vigilant counsel" understanding what is conveyed. Short of this, there
necessarily and logically requires that the lawyer be is a denial of the right, as it cannot be said that the
present and able to advise and assist his client from person has been informed of his right. (Bernas, The
the time the confessant answers the first question 1987 Constitution of the Republic of the Philippines,
asked by the investigating officer until the signing of 2009)
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Prior to any questioning, the person must be warned 3. Given Voluntarily and intelligently where the
that he has a right to remain silent, that any accused realized the legal significance of his
statement he does make may be used as evidence act;
against him, and that he has a right to the presence 4. Express and categorical; and
of an attorney, either retained or appointed. The 5. Signed, or if the confessant does not know how
defendant may waive effectuation of these rights,
to read and write, thumbmarked by him. (People
provided the waiver is made voluntarily, knowingly
and intelligently. If, however, he indicates in any v. Olivarez, Jr., G.R. No. 77865, Dec. 4, 1998)
manner and at any stage of the process that he
wishes to consult with an attorney before speaking, Burden of Proof: Lies With the Prosecution
there can be no questioning. (Miranda v Arizona, Whenever a protection given by the Constitution is
384 U.S. 436, Jun. 13, 1966) waived by the person entitled to that protection, the
presumption is always against the waiver.
3. REQUISITES OF A VALID WAIVER Consequently, the prosecution must prove with
strongly convincing evidence to the satisfaction of
The rights of persons under custodial investigation this Court that indeed:
cannot be waived except: 1. The accused willingly and voluntarily submitted
1. In writing; and his confession; and
2. In the presence of counsel. (PHIL. CONST., art. 2. Knowingly and deliberately manifested that he
III, § 12[1]) was not interested in having a lawyer assist him
during the taking of that confession. (People v.
R.A. 7438 Extrajudicial Confession (Sec. 2) Jara, G.R. No. L-61356-57, Sept. 30, 1986)
Any extrajudicial confession made by a person
arrested, detained or under custodial investigation: A confession is not rendered involuntary merely
1. Shall be in writing; and because defendant was told that he should tell the
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2. Signed by such person in the presence of his truth or that it would be better for him to tell the truth.
counsel or in the latter's absence: (People v. Calvo, G.R. No. 91694, G.R. No. 91694
a. Upon a valid waiver, and March 14, 1997)
b. In the presence of any of the following as
chosen by him/her: Effect of Absence of a Valid Waiver: Confession
1. Parents Inadmissible in Evidence
In the absence of a valid waiver, any confession
2. Elder brothers and sisters
obtained during the police custodial investigation
3. Spouse relative to the crime, including any other evidence
4. Municipal mayor secured by virtue of the said confession is
5. Municipal judge inadmissible in evidence even if the same was not
6. District school supervisor objected to during the trial by the counsel of the
7. Priest or minister of the gospel appellant. (People v. Samontañez, G.R. No.
134530, Dec. 4, 2000)
RA 7438 does not propose that the persons
mentioned above appear in the alternative or as a Any inquiry a “bantay bayan” makes has the color of
substitute for counsel without any condition or a state-related function and objective insofar as the
clause. It is explicitly stated therein that before the entitlement of a suspect to his constitutional rights
above-mentioned persons can appear two (2) provided for under Article III, Section 12 of the
conditions must be met: Constitution, otherwise known as the Miranda
1. Counsel of the accused must be absent, and Rights, is concerned. (People v. Lauga, G.R. No.
2. A valid waiver must be executed. (People v. 186228, Mar.15, 2010)
Ordono, G.R. No. 132154, June 29, 2000)
Rights under Section 12 can be lost by neglect.
Extrajudicial Confession Where the defense fails to raise objections to the
Under the present laws, a confession to be admissibility of evidence immediately, as required
admissible must be: (WAVES) by Section 36 of Rule 132 of the Rules of Court the
1. Made in Writing, and in the language known to accused is deemed to have waived his right to
object to admissibility. (Bernas, The 1987
and understood by the confessant;
2. Made with the Assistance of competent and
independent counsel;
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4. EXCLUSIONARY DOCTRINE were violated by Judge Dicon when the latter

propounded to him incriminating questions without
Any confession or admission obtained in violation of informing him of his constitutional rights. It is settled
the rights of a person under custodial investigation that at the moment the accused voluntarily
hereof shall be inadmissible in evidence against surrenders to, or is arrested by, the police officers,
him. (PHIL. CONST., art. III, § 12[3]) the custodial investigation is deemed to have
started. So, he could not thenceforth be asked about
Nature his complicity in the offense without the assistance
According to the exclusionary rule, once the primary of counsel. Judge Dicon’s claim that no complaint
source (the "tree") is shown to have been unlawfully has yet been filed and that neither was he
obtained, any secondary or derivative evidence (the conducting a preliminary investigation deserves
"fruit") derived from it is also inadmissible. Stated scant consideration. The fact remains that at that
otherwise, illegally seized evidence is obtained as a time Juanito was already under the custody of the
direct result of the illegal act, whereas the "fruit of police authorities, who had already taken the
the poisonous tree" is the indirect result of the same statement of the witnesses who were then before
illegal act. The "fruit of the poisonous tree" is at least Judge Dicon for the administration of their oaths on
once removed from the illegally seized evidence, but their statements. At any rate, while it is true that
it is equally inadmissible. The rule is based on the Juanito’s extrajudicial confession before Judge
principle that evidence illegally obtained by the State Dicon was made without the advice and assistance
should not be used to gain other evidence because of counsel and hence inadmissible in evidence, it
the originally illegally obtained evidence taints all could however be treated as a verbal admission of
evidence subsequently obtained. (People v. the accused, which could be established through the
Samontañez, G.R. No. 134530, Dec. 4, 2000) testimonies of the persons who heard it or who
conducted the investigation of the accused. (People
Covers Both Confession & Admission v. Baloloy, G.R. No. 140740, April 12, 2002)
FOR ONE ATENEO

Admission – an act, declaration or omission of a
party as to a relevant fact.
Confession – a declaration of an accused

Applicable to Accused Aliens
The fact that all accused are foreign nationals does
not preclude application of the "exclusionary rule"
because the constitutional guarantees embodied in
acknowledging his guilt of the offense charged, or of
any offense necessarily included therein. (Aquino v.
Paiste, G.R. No. 147782, June 25, 2008)
the Bill of Rights are given and extend to all persons,
both aliens and citizens.(People v. Wong Chien
Ming, G.R. Nos. 112801-11, Apr. 12, 1996)
Only Covers Confession or Admission Made Exclusionary Rule Not Applicable to the
During Custodial Investigation Violator of the Right
Infractions of the so-called Miranda rights render The constitutional provision makes the confessions
inadmissible only the extrajudicial confession or and admissions inadmissible “against him,” that is,
admission made during custodial investigation. The against the source of the confession or admission.
admissibility of other evidence, provided they are And it is he alone who can ask for exclusion. They
relevant to the issue and is not otherwise excluded are, however, admissible against the person
by law or rules, is not affected even if obtained or violating the constitutional prohibition, to the extent
taken in the course of custodial investigation. that admissibility is allowed by the ordinary rules on
evidence. (Bernas, The 1987 Constitution of the
The fact that that accused was not assisted by Republic of the Philippines, 2009)
counsel during the investigation and inquest
proceedings does not in any way affect his Inter Alios Acta Rule
culpability. It has already been held that "the General Rule: An extrajudicial confession is binding
infractions of the so-called Miranda rights render only on the confessant and is not admissible against
inadmissible only the extrajudicial confession or his or her co-accused because it is considered as
admission made during custodial investigation." hearsay against them. The rights of a party cannot
Here, appellant's conviction was based not on his be prejudiced by an act, declaration, or omission of
alleged uncounseled confession or admission but another.
on the testimony of the prosecution witness. (People
v. Bio, G.R. No. 195850, Feb. 16, 2015) Exception: An admission made by a conspirator
under Section 31, Rule 130 of the Rules of Court.
However, there is merit in Juanito’s claim that his This provision states that the act or declaration of a
constitutional rights during custodial investigation conspirator in furtherance of the conspiracy and
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during its existence may be given in evidence witnesses face to face, and to have
against the co-conspirator after the conspiracy is compulsory process to secure the
shown by evidence other than such act of attendance of witnesses and the production
declaration. It is admissible against a co-accused of evidence in his behalf. However, after
when it is used as circumstantial evidence to show arraignment, trial may proceed
the probability of participation of said co-accused in
notwithstanding the absence of the
the crime.
accused provided that he has been duly
Thus, in order that the admission of a conspirator notified and his failure to appear is
may be received against his or her co-conspirators, unjustifiable. (PHIL. CONST., art. 3, § 14)
it is necessary that:
a. The conspiracy be first proved by evidence Rights of the Accused [D-BIH-CIS-CPA]
other than the admission itself; a. Criminal due process
b. The admission relates to the common b. Bail
object; and c. Presumption of innocence
c. It has been made while the declarant was d. Right to be heard
engaged in carrying out the conspiracy. e. Assistance of counsel
(People v. Cachuela, G.R. No. 191752, f. Right to be informed of the nature and
June 10, 2013) cause of accusation
g. Right to speedy, impartial, and public trial
In order that an extra-judicial confession may be h. Right to confrontation
used against a co-accused of the confessant, there
i. Compulsory process
must be a finding of other circumstantial evidence
which when taken together with the confession j. Trials in absentia
would establish the guilt of a co-accused beyond
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reasonable doubt. (People v. Constancio, G.R. No.
206226, April 04, 2016)
Even after charges are filed, the police may still

1. CRIMINAL DUE PROCESS
Concept
As to procedural due process, the requirement that
attempt to extract extrajudicial confessions or no person shall be held to answer for a criminal
admissions outside judicial supervision. For this offense without due process of law simply requires
reason, Section 12(1) still applies. (Bernas, The that the procedure established by law be followed. If
1987 Constitution of the Republic of the Philippines, that procedure fully protects life, liberty and property
2009) of the citizens in the state, then it will be held to be
due process of law. (U.S. v. Ocampo, G.R. No. L-
O. RIGHTS OF THE ACCUSED 5527, Dec. 22, 1910)
1. All persons, except those charged with This presupposes that the penal law being applied
offenses punishable by reclusion perpetua satisfies the substantive requirements of due
process. (Bernas, The 1987 Philippine Constitution:
when evidence of guilt is strong, shall,
A Comprehensive Reviewer, 2011)
before conviction, be bailable by sufficient
sureties, or be released on recognizance In criminal proceedings then, due process is
as may be provided by law. The right to bail satisfied if the accused is "informed as to why he is
shall not be impaired even when the proceeded against and what charge he has to meet,
privilege of the writ of habeas corpus is with his conviction being made to rest on evidence
suspended. Excessive bail shall not be that is not tainted with falsity after full opportunity for
required. (PHIL. CONST., art. 3, § 13) him to rebut it and the sentence being imposed in
2. No person shall be held to answer for a accordance with a valid law. It is assumed, of
criminal offense without due process of law. course, that the court that rendered the decision is
one of competent jurisdiction." (Nunez v.
3. In all criminal prosecutions, the accused
Sandiganbayan, G.R. Nos. L-50581-50617, Jan. 30,
shall be presumed innocent until the 1982)
contrary is proved, and shall enjoy the right
to be heard by himself and counsel, to be Another aspect of due process is the right to be tried
informed of the nature and cause of the by an impartial judge (cold neutrality of an
accusation against him, to have a speedy, independent, wholly-free, disinterested and
impartial, and public trial, to meet the
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impartial tribunal). (Bernas, The 1987 Philippine the right to bail. But the person seeking provisional
Constitution: A Comprehensive Reviewer, 2011). release need not wait for a formal complaint or
information to be filed against him. (Paderanga v.
There must be allegation and proof that the judges Court of Appeals, G.R. No. 115407, Aug. 28, 1995)
have been unduly influenced, not simply that they General Rule: All persons actually detained
might be, by the barrage of publicity because the shall, before conviction be entitled to bail. (PHIL.
subliminal effects of publicity are basically CONST., art. 3, § 13).
unbeknown and beyond knowing. (Bernas, The
1987 Constitution of the Republic of the Philippines, Since bail is constitutionally available to “all
2009) persons”, it must be available to one who is detained
even before formal charges are filed.
Right to Appeal
The right to appeal is not a natural right or a part of Exceptions:
due process; it is merely a statutory privilege, and
a. Persons charged with offenses punishable
may be exercised only in the manner and in
accordance with the provisions of law. (Manila by reclusion perpetua, life imprisonment
Mining Corp. v. Amor, G.R. No. 182800, April 20, and death, when evidence of guilt is strong
2015)
For the purpose of determining whether an
Due Process and Military Tribunal offense is punishable by reclusion
A military commission or tribunal cannot try and perpetua, what is determinative is the
exercise jurisdiction, even during the period of penalty provided for by law regardless of
martial law, over civilians for offenses allegedly the attendant circumstances.
committed by them as long as civil courts are open
and functioning, and that any judgement rendered To require more than that would practically
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by such body relating to a civilian is null and void for entail a full-dress trial thereby defeating the
lack of jurisdiction on the part of the military tribunal purpose of bail which is to enable the
concerned. (Bernas, The 1987 Constitution of the accused to obtain liberty pending trial.
Republic of the Philippines, 2009)
Strong evidence means “proof evident” or
2. BAIL “presumption great.”
Concept b. Persons who are members of the AFP

Bail is the security given for the release of a person facing a court martial
in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any Trial Court Conviction
court as required under the conditions hereinafter If convicted by the trial court, bail is only
specified. Bail may be given in the form of corporate discretionary pending appeal (Magno v. Abbas,
surety; property bond, cash deposit, or G.R. No. L-19361, Feb.y 26, 1965; Comendador, et
recognizance. (ROC, Rule 114, § 1) al. v. Villa, G.R. No. 93177, Aug. 2, 1991)
Purpose
To honor the presumption of innocence until his guilt When a person who is out on bail is convicted, the
is proven beyond reasonable doubt bondsman must surrender him for execution of the
To enable him to prepare his defense without being final judgement. (ROC, Rule 114, § 2[d])
subjected to punishment before conviction (Cortes
v. Catral, A.M. No. RTJ-97-1387, Sept. 10, 1997) Under Section 13, Article 3, Before Conviction,
Bail is Either:
The main purpose of bail is to relieve an accused 1. A matter of right: When the offense
from the rigors of imprisonment until his conviction charged is punishable by any penalty lower
and secure his appearance at the trial. Thus, as bail than reclusion perpetua. To this extent, the
is intended to secure one’s provisional liberty, the right is absolute.
same cannot be posted before custody over him has
been acquired by the judicial authorities, either by 2. A matter of discretion: When the offense
lawful arrest or voluntary surrender. Only those who charged is punishable by reclusion
have been either arrested, detained, or otherwise perpetua, it shall be denied if the evidence
deprived of their freedom, will ever have the of guilt is strong. Once it is determined that
occasion to seek the protective mantle extended by the evidence of guilt is not strong, bail
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becomes a matter of right. (People v. the judge in its conclusion in determining the weight
Nitcha, G.R. No. 113517, Jan. 19, 1995) of the evidence of the accused's guilt. The
jurisprudential standard on providing a summary of
Discretion refers to the court’s discretion to the prosecution’s evidence entails that the summary
determine whether or not the evidence of guilt is of the evidence presented during the prior hearing is
strong. formally recognized as having been presented and,
most importantly, considered. A summary is
Do not confuse interpretation of Bail under Bill of necessarily a reasonable recital of any evidence
Rights with the interpretation of Bail under Rule 114 presented by the prosecution. An incomplete
of the Revised Rules of Criminal Procedure as to: enumeration or selective inclusion of pieces of
a. Bail as a Matter of Right (Sec 4), evidence cannot be considered a summary (People
b. Bail as a Matter of Discretion (Sec 5), v. Tanes y Belmonte, G.R. No. 240596, April 3,
c. Non-Bailable offenses (Sec 7). 2019)
Strong Evidence Means Evident Proof or Health Considerations

Presumption is Great A mere claim of illness is not a ground for bail. Bail
Evident proof means clear, strong evidence which is not a sick pass for an ailing or aged detainee or
leads a well-guarded dispassionate judgment to the prisoner needing medical care outside the prison
conclusion that the offense has been committed as facility. (People v. Fitzgerald, G.R. No. 149723, Oct.
charged, and that the accused is the guilty agent. 27, 2006)
Presumption is great when the circumstances BUT SEE: The currently fragile state of Enrile’s
testified to are such that the inference of guilt health presents another compelling justification for
naturally to be drawn therefrom is strong, clear, and his admission to bail.
convincing to an unbiased judgment and excuses all
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reasonable probability of any other conclusion. Bail for the provisional liberty of the accused,
(People v. Judge Cabral, G.R. No. 131909, Feb. 18, regardless of the crime charged, should be allowed
1999) independently of the merits of the charge, provided
his continued incarceration is clearly shown to be
Since the grant of bail is discretionary and can only injurious to his health or to endanger his life. Indeed,
be determined by judicial findings, such discretion denying him bail despite imperiling his health and
can only be exercised after evidence is submitted to life would not serve the true objective of preventive
the court, the petitioner has the right of cross incarceration during the trial.
examination and to introduce his own evidence in
rebuttal. (Santos v. Judge How, A.M. No. RTJ-05- Accordingly, we conclude that the Sandiganbayan
1946, Jan. 26, 2007) arbitrarily ignored the objective of bail to ensure the
appearance of the accused during the trial; and
Bail is a matter of right when the offense charged is unwarrantedly disregarded the clear showing of the
punishable by any penalty lower than reclusion fragile health and advanced age of Enrile. As such,
perpetua (Art. III, Sec 13, 1987 Constitution). Bail the Sandiganbayan gravely abused its discretion in
becomes a matter of discretion if the offense denying Enrile’s Motion to Fix Bail. (Juan Ponce
charged is punishable by death, reclusion perpetua, Enrile v. Sandiganbayan, G.R. No. 213847, Aug. 18,
or life imprisonment. Consequently, bail will be 2015)
denied if the evidence of guilt presented by the
prosecution is strong (Art. III, Sec. 7, 1987
Constitution). In this case, X is charged with A person is considered to be “in the custody of
violating Sec. 5 Art. II of RA 9165, which is law” when:
punishable by life imprisonment. Hence, X’s bail a. He is arrested by virtue of a warrant of
becomes a matter of judicial discretion if the arrest or by warrantless arrest.
evidence of his guilt is not strong. b. He has voluntarily submitted himself to the
jurisdiction of the court by surrendering to
When bail is discretionary, the trial court must the proper authorities.
conduct bail hearings to determine whether the
evidence of guilt of the accused is strong. During the The Court held that when the person has actually
bail hearings, the prosecution has the burden of posted a bail bond, which was accepted by the
proof. The court’s grant or denial of the bail court, he has effectively submitted himself to the
application must contain a summary of the jurisdiction of the court over his person. (Paderanga
prosecution’s evidence which should be the basis of
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v. Court of Appeals, G.R. No. 115407, Aug. 28, Recognizance

1995) An obligation of record entered into before a court
guaranteeing the appearance of the accused for
Other Rights in Relation to Bail: trial. It is in the nature of a contract between the
surety and the state. The details on how
1. The right to bail shall not be impaired even recognizance can be obtained or when it is
when the privilege of the writ of habeas applicable is left to legislation. (Bernas, The 1987
corpus is suspended Constitution of the Republic of the Philippines, 2009)
2. Excessive bail shall not be required (PHIL.
CONST., art. 3, § 13). Apart from bail, a person may attain provisional
liberty through recognizance, which is an obligation
Factors to be considered in setting the amount of record entered into by a third person before a
of bail: (F3P3 CAWN) court, guaranteeing the appearance of the accused
a. Financial Ability of the accused to give bail for trial. It is in the nature of a contract between the
b. Forfeiture of other bail surety and the state. (People v. Abner, G.R. No. L-
c. The accused was a Fugitive from justice 2508, Oct. 27, 1950)
when arrested
Dismissal of Appeal in Criminal Cases Due to
d. Probability of the accused appearing at
Jumping of Bail
the trial The Court of Appeals/Supreme Court may, upon
e. Penalty for the offense charged motion of the appellee or motu proprio, dismiss the
f. Pendency of other cases where the appeal if the appellant:
accused is on bail a. If appellant escapes from prison or
g. Character and reputation of the accused confinement;
h. Age and health of the accused b. If appellant jumps bail; or
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i. Weight of the evidence against the c. If appellant flees to another country during
accused the pendency of the appeal (ROC, Rule
j. Nature and circumstance of the offense 124, § 8; Rule 125, § 1)
(ROC, Rule 114, § 9)
Bail in Deportation Proceedings
Where the right to bail exists, it should not be As a general rule, the constitutional right to bail is
rendered nugatory by requiring a sum that is available only in criminal proceedings. Thus, they do
excessive. (De La Camara v. Enage, G.R. Nos. L- not apply in deportation proceedings, which are
32951-2, Sept. 17, 1971) administrative in nature. However, see Mejoff v.
Director of Prisons, where the court applied the
To fix bail at an amount equivalent to the civil liability general principles of international law found in the
of which petitioner is charged is to permit the UDHR and ordered released under a bond in a
impression that the amount paid as bail is an Habeas Corpus petition. (Bernas, The 1987
exaction of the civil liability that accused is charged Philippine Constitution: A Comprehensive
of; this we cannot allow because bail is not intended Reviewer, 2011)
as a punishment, nor as a satisfaction of civil liability
which should necessarily await the judgment of the Bail in Extradition Cases
appellate court. (Yap v. CA, G.R. 141529, June 6, Our extradition law does not provide for the grant of
2001) bail to an extraditee. There is no provision
prohibiting him or her from filing a motion for bail, a
Courts Cannot Strictly Require Cash Bond right to due process under the Constitution.
The condition that the accused may have
provisional liberty only upon his posting of a cash However, an extradition proceeding, while
bond is abhorrent to the nature of bail and ostensibly administrative, bears all earmarks of a
transgresses our law on the matter. The allowance criminal process. A potential extraditee may be
of a cash bond in lieu of sureties is authorized in this subject to arrest, to a prolonged restraint of liberty,
jurisdiction only because our rules expressly provide and forced to transfer to the demanding state
for it. And even where cash bail is allowed, the following the proceedings.
option to deposit cash in lieu of a surety bond
primarily belongs to the accused. The standard used in granting bail in extradition
cases is “clear and convincing evidence.” This
standard should be lower than proof beyond
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reasonable doubt but higher than preponderance of Petitioner, which is a corporate entity, has no
evidence. personality to invoke the right to be presumed
innocent which right is available only to an individual
The potential extraditee must prove by “clear and who is an accused in a criminal case (Feeder
convincing evidence” that: International Line v. CA, G.R. 94262, May 31, 1991).
a. he is not a flight risk and will abide with all
the orders and processes of the extradition Prima Facie Presumption
court, and The Constitution does not prohibit the legislature
b. that there exist special, humanitarian, and from providing that proof of certain facts leads to a
compelling reasons for him to be released prima facie presumption of guilt, provided that the
facts proved have a reasonable connection to the
on bail. (Government of Hong Kong v.
ultimate fact presumed. (U.S. v Luling, G.R. No. L-
Olalia, Jr., G.R. No.153675, April 19, 2007) 11162, Aug. 12, 1916)
Right to Bail of Military Personnel Accusation Not Synonymous With Guilt

Tradition has recognized the non-existence of the An accusation, according to the fundamental law, is
right to bail because of the disciplinary structure of not synonymous with guilt. The challenged proviso
the military and because soldiers are allowed the (par. 2, § 4 of BP Blg. 52) contravenes the
fiduciary right to bear arms and can therefore cause constitutional presumption of innocence, as a
great havoc. (Bernas, The 1987 Philippine candidate is disqualified from running for public
Constitution: A Comprehensive Reviewer, 2011). office on the ground alone that charges have been
filed against him before a civil or military tribunal. It
Right to a Hearing condemns before one is fully heard. A person
In cases where the accused is charged with an disqualified to run for public office on the ground that
offense punishable by reclusion perpetua, a charges have been filed against him is virtually
hearing, mandatory in nature and which should be
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placed in the same category as a person already
summary or otherwise in the discretion of the court, convicted of a crime with the penalty of arresto,
is required with the participation of both the defense which carries with it the accessory penalty of
and a duly notified representative of the prosecution suspension of the right to hold office during the term
for the purpose of ascertaining whether or not the of the sentence. (Dumlao v. COMELEC, G.R. No. L-
evidence of guilt is strong. 52245, Jan. 22, 1980)
The constitutional right to bail necessarily includes Conviction in Illegal Drugs Cases
the right to a hearing. When bail is denied without a To convict an accused of the illegal sale of
hearing, a fundamental right is violated. Hence, the dangerous drugs, the prosecution must not only
presentation of evidence for the prosecution in prove that the sale took place, but also present the
private inquiry, in the absence of the detainee, and corpus delicti in evidence. The only time that
the subsequent issuance of an order on the basis of conviction may be sustain despite noncompliance
the private inquiry, cannot be allowed. The hearing, with the chain of custody requirements is if there
however, need not be separate and distinct from the were justifiable grounds provided. Before the courts
trial itself. And it need only be summary. The right to may consider the seized drugs as evidence despite
a prompt hearing is waived by agreeing to noncompliance with the legal requirements,
postponements. justifiable grounds must be identified and proven.
The prosecution must establish the steps taken to
Parallel to the accused’s right to a hearing is the ensure that the integrity and evidentiary value of the
prosecution’s right to present evidence. If the seized items were preserved. It is the positive duty
prosecution is denied such right, the grant of bail is to establish its reason for the procedural lapses.
void. (Bernas, The 1987 Constitution of the Republic (People v. Ternida y Munar, G.R. No. 212626, June
of the Philippines, 2009) 3, 2019)
3. PRESUMPTION OF INNOCENCE Both the RTC and CA seriously overlooked the long-
standing legal tenet that the starting point of every
Concept criminal prosecution is that the accused has the
Its principal effect is that no person shall be constitutional right to be presumed innocent. This
convicted unless the prosecution has proved him presumption of innocence is overturned only when
guilty beyond reasonable doubt. (Bernas, The 1987 the prosecution has discharged its burden of proof
Constitution: A Comprehensive Reviewer, 2011) in criminal cases that it has proven the guilt of the
accused beyond reasonable doubt, with each and
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every element of the crime charged in the witnesses pursuant to Sec 21, Art II of RA 9165, or
information proven to warrant a finding of guilt for at the very least marked, photographed, and
that crime or for any other crime necessarily inventoried the seized items immediately after
included therein. seizure or confiscation. In other words, the
prosecution was not able to overcome the
This burden of proof never shifts. The accused can presumption of innocence of X. (People v. Fulinara
simply rely on his right to be presumed innocent. It y Fabelania, G.R. No. 237975, Jun. 19, 2019)
is thus immaterial, in this case or in any other cases
involving dangerous drugs, that the accused put Continues Pending Appeal
forth a weak defense. Presumption of innocence persists even when there
is conviction by lower court and case is still on
The prosecution therefore, in cases involving appeal. Such presumption is not destroyed until
dangerous drugs, always has the burden of proving there is proof that accused is guilty beyond
compliance with RA 9165, which lays down the reasonable doubt based on evidence. (Bernas, The
procedure that police operatives must follow to 1987 Constitution: A Comprehensive Reviewer,
maintain the integrity of the confiscated drugs used 2011)
as evidence. In this case, there were far too many
unexplained absences in the procedure: the time Equipoise Rule
and place in the markings on the sachets, certificate Where the evidence in a criminal case is evenly
of inventory, pictures during the actual buy-bust balanced, the constitutional presumption of
operation, inventory of the evidence and witnesses innocence tilts the scales in favor of the accused.
present. The chain of custody was clearly broken. (People v. Erguiza, G.R. No. 171348, Nov. 26 2008)
The Court cannot presume that the accused Anti-Hazing Law

committed the crimes they have been charged with Section 14 of the Anti-Hazing Law provides that an
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as the State must fully establish that. Nor can the accused's presence during a hazing is prima facie
Court shirk from their responsibility of protecting the evidence of his or her participation. However, this
liberties of our citizenry just because the lawmen are does not violate the constitutional presumption of
shielded by the presumption of the regularity of their innocence. The constitutional presumption of
performance of duty. This by no means defeats the innocence is not violated when there is a logical
much stronger presumption of innocence in favor of
every person whose life, property and liberty comes
under the risk of forfeiture on the strength of a false
accusation of committing some crime. When
connection between the fact proved and the ultimate
fact presumed. When such prima facie evidence is
unexplained or not contradicted by the accused, the
conviction founded on such evidence will be valid.
catching drug pushers, police officers must always However, the prosecution must still prove the guilt
be advised to do so within the bounds of the law. of the accused beyond reasonable doubt. The
existence of a disputable presumption does not
With the chain of custody having been preclude the presentation of contrary evidence.
compromised, the X deserves acquittal as his right Neither has it been shown how Section 14 does
to the presumption of innocence has not been away with the requirement that the prosecution must
overturned. (People vs. Dagdag, G.R. No. 225503, prove the participation of the accused in the hazing
Jun. 26, 2019) beyond reasonable doubt. (Fuertes v. Senate of the
Philippines, G.R. No. 208162, Jan. 07, 2020)
The presumption of regularity in the performance of
duty cannot overcome the stronger presumption of 4. RIGHT TO BE HEARD
innocence in favor of the accused. The right of the
accused to be presumed innocent until proven guilty In all criminal prosecutions, the accused shall be
is a constitutionally protected right; therefore, the presumed innocent until the contrary is proved, and
burden lies with the prosecution to prove the shall enjoy the right to be heard by himself and
accused’s guilt beyond reasonable doubt. In this counsel. (PHIL. CONST., art. 3, § 14(2)).
case, the prosecution failed to prove the corpus
delicti of the crimes of sale and possession of illegal Any person under investigation for the commission
drugs due to unexplained breaches of procedure of an offense shall have the right to be informed of
committed by the buy-bust team in the seizure, his right to remain silent and to have competent and
custody, and handling of the seized drugs. Given the independent counsel preferably of his own choice. If
fact that a buy-bust operation is a planned the person cannot afford the services of counsel, he
operation, it is questionable why the buy-bust team must be provided with one. These rights cannot be
could not have ensured the presence of the required
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waived except in writing and in the presence of (People v. Agbayani, G.R. No. 122770, Jan
counsel. (PHIL. CONST., art. 3, § 12(1)). 16, 1998) (ROC, Rule 116, § 6)
The accused must be amply accorded legal The right to counsel of an accused is guaranteed by
assistance extended by a counsel who commits our Constitution, our laws and our Rules of Court.
himself to the cause of the defense and acts During custodial investigation, arraignment, trial and
accordingly. It is an efficient and truly decisive legal even on appeal, the accused is given the option to
assistance, and not simply a perfunctory be represented by a counsel of his choice. But when
representation. (People v. Bermas, G.R. No. he neglects or refuses to exercise this option during
120420, April 21, 1999) arraignment and trial, the court shall appoint one for
him. While the right to be represented by counsel is
This constitutional right includes the right to present absolute, the accused's option to hire one of his own
evidence in one’s defense, as well as the right to be choice is limited. (People v. Serzo, G.R. No.
present and defend oneself in person at every stage 118435, June 20, 1997)
of the proceedings. Stripping the accused of all his
pre-assigned trial dates constitutes a patent denial When an accused unaided by counsel qualifiedly
of the constitutionally guaranteed right to due admits his guilt to an ambiguous or vague
process. (Villareal v. People, G.R. No. 151258, Feb information from which a serious crime can be
1, 2012) deduced, it is not prudent for the trial court to render
a serious judgment finding the accused guilty of a
Nevertheless, a party is not compelled to speak if it capital offense without absolutely any evidence to
chooses to be silent. If it avails itself of the right to determine and clarify the true facts of the case.
be heard, well and good; but if not, that is also its (People v. Holgado, G.R. No. L-2809, March 22,
right. In the latter situation, however, it cannot later 1950)
complain that, because it was not heard, it was
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deprived of due process. (Stronghold Insurance Co., Waiver
Inc. v. CA, G.R. No. 88050, Jan 30, 1992 Accused persons are perfectly entitled to waive
[their right to counsel] and they may defend
5. RIGHT TO COUNSEL themselves in person. The law expressly authorizes
them to defend themselves in person, without the
In criminal cases, the right of an accused person to
be assisted by a member of the bar is immutable.
Otherwise, there would be a grave denial of due
process. Thus, even if the judgment had become
assistance of counsel. It is understood, of course,
that they waive their right to be assisted by counsel
when they not only do not appoint or request one,
but voluntarily submit to trial, and especially when
final and executory, it may still be recalled, and the they actually exercise therein the right of defense by
accused afforded the opportunity to be heard by cross-examining the witnesses for the prosecution
himself and counsel. and by introducing evidence in their own behalf. (US
v. Go Leng, G.R. No. 6707, February 8, 1912)
The right to counsel is absolute and may be invoked
at all times. More so, in the case of an on-going 6. RIGHT TO BE INFORMED OF THE
litigation, it is a right that must be exercised at every NATURE AND CAUSE OF
step of the way, with the lawyer faithfully keeping his ACCUSATION
client. (Telan v. CA, G.R. No. 95026 Oct. 4, 1991)
Purpose
Duty of Court to Inform Accused of his Right to a. To furnish the accused with a description of
Counsel the charge against him as will enable him
a. Inform accused that he has the right to have to make his defenses.
his own counsel before being arraigned; b. To avail himself of his conviction or
b. After giving such information, to ask acquittal against a further prosecution for
accused whether he desires the aid of the same cause.
counsel; To inform the court of the facts alleged. (U.S. v.
c. If he so desires to procure the services of Karelsen, G.R. No. 1376, Jan. 21, 1904)
counsel, the court must grant him
reasonable time to do so; and Sufficiency of Complaint or Information
d. If he so desires to have counsel but is A complaint or information is sufficient if it states the:
unable to employ one, the court must 1. Name of the accused;
assign a counsel de officio to defend him. 2. Designation of the offense given by the statute;
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3. Acts or omissions complained of as constituting Date of Commission of the Crime

the offense; General Rule: It is unnecessary to state in the
4. Name of the offended party; information the precise date that the offense was
5. Approximate date of the commission of the committed
offense; and
Exception: When it is an essential element of the
6. Place where the offense was committed.
offense. (People v. Bugayong, G.R. No. 126518,
Dec. 2, 1998)
When an offense is committed by more than one
person, all of them shall be included in the complaint When the time given in the complaint is not
or information. (ROC, Rule 110, § 6) essential, it need not be proven as alleged. The
complaint will be sustained if there is proof that the
If the information fails to allege the material offense was committed at any time within the period
elements of the offense, the accused cannot be of the statute of limitations and before the
convicted thereof even if the prosecution is able to commencement of the action. The date of
present evidence during the trial with respect to commission is not an element of rape. The
such elements. gravamen of rape is carnal knowledge of a woman.
(People v. Rafon, G.R. No. 169059, Sept. 5, 2007)
The real nature of the crime charged is determined
from the recital of facts in the information. It is not The Supreme Court has upheld complaints and
based on the caption, preamble or from the cited information in prosecutions for rape which merely
provision of law allegedly violated. (People v. alleged the month and year of its commission.
Labado, G.R. No. L-38548, July 24, 1980) (People v. Ching, G.R. No. 177150, Nov. 22, 2007)
In a situation where a court (in a fused action for the Waiver
enforcement of criminal and civil liability) may validly
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The right to assail the sufficiency of the information
order an accused-respondent to pay an obligation or the admission of evidence may be waived by the
arising from a contract, a person’s right to be notified accused-appellant. An information which lacks
of the complaint, and the right to have the complaint certain essential allegations may still sustain a
dismissed if there is no cause of action, are conviction when the accused fails to object to its
completely defeated. If the accused-respondent is sufficiency during the trial, and the deficiency was
completely unaware of the nature of the liability cured by competent evidence presented therein.
claimed against him or her at the onset of the case, (People v. Palarca G.R. No. 146020, May 29, 2002)
he is blindsided. It is a clear violation of a person's
right to due process. (Gloria S. Dy v. People of the
Philippines, GR No. 189081, August 10, 2016)
7. RIGHT TO SPEEDY, IMPARTIAL
AND PUBLIC TRIAL
Qualifying and Aggravating Circumstances
Must be Alleged a. Right to Speedy Trial
The complaint or information shall state the
designation of the offense given by the statute, aver Factors Used in Determining Whether the Right
the acts or omissions constituting the offense, and to a Speedy Trial Has Been Violated: (TL-RAP)
specify its qualifying and aggravating 1. Time expired from the filing of the information
circumstances. If there is no designation of the 2. Length of delay involved
offense, reference shall be made to the section or 3. Reasons for the delay
subsection of the statute punishing it. (ROC, Rule 4. Assertion or non-assertion of the right by the
110, § 8) accused
5. Prejudice caused to the defendant (Bernas, The
Since the qualifying circumstance of “common law 1987 Constitution: A Comprehensive Reviewer
spouse” was not alleged in the Information for rape 2011)
against appellant, he could not be convicted of rape
in the qualified form as he was not properly informed
The test of violation of the right to speedy trial has
of the nature and cause of accusation against him.
always been to begin counting the delay from the
In a criminal prosecution, it is a fundamental rule
time the information is filed, not before the filing. The
that every element of the crime charged must be
delay in the filing of the information, which in the
alleged in the complaint or information. (People v.
instant case has not been without reasonable
Begino, G.R. No. 181246, March 20, 2009)
cause, is therefore not to be reckoned with in
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determining whether there has been a denial of the Republic of the Philippines; Wigberto E. Tanada, et
right to speedy trial. (Martin v. General Fabian Ver, al., intervenors; Danilo S. Ursua v. Republic of the
G.R. No. L-62810 July 25, 1983) Philippines, G.R. Nos. 177857-58 & G.R. No.
178193, Jan. 24, 2012)
Trial includes hearing, reception of evidence and
other processes, such as decision in the first b. Right to Impartial Trial
instance, appeal and final executory decision in the
last instance. (Bernas, The 1987 Constitution of the The accused is entitled to the “cold neutrality of an
Republic of the Philippines, 2009) impartial judge.” It is an element of due process.
Remedy if the Right to Speedy Trial was When a judge has previously convicted a person of
violated: a crime i.e., arson, he should disqualify himself from
a. He can move for the dismissal of the case hearing another case involving the same person, but
b. If he is detained, he can file a petition for with a different crime, i.e., malversation (Ignacio v.
the issuance of writ of habeas corpus. Villaluz, G.R. No. L-37527-52, May 25, 1979)
(Bernas, The 1987 Constitution: A
Comprehensive Reviewer, 2011) c. Right to Public Trial
The right to speedy trial is considered violated only The attendance at the trial is open to all irrespective
when the proceeding is attended by vexatious, of their relationship to the accused. However, if the
capricious and oppressive delays. Courts are evidence to be adduced is offensive to decency or
required to do more than a mathematical public morals, the public may be excluded. (Garcia
computation of the number of postponements of the v. Domingo, G.R. No. L-30104, July 25, 1973)
scheduled hearings of the case and to give
particular regard to the facts and circumstances The purpose is to serve as a “safeguard against any
FOR ONE ATENEO

peculiar to each case. (Nelson Imperial, et al. v. attempt to employ our courts as instruments of
Maricel M. Joson, et al.; Santos O. Francisco v. prosecution.” The knowledge that every trial is
Spouses Gerard and Maricel Joson Nelson; subject to the contemporaneous review in the forum
Imperial, et al. v. Hilarion C. Felix, et al., G.R. Nos. of the public opinion is an effective restraint on
160067, 170410, 171622, Nov. 17, 2010) possible abuse of judicial power. (Garcia v.
Domingo, G.R. No. L-30104, July 25, 1973)
Where a prosecuting officer, without good cause,
secures postponements of the trial of a defendant The right of the accused to a public trial is not
against his protest beyond a reasonable period of violated if the hearings are conducted on Saturdays,
time, as in this instance for more than a year, the either with the consent of the accused or if he failed
accused is entitled to relief by a proceeding in to object thereto.
mandamus to compel a dismissal of the information,
or if he be restrained of his liberty, by habeas corpus A recognized exception to the general rule that a
to obtain his freedom. (Conde v. Rivera, G.R. No. L- trial must be public is that the general public may be
21741, Jan. 25, 1924) excluded when the evidence to be presented in the
proceeding may be characterized as “offensive to
Dismissal Based on the Right to Speedy Trial decency or public morals”.
If the dismissal is valid, it amounts to an acquittal
and can be used as basis to claim double jeopardy. An accused is entitled to a public trial, at least to the
This would be the effect even if the dismissal was extent of having his friends, relatives and counsel
made with the consent of the accused. (Bernas, The present – no matter with what offense he may be
1987 Constitution: A Comprehensive Reviewer, charged. (In Re: Oliver, 333 U.S. 257, March 8,
2011) 1948)
Speedy Trial v. Speedy Disposition of Cases 8. RIGHT OF CONFRONTATION

The right to a speedy trial is available only to an
accused and is a peculiarly criminal law concept, Purpose
while the broader right to a speedy disposition of 1. To afford the accused an opportunity to cross-
cases may be tapped in any proceedings conducted
examine the witness
by state agencies. In this case, the appropriate right
involved is the right to a speedy disposition of cases, 2. To allow the judge the opportunity to observe
the recovery of ill-gotten wealth being a civil suit. the conduct or demeanor of the witness
(Coconut Producers Federation, Inc. et al. v.
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(Bernas, The 1987 Constitution: A The 1973 and 1987 Constitutions expanded the
Comprehensive Reviewer, 2011) right to compulsory process which now includes the
right to secure the production of evidence in one's
Exceptions to the right to face witnesses: behalf. By analogy, U.S. v. Ramirez which laid down
a. The admissibility of “dying declarations” the requisites for compelling the attendance of
b. Trial in absentia under Section 14(2) witnesses, may be applied to this expanded
c. With respect to child testimony (Bernas, concept. Thus, the movant must show:
1. That the evidence is really material;
The 1987 Constitution: A Comprehensive
2. That he is not guilty of neglect in previously
Reviewer, 2011)
obtaining the production of such evidence;
3. That the evidence will be available at the time
Where a party has had the opportunity to cross-
desired; and
examine an opposing witness but failed to avail
himself of it, he necessarily forfeits the right to cross- 4. That no similar evidence could be obtained.
examine and the testimony given on direct (Bernas, The 1987 Constitution: A
examination of the witness will be received or Comprehensive Reviewer, 2011)
allowed to remain in the record. (People v. Seneris,
G.R. No. L-48883, Aug. 6, 1980) Subpoena and Subpoena Duces Tecum
Subpoena is a process directed to a person
It is demandable only during trials. Thus, it cannot requiring him or her to attend and to testify at the
be availed of during preliminary investigations. hearing or the trial of an action, or at any
investigation conducted by competent authority, or
Right of confrontation is available during trial which for the taking of his or her deposition. It may also
begins only upon arraignment. require him or her to bring with him or her any
books, documents, or other things under his or
FOR ONE ATENEO

Section 7 of the Special Rules of Procedure her control, in which case it is called a
prescribed for Shari’a courts aforecited provides that subpoena duces tecum. (Rule 21, §1, Rules of
if the plaintiff has no evidence to prove his claim, the Court)
defendant shall take an oath and judgment shall be
rendered in his favor by the Court. On the other The right to compulsory process of securing the
hand, should defendant refuse to take an oath, attendance of witnesses cannot be invoked on
plaintiff may affirm his claim under oath, in which appeal if he made no effort during the trial to avail
case judgment shall be rendered in his favor. Said himself of it. (Bernas, The 1987 Constitution: A
provision effectively deprives a litigant of his Commentary, 2009)
constitutional right to due process. It denies a party
his right to confront the witnesses against him and Preliminary investigation is not too early a stage to
to cross-examine them. It should have no place stand guard against any significant erosion of the
even in the Special Rules of Procedure of the constitutional right to due process. At this stage, the
Shari’a courts of the country. (Tampar v. Usman, accused should not be denied access to evidence
G.R. No. 82077, Aug. 16, 1991) favorable to him since preliminary investigation can
result in arrest or deprivation of liberty. (Bernas, The
The principle requiring a testing of testimonial 1987 Constitution: A Commentary, 2009)
statements by cross-examination has always been
understood as requiring, not necessarily 10. TRIAL IN ABSENTIA
an actual cross-examination, but merely
an opportunity to exercise the right to cross- Trial in absentia simply means that the accused
examine if desired. (Fulgado v. CA, G.R. No. L- waives his right to meet the witnesses face to face.
61570 Feb. 12, 1990) The trial may proceed, despite the absence of the
accused. Its purpose is to prevent unnecessary
9. RIGHT TO COMPULSORY delays in trial caused by the failure of the accused
PROCESSES to attend provided that his absence is unjustifiable.
Compulsory process to secure: the Philippines, 2009)
a. The attendance of witnesses
b. The production of evidence in his behalf Requisites (ANU)
1. The accused has been validly Arraigned and
2. Accused has been duly Notified; and
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3. His failure to appear is Unjustifiable. (Parada WHEN PRESENCE OF THE ACCUSED IS A

v. Veneracion, A.M. No. RTJ-96-1353, March DUTY
11, 1997) a. Arraignment and Plea
b. During Trial, for identification
This is allowed to speed up disposition of criminal c. Promulgation of Sentence
cases. (People v. Salas, G.R. No. L-66469, July 29,
1986) Exception: Light offense where accused need not
personally appear.
Voluntary Waiver
Trial in absentia can also take place when the It is important to state that the provision of the
accused voluntarily waives his right to be present. Constitution authorizing the trial in absentia of the
The right may be waived provided that after accused in case of his non-appearance after
arraignment he may be compelled to appear for the arraignment despite due notice simply means that
purpose of identification by the witnesses of the he thereby waives his right to meet the witnesses
prosecution, or provided he unqualifiedly admits in face to face among others. An express waiver of
open court after his arraignment that he is the appearance after arraignment, as in this case, is of
person named as the defendant in the case on trial. the same effect. However, such waiver of
appearance and trial in absentia does not mean that
the prosecution is thereby deprived of its right to
Thus, for an accused to be excused from attending
require the presence of the accused for purposes of
trial, it is not enough that he vaguely agrees to be
identification by its witnesses which is vital for the
identified by witnesses in his absence. He must
conviction of the accused. Such waiver of a right of
unqualifiedly admit that every time a witness
the accused does not mean a release of the
mentions as name by which he is known, the
accused from his obligation under the bond to
witness is to be understood as referring to him.
appear in court whenever so required. The accused
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may waive his right but not his duty or obligation to
the court. (Carredo v. People, G.R. No. 77542,
March 19, 1990)
Presence of the Accused Not Absolutely
Required
After repeated warnings, the trial judge ordered the P. RIGHT TO SPEEDY TRIAL AND
accused removed from court and told him that the SPEEDY DISPOSITION OF CASES
trial would continue in his absence until he promised
to conduct himself in a manner befitting a courtroom. All persons shall have the right to a speedy
On appeal, the SC held that the behavior of the disposition of their cases before all judicial, quasi-
accused had forfeited his right to be present. judicial, or administrative bodies. (PHIL. CONST., art.
(Bernas, The 1987 Constitution of the Republic of III, § 16)
the Philippines, 2009 citing Illinois v. Allen)
Concept
Judgement In Absentia The right to speedy disposition of cases is a relative
While the accused is entitled to be present during and flexible concept. To determine whether or not a
promulgation of judgment, the absence of his person's right to speedy disposition of cases is
counsel during such promulgation does not affect its violated, there are four factors to consider. The four
validity. (4) factors — (1) the length of the delay; (2) the
reason for the delay; (3) the respondent's assertion
Promulgation of judgment in absentia is valid of the right; and (4) prejudice to the respondent —
provided that the essential elements are are to be considered together, not in isolation. The
present: interplay of these factors determine whether the
1. That the judgment be recorded in the criminal delay was inordinate. (Baya v. Sandiganbayan, G.R.
docket; and Nos. 204978-83, July 6, 2020)
2. That a copy be served upon the accused or
counsel. Recording the decision in the criminal In evaluating criminal cases invoking the right to
docket of the court satisfies the requirement of speedy disposition of cases, a case is deemed to
have commenced from the filing of the formal
notifying the accused of the decision wherever
complaint and the subsequent conduct of the
he may be. (Estrada v. People, G.R. No. preliminary investigation. (Republic v.
162371, Aug. 25, 2005) Sandiganbayan, G.R. No. 231144, Feb. 19, 2020)
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A mere mathematical reckoning of the time involved, manner and failure to do so even when he or she
therefore, would not be sufficient. In the application has already suffered or will suffer the consequences
of the constitutional guarantee of the right to speedy of delay constitutes a valid waiver of that right. (Baya
disposition of cases, particular regard must also be v. Sandiganbayan, G.R. Nos. 204978-83, July 6,
taken of the facts and circumstances peculiar to 2020)
each case. (Binay v. Sandiganbayan, G.R. 120681,
Oct. 1, 1999) Remedy
The remedy for violation of the right to a speedy
In this case, since the preliminary investigation was disposition of a case is dismissal obtained through
terminated beyond the 10-day period provided in the mandamus. (Lumanlaw v. Hon. Peralta, G.R. No.
Revised Rules of Criminal Procedure, the burden of 164953, Feb. 13, 2006)
proof thus shifted towards the prosecution to prove
that the delay was not unreasonable. The period of Speedy Trial v. Speedy Disposition of Cases
delay in this case — 5 years — was extraordinarily SPEEDY TRIAL SPEEDY
long that there could conceivably be no procedural DISPOSITION
rule that would justify said delay. (Javier v. Sec. 14 Sec. 16
Sandiganbayan, G.R. No. 237997, Jun. 10, 2020) Only applies to the Covers all phases of
trial phase of criminal judicial, quasi-judicial
The Rules of Procedure of the OMB do not prescribe and administrative
cases
a period to conclude a PI. Here, PI shall be proceedings
conducted in accordance with Sec. 3, Rule 112 of
the ROC. Also based on Rule 112, Sec. 4, the
investigating officers of the OMB has 10 days within
which to determine the presence of probable cause.
The complaint was filed on April 27, 2016; X was
In resolving questions involving the right to speedy
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directed to file a counter-affidavit on October 13,
disposition of cases, the Court is guided by the
2016. After that, the case remained stagnant for
ruling in Cagang v. Sandiganbayan.
nearly two years–that is, until the February 22, 2018
a. The right to speedy disposition of cases is
resolution. No clarificatory hearing was set by the
OMB upon X’s submission of a counter-affidavit; different from the right to speedy trial. The
neither was X required to send additional latter may only be invoked in criminal
documents. Not having acted in accordance with its prosecutions, while the former may be
own periods, the burden of proof falls to the invoked before any tribunal.
prosecution to justify the delay. The prosecution b. A case is deemed initiated upon the filing of
may establish that the issues are so complex and a formal complaint prior to a preliminary
the evidence so voluminous as to render delay investigation. Delays beyond the
inevitable; however, the transaction in this case reasonable periods for preliminary
involves only one contract, with two pages, and the
investigation set by the Ombudsman will be
records are not voluminous such that it would
taken against the prosecution.
require additional time for the prosecutor to review.
c. Courts must determine which party carries
X did not waive his right to speedy disposition of the burden of proof. If the right is invoked
cases either. With or without the prodding of the within the given time periods, the defense
accused, the Rules of Procedure of the OMB and has the burden of proof that the right was
the Rules of Court fixed the period for termination of justifiably invoked. It must prove whether
a PI; the OMB has the positive duty to observe the the case is motivated by malice or clearly
specified periods under the rules. Mere inaction on only politically motivated and is attended by
the part of the accused, without more, does not utter lack of evidence, and second, that the
qualify as an intelligent waive of this constitutional
defense did not contribute to the delay. If
right. Since the prosecution failed to provide amply
the delay occurs beyond the given time
justification for the delay in the PI, it can be
concluded that X’s right to speedy disposition of period, the prosecution has the burden of
cases was violated. (Perez v. Sandiganbayan, G.R. justifying the delay. It must prove that it
No. 245862, November 3, 2020) followed the prescribed procedure in the
conduct of preliminary investigation and in
Waiver the prosecution of the case, that the
The person must invoke his or her constitutional complexity of the issues and the volume of
right to speedy disposition of cases in a timely evidence made the delay inevitable, and
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that no prejudice was suffered by the bodies. Thus, the fact-finding investigation should
accused as a result of the delay. not be deemed separate from the preliminary
d. Determination of the length of delay is investigation conducted by the Ombudsman if the
never mechanical. Courts must consider aggregate time spent for both constitutes inordinate
the entire context of the case, from the and oppressive delay in the disposition of the case.
(People v. Sandiganbayan, G.R. Nos. 188165 &
amount of evidence to be weighed to the
189063, Dec. 11, 2013)
simplicity or complexity of the issues raised.
Q. Right against Self-Incrimination
An exception to this rule is if there is an
allegation that the prosecution of the case
No person shall be compelled to be a witness
was solely motivated by malice. Malicious
against himself. (PHIL. CONST., art. 3, § 17)
intent may be gauged from the behavior of
the prosecution throughout the
Concept
proceedings. If malicious prosecution is
It is the duty of the prosecution, in order to convict
properly alleged and substantially proven,
one of a crime, to produce evidence showing guilt
the case would automatically be dismissed
beyond a reasonable doubt; and the accused
without need of further analysis of the
cannot be called upon either by express words or
delay. Another exception would be the
acts to assist in the production of such evidence; nor
waiver of the accused to the right to speedy
should his silence be taken as proof against him. He
disposition of cases or the right to speedy
has a right to rely on the presumption of innocence
trial. If it can be proven that the accused
until the prosecution proves him guilty of every
acquiesced to the delay, the constitutional
element of the crime with which he is charged. (US
right can no longer be invoked. In all cases
v. Navarro, G.R. No. 1272, Jan. 11, 1904)
of dismissals due to inordinate delay, the
causes of the delays must be properly laid
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The right against self-incrimination is not merely a
out and discussed by the relevant court.
formal technical rule the enforcement of which is left
to the discretion of the court; it is mandatory; it
e. The right to speedy disposition of cases or secures to a defendant a valuable and substantive
the right to speedy trial must be timely right; it is fundamental to our scheme of justice.
raised. The respondent or the accused
must file the appropriate motion upon the
lapse of the statutory or procedural periods.
Otherwise, they are deemed to have
Therefore, the court may not extract from a
defendant's own lips and against his will an
admission of his guilt. Nor may a court as much as
resort to compulsory disclosure, directly or
waived their right to speedy disposition of indirectly, of facts usable against him as a
cases. (Perez v. Sandiganbayan, G.R. No. confession of the crime or the tendency of which is
to prove the commission of a crime.
245862, Nov. 3, 2020)
Thus, an accused has:
Application
a. The right to forego testimony, and
The fact finding investigation of the Ombudsman
b. The right to remain silent, unless he
lasted nearly 5 years and 5 months. It is clear that
the Ombudsman had taken an unusually long period chooses to take the witness stand. (Chavez
just to investigate the criminal complaint and to v. CA, G.R. No. L-29169, Aug. 19, 1968)
determine whether cases be filed against the
respondents. It is incumbent for the State to prove Option of Refusal to Answer, not a Prohibition of
that the delay was reasonable which it failed. At no Inquiry
time should the progress and success of the The right against self-incrimination prescribes an
preliminary investigation of a criminal case be made option of refusal to answer incriminating questions
dependent upon the ratification of a treaty by the and not a prohibition of inquiry. It simply secures to
Senate that would provide to the prosecutorial arm a witness, whether he be a party or not, the right to
of the State, already powerful and overwhelming in refuse to answer any particular incriminatory
terms of its resources, an undue advantage question, i.e., one the answer to which has a
unavailable at the time of the investigation. To allow tendency to incriminate him for some crime. (People
the delay under those terms would definitely violate v. Ayson, G.R. No. 85215, July 7, 1989)
fair play and nullify due process of law. The
guarantee of speedy disposition of cases under
Section 16 of Article III applies to all cases pending
before all judicial, quasi-judicial or administrative
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1. Scope and Limitations paraffin test) and to have a substance taken

from his body for medical determination as
Against Testimonial Compulsion to whether he was suffering from gonorrhea
The kernel of the right is not against all compulsion, which was contracted by his victim.
but against testimonial compulsion. The right (Bernas, The 1987 Constitution of the
against self-incrimination is simply against the legal Republic of the Philippines, 2009)
process of extracting from the lips of the accused an c. To expel morphine from the defendant’s
admission of guilt. It does not apply where the
mouth.
evidence sought to be excluded is not an
incrimination but as part of object evidence. (Agustin d. To have the outline of the defendant’s foot
v. CA, G.R. No. 162571, June 15, 2005) traced to determine its identity with bloody
footprints.
Covers Writing in a Prosecution for Falsification e. To be photographed or measured, or his
Writing is something more than moving the body, or garments or shoes removed or replaced, or
the hands, or the fingers; writing is not a purely to move his body to enable the foregoing
mechanical act, because it requires the application things to be done. (Dela Cruz v. People,
of intelligence and attention. Writing means that the G.R. No. 200748, July 23, 2014)
accused is to furnish a means to determine whether f. To be compelled to wear a pair of pants or
or not he is the falsifier. (Beltran v. Samson, G.R.
garments for size (Bernas, The 1987
No. 32025, Sept. 23, 1929)
Constitution of the Republic of the
Purely Mechanical Act: Must Be Related to the Philippines, 2009)
Offense Charged
Petitioner was arrested for extortion; he resisted Over the years, the Supreme Court has expressly
having his urine sample taken; and finally, his urine excluded several kinds of object evidence taken
FOR ONE ATENEO

sample was the only available evidence that was from the person of the accused from the realm of
used as basis for his conviction for the use of illegal self-incrimination. These include:
drugs. The drug test was a violation of petitioner's a. Photographs, hair, and other bodily
right to privacy and right against self-incrimination. substances.
b. Examination of a woman’s genitalia, in an
Cases where non-testimonial compulsion has been action for annulment filed by her husband,
allowed reveal, however, that the pieces of evidence to verify his claim that she was impotent,
obtained were all material to the principal cause of her orifice being too small for his penis.
the arrest. In the instant case, we fail to see how a
c. DNA testing and its results. (Agustin v. CA,
urine sample could be material to the charge of
G.R. No. 162571, June 15, 2005)
extortion. The RTC and the CA, therefore, both
erred when they held that the extraction of
petitioner’s urine for purposes of drug testing was The right against self-incrimination does not apply to
merely a mechanical act. (Dela Cruz v. People, G.R. records required by law to be kept which are the
No. 200748, July 23, 2014) appropriate subjects of governmental regulation and
where restrictions are validly established. (Shapiro
v. United States, 335 U.S. 1, June 21, 1948)
EXCLUSIONS
The essence of the right against self-incrimination is
WHEN TO INVOKE; WAIVER
testimonial compulsion, that is, the giving of
evidence against himself through a testimonial act. General Rule:
Purely mechanical acts are not included in the The right against self-incrimination is available in
prohibition as the accused does not thereby speak any civil, criminal, or administrative proceeding.
his guilt, hence the assistance and guiding hand of (People v. Ayson, G.R. No. 85215, July 7, 1989)
counsel is not required.
Expanded Application
Thus, the right against self-incrimination does not a. The right is extended to respondents in
apply in the following cases: administrative investigations that partake of
a. A woman charged with adultery may be the nature of or are analogous to criminal
compelled to submit to physical proceedings.
examination to determine her pregnancy. b. The right extends to all proceedings
b. An accused may be compelled to submit to sanctioned by law.
physical examination (e.g. ultraviolet exam,
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c. The right extends to all cases in which the protection does not come into play. It follows that
punishment is sought to be visited upon a the right may be waived, expressly, or impliedly, as
witness, whether a party or not. by a failure to claim it at the appropriate time.
d. The right extends to legislative (People v. Ayson, G.R. No. 85215, July 7, 1989)
investigations.
When a person, however, voluntarily answers an
e. The right extends to administrative
incriminating question, he is deemed to have waived
proceedings which possess a criminal or his right. Moreover, after the accused has pleaded
penal aspect, i.e. medical board guilty, for the purpose of ascertaining the proper
investigation. penalty to be imposed or for any other legal
f. The right extends to investigations purposes, the court may properly ask such
conducted by a fact-finding ad hoc board. questions which are necessary to that end. (Bernas,
(Standard Chartered Bank v. Senate The 1987 Constitution of the Republic of the
Committee on Banks, G.R. NO. 167173, Philippines, 2009)
Dec. 27, 2007; Pascual v. Board of Medical
Examiners, G.R. No. L-25018, May 26, Where the witness, in answer to previous
incriminating questions, said, "I do not remember,"
1969; Galman v. Pamaran, G.R. Nos.
that is clearly a refusal to answer, and the privilege
71208-09, Aug. 30, 1985) is not deemed waived thereby. (Isabela Sugar Co.
v. Macadaeg, G.R. No. L-5924, Oct. 28, 1953)
Forfeiture proceedings
Proceedings for forfeiture of proper are deemed Not a Valid Waiver; Judgement Void; Habeas
criminal or penal, and, hence, the exemption of Corpus is a Proper Remedy
defendants in criminal case from the obligation to be In this case, petitioner is a defendant in a criminal
witnesses against themselves are applicable case. He was called by the prosecution as the first
thereto (Cabal v. Kapunan, G.R. No. L-19052 Dec.
FOR ONE ATENEO

witness in that case to testify for the People during
29, 1962). the first day of trial thereof. Petitioner objected and
invoked the privilege of self-incrimination. This he
Available Only When the Incriminatory broadened "by the clear cut statement that “he will
Question is Asked not testify.” But petitioner's protestations were met
The right against self-incrimination can be claimed with the judge's emphatic statement that it "is the
only when the specific question, incriminatory in right of the prosecution to ask anybody to act as
character, is actually put to the witness. It cannot be witness on the witness stand including the
claimed at any other time. It does not give a witness accused," and that defense counsel "could not
the right to disregard a subpoena, to decline to object to have the accused called on the witness
appear before the court at the time appointed, or to stand." The cumulative impact of all these is that
refuse to testify altogether. The witness receiving a accused-petitioner had to take the stand. He was
subpoena must obey it, appear as required, take the thus peremptorily asked to create evidence against
stand, be sworn and answer questions. It is only himself.
when a particular question is addressed to him, the
answer to which may incriminate him for some The Court ruled that there is therefore no waiver of
offense, that he may refuse to answer on the the privilege. To be effective, a waiver must be
strength of the constitutional guaranty. (People v. certain and unequivocal, and intelligently,
Ayson G.R. No. 85215, July 7, 1989) understandably, and willingly made; such waiver
following only where liberty of choice has been fully
A question tends to incriminate when the answer of accorded.
the accused or the witness would establish a fact,
which would be a necessary link in a chain of Habeas corpus is a high prerogative writ. It is
evidence to prove the commission of a crime by the traditionally considered as an exceptional remedy to
accused or the witness. Further, a crime or a release a person whose liberty is illegally restrained
criminal act may contain two or more elements and such as when the accused's constitutional rights are
that a question would have a tendency to disregarded. Such defect results in the absence or
incriminate, even if it tends to elicit only one of said loss of jurisdiction and therefore invalidates the trial
elements. (Isabela Sugar Co. v. Macadaeg, G.R. and the consequent conviction of the accused
No. L-5924, Oct. 28, 1953) whose fundamental right was violated. That void
Not Self-Executing; May Be Waived judgment of conviction may be challenged by
The right against self-incrimination is not self- collateral attack, which precisely is the function of
executing or automatically operational. It must be habeas corpus. This writ may issue even if another
claimed. If not claimed by or in behalf of the witness,
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remedy which is less effective may be availed of by in all criminal prosecutions the defendant is entitled
the defendant. Thus, failure by the accused to among others –
perfect his appeal before the Court of Appeals does a. To be exempt from being a witness against
not preclude a recourse to the writ. The writ may be himself, and
granted upon a judgment already final. (Chavez v. b. To testify as witness in his own behalf; but
CA, G.R. No. L-29169, Aug. 19, 1968) if he offers himself as a witness he may be
cross-examined as any other witness;
WHO MAY INVOKE
however, his neglect or refusal to be a
Only Applies to Natural Persons witness shall not in any manner prejudice
Unlike the search and seizure clause, which or be used against him.
protects both natural persons and corporations, the The right of the defendant in a criminal case to be
privilege against self-incrimination is a personal one, exempt from being a witness against himself
applying only to natural individuals. Thus, a signifies that he cannot be compelled to testify or
corporation may be compelled to submit to the produce evidence in the criminal case in which he is
visitorial powers of the state even if this results in the accused, or one of the accused. He cannot be
disclosure of criminal acts of the corporation. compelled to do so even by subpoena or other
Moreover, a corporate officer may not prevent the process or order of the Court. He cannot be required
production of corporate papers on the ground that to be a witness either for the prosecution, or for a
they may incriminate him personally, for in such a co-accused, or even for himself. In other words –
situation it would not be a case of the officer unlike an ordinary witness (or a party in a civil action)
incriminating himself but the corporation who may be compelled to testify by subpoena,
incriminating him. (Bernas, The 1987 Constitution of having only the right to refuse to answer a particular
the Republic of the Philippines, 2009) incriminatory question at the time it is put to him –
the defendant in a criminal action can refuse to
testify altogether. He can refuse to take the witness
FOR ONE ATENEO

Accused v. Ordinary Witness
ACCUSED ORDINARY stand, be sworn, answer any question. (Rosete v.
WITNESS Lim, G.R. No. 136051, June 8, 2006)
The defendant in a The witness receiving
cannot be compelled a subpoena must obey 2. Immunity Statutes
to testify or produce it, appear as required,
evidence in the take the stand, be
criminal case in which sworn and answer
he is the accused, or questions.
Nature and Purpose
A state response to the constitutional exception –
the right against self-incrimination – to its vast
one of the accused. powers, especially in the field of ordinary criminal
He cannot be prosecution and in law enforcement and
compelled to do so administration, is the use of an immunity statute.
even by subpoena or Immunity statutes seek a rational accommodation
other process or order between the imperatives of an individual’s
of the Court. constitutional right against self-incrimination
The defendant in a A witness cannot (considered the fount from which all statutes
criminal action can refuse to take the granting immunity emanate) and the legitimate
refuse to testify witness stand. It is governmental interest in securing testimony. By
altogether. He can only when a particular voluntarily offering to give information on the
refuse to take the question is addressed commission of a crime and to testify against the
witness stand, be to which may culprits, a person opens himself to investigation and
sworn, answer any incriminate himself for prosecution if he himself had participated in the
question. some offense that he criminal act. To secure his testimony without
may refuse to answer exposing him to the risk of prosecution, the law
on the strength of the recognizes that the witness can be given immunity
constitutional from prosecution. In this manner, the state interest
guaranty. is satisfied while respecting the individual’s
constitutional right against self-incrimination.
As to an accused in a criminal case, it is settled that (Quarto v. Ombudsman, G.R. No. 169042, Oct. 5,
he can refuse outright to take the stand as a witness. 2011)
An accused occupies a different tier of protection
from an ordinary witness. Under the Rules of Court,
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Kinds of Immunity Statutes (Comprehensive Dangerous Drugs Act of

a. Use Immunity – prohibits use of witness' 2002, June 7, 2002);
compelled testimony and its fruits in any k. RA No. 9416 (An Act Declaring as Unlawful
manner in connection with the criminal Any Form of Cheating in Civil Service
prosecution of the witness. Examinations, etc., March 25, 2007); and
b. Transactional Immunity – grants l. RA No. 9485 (Anti-Red Tape Act of 2007,
immunity to the witness from prosecution June 2, 2007) (Quarto v. Hon.
for an offense to which his compelled Ombudsman, G.R. No. 169042, Oct. 5,
testimony relates. (Galman v. Pamaran, 2011)
G.R. Nos. 71208-09, Aug. 30, 1985)
Authority to Grant Immunity: The Executive, But
Source of Immunity: The Legislative Reviewable by Courts
The power to grant immunity from prosecution is While the legislature is the source of the power to
essentially a legislative prerogative. The exclusive grant immunity, the authority to implement is lodged
power of Congress to define crimes and their nature elsewhere. The authority to choose the individual to
and to provide for their punishment concomitantly whom immunity would be granted is a constituent
carries the power to immunize certain persons from part of the process and is essentially an executive
prosecution to facilitate the attainment of state function. (Quarto v. Ombudsman, G.R. No. 169042,
interests, among them, the solution and prosecution Oct. 5, 2011)
of crimes with high political, social and economic
impact. In the exercise of this power, Congress On the other hand, it is the trial court that determines
possesses broad discretion and can lay down the whether the prosecution’s preliminary assessment
conditions and the extent of the immunity to be of the accused-witness’ qualifications to be a state
granted. (Quarto v. Ombudsman, G.R. No. 169042, witness satisfies the procedural norms. This
relationship is in reality a symbiotic one as the trial
FOR ONE ATENEO

Oct. 5, 2011)
court, by the very nature of its role in the
Examples of Immunity Statutes administration of justice, largely exercises its
a. PD No. 749 (Granting Immunity from prerogative based on the prosecutor’s findings and
Prosecution to Givers of Bribes and Other evaluation. The court is given this power once it has
Gifts and to their Accomplices in Bribery already acquired jurisdiction over the crime and the
and Other Graft Cases against Public accused. The discharge of an accused is part of the
exercise of jurisdiction but is not a recognition of an
Officers, July 18, 1975);
inherent judicial function. (Quarto v. Ombudsman,
b. PD No. 1731 (Providing for Rewards and
G.R. No. 169042, Oct. 5, 2011)
Incentives to Government Witnesses and
Informants and other Purposes, October 8, Extent of Judicial Review of a Bestowed
1980); Immunity
c. PD No. 1732 (Providing Immunity from An immunity statute does not, and cannot, rule out
Criminal Prosecution to Government a review by the Supreme Court of the Ombudsman’s
Witnesses and for other Purposes, October exercise of discretion. Like all other officials under
8, 1980); our constitutional scheme of government, all their
d. PD No. 1886 (creating the Agrava Fact- acts must adhere to the Constitution. The
parameters of the Court’s review, however, are
Finding Board, October 22, 1983);
narrow as the Court is not a trier of facts. Since the
e. 1987 Constitution, Article XIII, Section
determination of the requirements under Section 17,
18(8) (empowering the Commission on Rule 119 of the Rules of Court (Discharge of
Human Rights to grant immunity); Accused to be State Witness) is highly factual in
f. RA No. 6646 (An Act Introducing Additional nature, the Court must, thus, generally defer to the
Reforms in the Electoral System and for judgment of the Ombudsman who is in a better
other Purposes, January 5, 1988); position (than the Sandiganbayan or the defense) to
g. Executive Order No. 14, August 18, 1986; know the relative strength and/or weakness of the
h. RA No. 6770 (Ombudsman Act of 1989, evidence presently in his possession and the kind,
November 17, 1989); tenor and source of testimony he needs to enable
him to prove his case. Thus, the Court rules on the
i. RA No. 6981 (Witness Protection, Security
basis of a petition for certiorari under Rule 65 and
and Benefit Act, April 24, 1991);
address mainly the Ombudsman’s exercise of
j. RA No. 7916 (The Special Economic Zone discretion. The room for intervention only occurs
Act of 1995, July 25, 1994); RA No. 9165
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when a clear and grave abuse of the exercise of 4. When a valid Plea accused presents
discretion is shown. (Quarto v. Ombudsman, G.R. has been entered; evidence of
No. 169042, Oct. 5, 2011) and complete self-
5. When the defense, and the
R. RIGHT AGAINST DOUBLE accused has court thereafter
JEOPARDY been Acquitted acquits him
or convicted, or without entering a
No person shall be twice put in jeopardy of the case new plea of not
punishment for the same offense. If an act is dismissed or guilty for
punished by a law and an ordinance, conviction or otherwise accused. There
acquittal under either shall constitute a bar to terminated is no valid plea
another prosecution for the same act. (PHIL. CONST., without his here. (People v.
art. 3, § 21) express consent. Balisacan, G.R.
(Cerezo v. People, No. L-26376,
Kinds of Jeopardy G.R. No. 185230, Aug. 31, 1966)
SAME OFFENSE SAME ACT June 1, 2011) 3. If the information
“No person shall be “When an act is for an offense
twice put in jeopardy of punished by a law and
cognizable by the
punishment for the an ordinance,
RTC is filed with
same offense.” conviction or acquittal
under either shall the MTC. There is
constitute a bar to no jurisdiction
another prosecution here. (People v.
for the same act.” Ibasan, Sr., G.R.
Conviction, acquittal, Only conviction or No. L-61652,
FOR ONE ATENEO

or dismissal of the acquittal – not June 22, 1984)
case without the dismissal without the 4. If a complaint
express consent of the express consent of the filed for
accused will bar a accused – will bar a preliminary
subsequent subsequent investigation is
prosecution. prosecution. dismissed.
(People v. Daco,
1. Requisites and Limitations G.R. No. L-
17210, Nov. 30,
1. A first jeopardy attached prior to the 1962)
second
2. The first jeopardy has been validly Judgement Must be Rendered by a Court of
terminated; and Competent Jurisdiction
3. A second jeopardy is for the same The MeTC took cognizance of the Information for
offense as in the first. (Cerezo v. People, reckless imprudence resulting in parricide while the
criminal case for parricide was still pending before
G.R. No. 185230, June 1, 2011)
the RTC. We held that once jurisdiction is acquired
by the court in which the Information is filed, it is
a. A first jeopardy attached prior there retained. Therefore, as the offense of reckless
to the second imprudence resulting in parricide was included in the
charge for intentional parricide pending before the
WHEN JEOPARDY WHEN JEOPARDY RTC, the MeTC clearly had no jurisdiction over the
ATTACHES DOES NOT ATTACH criminal case filed before it, the RTC having retained
[ICAPA] 1. If information jurisdiction over the offense to the exclusion of all
1. After a valid does not charge other courts. The requisite for jeopardy to attach that
Indictment; any offense. the judgment be rendered by a court of competent
2. Before a (People v. Judge jurisdiction is therefore absent. A decision rendered
Competent court; Consulta, G.R. without jurisdiction is not a decision in contemplation
3. After No. L-41251, of law and can never become executory. Hence, the
Arraignment; March 31, 1976) remand of the case to the RTC for trial would not
2. If, upon pleading amount to double jeopardy. (People v. Honrales,
guilty, the G.R. Nos. 182651 & 182657, Aug. 25, 2010)
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c. Dismissal on motion of the prosecution,

The RTC issued its September 5, 2006 order in subsequent to a motion for Reinvestigation
defiance of the TRO issued by the CA. The records filed by the accused
show that the CA had issued a TRO on April 19, d. Discharge of an accused to be a State
2006, which should have prohibited the RTC from witness. This amounts to an acquittal
further proceeding on the case. But the RTC,
e. Dismissal on the Merits
instead, continued with the presentation of the
prosecution’s evidence and issued the assailed
September 5, 2006 order. Under this circumstance, If the first dismissal was based on the merits, there
the RTC’s September 5, 2006 order was actually should be no second prosecution. If the first
without force and effect and would not serve as dismissal was not based on the merits and was
basis for the petitioners to claim that their right erroneous, one should look at whether the dismissal
against double jeopardy had been violated. The was with the consent of the accused. If not, there
RTC, clearly, acted with grave abuse of discretion in should be no second prosecution. (Bernas, The
issuing its September 5, 2006 order in view of the 1987 Philippine Constitution: A Comprehensive
earlier TRO issued by the CA. (Villalon v. Chan, Reviewer, 2011)
G.R. No. 196508, Sept. 24, 2014)
Under Sec. 9, Rule 113 ( now Sec. 9, Rule 117) of
The RTC clearly exceeded its jurisdiction when it the Rules of Court, the defense of double jeopardy
entertained the joint Motion for Reconsideration with is available to the accused only where he was either
respect to the accused-respondents who were at convicted or acquitted or the case against him was
large. Being at large, accused-respondents have not dismissed or otherwise terminated without his
regained their standing in court. Once an accused consent. (People v. Bulaong, G.R. No. L-19344)
jumps bail or flees to a foreign country, or escapes
from prison or confinement, he loses his standing in When there was no denial of the right to speedy trial
and the dismissal was upon the instance of the
FOR ONE ATENEO

court; and unless he surrenders or submits to the
jurisdiction of the court, he is deemed to have accused, reinstatement of the case did not violate
waived any right to seek relief from the court. Thus, the right against double jeopardy. (Bernas, The
accused-respondents were not placed in double 1987 Philippine Constitution: A Comprehensive
jeopardy because, from the very beginning, the Reviewer, 2011)
lower tribunal had acted without jurisdiction. Verily,
any ruling issued without jurisdiction is, in legal Verbal orders
contemplation, necessarily null and void and does There is no showing that this verbal order of
not exist. In criminal cases, it cannot be the source dismissal was ever reduced to writing and duly
of an acquittal. (People v. De Grano, G.R. No. signed by him. Thus, it did not yet attain the effect of
167710, June 5, 2009) a judgment of acquittal, so that it was still within the
powers of the judge to set it aside and enter another
Dismissal before arraignment order, now in writing and duly signed by him,
Reinvestigation against the companions of the reinstating the case. (Abay Sr. v. G.R. No. L-66132
accused would not subject them to double jeopardy. June 27, 1988)
The case against them was dismissed before they
were arraigned. (People v. Jugueta, G.R. No. Termination with consent, waiver of right
202124, April 5, 2016) General Rule: Equivalent to a waiver of the defense
of double jeopardy.
a. Motion to dismiss for lack of jurisdiction
b. The first jeopardy has been
b. Motion to dismiss on the ground that the
validly terminated
facts alleged in the information did not
a. Acquittal; constitute the offense. This amounts to
b. Conviction; or estoppel
c. Pleading not guilty to the second charge,
Dismissal without the express consent of the instead of moving to quash
accused [ViD-ReMs] d. Consenting to a provisional dismissal
a. Dismissal based on Violation of the right to (Bernas, The 1987 Philippine Constitution:
a speedy trial amounts to an acquittal A Comprehensive Reviewer, 2011)
b. Dismissal based on Demurrer to evidence
is a dismissal on the merits
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Provisional Dismissal However, this applies only in a more general sense,

A case shall not be provisionally dismissed except hence it is the test laid down under Section 9 of Rule
with the express consent of the accused and with 117 of the Revised Rules of Criminal Procedure that
notice to the offended party. (ROC, Rule 117, § 8). should apply. This states that one offense must
necessarily be included in the other, i.e., whether
The provisional dismissal of offenses punishable by one offense is identical with the other or whether
imprisonment not exceeding 6 years or a fine of any one offense necessarily includes or is necessarily
amount, or both, shall become permanent 1 year included in the other. Identity of offenses does not
after issuance of the order without the case having require one-to-one correspondence between the
been revived. With respect to offenses punishable facts and law involved in the two charges. (Bernas,
by imprisonment of more than 6 years, their The 1987 Philippine Constitution: A Comprehensive
provisional dismissal shall become permanent 2 Reviewer, 2011)
years after issuance of the order without the case
having been revived. Different Provisions, different crimes
Where two different laws (or articles of the same
A motion of the accused for a provisional dismissal code) define two crimes, prior jeopardy as to one of
of a case is an express consent to such provisional them is no obstacle to a prosecution of the other,
dismissal. If a criminal case is provisionally although both offenses arise from the same facts, if
dismissed with the express consent of the accused, each crime involves some important act which is not
the case may be revived only within the periods an essential element of the other. (Loney v. People,
provided in the new rule. On the other hand, if a G.R. No. 152644, February 10, 2006)
criminal case is provisionally dismissed without the
express consent of the accused or over his If one provision requires proof of an additional fact
objection, the new rule would not apply. The case or element which the other does not, an acquittal or
may be revived or refiled even beyond the conviction or a dismissal of the information under
FOR ONE ATENEO

prescribed periods subject to the right of the one does not bar prosecution under the other. (
accused to oppose the same on the ground of People v. Tiozon, G.R. No. 89823, G.R. No. 89823,
double jeopardy or that such revival or refiling is June 19, 1991)
barred by the statute of limitations. (People v.
Panfilo Lacson, G.R. 149453, Oct. 7, 2003) Supervening Facts
c. A second jeopardy is for the
same offense as in the first
A conviction for an offense will not bar a prosecution
for an offense which necessarily includes the
offense charged in the former information where:
1. The graver offense developed due to a
Same Offense [IAN-2] supervening fact arising from the same act or
1. Exact identity between the offenses charged in omission constituting the former charge.
the first and second cases. 2. The facts constituting the graver offense
2. One offense is an attempt to commit or a became known or were discovered only after the
frustration of the other offense. filing of the former information
3. One offense is necessarily included or 3. The plea of guilty to the lesser offense was made
necessary includes the other. (Bernas, The without the consent of the prosecutor and the
1987 Constitution of the Republic of the offended party. (ROC, Rule 117, § 7)
Philippines, 2009)
4. The situation is different when one act violates If the facts could have been discovered by the
two different statutes or two different provisions prosecution but were not discovered because of the
of a statute. The rule in such a case is that if the prosecution’s incompetence, it would not be
considered a supervening event.
one act results in two different offenses,
Ordinances and National Statute Punishing the
prosecution under one is a bar to prosecution Same Act
under the other. (Bernas, The 1987 Constitution The constitutional protection, against double
of the Republic of the Philippines, 2011). jeopardy is available although the prior offense
charged under an ordinance be different from the
Same Evidence Test offense charged subsequently under a national
Whether the evidence needed in one case will statute such as the Revised Penal Code, provided
support a conviction in the other. (U.S. v. Tan Oco, that both offenses spring from the same act or set of
G.R. No. 11338, Aug. 15, 1916) acts. (People v. Relova G.R. No. L-45129 March 6,
1987)
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Quasi Offense From the phraseology of the rule, it is evident that a

Once convicted or acquitted of a specific act of motion for new trial or a motion for reconsideration
reckless imprudence, the accused may not be applies when the judgment is one of conviction; and
prosecuted again for that same act. For the essence it is the accused, not the prosecution which avails of
of the quasi offense of criminal negligence under the same. (Riano, Criminal Procedure, 583, 2014)
Article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if Appeals
intentionally done, would be punishable as a felony. Any party may appeal from a judgment or final order,
The law penalizes thus the negligent or careless act, unless the accused will be placed in double
not the result thereof. The gravity of the jeopardy. (ROC, Rule 122, § 1)
consequence is only taken into account to
determine the penalty, it does not qualify the General Rule: The prosecution may not appeal an
substance of the offense. And, as the careless act is acquittal, and an acquittal is immediately final.
single, whether the injurious result should affect one (ROC, Rule 120, § 7)
person or several persons, the offense (criminal
negligence) remains one and the same, and cannot Exception: The prosecution may appeal an
be split into different crimes and prosecutions. To do order of dismissal when:
so would be a violation of the mantle of protection 1. The dismissal is on motion or with the
afforded by the Double Jeopardy Clause. (Ivler v. express consent of the accused. (ROC,
San Pedro, G.R. No. 172716, Nov. 17, 2010) Rule 117, § 7)
Continuous Crimes Exception to the Exception:

Petitioner’s acts of allegedly preventing Ms. 1. If motion is based on violation of the right to
Magsigay from appearing and testifying in a a speedy trial or on a demurrer to evidence.
FOR ONE ATENEO

preliminary investigation proceeding and offering in
(People v. Velasco, G.R. No. 140633, Feb.
evidence a false affidavit were clearly motivated by
a single criminal impulse in order to realize only one 4, 2002)
criminal objective, which is to obstruct or impede the 2. The dismissal does not amount to an
preliminary investigation proceeding in I.S. Case acquittal or dismissal on the merits. (People
No. 04-1238. Thus, applying the principle of delito v. Salico, G.R. No. L-1567, Oct. 13, 1949)
continuado (continuous crime), petitioner should 3. The question to be passed upon is purely
only be charged with one (1) count of violation of PD legal. (People v. Desalisa, L-15516,
1829 which may be filed either in Jagna, Bohol Dec.17, 1966)
where Ms. Magsigay was allegedly prevented from 4. The dismissal violates the right of due
appearing and testifying in I.S. Case No. 04-1238, process of the prosecution. (People v.
or in Tagbilaran City, Bohol where petitioner
Sandiganbayan et. al., G.R. No. 164577,
allegedly presented a false affidavit in the same
case. However, since he was already charged – and July 5, 2010)
in fact, convicted in a Judgment dated July 3, 2007 5. The dismissal or acquittal was made with
– in the MTCC-Tagbilaran, the case in MCTC-Jagna grave abuse of discretion. (People v.
should be dismissed as the events that transpired in Sandiganbayan et. al., G.R. No. 164577,
Jagna, Bohol should only be deemed as a partial July 5, 2010)
execution of petitioner’s single criminal design.
Consequently, the criminal case in MCTC-Jagna Although, as a rule, dismissal of a criminal case may
must be dismissed; otherwise, petitioner will be be used to abate an administrative case based on
unduly exposed to double jeopardy, which the Court the same facts, the same does not hold true if it were
cannot countenance. (Navaja v. De Castro the other way around, that is, the dismissal of the
G.R. No. 180969, Sept. 11, 2017) administrative case is being invoked to abate the
criminal case. However, if the two actions are based
d. Limitations on the same facts and evidence, such as in this
case, dismissal in administrative case may be used
Motions for Reconsideration to negate criminal liability. (People v.
At any time before a judgment of conviction Sandiganbayan et. al., G.R. No. 164577, July 5,
becomes final, the court may, upon motion of the 2010).
accused or at its own instance, but with the consent
of the accused, grant a new trial or reconsideration. Effect of an accused’s appeal of his conviction
(ROC, Rule 121, § 1) a. Waiver of right to double jeopardy
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b. The appellate court may place a penalty pornography in fact already covers the use of
higher than that of the original conviction. “electronic, mechanical, digital, optical, magnetic or
(Trono v. United States, 199 U.S. 521, 26 any other means.” Thus, charging the offender
S.C.T. 121, 50 L. Ed. 2920, 1905) under both Section 4(c)(2) and ACPA would likewise
be tantamount to a violation of the constitutional
prohibition against double jeopardy. (Disini v. Sec.
An appeal in a criminal case opens the entire case of Justice, G.R. No. 203335, Feb. 18, 2014)
for review on any question including one not raised
by the parties. When an accused appeals from the
sentence of the trial court, he waives the S. RIGHT AGAINST INVOLUNTARY
constitutional safeguard against double jeopardy SERVITUDE
and throws the whole case open to the review of the
appellate court, which is then called upon to render 1. No person shall be detained solely by
such judgment as law and justice dictate, whether reason of his political beliefs and
favorable or unfavorable to the appellant. (People v. aspirations.
Torres, G.R. No. 189850, Sept. 22, 2014) 2. No involuntary servitude in any form shall
exist except as a punishment for a crime
Res Judicata whereof the party shall have been duly
Res judicata is a doctrine of civil law and thus has convicted. (PHIL. CONST., art. 3, § 18)
no bearing on criminal proceedings. Res judicata
applies only when there is a final judgment on the
Involuntary Servitude
merits of a case; it cannot be availed of in an
Every condition of enforced or compulsory service
interlocutory order even if the order is not appealed.
of one to another no matter under what form such
Even if the argument is expanded to contemplate
servitude may be disguised. (Rubi v. Provincial
double jeopardy, double jeopardy will not apply
Board, G.R. No. L-14078, March 7, 1919)
because it requires that the accused has been
FOR ONE ATENEO

convicted or acquitted or that the case against the
accused has been dismissed or terminated without
his express consent. (People v. Escobar, G.R. No.
214300, July 26, 2017)
A private person who contracts obligations of
rendering services in a civil capacity to the Army as
an employee in its offices cannot, by law, either civil
or military, be compelled to fulfill them by
e. Cybercrime Prevention Act
Section 7 of RA 10175 which provides for

imprisonment and deportation from his place of
residence. (In Re A.O. Brooks, G.R. No. L-507,
November 5, 1901).
prosecution under both the Revised Penal Code and Slavery

the Cybercrime Prevention Act was assailed as The status or condition of a person over whom any
unconstitutional for violating the rule on double or all of the powers attaching to the right of
jeopardy. The provision was declared ownership are charged. (R.A. No. 10364, Sec. 3(e))
unconstitutional as to Section 4(c)(4) on Libel and Debt Bondage
Section 4(c)(2) on Child Pornography. However, The pledging by the debtor of his or her personal
with respect to the other prohibited acts, the Court services or labor or those of a person under his or
left the determination of the correct application of her control as security or payment for a debt, when
Section 7 to actual cases. In relation to Section the length and nature of services is not clearly
4(c)(4) on Libel, the Court said that if the published defined or when the value of the services as
material on print, said to be libelous, is again posted reasonably assessed is not applied toward the
online or vice versa, that identical material cannot liquidation of the debt. (R.A. 10364, Sec. 3(i))
be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the
Revised Penal Code and the other a violation of Political Prisoners
Section 4(c)(4) of R.A. 10175 involve essentially the A state cannot hold “political prisoners”. (Bernas,
same elements and are in fact one and the same The 1987 Constitution: A Comprehensive Reviewer,
offense. Charging the offender under both laws 152, 2011)
would be a blatant violation of the proscription
against double jeopardy. As to Section 4(c)(2) on Exceptions [P2EPOM]:
Child Pornography, the Court said that Section 1. Punishment for a crime.
4(c)(2) merely expands the ACPA’s scope so as to
2. Personal military or civil service in the interest of
include identical activities in cyberspace. As
national defense.
previously discussed, ACPA’s definition of child
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3. In naval enlistment, a person who enlists in a

merchant ship may be compelled to remain in Degrading
service until the end of the voyage. It exposes a person to public humiliation (e.g., being
4. Posse Comitatus (every able-bodied person is tarred and feathered, then paraded throughout
ultimately responsible for keeping peace) for the town).
apprehension of criminals.
Excessive Fine
5. Return to work order issued by the DOLE
Secretary or the President. When under any circumstance, the fine is
disproportionate to the offense.
6. Minors under patria potestas are obliged to obey
their parents. (Bernas, The 1987 Philippine Guides for Determining Whether a Punishment
Constitution: A Comprehensive Reviewer, 152,
is “Cruel and Unusual”
2011)
a. It must not be so severe as to be degrading
to the dignity of human beings.
T. RIGHT AGAINST EXCESSIVE b. It must not be applied arbitrarily.
FINES, AND CRUEL AND c. It must not be unacceptable to
INHUMAN PUNISHMENTS contemporary society.
d. It must not be excessive.
Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither Note
shall death penalty be imposed, unless, for It must serve a penal purpose more effectively than
compelling reasons involving heinous crimes, the a less severe punishment would. (Brennan
Congress hereafter provides for it. Any death concurring in Furman v. Georgia, 408 U.S. 238,
penalty already imposed shall be reduced to 1972)
reclusion perpetua.
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The employment of physical, psychological, or
degrading punishment against any prisoner or
detainee or the use of substandard or inadequate
R.A. 9346 prohibited the imposition of the death
penalty. Only by an Act of Congress can it be reborn.
penal facilities under subhuman conditions shall be
dealt with by law. (PHIL. CONST., art. III, § 19)
Anti-Hazing Law
“Cruel and unusual,” as these words are found in the The Anti Hazing Law does not violate the prohibition
Constitution, do not have the same meaning as on cruel and unusual punishment. The prohibition
“clearly excessive” found in Article 5 of the Revised contemplates "extreme corporeal or psychological
Penal Code. The fact that the punishment punishment.“ Penalties like fines or imprisonment
authorized by the statute is severe does not make it may be cruel, degrading, or inhuman only when they
cruel and unusual. Thus, to be “cruel and unusual” are "flagrantly and plainly oppressive and wholly
or “excessive” within the meaning of the constitution, disproportionate to the nature of the nature of the
the penalty must be flagrantly disproportionate to offense as to shock the moral sense of the
the offense no matter under what circumstances the community." However, if the penalty has a legitimate
offense may be committed; but to be “clearly purpose, then the punishment is proportionate, and
excessive” under Article 5 of the Revised Penal the constitutional prohibition is not violated. The
Code, it need only be disproportionate to the Anti-Hazing Law seeks to punish the conspiracy of
circumstances of the offense and of the offender. silence and secrecy, tantamount to impunity, that
would otherwise shroud the crimes committed.
It has been held that to come under the Hence, the penalty has a legitimate purpose, and
constitutional ban on excessive and inhuman the constitutional prohibition is not violated. (Fuertes
punishment, the punishment must be ‘flagrantly and v. Senate of the Philippines, G.R. No. 208162, Jan.
plainly oppressive,’ ‘wholly disproportionate to the 07, 2020)
nature of the offense as to shock the moral sense of
the community.’ (People v. Estoista, G.R. No. L- DEATH PENALTY
5793, Aug. 27, 1953) Death penalty was abolished because:
a. It inflicts traumatic pain not just on the
Cruel and Inhuman convict but also on his family, even if the
Involves torture or lingering suffering (e.g., being penalty is not carried out.
drawn and quartered).
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b. There was no convincing evidence that it is

effective as a deterrent of serious crime. Debt
c. Penology favors reformative rather than A contractual obligation, whether express or implied,
vindictive penalties. resulting in any liability to pay money. Thus, all other
d. Life is too precious a gift to be placed at the types of obligations are not within the scope of this
discretion of a human judge. prohibition. (Bernas, The 1987 Philippine
e. The law itself, by imposing so many Constitution: A Comprehensive Reviewer, 2011)
safeguards before such is carried out,
Imprisonment for Fraudulent Debt
manifests a reluctance to impose it.
1. The fraudulent debt constitutes a crime (e.g.
(Bernas, The 1987 Philippine Constitution:
estafa); and
A Comprehensive Reviewer, 2011)
2. The debtor has been duly convicted.(Bernas,
The 1987 Philippine Constitution: A
Legislature may re-impose it, subject to the Comprehensive Reviewer, 2011)
following conditions:
1. That Congress defines what is meant by BP 22
heinous crimes; The gravamen of the offense punished by BP 22 is
2. That Congress specify and penalize by death, the act of making and issuing a worthless check or
only those crimes that qualify as heinous in a check that is dishonored upon its presentation for
accordance with the definition set in heinous payment. It is not the non-payment of an obligation
crimes law or death penalty law; and which the law punishes. The law is not intended or
3. That Congress, in enacting this death penalty designed to coerce a debtor to pay his debt. The
bill, be singularly motivated by “compelling thrust of the law is to prohibit, under pain of penal
sanctions, the making of worthless checks and
reasons involving heinous crimes.” (People v.
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putting them in circulation. (Lozano v. Martinez,
Echegaray, G.R. No. 117472, Feb. 7, 1997) G.R. No. L-63419, Dec. 18, 1986)
Heinous Crimes Subsidiary Imprisonment
Heinous crimes are those which are grievous,
If an accused fails to pay the fine imposed upon him,
odious, and hateful; and by reason of their manifest this may result in his subsidiary imprisonment
wickedness, viciousness, atrocity, and perversity, because his liability is ex delicto and not ex
are repugnant and outrageous to the common contractu. (Alejo v. Judge Inserto, A.M. No. 1098
standards and norms of decency and morality in a CFI, May 31, 1976)
just, civilized, and ordered society. (People v.
Echegaray, G.R. No. 117472, Feb. 7, 1997) Poll Tax
It is a capitation tax imposed on all persons of a
Instances When Death Penalty Shall Not Be
certain age. At present it is the tax one pays for his
Imposed or her residence certificate which generally serves
a. Guilty person is 70 years old and above; as a personal identification instrument. (Bernas, The
b. Guilty person is below 18 years old; and 1987 Philippine Constitution: A Comprehensive
c. Where upon appeal or automatic review of Reviewer, 2011)
the case by the SC, the required majority
vote is not obtained for the imposition of the V. EX POST FACTO LAWS AND
death penalty. (REVISED PENAL CODE, BILLS OF ATTAINDER
art. 47)
No ex post facto law or bill of attainder shall be
The duty of a judge when an accused pleads guilty enacted. (PHIL. CONST., art. 3, § 22)
to a capital offense is to look into the evidence to
see if death is the proper penalty. (People v. Vinuya, 1. EX POST FACTO LAW
G.R. No. 125925, Jan. 28, 1999)
1. Makes an action done before the passing of the
law, and which was innocent when done,
U. NON-IMPRISONMENT FOR DEBTS criminal, and punishes such action.
2. Aggravates the crime or makes it greater than
No person shall be imprisoned for debt or non- when it was committed.
payment of a poll tax. (PHIL. CONST., art. 3, § 20)
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3. Changes the punishment and inflicts a greater b. If it prescribes a burden equivalent to a

punishment than that which the law annexed to criminal penalty (e.g. disqualification from
the crime when it was committed. the practice of a profession) even in
4. Alters the legal rules of evidence and receives administrative proceedings. (Bernas, The
less testimony than the law required at the time 1987 Philippine Constitution: A
of the commission of the offense in order to Comprehensive Reviewer, 2011)
convict the accused. Instances when the prohibition on ex-post facto
5. Assumes to regulate civil rights and remedies laws is inapplicable
but in effect imposes a penalty or deprivation of Extradition treaty - As the Court of Appeals correctly
a right, which when done was lawful. concluded, the Treaty is neither a piece of criminal
6. Deprives a person accused of a crime of some legislation nor a criminal procedural statute. "It
merely provides for the extradition of persons
lawful protection to which he has become
wanted for prosecution of an offense or a crime
entitled such as the protection of a former which offense or crime was already committed or
conviction or acquittal, or a proclamation of consummated at the time the treaty was ratified."
amnesty. (Bernas, The 1987 Philippine (Wright v. CA, G.R. No. 113213, Aug. 15, 1994)
Probation Law and its amendments - Presidential
Characteristics of an Ex Post Facto Law: Decree No. 1990, like the Probation Law that it
1. Refers to criminal matters amends, is not penal in character. It may not be
2. Retrospective considered as an ex post facto law. (Fajardo v. CA,
3. Causes prejudicial to the accused (Bernas, The G.R. No. 128508, Feb. 1, 1999)
1987 Philippine Constitution: A Comprehensive
Reviewer, 2011) Change of court jurisdiction - R.A 7975, which
amended P.D. 1606 as regards the
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Sandiganbayan's jurisdiction, its mode of appeal
Illustrations
and other procedural matters, has been declared by
A law shortening the prescriptive period for a crime
the Court as not a penal law, but clearly a procedural
is ex post facto. (People v. Sandiganbayan, G.R.
statute, i.e. one which prescribes rules of procedure
No. 101724, July 3, 1992)
by which courts applying laws of all kinds can
properly administer justice. Not being a penal law,
Analogous to an ex post facto law and covered by
the retroactive application of R.A. 8249 cannot be
the same prohibition would be an official
challenged as unconstitutional. On the removal of
interpretation of a penal law given by the
the intermediate review of facts, the Supreme Court
Department of Justice which is subsequently
still has the power of review to determine if he
changed to the prejudice of one who had relied on
presumption of innocence has been convincing
the earlier interpretation. (Co v. Court of Appeals,
overcome. (Lacson v. Executive Secretary, G.R. No.
G.R. No. 100776, October 28,1993)
128096, Jan. 20, 1999)
Where the Court had denied Ombudsman
House rental law - The petitioner's contention that
jurisdiction over cases before RTC but later
BP 877 is an ex post facto law must also be rejected.
reversed its decision while the case was already
It is not penal in nature and the mere fact that it
before the Sandiganbayan, there is no ex post facto
contains penal provisions does not make it so. At
law because no new law was passed. The Courts
any rate, she is not being prosecuted under the said
interpretation retroacts to the date the [Ombudsman
penal provisions. (Juarez v. CA, G.R. No. 93474,
Act] took effect. (Castro v. Judge Deloria, G.R. No.
Oct. 7, 1992)
163586, January 27, 2009)
Preventive suspension pendente lite - Section 13 of
Application
Republic Act 3019, as among the crimes subjecting
The prohibition on ex post facto laws only applies to
the public officer charged therewith with suspension
retrospective penal laws. (Bernas, The 1987
from office pending action in court, is not a penal
provision which violates the constitutional
Reviewer, 2011)
prohibition against the enactment of ex post facto
law. The RPC clearly states that suspension from
When Laws are Penal
the employment or public office during the trial or in
a. When it prescribes a criminal penalty
order to institute proceedings shall not be
imposable in a criminal trial. considered as penalty. It is not a penalty because it
is not imposed as a result of judicial proceedings. In
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fact, if acquitted, the official concerned shall be This is the historic explanation for uniting the two
entitled to reinstatement and to the salaries and mischiefs in one clause... Therefore, if a statute is a
benefits which he failed to receive during bill of attainder, it is also an ex post facto law. But if
suspension (Bayot v. Sandiganbayan, G.R. Nos. L- it is not an ex post facto law, the reasons that
61776 to No. L-61861, March 23, 1984) establish that it is not are persuasive that it cannot
be a bill of attainder”. (People v. Ferrer, G.R. No. L-
IRR of RA 10951; Class-A Light Weapons 32613-14, Dec. 27, 1972)
There is no retroactive application mandated in the
Rules Implementing RA 10951. On the contrary, The bill of attainder does not need to be directed at
firearm licenses to possess Class-A light weapons a specifically named person. It may also refer to
issued before the passage of RA 10591 are still easily ascertainable members of a group in such a
recognized both under RA 10591 and its way as to inflict punishment on them without judicial
Implementing Rules. If the IRR were indeed in the trial. (Cummings v. Missouri, 4 Wall 277, 323 US,
nature of an ex post facto law, then private 1867)
individuals who possess Class-A light weapons
under the old law must be expressly punished under For a law to be considered a bill of attainder, it must
the new law because the new law only allows them contain all the following: a specification of certain
to own and possess small arms. Yet, as expressly individuals or a group of individuals, the imposition
provided in the law, existing license holders of of a punishment, penal or otherwise, and the lack of
Class-A light weapons may renew their licenses judicial trial. (Fuertes v. Senate of the Philippines,
under the new law and Implementing Rules. G.R. No. 208162, Jan. 07, 2020)
Therefore, the IRR of RA No. 10591 is not an ex post
facto law. (Acosta v. Ochoa, G.R. Nos. 211559, Anti-Hazing Law
211567, 212570 & 215634, Oct. 15, 2019) The Anti-Hazing Law is not a bill of attainder. There
is no lack of judicial trial. The mere filing of an
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2. BILL OF ATTAINDER Information against the accused is not a finding of
guilt. The accused is not being charged merely
A bill of attainder is a legislative act which inflicts because he/she is a member of a fraternity/sorority,
punishment without a judicial trial. If the punishment but because he/she is allegedly a principal in the
be less than death, the act is termed a bill of pains hazing that led to the victim’s death. These are
and penalties. (Cummings v. Missouri, 4 Wall 277,
323 US, 1867)
Nature of a bill of attainder as a legislative

matters for the trial court to decide. The prosecution
must still prove the offense. (Fuertes v. Senate of
the Philippines, G.R. No. 208162, Jan. 07, 2020)
adjudication of guilt
Its essence is the substitution of a legislative for a W. WRITS OF HABEAS CORPUS,
judicial determination of guilt. KALIKASAN, HABEAS DATA,
The constitutional ban against bills of attainder
AND AMPARO
serves to implement the principle of separation of
powers by confining legislatures to rule-making and 1. WRIT OF HABEAS CORPUS
thereby forestalling legislative usurpation of the
judicial function. (People v. Ferrer, G.R. Nos. L- The privilege of the writ of habeas corpus shall not
32613-14, Dec. 27, 1972) be suspended except in cases of invasion or
rebellion when the public safety requires it. (PHIL.
Elements (LINaW) CONST., art. 3, § 15)
1. There must be a Law Privilege of the Writ of Habeas Corpus

2. The law Imposes a penal burden The right to have an immediate determination of the
3. On a Named individual or easily ascertainable legality of the deprivation of physical liberty.
members of a group (Bernas, The 1987 Constitution of the Republic of
4. The penal burden is imposed directly by the law the Philippines, 2009)
Without judicial trial.
(Bernas, The 1987 Philippine Constitution: A Writ of Habeas Corpus
Comprehensive Reviewer, 2011) A writ directed to the person detaining another,
commanding him to produce the body of the
“Frequently a bill of attainder was doubly prisoner at a designated time and place, with the
objectionable because of its ex post facto features. day and cause of his caption and detention, to do,
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submit to, and receive whatever the court or judge liberty of abode. (Osorio v Navera, G. R. No.
awarding the writ shall consider in the behalf. 223272, February 26, 2018)
(Sombong v. CA, G.R. No. 111876, Jan. 31, 1996)
When Writ Not Allowed or Discharge Authorized
To What Habeas Corpus Extends The writ shall not be allowed if it appears that the
Except as otherwise expressly provided by law, the person alleged to be restrained of his liberty is in the
writ of habeas corpus shall extend to all cases of custody of an officer under process issued by a
illegal confinement or detention by which any person court or judge or by virtue of a judgment or order of
is deprived of his liberty, or by which the rightful a court of record, and that the court or judge had
custody of any person is withheld from the person jurisdiction to issue the process, render the
entitled thereto. (ROC, Rule 102, Sec. 1) judgment, or make the order.
Habeas corpus is the proper remedy for a person If the jurisdiction appears after the writ is allowed,
deprived of liberty due to mistaken identity. In such the person shall not be discharged by reason of any
cases, the person is not under any lawful process informality or defect in the process, judgment, or
and is continuously being illegally detained. (In the order. Nor shall anything in this rule be held to
Matter of the Petition for Habeas Corpus of Datukan authorize the discharge of a person charged with or
Malang Salibo, G.R. No. 197597, April 8, 2015). convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful
Purpose of the Writ judgment. (ROC, Rule 102, Sec. 4)
The primary purpose of the writ is to inquire into all
manner of involuntary restraint as distinguished Process
from voluntary, and to relieve a person therefrom if An application for a writ of habeas corpus may be
such restraint is illegal. (Agcaoili v. Hon. Farinas, made through a petition filed before the:
G.R. No. 232395, July 3, 2018) a. Supreme Court or any of its members;
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b. Court of Appeals, or any of its members in
What is Suspended: The Privilege, Not The Writ instances authorized by law; or
The writ is never suspended. It always issues as a c. Regional Trial Court or any of its presiding
matter of course. What is suspended is the privilege judges.
of the writ, i.e., once the officer making the return
shows to the court that the person detained is being
The court or judge grants the writ and requires the
detained for an offense covered by the suspension,
officer or person having custody of the person
the court may not inquire further. (Bernas, The 1987
allegedly restraining of liberty to file a return of the
writ. A hearing on the return of the writ is then
conducted.
Remedy Becomes Moot When Restraint
Becomes Legal
The return of the writ may be heard by a court apart
The arrest warrants against the accused were
from that which issued the writ. Should the court
issued by the court that has jurisdiction over the
issuing the writ designate a lower court to which the
offense charged. Since the restraint on the accused
writ is made returnable, the lower court shall
has become legal, the remedy of habeas corpus has
proceed to decide the petition of habeas corpus. By
already become moot and academic. The "great writ
virtue of the designation, the lower court acquires
of liberty" of habeas corpus "was devised and exists
the power and authority to determine the merits of
as a speedy and effectual remedy to relieve persons
the petition for habeas corpus. Therefore, the
from unlawful restraint, and as the best and only
decision on the petition is a decision appealable to
sufficient defense of personal freedom." Habeas
the court that has appellate jurisdiction over
corpus is an extraordinary, summary, and equitable
decisions of the lower court. (In the Matter of the
writ, consistent with the law's "zealous regard for
Petition for Habeas Corpus of Datukan Malang
personal liberty." Its primary purpose is “to inquire
Salibo, G.R. No. 197597, April 8, 2015)
into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person
National Bilibid Inmates; Standing
therefrom if such restraint is illegal. Any restraint
The inmates' allegations of suddenly being
which will preclude freedom of action is sufficient."
transferred from the National Bilibid Prisons in
The restraint of liberty need not be confined to any
Muntinlupa City to the National Bureau of
offense so as to entitle a person to the writ. Habeas
Corrections in Manila City for the purpose of
corpus may be availed of as a post-conviction
conducting an inspection on their living quarters, if
remedy or when there is an alleged violation of the
proven, are sufficient to clothe the party with
standing to file an application for a writ of habeas
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corpus, provided that they invoke a violation of a 2. WRIT OF KALIKASAN (Rule 7, A.M.
fundamental right granted to all citizens, regardless No. 09-6-8-SC)
of whether they are incarcerated or not. However,
mere allegation of a violation of one's constitutional Definition (Sec. 1)
right is not enough. The violation of constitutional A remedy available to a natural or juridical person,
right must be sufficient to void the entire entity authorized by law, people’s organization, non-
proceedings. (In the Matter of the Petition for Writ of governmental organization, or any public interest
Habeas Corpus/Data v. De Lima, G.R. Nos. 215585 group accredited by or registered with any
& 215768, Sept. 8, 2020). government agency, on behalf of persons whose
constitutional right to a balanced and healthful
Suspension of the Privilege of the Writ of ecology is violated, or threatened with violation by
Habeas Corpus an unlawful act or omission of a public official or
employee, or private individual or entity, involving
The President may suspend the privilege for a environmental damage of such magnitude as to
period not exceeding 60 days. The grounds for the prejudice the life, health or property of inhabitants in
suspension of the privilege are: two or more cities or provinces.
1. Actual invasion or actual rebellion; and
2. When the public safety requires the Requisites for the issuance of the Writ:
suspension 1. There is an actual or threatened violation of the
constitutional right to a balanced and healthful
The suspension of the privilege of the writ shall
ecology;
apply only to persons judicially charged for rebellion
2. The actual or threatened violation arises from an
or offenses inherent in or directly connected with the
invasion. unlawful act or omission of a public official or
employee, or private individual or entity; and
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During the suspension of the privilege of the writ, 3. The actual or threatened violation involves or will
any person thus arrested or detained shall be lead to an environmental damage of such
judicially charged within three days, otherwise he magnitude as to prejudice the life, health or
shall be released. (PHIL. CONST., art. 7, § 18) property of inhabitants in two or more cities or
provinces. (Segovia v. The Climate Change
Inapplicability of the Writ of Habeas Corpus Commission, G.R. No. 211010, March 7, 2017)
1. To question the conditions of confinement
2. Once charges have been filed in court Who may file
a. Natural Persons
Limitations to the Writ of Habeas Corpus b. Juridical Persons
EXTENDS TO DOES NOT EXTEND c. Entity organized by law
TO d. NGO
All cases of illegal Questions of e. Any public interest group accredited by or
confinement or conditions of f. registered with any government agency
detention by which any confinement; but only (Sec. 1)
person is deprived of to the fact and
his liberty, or by which duration of
Where to file
the rightful custody of confinement.
The petition shall be filed with the Supreme Court or
any person is withheld
with any of the stations of the Court of Appeals.
from the person It is not a means for
(Sec. 3)
entitled to it. the redress of
grievances or to seek
It is essential to inquire injunctive relief or a. When Is The Writ Issued
into all manner of damages. (In re: Major
involuntary restraint Aquino, G.R. 174994, Within three (3) days from the date of filing of
and to relieve a person Aug. 31, 2007) the petition, if the petition is sufficient in form
from it if such restraint and substance (Sec. 5)
is illegal.
What are the reliefs granted
Directing the respondent to:
a. Permanently cease and desist from
committing acts or neglecting the
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performance of a duty in violation of b. In case of extrajudicial disappearance or

environmental laws killings:
b. Permanently cease and desist from o Spouse, Children and Parents
committing acts or neglecting the o Any ascendant, descendant or
performance of a duty in violation of collateral Relative of the
environmental laws aggrieved party within the fourth
c. Protect, preserve, rehabilitate or restore the civil degree of consanguinity or
affinity in default of those
environment;
mentioned in the preceding
d. Monitor strict compliance with the decision paragraph.
and orders of the court
e. Make periodic reports on the execution of National Bilibid Inmates
the final judgment The right of a convicted national inmate to his or her
f. Other reliefs which relate to the right of the privacy runs counter to the state interest of
people to a balanced and healthful ecology preserving order and security inside our prison
or to the protection, preservation, systems. There is no longer any reasonable
rehabilitation or restoration of the expectation of privacy when one is being monitored
environment. and guarded at all hours of the day. Unless there is
compelling evidence that a public employee
engaged in the gathering, collecting or storing of
3. WRIT OF HABEAS DATA data or information on the convicted national inmate
has committed an unlawful act which threatens the
Definition (Sec. 1) life of the inmate, a petition for the writ of habeas
The writ of habeas data is a remedy available to any data cannot prosper (In the Matter of the Petition for
person whose right to privacy in life, liberty or Writ of Habeas Corpus/Data v. De Lima, G.R. Nos.
security is violated or threatened by an unlawful act
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215585 & 215768, Sept. 8, 2020).
or omission of a public official or employee, or of a
private individual or entity engaged in the gathering,
4. WRIT OF AMPARO
collecting or storing of data or information regarding
the person, family, home and correspondence of the
aggrieved party. A remedy available to any person whose right to life,
liberty and security is violated or threatened with
Purpose violation by an unlawful act or omission of a public
It bears reiteration that like the Writ of Amparo, official or employee, or of a private individual or
habeas data was conceived as a response, given entity. (Sec. of National Defense v. Manalo, G.R.
the lack of effective and available remedies, to No. 180906, Oct. 7, 2008)
address the extraordinary rise in the number of
killings and enforced disappearances. Its intent is to The Writ of Amparo does not cover threats to
address violations of or threats to the rights to life, property. To be entitled to a Writ of Amparo,
liberty or security as a remedy independently from petitioners must prove that their rights to life, liberty,
those provided under prevailing Rules. Writs of and security are being violated or threatened by an
Amparo and habeas data will not issue to protect unlawful act or omission. The intrusion into their
purely property or commercial concerns nor when farm was merely a violation of property rights.
the grounds invoked in support of the petitions (Pador v. Arcayan, G.R. No. 18346, March 12,
therefor are vague or doubtful. Employment 2013)
constitutes a property right under the context of the
due process clause of the Constitution. It is evident Examples of Property Rights Not Covered:
that respondent’s reservations on the real reasons a. Right to be restituted of personal
for her transfer - a legitimate concern respecting the belongings. It is already subsumed under
terms and conditions of one’s employment - are the general rubric of property rights which
what prompted her to adopt the extraordinary are no longer protected by the writ of
remedy of habeas data. (Manila Electric Company amparo. (Roxas v. Arroyo, G.R. No.
v. Lim, G.R. No. 184679, Oct. 5, 2010) 189155, Sept. 7, 2010)
b. Merely seeking protection of property
Who May File (P-SCP-R) (Sec. 2) rights, like land in possession of the
a. Any person whose right to Privacy is petitioners. (Castillo v. Cruz, G.R. No.
threatened 182165, Nov. 25, 2009)
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c. Violent incidents purely property-related element of government participation. (Spouses

such as acts of terrorism in relation to a Martin and Santiago v. Tulfo, G.R. No. 205039, Oct.
disputed land (Tapuz v. Hon. Judge del 21, 2015)
Rosario, G.R. No. 182484, June 17, 2008)
Coverage
The writ shall cover (1) extralegal killings and (2)
Two-fold Burden for Public Authorities
enforced disappearances or threats thereof. (The
The burden for the public authorities to discharge in
Rule on Writ of Amparo, A.M. No. 07-9-12-SC, Sec.
these situations, under the Rule on the Writ of
1)
Amparo, is two-fold.
1. The first is to ensure that all efforts at disclosure Extralegal Killings
and investigation are undertaken under pain of Extralegal killings are killings committed without due
indirect contempt from this Court when process of law, i.e., without legal safeguards or
governmental efforts are less than what the judicial proceedings. (Mison v. Gallegos, G.R. No.
individual situations require. 210759, June 23, 2015)
The second is to address the disappearance, so that
the life of the victim is preserved and his or her Enforced Disappearance
liberty and security restored. (Razon v. Tagitis, G.R. Enforced disappearances are attended by the
No. 182498, Dec. 3, 2009) following characteristics:
1. An arrest, detention or abduction of a person by
The remedy of the writ of amparo provides rapid a government official or organized groups or
judicial relief as it partakes of a summary proceeding private individuals acting with the direct or
that requires only substantial evidence to make the indirect acquiescence of the government.
appropriate reliefs available to the petitioner; it is not 2. The refusal of the State to disclose the fate or
an action to determine criminal guilt requiring proof whereabouts of the person concerned or a
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beyond reasonable doubt, or liability for damages
refusal to acknowledge the deprivation of liberty
requiring preponderance of evidence, or
administrative responsibility requiring substantial which places such persons outside the
evidence that will require full and exhaustive protection of law. (Mison v. Gallegos, G.R. No.
proceedings. (Razon v. Tagitis, G.R. No. 182498, 210759, June 23, 2015)
Dec. 3, 2009)
The framers of the Amparo Rule never intended

Section 5(c) to be complete in every detail in stating
Elements of an Enforced Disappearance
1. That there be an arrest, detention, abduction or
any form of deprivation of liberty;
the threatened or actual violation of a victim’s rights. 2. That it be carried out by, or with the
As in any other initiatory pleading, the pleader must authorization, support or acquiescence of, the
of course state the ultimate facts constituting the State or a political organization;
cause of action, omitting the evidentiary details. In 3. That it be followed by the State or political
an Amparo petition, however, this requirement must
organization’s refusal to acknowledge or
be read in light of the nature and purpose of the
proceeding, which addresses a situation of give information on the fate or whereabouts of
uncertainty; the petitioner may not be able to the person subject of the amparo
describe with certainty how the victim exactly petition; and
disappeared, or who actually acted to kidnap, 4. That the intention for such refusal is to remove
abduct or arrest him or her, or where the victim is the subject person from the protection of the law
detained, because these information may purposely for a prolonged period of time. (Section 3(g) R.A.
be hidden or covered up by those who caused the No. 9851; Mison v. Gallegos, G.R. No. 210759,
disappearance. Section 5(e) merely requires that June 23, 2015)
the Amparo petitioner (the respondent in the present
case) allege “the actions and recourses taken to
National Bilibid Inmates
determine the fate or whereabouts of the aggrieved
The remedy of the writ of amparo may be available
party and the identity of the person responsible for
even to convicted national inmates, as long as the
the threat, act or omission.” (Razon v. Tagitis, G.R.
alleged abduction was made for the purpose of
No. 182498, Dec. 3, 2009)
placing the national inmate outside the protection of
the law. However, considering that the Secretary of
Indispensable Element of Gov’t Participation
Justice has the authority to determine the movement
The petitioner in an amparo case has the burden of
of national inmates between penal facilities, there is
proving by substantial evidence the indispensable
no compelling reason to grant the writ of amparo in
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situations where there is an urgent need to remove

the national inmates from their place of confinement
and to transfer them to another detention facility. (In
the Matter of the Petition for Writ of Habeas
Corpus/Data v. De Lima, G.R. Nos. 215585 &
215768, Sept. 8, 2020).
————- end of topic ————
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III. SOCIAL JUSTICE AND HUMAN A. CONCEPT OF SOCIAL JUSTICE

RIGHTS
Social Justice
It is the embodiment of the principle that those who
TOPIC OUTLINE UNDER THE SYLLABUS have less in life should have more in law.
A. CONCEPT OF SOCIAL JUSTICE The import of social justice is that when the law can
B. ECONOMIC, SOCIAL, AND CULTURAL be interpreted in more ways than one, an
RIGHTS interpretation that favors the underprivileged must
C. COMMISSION ON HUMAN RIGHTS be favored. It should be noted, however, that for all
1. Powers and Functions its liberality to the underprivileged, it does not
tolerate behavior contrary to law.
Section 1 translates the principle of more in law for

those who have less in life into a duty of the state to
attend to “the enactment of measures that protect
and enhance the right of all the people to human
dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by
equitable diffusing wealth and political power for the
common good.” (PHIL CONST., art. XIII, §1[1])
To achieve social justice, the Constitution provides

two principal tracks: first, there must be regulation of
the acquisition, ownership, use, and disposition of
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property and its increment (Phil Const., art. XIII,
§1[2]), and second, Congress should create
economic opportunities based on freedom of
initiative and self-reliance (PHIL CONST., art. XIII,
§2).
bit.ly/BN23Corrections These provisions have to be implemented by

Congress.
Nature of Policy
The policy of social justice is not intended to
countenance wrongdoing simply because it is
committed by the underprivileged. It may mitigate
the penalty but it certainly will not condone the
offense. Compassion for the poor is an imperative
of every humane society but only when the recipient
is not a rascal claiming an undeserved privilege.
Social justice cannot be permitted to be refuge of
scoundrels any more than can equity be an
impediment to the punishment of the guilty. Those
who invoke social justice may do so only if their
hands are clean and their motives blameless and
not simply because they happen to be poor.
(International School Manila v. International School
Alliance of Educators, G.R. No. 167286, Feb. 5,
2014)
Humanization of Laws and Equalization of

Social and Economic Forces
The promotion of social justice, however, is to be
achieved not through a mistaken sympathy towards
any given group. Social justice is "neither
communism, nor despotism, nor atomism, nor
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anarchy," but the humanization of laws and the The guarantees of the civil and political rights found
equalization of social and economic forces by the principally in the Bill of Rights are self-executory and
State so that justice in its rational and objectively ready for use. One can assert those rights in a court
secular conception may at least be approximated. of justice.
Social justice means the promotion of the welfare of
all the people, the adoption by the Government of Social rights, on the other hand, are not rights in the
measures calculated to insure economic stability of strict sense that the rights in the Bill of Rights are
all the competent elements of society, through the except to the extent that they prohibit government
maintenance of a proper economic and social from embarking in activity contrary to the ideals of
equilibrium in the interrelations of the members of social justice. These are primarily in the nature of
the community, constitutionally, through the claims or demands which people expect
adoption of measures legally justifiable, or extra- government to satisfy, or they are ideals which
constitutionally, through the exercise of powers government is expected to respect. Thus, in the
underlying the existence of all governments on the nature of things, the satisfaction of these demands
time-honored principle of salus populi est suprema must for the most part, depend on legislation. (Gios-
lex. Samar, Inc. v. DOTC, G.R. No. 217158, March 12,
2019)
Social justice, therefore, must be founded on the
recognition of the necessity of interdependence B. ECONOMIC, SOCIAL, and
among divers and diverse units of a society and of CULTURAL RIGHTS
the protection that should be equally and evenly
extended to all groups as a combined force in our Economic, social, and cultural rights include the
social and economic life, consistent with the
rights to adequate food, adequate housing, to
fundamental and paramount objective of the state of
promoting the health, comfort, and quiet of all education, to health, to social security, to take part
in cultural life, to water and sanitation, and to work.
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persons, and of bringing about "the greatest good to
the greatest number.” (Calalang v. Williams, G.R. (United Nations Human Rights, Office of the High
No. 47800, Dec. 2, 1940) Commissioner)
Principal Activities Labor
1. Creation of more economic opportunities and Article XIII, Section 3 elaborates on the provision in
more wealth Article II by specifying who are protected by the
2. Closer regulation of the acquisition, ownership, Constitution, what rights are guaranteed, and what
use, and disposition of property in order to positive measures the state should take in order to
achieve a more equitable distribution of wealth enhance the welfare of labor.
and political power
3. Creation of economic opportunities based on The State, as provided for in the first paragraph,
freedom of initiative and self-reliance shall “afford full protection to labor, local and
overseas, organized and unorganized, and promote
The increases in SSS contributions reflected in the full employment and equality of employment
assailed issuances are a valid exercise of police opportunities for all”. (PHIL CONST., art. XIII, §3)
power as they are reasonably necessary to observe
the constitutional mandate of promoting social Notes:
justice under the Social Security Act. The public • The right to organize is given to all kinds of
interest involved here refers to the State's goal of workers both in the private and public sectors.
establishing, developing, promoting, and perfecting • The workers have a right to hold peaceful
a sound and viable tax-exempt social security concerted activities, except the right to strike,
system. To achieve this, the Social Security System which is subject to limitation by law. e.g.,
and the Social Security Commission are policemen, firemen, and public school teachers
empowered to adjust from time to time the are prohibited from striking.
contribution rate and the monthly salary credits. • The workers have the right to participate on
Given the past increases since the inception of the
matters affecting their rights and benefits, as
law, the contribution rate increase of 0.6% applied
may be provided by law.
to the corresponding monthly salary credit does not
scream of unreasonableness or injustice. (Kilusang • Participation may be through:
Mayo Uno v. Aquino III, G.R. No. 210500, April 2, o Collective bargaining agreements
2019) o Grievance machineries
Civil and Political Rights v. Social Rights o Voluntary modes of settling disputes
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o Conciliation proceedings mediated by the Agricultural land held by the church in trust may be
Government subject to land reform. The land reform law does not
make a distinction between the various forms of
NAMA-MCCH-NFL had not registered as a labor ownership, whether in trust or absolute title.
organization. Not being a legitimate labor
organization, NAMA-MCCH-NFL is not entitled to Urban or rural poor dwellers cannot be evicted,
those rights granted to a legitimate labor except according to law.
organization under the Labor Code, specifically: 1)
To act as the representative of its members for the Who Can Be Evicted: [DIC]
purpose of collective bargaining; 2) To be certified 1. Persons occupying Dangerous areas
as the exclusive representative of all the employees 2. When government Infrastructure projects with
in an appropriate collective bargaining unit for allocated funding are going to be implemented
purposes of collective bargaining. (Visayas 3. When there is Court order for eviction and
Community Medical Center v. Erma Yballe, et al., demolition
G.R. 196156, Jan. 5, 2014) Lands acquired by the NHA for resettlement
purposes or housing development are exempt from
Agrarian and Natural Resources Reform
the coverage of agrarian reform laws. Such
The mandate for agrarian reform, as stated in the
acquisition converts the land by operation of law
first sentence of Section 4, is based on “the right of
from agricultural to residential. The NHA is not
farmers and regular farm workers, who are landless,
bound to pay disturbance compensation to any
to own directly or collectively the lands they till or, in
tenant in possession of the purchased land
the case of other farm workers, to receive a just
(National Housing Authority v. Department of
share of the fruits thereof.”
Agrarian Reform Adjudication Board, et al., G.R.
175200, May 4, 2010)
Agrarian reform must aim at:
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1. Efficient production;
While the Constitution subjects “all agricultural
2. A more equitable distribution of land which
lands” to the envisioned agrarian reform program, it
recognizes the right of farmers and regular farm
also prescribes that the implementation of the
workers who are landless to own the land they
program should be “subject to such priorities and
till;
retention limits as Congress may prescribe, taking
3. A just share of other or seasonal farm workers
into account ecological, developmental or equity
in the fruits of the land
considerations.” Absent priorities and retention
limits set by the Congress, but provided that money
Holders of the right to own land:
has been appropriated for a program, the executive
4. Farmers: those who have a tenancy relationship
department can proceed with implementation either
with the landowners, which relationship may be
in cooperation with landowners voluntarily
present or historical.
participating in the program or through judicial
5. Farm workers
expropriation.
(a) Regular: has the right to claim the lands they
till
(b) Other: has the right to a just share in the • Priorities: refer to various factors which can
fruits of production affect the pace and scope of implementation and
which can make implementation more
The scope of the right of ownership of an agrarian manageable.
reform beneficiary can be made subject to
limitations. Congress has the right to limit the • Retention limits: pertain to the size of land an
beneficiary’s right to sell, dispose, or even mortgage individual owner will be allowed to keep, whether
the property. It may also take measures to prevent he is a cultivator or not. The general guideline is
fragmentation resulting in uneconomical or that it should be reasonable.
unproductive sizes.
Just Compensation
Scope of Agrarian Reform To the extent that agrarian reform will mean
Extends not only to private agricultural lands, but government acquisition of land, whether voluntary or
also to “other natural resources”, even including the forced, for distribution to agrarian reform
use and enjoyment of “communal marine and fishing beneficiaries, there is need to compensate
resources” and “offshore fishing grounds.” landowners justly. The agrarian reform mandated by
the Constitution is not a land confiscation program.
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Petitioner X is the lawful possessor and cultivator of Police Power and Eminent Domain
the disputed lots as farmer-beneficiary. The transfer This law is an exercise of both police power and
of farmholdings upon death of the farmer- eminent domain. The extent that it sets retention
beneficiary is governed by MC 19. limits, it is an exercise of police power. But the taking
of private lands for redistribution is an exercise of
Under MC 19, while the succession or transfer of the power of eminent domain revolutionary in
farmholdings granted under PD 27 recognized the character in that it “affects all private agricultural
pertinent provisions of the Civil Code on succession, lands wherever found and of whatever kind as long
such was subject to certain limitations: (1) as they are in excess of the maximum retention
ownership and cultivation of the farm-holding shall limits allowed their owners”. (Association of Small
ultimately be consolidated in one heir; (2) such Landowners v Secretary of Agrarian Reform, G.R.
owner-cultivator shall compensate the other heirs to No. 78742, 79310, 79744, 79777, July 14, 1989).
the extent of their respective legal interest in the
land; and (3) where there are several heirs, and in Definition of Agrarian Reform
the absence of extra-judicial settlement or waiver of RA 6657 defines "agrarian reform" as the
rights in favor of one heir, the heirs shall be free to redistribution of lands to farmers and regular
choose from among themselves one who shall have farmworkers who are landless to lift the economic
sole provided, however, that the surviving spouse status of the beneficiaries and all other
shall be given first preference; otherwise, in the arrangements alternative to the physical
absence or due to the permanent incapacity of the redistribution of lands, such as production or profit
surviving spouse, priority shall be determined sharing, labor administration and the distribution of
among the heirs according to age. (Golez v. Abais, shares of stock which will allow beneficiaries to
G.R. No. 191376, Jan. 8, 2020) receive a just share of the fruits of the lands they
work.
Primary Jurisdiction of the DAR
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The Comprehensive Agrarian Reform Program Does Not Include Livestock and Poultry
vests Department of Agrarian Reform with primary The transcripts of the deliberations of the
jurisdiction over agrarian reform matters and over all Constitutional Commission of 1986 on the meaning
matters involving the implementation of agrarian of the word "agricultural," clearly show that it was
reform. Thus, in carrying out its mandate of never the intention of the framers of the Constitution
resolving disputes and controversies in the most
expeditious manner, the DAR is not constrained by
the technical rules of procedure and evidence. The
Secretary has primary jurisdiction over all matters
to include livestock and poultry industry in the
coverage of the constitutionally-mandated agrarian
reform program of the Government. (Luz Farms v.
Secretary of the Department of Agrarian Reform,
involving the implementation of agrarian reform, G.R. No. 86889, December 4, 1990)
including the investigation of acts that he or she
believes are directed toward the circumvention of Definition of Agricultural Land
the objectives of the Comprehensive Agrarian Section 4 of R.A. 6657 provides that the CARL shall
Reform Program. (Fil-Estate Properties, Inc. v. "cover, regardless of tenurial arrangement and
Reyes, G.R. Nos. 152797, 189315 & 200684, Sept. commodity produced, all public and private
18, 2019) agricultural lands." As to what constitutes
"agricultural land," it is referred to as "land devoted
The findings of administrative agencies, such as the to agricultural activity as defined in this Act and not
Department of Agrarian Reform, are deemed classified as mineral, forest, residential, commercial
binding and conclusive upon the appellate courts. or industrial land." The deliberations of the
Administrative agencies possess special knowledge Constitutional Commission confirm this limitation.
and expertise on matters falling under their "Agricultural lands" are only those lands which are
specialized jurisdiction. Thus, their findings, when "arable and suitable agricultural lands" and "do not
supported by substantial evidence, are accorded include commercial, industrial and residential
great respect and even finality, especially when lands." (Natalia Realty, Inc. v. Department of
affirmed by the Court of Appeals. (Fil-Estate Agrarian Reform, G.R. No. 103302, Aug. 12, 1993)
Properties, Inc. v. Reyes, G.R. Nos. 152797,
189315 & 200684, Sept. 18, 2019) Lands Covered
Republic Act No. 6657 or the Comprehensive
Comprehensive Agrarian Reform Law Agrarian Reform Law generally covers all public and
The Comprehensive Agrarian Reform Law private agricultural lands. It covers all public and
(Republic Act 6657) implements the agrarian reform private agricultural lands, as provided in
provisions of the Constitution. Proclamation No. 131 and Executive Order No. 229,
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including other lands of the public domain suitable The provision further provides that the State may
for agriculture, regardless of tenurial arrangement “resettle landless farmers and farm workers in its
and commodity produced. However, a maximum of own agricultural estates which shall be distributed to
five (5) hectares of the landowner's compact or them in the manner provided by law”. (PHIL CONST.,
contiguous landholdings may not be distributed to art. XIII, §6(2)). The “farmers” and “farm workers”
qualified beneficiaries, as it is within the landowner's mentioned are not to be considered as agricultural
rights to retain this area. employees of the state but as resettlers and
eventual owners of the land once these estates are
The CARP covers the following lands: dissolved. The term “farm workers” also includes
1. All alienable and disposable lands of the public laid-off industrial workers who might want to return
domain devoted to or suitable for agriculture; to the provinces to engage in farming.
2. All lands of the public domain exceeding the
total area of five hectares and below to be Section 7 makes specific reference to the rights of
retained by the landowner; small fishermen. The objects of protection are
3. All government-owned lands that are devoted to “subsistence fishermen”. The right given to them is
or suitable for agriculture; and preferential, but not exclusive, use of communal
4. All private lands devoted to or suitable for marine fishing resources, both inland and offshore.
agriculture, regardless of the agricultural The protection also extends to foreign intrusion in
products raised or can be raised on these lands. offshore fishing grounds.
As a general rule, agricultural lands that were Section 8 sees agrarian reform as a unique
reclassified as commercial, residential, or industrial instrument for releasing locked up capital in land for
by the local government, as approved by the use in industrialization in particular and economic
HLURB, before June 15, 1988 are excluded from development in general. For this purpose,
the CARP. A farm lot is not included in any of these government must create an atmosphere favorable
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categories. The reclassification of Salas' to investment by, among others, providing
landholding into a farm lot subdivision, although landowners with incentives to investment, and by
effected before Republic Act No. 6657, has not placing usable capital in the hands of landowners
changed the nature of these agricultural lands, the subjected to agrarian reform.
legal relationships existing over such lands, or the
agricultural usability of the lands. Thus, these lots Urban Land Reform and Housing
were properly subjected to compulsory coverage The State shall, by law, and for the common good,
under the CARL. (Heirs of Augusto Salas Kr. v undertake, in cooperation with the public sector, a
Cabungcal, G.R. No. 191545, March 29, 2017) continuing program of urban land reform and
housing which will make available at affordable cost
Other Provisions decent housing and basic services to
Section 5 recognizes the right of farmers and regular underprivileged and homeless citizens in urban
farm workers to participate in the program itself. The centers and resettlements areas. It shall also
right of non-regular farm workers is that of laborers promote adequate employment opportunities to
as provided for in Section 3. The State shall also such citizens. In the implementation of such
“provide support to agriculture through appropriate program the State shall respect the rights of small
technology and research, and adequate financial, property owners. (PHIL CONST., art. XIII, §9)
production, marketing, and other support services”.
(PHIL CONST., art. XIII, §5) The principal object of this constitutional mandate is
“social housing program”. The objects of concern
Section 6 extends the principles of agrarian reform are not just the underprivileged in general but the
to the disposition of other natural resources. At the “underprivileged and homeless.”
heart of agrarian reform is the principle “land to the
tiller”. It is this which must be applied, mutatis Different Kinds of Housing Programs:
mutandis, to the utilization of natural resources. (a) Open Market Housing Program -
Thus, one may speak of “natural resources reform.” addressed to those of the higher income
sector who can afford to choose the kind of
Stewardship, as mentioned in this provision, means houses they want
that the individual would have free use or (c) Economic Market Housing Program -
occupancy, but he would not be given a legal title to addresses the lower income bracket who are in
the land. This is what is referred to in law as search of affordable housing
usufructuary.
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(d) Social Housing Program - addresses those account their maternal functions, and such facilities
who cannot afford even low-cost housing and and opportunities that will enhance their welfare and
needs some sort of subsidy enable them to realize their full potential in the
service of the nation (PHIL CONST., art. XIII, §14).
Urban or rural poor dwellers shall not be evicted nor
their dwellings demolished, except in accordance People’s Organization
with law and in a just and humane manner. No
resettlement of urban or rural dwellers shall be Role and Rights of People’s Organizations
undertaken without adequate consultation with them Section 15 embodies one of those elements of direct
and the communities where they are to be relocated. democracy – a recognition of the direct role which
(PHIL CONST., art. XIII, §10) people have played and will play in setting the
directions the nation will take. It defines people’s
Eviction and demolition "in accordance with law and organizations as – bona fide associations of citizens
in a just and humane manner" does not mean that with demonstrated capacity to promote the public
the validity or legality of the demolition or eviction is
interest and with identifiable leadership,
hinged on the existence of a resettlement area
membership, and structure. “People” here refers not
designated or earmarked by the government."
Rather, it means that "the person to be evicted be just to the electorate but to all the people.
accorded due process or an opportunity to
controvert the allegation that his or her occupation C. COMMISSION ON HUMAN RIGHTS
or possession of the property involved is unlawful or
against the will of the landowner; that should the 1. POWERS AND FUNCTIONS [IAC-
illegal or unlawful occupation be proven, the PE2RM-IRA]
occupant be sufficiently notified before actual
eviction or demolition is done; and there be no loss 1. Investigate all forms of human rights violations
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of lives, physical injuries or unnecessary loss of or involving civil or political rights and recommend.
damage to properties. (People v. Leachon, G.R. 2. Adopt operational guidelines and rules of
Nos. 108725-726, 1998) procedure.
3. Cite for Contempt for violations of its rules, in
The National Housing Authority is authorized to accordance with the Rules of Court.
order relocation of persons occupying the land and
the demolition of the improvements thereon as part
of its mandate to improve blighted areas.
4. Provide appropriate legal measures for the
protection of the human rights of all persons,
within the Philippines, as well as Filipinos
residing abroad, and provide for preventive
Health measures and legal aid services to the
The State shall adopt an integrated and underprivileged whose human rights have been
comprehensive approach to health development violated or need protection.
which shall endeavor to make essential goods, 5. Exercise visitorial powers over jails, prisons and
health and other social services available to all the other detention facilities.
people at affordable cost. There shall be priority for 6. Establish continuing programs for research,
the needs of the underprivileged sick, elderly, education and information in order to enhance
disabled, women, and children. The State shall respect for the primacy of human rights.
endeavor to provide free medical care to paupers. 7. Recommend to congress effective measures to
(PHIL CONST., art. XIII, §11) promote human rights and to provide
compensation to victims of human rights
The key concepts in Section 11 are “integrated and violations or their families.
comprehensive” and “affordable”. Integration 8. Monitor compliance by the government with
connotes a unified health delivery system, a international treaty obligations on human rights.
combination of public and private sector while 9. Grant Immunity from prosecution to any person
comprehensiveness includes health promotion, whose testimony or whose possession of
disease prevention, education, and planning. documents or other evidence is necessary or
Although the right to health should be enjoyed by all, convenient to determine the truth in any CHR
Sections 11 to 13 express a clear bias for the investigation.
underprivileged. 10. Request assistance from any department,
bureau, office, or agency in the performance of
Women its functions.
The State shall protect working women by providing 11. Appoint its officers and employers in
safe and healthful working conditions, taking into accordance with law. (PHIL CONST., art. XIII, §11)
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NOTE:
• Violations may be committed by public officers or
by civilians or rebels.
• CHR cannot investigate violations of social
rights.
• CHR has NO adjudicatory powers over cases
involving human rights violations.
• They cannot investigate cases where no rights
are violated. e.g., There is no right to occupy
government land (squat). Therefore, eviction
therefrom is NOT a human rights violation.
• The CHR can initiate court proceedings on
behalf of victims of human rights violations.
• The CHR can recommend the prosecution of
human rights violators, but it cannot itself
prosecute these cases.
• The CHR cannot issue restraining orders or
injunctions against alleged human rights
violators. These must be obtained from the
regular courts.
2. COMPOSITION AND
QUALIFICATION OF MEMBERS
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The Commission is composed of a Chairman and
four (4) members who must be natural born citizens
of the Philippines and a majority of whom must be
members of the Bar. The term of office, other
qualifications, and disabilities shall be provided for
by law. (PHIL CONST., art. XIII, §17[2])
The appointment of the CHR members is not subject

to CA confirmation; and the CHR is not of the same
level as the COMELEC, CSC, or COA.
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IV. EDUCATION, SCIENCE, A. ACADEMIC FREEDOM

TECHNOLOGY, ARTS, CULTURE, AND
Academic freedom shall be enjoyed in all institutions
SPORTS of higher learning. (PHIL CONST., art XIV, § 5, ¶ 2)
TOPIC OUTLINE UNDER THE SYLLABUS Whose Academic Freedom?

1. Institutions
A. ACADEMIC FREEDOM 2. Faculty
3. Students
Note: Freedom of the institution and freedom of the

faculty are different.
Freedom of the Faculty

It is the freedom of professionally qualified persons
to inquire, discover, publish and teach the truth as
they see it in the field of their competence, subject
to control of the methods. (Garcia v. Faculty
Admission Committee, G.R. No. L-40779, Nov. 28,
1975)
Faculty Members Have:

1. Full freedom in research and in the publication
of the results, subject to the adequate
performance of their other academic duties.
FOR ONE ATENEO 2. Freedom in the classroom in discussing their

subjects, but they should be careful not to
introduce into their teaching controversial matter
which has no relation to their subjects.
bit.ly/BN23Corrections 3. Freedom from institutional censorship or

discipline, when faculty members speak or write
in their capacity as citizen.
Institutional Academic Freedom

From the standpoint of the institution: to provide that
atmosphere which is most conducive to speculation,
experimentation, and creation. The four essential
freedoms of a university are:
a. Who may teach
b. What may be taught
c. How it shall teach
d. Who may be admitted to study (Garcia v.
Faculty Admission Committee, G.R. No. L-
40779, Nov. 28, 1975; citing J. Frankfurter,
concurring in Sweezy v. New Hampshire,
354 US 234, June 17, 1957)
Right to Decide for Itself

Institutional academic freedom includes the right of
the school or college to decide for itself, its aims and
objectives, and how best to attain them free from
outside coercion or interference save possibly when
the overriding public interest calls for some restraint.
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Right to Discipline Students Limitations:

The right to discipline the student likewise finds a. Police power of the State
basis in the freedom "what to teach." Indeed, while b. Social interest of the community
it is categorically stated under the Education Act of
1982 that students have a right "to freely choose Constitutional Right of Speech and Assembly
their field of study, subject to existing curricula and Academic freedom cannot be used to discriminate
to continue their course therein up to graduation," against students exercising constitutional right of
such right is subject to the established academic speech and assembly. However, it is NOT protected
and disciplinary standards laid down by the when speech materially disrupts classwork or
academic institution. (DLSU Inc., v. CA, G.R. No. causes disorder or invasion of the right. (Non v.
127980, Dec. 19, 2007) Dames, G.R. No. 89317, May 20, 1990)
Freedom to Determine Who May be Admitted to Right to Select Profession or Course of Study
Study Includes: Every citizen has a right to select a profession or
a. Right to determine who may be granted course of study, subject to fair, reasonable, and
degrees equitable admission and academic requirements.
b. Right to determine who are entitled to the (PHIL CONST., art XIV, § 5, ¶ 3)
grant of honors (University of San Carlos v.
CA, G.R. No. 79237, Oct. 18, 1988) Rights of Teachers and Other Personnel
The State shall enhance the right of teachers to
Institutions cannot be compelled by mandamus to professional advancement. Non-teaching academic
admit students because there is no duty to admit. At and non-academic personnel shall enjoy the
most, students can lay claim to a privilege, NOT a protection of the State. (PHIL CONST., art. XIV, § 5, ¶
right. (Garcia v. Faculty Admission Committee, G.R. 4)
No. L-40779, Nov. 28, 1975)
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Non-teaching and non-academic personnel also
Right to Education Subject to Academic enjoy protection. They are essential to the success
Freedom of the education system.
Right to education is subject to broad academic
freedom to impose fair, reasonable, and equitable Highest Budgetary Priority to Education
admission and academic requirements. Right to The State shall assign the highest budgetary priority
receive education is not a right to be admitted to to education and ensure that teaching will attract
institutions. (Pimentel v. LEB, G.R. No. 230642, July and retain its rightful share of the best available
2, 2019) talents through adequate remuneration and other
means of job satisfaction and fulfillment. (PHIL
General Rule on the State’s Power CONST., art XIV, § 5, ¶ 5)
The state’s power over educational institutions is
only supervisory and regulatory. The state can only This provision does not mean that all must yield to
giving highest budgetary priority to education. This
impose minimum regulations. (Pimentel v. LEB,
cannot deprive the Congress from responding to
G.R. No. 230642, July 2, 2019) national interest and other state policies or
objectives. For instance, allocation of larger share to
Exceptions: debt service than education is NOT unconstitutional.
1. Marked arbitrariness or grave abuse of (Guingona v. Carague, G.R. No. 9457, Apr. 22,
discretion on the part of the institution 1991)
2. Overriding public welfare (Pimentel v. LEB, G.R.
No. 230642, July 2, 2019)
A state-imposed pass or fail exam that dictates upon
schools who are to be admitted exceeds minimum
standards. It goes beyond mere supervision and
regulation. It violates academic freedom to
determine who may be admitted. (Pimentel v. LEB,
G.R. No. 230642, July 2, 2019)
Rights of Students
Students have the right to enjoy in school the
guarantees of the Bill of Rights.
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3. The exploration, development and

I. REGALIAN DOCTRINE
utilization (EDU) of all natural resources
shall be under the full control and
Three-Fold Goal of the National Economy supervision of the State either by directly
1. More equitable distribution of opportunities, undertaking such EDU or through co-
income and wealth; production, joint venture, or production
2. Increase of wealth for the benefit of the sharing agreements with qualified persons.
people, and 4. The use and enjoyment of the marine
3. Increased productivity (Phil. CONST, wealth of the archipelagic waters, territorial
Art.XII, § 1) sea, and the EEZ shall be reserved for
Filipino citizens
REGALIAN DOCTRINE 5. Utilization of natural resources in rivers,
lakes, bays and lagoons may be allowed
IMPERIUM DOMINIUM only on a ‘small scale’ to Filipino citizens or
Government authority The capacity of the cooperatives— with priority for subsistence
possessed by the State State to own and fishermen and fish workers. (PHIL. CONST.
which is appropriately acquire property. art.XII, § 2)
embraced in It refers to lands held
sovereignty. by the government in a Exception with respect to rule on EDU
proprietary character. For large-scale EDU of minerals, petroleum and
other mineral oils, the President may enter into
agreements with foreign-owned corporations
What is the Regalian doctrine? (Jura Regalia) involving technical or financial assistance.
Universal feudal theory that all lands were held from
the Crown. All lands not otherwise clearly appearing 25-year Limitation
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to be privately owned are presumed to belong to the All agreements with the qualified private sector (i.e
State. (Cariño v. Insular Government, 212 U.S. 449, Filipino citizens or corporations or associations at
Feb. 23, 1909) least 60% whose capital is owned by Filipino
citizens) may be for only a period not exceeding 25
years, renewable for another 25.
State Owned: (PWEFFOM)
1. Lands of the Public domain
2. Waters Note that the 25-year limit is not applicable to water
3. Minerals, coals, petroleum, and other rights for irrigation, water supply, fisheries, or
mineral oils industrial uses other than the development of power.
4. All sources of potential Energy
5. Fisheries II. PUBLIC TRUST DOCTRINE
6. Forests or timber
7. Wildlife
The Public Trust Doctrine, while derived from
8. Flora and fauna
English common law and American jurisprudence,
9. Other natural resources
has firm Constitutional and statutory moorings in our
(PHIL. CONST. art. XII, § 2)
jurisdiction. The doctrine speaks of an imposed duty
upon the State and its representative of continuing
General Rule: All natural resources cannot be
supervision over the taking and use of appropriated
alienated.
water. Thus, "[p]arties who acquired rights in
Exception: Agricultural lands
trust property [only hold] these rights subject to
the trust and, therefore, could assert no vested
Limitations on the disposition of the State of
right to use those rights in a manner harmful to
alienable lands of the public domain
the trust."
1. Only agricultural lands of the public domain
may be alienated;
In this framework, a relationship is formed - "the
2. Only Filipino citizens may acquire lands not
state is the trustee, which manages specific
more than 12 hectares by purchase,
natural resources the trust principal - for the
homestead or grant or lease no more than
trust principal for the benefit of the current and
500 hectares. Private corporations may
future generations - the beneficiaries." The State
lease not more than 1,000 hectares for 25
has an affirmative duty to take the public trust into
years renewable for another 25 years.
account in the planning and allocation of water
(PHIL. CONST. art. XII, § 3)
resources, and to protect public trust uses whenever
feasible. The public is regarded as the beneficial
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owner of trust resources, and courts can enforce the 1. Aliens may be lessees or usufructuaries of
public trust doctrine even against the government private lands
itself. 2. Aliens may be mortgagees of land, as long
as they do not obtain possession thereof
In essence, the public trust doctrine is based on the and do not bid in the foreclosure sale.
notion that private individuals cannot fully own trust 3. Land tenure is not indispensable to the free
resources but can only hold them subject to a exercise of religious profession and
servitude on behalf of the public. States can worship. A religious corporation controlled
accomplish this goal more efficiently through by non-Filipinos cannot acquire and own
statutory regulation which was essentially done land, even for religious purposes.
through the legislation of the Clean Water Act, and
the urgency and significance of which is now fortified Instance when an Alien-Filipino couple buys
by the courts under the Public Trust Doctrine as land
clamored for by the circumstances of this case. When a couple buys land, where one is an alien and
one is Filipino, the property does not become part of
(Maynilad Water Services, Inc. v. Secretary of the the conjugal property. It will only be owned by the
DENR, G.R. No. 202897, August 06, 2019) Filipino spouse (Cheeseman v. IAC, G.R. No.
74833, Jan. 21, 1991).
III. NATIONALIST AND CITIZENSHIP An alien cannot challenge any act of administration,
REQUIREMENT PROVISIONS enjoyment, or alienation of his/her Filipino spouse
over a piece of land his/her spouse acquired.
Rule on Private Lands (Matthews v. Taylor Spouses, G.R. No. 164584,
General Rule: Private lands CAN only be conveyed June 22, 2009).
to:
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1. Filipino citizens Remedies to Recover Private Lands from
2. Corporations or associations incorporated Disqualified Aliens: ERR
in the Philippines, at least 60% of whose 1. Escheat proceedings
capital is owned by Filipino citizens (PHIL. 2. Action for Reversion under the Public
CONST. art.XII, § 7) Land Act
3. An action by the former Filipino owner to
Exceptions: Recover the land
● In intestate succession, where an alien heir
of a Filipino is the transferee of private land. Although the sale of a lot to an alien violated the
(PHIL. CONST. art.XII, § 7). constitutional prohibition on aliens acquiring land,
● A natural-born citizen of the Philippines the acquisition by succession by Filipino citizens
who has lost his Philippine citizenship may qualified to acquire lands, can no longer be
be a transferee of private land, subject to impugned on the basis of the invalidity of the initial
limitation provided by law. Hence, land can transfer. The flaw in the original transaction is
be used only for residential purposes. In considered cured and the title of the transferee is
this case, he only acquires derivative title deemed valid considering that the objective of the
(PHIL. CONST. art.XII, § 7). However, a constitutional proscription against alien ownership
former natural born Filipino citizen who of lands, that is to keep our lands in Filipino hands,
became a citizen of other countries may has been achieved. (Republic v. Register of Deeds,
acquire land for business and other G.R. 158230, July. 16, 2008).
purposes. (R.A. No. 8179, § 5).
● Foreign states may acquire land but only for Considering that the rights and liabilities of the
embassy and staff residence purposes. parties under the Contract to Sell is covered by the
Condominium Act wherein petitioner as unit owner
When Filipino Citizenship Required was simply a member of the Condominium
Filipino citizenship is only required at the time the Corporation and the land remained owned by
land is acquired. Thus, loss of citizenship after respondent, then the constitutional proscription
acquiring the land does not deprive ownership. against aliens owning real property does not apply
to the present case. There being no circumvention
Scope of Restriction of the constitutional prohibition, the Court's
Restriction against aliens only applies to acquisition pronouncements on the invalidity of the Contract of
of ownership. Therefore: Sale should be set aside (Hulst v. PR Builders, G.R.
156364, Sept. 25, 2008).
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Private corporations independent national economy effectively controlled

1. They can only hold alienable lands of the by Filipinos” is not self-executory. The control and
public domain BY LEASE. regulation of trade in the interest of the public
2. Period: Cannot exceed 25 years, welfare is of course an exercise of the police power
renewable for not more than 25 years of the State. A person’s right to property, whether he
3. Area: Lease cannot exceed 1,000 is a Filipino citizen or foreign national, cannot be
hectares. taken from him without due process of law. The
NOTE: A corporation sole is treated like Court is not convinced that the implementation of
other private corporations for the purpose RA 8762 would eventually lead to alien control of the
of acquiring public lands. retail trade business. Petitioners have not mustered
any concrete and strong argument to support its
Filipino citizens thesis. The law itself has provided strict safeguards
1. Can lease up to 500 hectares on foreign participation in that business. (Espina v.
2. Can ACQUIRE not more than 12 hectares Zamora, G.R. 143855, Sept. 21, 2010).
by purchase, homestead or grant
ACTIVITY CITIZENSHIP AND/OR
National Economy and Patrimony Investments EQUITY REQUIREMENTS
Powers of Congress: EXPLORATION 1. Filipino citizens
1. Reserve to Filipino citizens or to OF NATURAL 2. Domestic Corporations
corporations or associations at least 60% of RESOURCES (60%
whose capital is owned by such citizens, or Filipino owned)
such higher percentage as Congress may OPERATION 1. Filipino citizens
prescribe, certain areas of investment. This OF PUBLIC 2. Domestic Corporations
may be done when the national interest UTILITIES (60%
dictates. Filipino owned)
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2. Enact measures to encourage the ACQUISITION 1. Filipino citizens
formation and operation of enterprises OF 2. Domestic Corporations
whose capital is wholly owned by Filipinos ALIENABLE (60%
(PHIL. CONST., art. XII, § 10). LANDS OF THE Filipino owned)
PUBLIC 3. Former natural-born
In the grant of rights, privileges and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
This provision is self-executory. The Supreme Court
DOMAIN citizens of RP (as transferees
with certain legal restrictions)
4. Alien heirs (as transferees
in case of intestate
banked on this to uphold the decision of GSIS to succession)
grant the Manila Hotel project to a Filipino PRACTICE OF 1. Filipino citizens only
corporation, even though a Malaysian firm turned ALL (natural
out to be the highest bidder. (Manila Prince Hotel v. PROFESSIONS persons)
GSIS, G.R. 122156, Feb. 3, 1997). 2. Congress may, by law,
otherwise
However, the GATT Treaty (which placed aliens on prescribe
the same footing as Filipinos) was upheld by the MASS MEDIA 1. Filipino citizens
Supreme Court. It reasoned that the provision which 2. Domestic Corporations
mandates preference to Filipinos is only enforceable (100%
with respect to “grant of rights, privileges and Filipino owned)
concessions covering national economy and ADVERTISING 1. Filipino citizens
patrimony,” and not all aspects of trade and 2. Domestic Corporations
commerce. (Tanada v. Angara, G.R. 118295, May (70%
2, 1997). Filipino owned)
EDUCATIONAL 1. Filipino citizens
The Retail Trade Liberalization Act of 2000 (RA INSTITUTION 2. Domestic Corporations
8762) is constitutional. It allowed foreign nationals (60%
to engage in retail trade business in the Philippines. Filipino owned)
It also allowed natural-born Filipino citizens, who
had lost their citizenship and now reside in the Exception: Schools
Philippines, to engage in the retail trade business established by religious
with the same rights as Filipino citizens. The groups and mission boards.
mandate for the State to develop a “self-reliant and
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Congress may, by law, IV. EXPLORATION, DEVELOPMENT, AND

increase
Filipino requirements for ALL
UTILIZATION OF NATURAL RESOURCES
educational institutions.
1. Shall be under the full control and
supervision of the State
MEANS:
The state may directly undertake such
OTHER Congress may, by law,
activities. The state may enter into co-
ECONOMIC reserve to
production, joint venture or production-
ACTIVITIES Filipino citizens or to
sharing arrangements with Filipino
Domestic Corporations (60%
citizens or corporations or associations at
Filipino owned or higher)
least 60% of whose capital is owned by
certain investment areas.
such citizens.
LIMITATIONS:
Tests used to determine Nationality of a
Period: It should not exceed 25 years,
corporation:
renewable for not more than 25 years.
1. Voting Control Test – the ownership
Under terms and conditions as may be
threshold must be complied by the voting
provided by law.
shares.
2. In case of water rights, water supply,
2. Beneficial Ownership Test – the
fisheries, industrial uses other than the
ownership threshold must also apply to the
development of water power.
outstanding capital. And “capital” should be
3. The beneficial use may be the measure and
interpreted to include only voting shares.
limit of the grant.
Hence, in the computation for “capital,” only
common stock will be considered and not
Under the 1987 Constitution, the state must always
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preferred shares. (Gamboa, et.al. v.
be involved in the control and supervision of the
Finance Secretary, G.R. 176579, June 28,
exploration, development and utilization of
2011).
inalienable natural resources, even if the person
engaged is Filipino.
‘Capital’
The term “capital” in Section II, Article XII of the 1987
EO 211 of President Aquino authorized the
Constitution refers only to shares of stock entitled to
Secretary of Natural Resources to authorize such
vote in the election of directors, and thus in the
EDU agreements entered into under the 1987
present case only to common shares, and not to the
Constitution.
total outstanding capital stock (common and non-
voting shares).
Small-scale utilization of natural resources
1. Congress may, by law, authorize small-
Pursuant to the Gamboa directive, Section 2 of
scale utilization of natural resources by
SEC-MC No. 8 provides:
Filipino citizens.
“Section 2. All categories shall, at all times, observe
2. Congress may also authorize cooperative
the constitutional or statutory ownership
fish farming with priority given to
requirement. For purposes of determining
subsistence fishermen and fish workers in
compliance therewith, the required percentage of
the rivers, lakes, bays and lagoons.
Filipino ownership shall be applied to BOTH (a) the
total number of outstanding shares of stock entitled
Large-scale exploration, development, and
to vote in the election of directors; and, (b) the total
utilization of minerals, petroleum, and other
number of outstanding shares of stock, whether or
mineral oils
not entitled to vote.” (Roy III v. Herbosa, G.R. No.
1. The President may enter into agreements
207246, Nov. 22, 2016)
with foreign owned corporations involving
technical or financial assistance for large-
scale exploration, etc. of minerals,
petroleum, and other mineral oils. These
agreements should be in accordance with
the general terms and conditions provided
by law.
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2. They should be based on the real Constitution was passed, it prohibited the alienation
contributions to economic growth and of mineral lands and allowed only lease rights to
general welfare of the country. mining claimants. This was also maintained by
3. In the agreements, the State should 1943 and 1973 Constitution. On the other hand, the
promote the development and use of local authority of the State to administer inalienable
scientific and technical resources. natural resources through “license, concession or
4. The President should notify Congress of lease” was notably absent under the 1987
every contract under this provision within Constitution. Under the present Constitution, the
30 days from its execution. state is expected to take a more hands-on approach
5. Management and service contracts are not and it exercises control and supervision through the
allowed under this rule. following modes: (1) The State may directly
undertake such activities. (2) co-production/joint
Under the 1987 Constitution, the Philippine venture/production sharing agreements with Filipino
Government may still enter into service contracts, citizens or qualified corporations, (3) Congress may
but only for financial and technical agreements with allow small-scale utilization of natural resources by
respect to large scale development of minerals, Filipino citizens and lastly (4) For large-scale
petroleum, and other mineral resources. exploration, development and utilization of minerals,
petroleum and other mineral oils, the President may
Management powers may be given to a completely enter into agreements with foreign-owned
foreign corporation with whom the State enters a corporations involving technical/financial
service contract. But, such power will only be to the assistance. Instead of a first-in-time, first-in right
extent necessary to carry out the technical and approach toward applicants for mining claims and
financial agreement. mining rights, the State decides what the most
beneficial method is when it comes to exploring,
A foreign corporation may enter into financial and developing, and utilizing minerals. It may choose to
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technical assistance agreement with the either directly undertake mining activities by itself or
government involving the management and enter into co-production, joint venture, or production
operation of a mining enterprise. Section 2, Article sharing agreements with qualified applicants.
XII of the Constitution allows other forms of (Naredico v. Krominco, G.R. 196892, Dec. 5, 2018).
assistance or activities having to do with technical or
financial assistance and it will not prohibit the
involvement of foreign corporations in the
management of mining ventures. The policy
recognizes that foreign corporations who will invest
Protection of Marine Wealth
1. The State shall protect its marine wealth in
its archipelagic waters, territorial sea and
EEZ.
in mining will require that they be given a say in the 2. The State shall reserve its use and
management to ensure its success. enjoyment exclusively to Filipino citizens.
3. License Agreement — "a privilege granted
The Constitutional Commission understood by the State to a person to utilize forest
technical or financial agreements as resources within any forest land with the
interchangeable with service contracts. (La Bugal- right of possession and occupation thereof
B’laan Tribal Association, Inc. v. Ramos, G.R. to the exclusion of others, except the
127882, Jan. 27, 2004, affirmed in 2005). government, but with the corresponding
obligation to develop, protect and
Also, the grant of such service contracts must be rehabilitate the same in accordance with
subject the terms and conditions set forth in said
to the following safeguards: agreement" (PD 705, § 3).
1. it must be in accordance with a general law 4. Private rights must yield when they come in
2. the President must be the signatory for the conflict with this public policy and common
government interest. They must give way to the police
3. the President must report the executed or regulatory power of the State, in this
agreement to Congress within 30 days. (La case through the DENR, to ensure that the
Bugal-B’laan Tribal Association, Inc. v. terms and conditions of existing laws, rules
Ramos, G.R. 127882, Jan. 27, 2004, and regulations, and the IFMA itself are
affirmed in a MR in 2005). strictly and faithfully complied with.
(Republic v. Pagadian City Timber, G.R.
There is no vested right to mining rights, save for 159308, Sept. 16, 2008).
patented mining claims that were granted under the
Philippine Bill of 1902. However, when the 1935
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V. ACQUISITION, OWNERSHIP, AND be considered for purposes of complying with

the requirements for judicial confirmation of
TRANSFER OF PUBLIC AND PRIVATE title?
LANDS Yes. Congress prescribed no requirement that the
land subject of the registration should have been
Lands of the public domain are classified into: classified as agricultural since June 12, 1945, or
(MAN-F) earlier. As such, A’s imperfect or incomplete title is
1. Mineral lands derived only from possession and occupation since
2. Agricultural June 12, 1945, or earlier. (Public Land Act, § 48(b))
3. National Parks This means that the character of the property
4. Forest or timber subject of the application as alienable and
(PHIL. CONST., art. XII, § 3). disposable agricultural land of the public domain
determines its eligibility for land registration, not the
Rule on Reclassification or Conversion of Lands ownership or title over it. Alienable public land held
Reclassification or conversion of lands require the by a possessor, either personally or through his
positive act of government, mere issuance of title is predecessors-in-interest, openly, continuously and
not enough. An affirmative act from the executive or exclusively during the prescribed statutory period is
legislative is necessary to reclassify property of converted to private property by the mere lapse or
public dominion. (Laurel v. Garcia, GR No. 92013, completion of the period. By virtue of this doctrine,
Jul. 25, 1990) corporations may now acquire lands of the public
domain for as long as the lands were already
Reclassification: converted to private ownership, by operation of law,
1. Public (mineral and agricultural) lands – as a result of satisfying the requisite period of
exclusive prerogative of the executive possession prescribed by the Public Land Act.
department. But this is only a delegated (Republic vs Sogod Development Corp, G.R. No.
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power. 175760, Feb. 17, 2016)
2. Forest and national parks - Congress has
the sole power to reclassify. Limitations Regarding Alienable Lands of Public
Dominion
Classification is descriptive of the legal nature of the Means by which Land of Public Dominion
land and NOT what it looks like. Thus, the fact that Becomes Private Land:
forest land is denuded does not mean it is no longer 1. Acquired from the Government by
forest land (Secretary of DENR v. Yap, G.R. purchase or grant.
167707, Oct. 8, 2008). 2. Uninterrupted possession by the occupant
and his predecessors-in-interest since time
Only the President, upon recommendation of the immemorial.
DENR secretary, may now classify lands of public 3. Open, exclusive, and undisputed
domain. This prerogative has been delegated to it possession of ALIENABLE (agricultural)
by Congress under CA 141. (Director of lands v. public land for a period of 30 years.
Court of Appeals, G.R. 58867, Jun. 22, 1984). a. Upon completion of the requisite
period, the land becomes private
Classification should be categorical; a land cannot property ipso jure without need of
have a mixed classification. For example: an owner any judicial or other sanction.
of an agricultural land in which minerals are b. Possession since time immemorial
discovered has no right to utilize such minerals. The leads to the presumption that the
State may discontinue his/her ownership after just land was never part of public
compensation in order to extract such minerals. domain.
(Republic v. Court of Appeals, G.R. L-43938, Apr. c. In computing 30 years, start from
15, 1988). when the land was converted to
alienable land, not when it was still
Reclassification from forest reserves into non-forest forest land
reserves – now exclusively a DENR prerogative. d. Presumption is always that land
There is no need to wait for Congressional belongs to the State.
concurrence. (Apex Mining v. Southeast Mindanao
Gold, G.R. 152613/152628, Nov. 20, 2009). NHA is an “end-user agency” authorized by law to
administer and dispose of reclaimed lands. The
Can the occupation of forest lands prior to its moment titles over reclaimed lands based on the
classification as alienable and disposable land special patents are transferred to the NHA by the
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Register of Deeds, they are automatically converted over the subject lands had been vested in CMU as
to patrimonial properties of the State which can be early as 1958. Consequently, transferring the lands
sold to Filipino citizens and private corporations, in 2003 to the indigenous peoples around the area
60% of which are owned by Filipinos. (Chavez v. is not in accord with the IPRA. (CMU v. Executive
NHA, G.R. 164527, Aug. 15, 2007). Secretary, G.R. 184869, Sept. 21, 2010).
Reclaimed foreshore and submerged lands are

lands of public domain, and can only be alienated as
VII. PRACTICE OF PROFESSIONS
private property if it is classified by competent
authority as alienable. (Republic v. Enciso, G.R. The practice of all professions in the Philippines
160145, Nov. 11, 2005). shall be limited to Filipino citizens save in cases
prescribed by law (PHIL. CONST., art. XII, § 14).
Perfected mining claims under the Old Mining Law
do not entitle claimants to private ownership
(Director of Lands v. Kalahi Investments Inc., G.R. ————- end of topic ————
48066, Jan. 31, 1989).
VI CONCEPT OF ANCESTRAL DOMAIN
Protection of Indigenous Cultural Communities:

1. The State protects the rights of indigenous
cultural communities to their ancestral land
subject to:
a. Constitutional provisions
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b. Subject to national development
policies and programs
2. In determining ownership and extent of
ancestral domain, Congress may use
customary laws on property rights and
relations.
Ancestral Domain
It refers to lands which are considered as pertaining
to a cultural region. This includes lands not yet
occupied, such as deep forests.
Native Title
Refers to pre-conquest rights to lands and domains
which, as far back as memory reaches, have been
held under a claim of private ownership by
indigenous cultural communities and indigenous
people, have never been public lands and are thus
indisputably presumed to have been held that way
since before the Spanish conquest. (IPRA, § 3(l)).
P.P. 310, distributing 670 hectares of CMU’s

property, to the indigenous peoples is
unconstitutional. The lands by their character have
become inalienable from the moment President
Garcia dedicated them for CMU’s use in scientific
and technological research in the field of agriculture.
They have ceased to be alienable public lands.
Besides, when Congress enacted the IPRA or RA
8371 in 1997, it provided in Section 56 that "property
rights within the ancestral domains already existing
and/or vested" upon its effectivity "shall be
recognized and respected." In this case, ownership
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I. LAW ON PUBLIC OFFICERS A. GENERAL PRINCIPLES
Public Office
The right, authority, and duty created and conferred
by law, by which for a given period, either fixed by
A. GENERAL PRINCIPLES
law or enduring at the pleasure of the appointing
power, an individual is invested with some portion of
B. MODES OF ACQUIRING TITLE TO the sovereign functions of the government, to be
PUBLIC OFFICE exercised by him for the benefit of the public.
(Agpalo, Administrative Law, Law on Public Officers
C. MODES AND KINDS OF APPOINTMENT and Election Law, 247-48, 2005)
D. ELIGIBILITY AND QUALIFICATION Law on Public Officers
REQUIREMENTS This branch of law deals with public office, its
creation, modification and dissolution, as well as the
E. DISABILITIES AND INHIBITIONS eligibility of public officers, the manner of their
election or appointment and assumption of office,
F. POWERS AND DUTIES OF PUBLIC their rights, duties, powers, inhibitions, and liabilities
OFFICERS and the modes of terminating their official relations.
G. RIGHTS OF PUBLIC OFFICERS Public Office Refers to Either Two Concepts:
H. LIABILITIES OF PUBLIC OFFICERS (1) Functional unit of government – It is within
1. Preventive Suspension and Back the framework of government organization, and
Salaries
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refers to any major functional unit of a
2. Illegal Dismissal, Reinstatement department or bureau including regional office.
And Back Salaries
(2) Position - Held by an individual whose
I. IMMUNITY OF PUBLIC OFFICERS functions are defined by law or regulation
J. DISTINGUISH: DE FACTO AND DE JURE
OFFICERS
K. TERMINATION OF OFFICIAL
(Agpalo, Administrative Law, Law on Public Officers
and Election Law, 247, 2005)
RELATIONS Public Office Not a Property Right

It is not a property right but a protected right. It
L. THE CIVIL SERVICE cannot be taken from its incumbent without due
1. Scope process. It is property in the broad sense since the
2. Appointments To The Civil Service right to hold office includes everything of pecuniary
3. Personnel Actions value to its possessor. The right to public office is
protected by the right to security of tenure, which is
M. ACCOUNTABILITY OF PUBLIC guaranteed by the Constitution. A public office is
OFFICERS personal to the public officer and is not transmissible
1. Types of Accountability to his heirs upon his death. No heir may be allowed
2. Discipline to continue holding his office in his place. (Segovia
3. Impeachment v Quo Warranto v. Noel, 47 Phil. 543, 1925)
4. The Ombudsman and the Office of
the Special Prosecutor Public office is not a property
5. The Sandiganbayan It is, however, well settled x x x that a public office is
not property within the sense of the constitutional
N. TERM LIMITS guaranties of due process of law, public trust or
agency. x x x The basic idea of the government x
x x is that of a popular representative
government, the officers being mere agents and
not rulers of the people, one where no one man
or set of men has a proprietary or contractual
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right to an office, but where every officer Public Officer, Definitions

accepts office pursuant to the provisions of the
law and holds the office as a trust for the people (1) Administrative Code. "Officer" as distinguished
he represents. (Montesclaros v. COMELEC, GR from "clerk" or "employee", refers to a person whose
No. 152295, 2002) duties, not being of a clerical or manual nature,
involves the exercise of discretion in the
Public Office Not a Contract performance of the functions of the government.
The right of an incumbent of an office does not When used with reference to a person having
depend on any contract in the sense of an authority to do a particular act or perform a particular
arrangement or bargain between him and the public. function in the exercise of governmental power,
Generally speaking, the nature of the relation of a "officer" includes any government employee, agent
public officer to the public is inconsistent with either or body having authority to do the act or exercise
a property or a contract right. (De Leon, The Law on that function. [Section 2(14), Introductory
Public Officers and Election Law, 6-7, 2011) Provisions, Administrative Code of 1987]
How created: (2) Revised Penal Code. Any person who, by direct
(1) By the Constitution (e.g. Office of the President) provision of law, popular election or appointment by
(2) By valid statutory enactments (e.g. Office of the competent authority, shall take part in the
Insurance Commissioner) performance of public functions in the Government
(3) By authority of the law (e.g. the Davide of the Philippine Islands, or shall perform in said
Commission) Government or in any of its branches, public duties
as an employee, agent or subordinate official, of any
Essential characteristics of “public office” rank or class, shall be deemed to be a public officer.
(1) Authority conferred by law; [Article 203, Revised Penal Code]
(2) Fixed tenure of office;
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(3) Power to exercise some of the sovereign (3) Anti-Graft and Corrupt Practices Act. "Public
functions of government; officer" includes elective and appointive officials and
(4) Key element of such test is that “officer is employees, permanent or temporary, whether in the
carrying out a sovereign function;” classified or unclassified or exempt service
receiving compensation, even nominal, from the
(5) Essential elements to establish public position
as “public office” are: government [Section 2(b), RA 3019].
(a) Position must be created by Constitution,
legislature, or through authority conferred (4) Code of Conduct and Ethical Standards for
by legislature; Public Officers. "Public Officials" includes elective
(b) Portion of sovereign power of government and appointive officials and employees, permanent
must be delegated to position; or temporary, whether in the career or non-career
(c) Duties and powers must be defined, service, including military and police personnel,
directly or impliedly, by legislature or whether or not they receive compensation,
through legislative authority; regardless of amount. [Section 3(b), RA 6713]
(d) Duties must be performed independently
without control of superior power other than (5) Plunder Law. “Public Officer” means any person
law; and holding any public office in the Government of the
(e) Position must have some permanency. Republic of the Philippines by virtue of an
appointment, election or contract. [Section 1(a), RA
7080]
Elements of Public Office: (LSDIP)
(1) Created by Law or by authority of law;
(2) Possesses a delegation of portion of Sovereign Employee
powers of government, for benefit of the public; A person in the service of government or any of its
(3) Powers conferred and duties imposed Defined agencies, divisions, subdivisions, or
by Constitution, legislature, or by its authority; instrumentalities. (1987 Administrative Code)
(4) Duties performed Independently and only
controlled by law unless placed under general Public Officer v. Employee, Distinguished
control of superior office or body; "Officer" as distinguished from "clerk" or
(5) Permanent or continuous. (State v. Taylor, 144 "employee," refers to a person whose duties, not
N.W. 2d. 289,1966; Javier v. Sandiganbayan, being of a clerical or manual nature, involves the
G.R. 147026-27, 2009). exercise of discretion in the performance of the
functions of the government. When used with
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reference to a person having authority to do a retaining Sec. 66) of the Omnibus Election Code
particular act or perform a particular function in the through Sec. 14 of R.A. No. 9006, elective officials
exercise of governmental power, "officer" includes are not deemed resigned (but appointive officials
any government employee, agent or body having are) upon the filing of a certificate of candidacy.
authority to do the act or exercise that function. (Fariñas v. Executive Secretary, G.R. Nos. 147387
[Section 2(14), Introductory Provisions, & 152161, 2003)
Administrative Code of 1987]
Elective Position vs Appointive Position
Thus, an officer is distinguishable from a mere ELECTIVE APPOINTIVE
employee in the sense that: ACQUIRED BY VIRTUE OF
(1) Position has greater importance, dignity and Mandate of electorate Appointing authority,
independence; who can either be an
(2) Required to take an official oath, and to give an
elective or appointive
official bond;
official
(3) Greater liability to account for misfeasance or
nonfeasance in office; LENGTH OF TENURE
(4) Tenure of office is usually different from that of Occupies office for a Generally, has security
an ordinary employee. definite term of tenure and therefore,
permanent
Classifications of Public Officer BASIS OF REMOVAL
(1) Constitutional or statutory Can only be removed Can only be removed for
(2) National or local on the basis of just cause or at the
(3) Legislative, executive or judicial constitutional or pleasure of appointing
(4) Lucrative or honorary
statutory grounds authority
(5) Discretionary or ministerial
(6) Appointive or elective PARTICIPATION IN PARTISAN ACTIVTIES
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(7) Civil or military Allowed to engage in Generally prohibited
(8) De jure or de facto partisan or political (with exceptions
electoral activities including political
B. MODES OF ACQUIRING TITLE TO appointees or those
PUBLIC OFFICE serving political offices)
By Election Appointment
Elective officials occupy their office by virtue of the The act of designation by the executive officer,
mandate of the electorate. They are elected to an board, or body to whom that power has been
office for a definite term and may be removed delegated, of the individual who is to exercise the
therefrom only upon stringent conditions. (Fariñas v. powers and functions of a given office. It is to be
Executive Secretary, G.R. Nos. 147387 & 152161, distinguished from the selection or designation by a
2003) popular vote.
By Appointment Designation
Appointive officials hold their office by virtue of The mere imposition of new or additional duties
their designation thereto by an appointing authority. upon an officer to be performed by him in a
Some appointive officials hold their office in a special manner. It presupposes that the officer is
permanent capacity and are entitled to security of already in the service by virtue of an earlier
tenure while others serve at the pleasure of the appointment, performing other functions. The
appointing authority. (Fariñas v. Executive implication is that he/she shall hold office only in a
Secretary, G.R. Nos. 147387 & 152161, 2003) temporary capacity and may be replaced at will by
the appointing authority. It does not confer security
NOTE: Since the classification justifying Section 14 of tenure on the person designated. (Tapispisan v.
of Republic Act No. 9006 (Fair Election Act), i.e., CA, G.R. No.120082, June 8, 2005)
elected officials vis-a-vis appointive officials, is
anchored upon material and significant distinctions Election
and all the persons belonging under the same The act of selecting or choosing a person by popular
classification are similarly treated, the equal vote to occupy the office.
protection clause of the Constitution is, thus, not Commission
infringed. Thus, with the repeal of Sec. 67 (but
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A written authority from a competent source given to Steps in a regular appointment (NCIAO)
the officer as his/her warrant for the exercise of the (1) Nomination by President
powers and duties of the office to which he is (2) Confirmation by Commission on Appointments
commissioned. It is the written evidence of the (In case of Presidential appointments, this
appointment, but not the appointment itself. (De confirmation applies only to numbers 1 to 5 in
Leon, The Law on Public Officers and Election Law, the list of Officers that the President shall
81, 2011) appoint (see below))
(3) Issuance of the commission or the written
Appointment v. Designation authority from a competent source given to the
APPOINTMENT DESIGNATION officer as his warrant for the exercise of the
AS TO NATURE powers and duties of the office to which he is
Executive, Irrevocable Legislative, revocable commissioned.
(4) Acceptance by the appointee
AS TO EFFECT
(5) Oath and assumption
Selection of an Mere imposition by law of
individual who is to additional duties on an Ad interim appointments are made while
exercise the functions incumbent official Congress is NOT in session or during its recess,
of a given office whether such recess is voluntary (before
Results in security of Does not result in adjournment) or compulsory (when Congress
tenure when completed security of tenure adjourns). The appointment shall cease to be
Can be subject of a Cannot be subject of a effective upon rejection by the COA, or if not acted
protest before the CSC protest before the CSC upon, at the adjournment of the next session of
Congress, whether regular or special.
AS TO EFFECTIVITY
Connotes permanency Implies temporariness
Temporary or acting appointments are those
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which last until a permanent appointment is issued.
Nature of Appointments The Commission on Appointments cannot confirm
It is essentially a discretionary power and cannot be their appointments because confirmation
delegated, it must be performed by the officer upon presupposes a valid nomination or ad-interim
whom it is vested according to his best lights, the appointment. Thus, the appointee has no
only condition being that the appointee should personality to bring a quo warranto proceeding
possess the qualifications required be law. If he because he is not entitled to office.
does, then the appointment cannot be faulted on the
ground that there are others better qualified who Steps in an ad-interim appointment (AIAC)
should have been preferred .(Luego v. Civil Service (1) Appointment by the appointing authority
Commission, GR No 69137, August 5, 1986) (2) Issuance of the commission
(3) Acceptance by the appointee
Requisites for a Valid Appointment (4) Confirmation by the CA
(1) Position is vacant
(2) The appointing authority must be vested with Steps for appointments that do not require
the power to appoint at the time appointment is confirmation: (AIA)
made; (1) Appointment by the appointing authority
(3) The appointee should possess all the (2) Issuance of the commission
qualifications including appropriate civil service (3) Acceptance by the appointee
eligibility and none of the disqualifications;
(4) The appointee accepts the appointment by
Absolute Appointment v. Confirmation Required
taking the oath and entering into discharge of
It is long settled in the law that where the power of
duty (Garces v. CA, GR No. 114795, July 17,
appointment is absolute, and the appointee has
1996)
been determined upon, no further consent or
approval is necessary, and the formal evidence of
The concurrence of all these elements should
the appointment, the commission, may issue at
always apply, regardless of when the appointment
once. However, where the assent or confirmation of
is made, whether outside, just before, or during the
some other officer or body is required, the
appointment ban. These steps in the appointment
commission can issue or the appointment may be
process should always concur and operate as a
complete only when such assent or confirmation is
single process. There is no valid appointment if the
obtained. In either case, the appointment becomes
process lacks even one step. (Velicaria-Garafil v.
OP, GR No. 203372, 2015)
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complete when the last act required of the (1) Permanent appointments - issued to a person
appointing power is performed. Until the process is who meets all the requirements for the position
completed, the appointee can claim no vested right to which he is being appointed, including the
in the office nor invoke security of tenure. (Corpuz v. appropriate eligibility prescribed, in accordance
CA, G.R. 123989, 1998) with the provisions of the laws, rules, and
standards promulgated in pursuance thereof
Where the power of appointment is absolute and the
appointee has been determined upon, no further (2) Temporary appointments – issued in the
consent or approval is necessary and the formal absence of any eligibles, when necessary to
evidence of the appointment, the commission, may public interest, in order to fill a vacancy with a
person who meets all the requirements for the
issue at once. The appointment is deemed complete
position to which he/she is being appointed,
once the last act required of the appointing authority except the appropriate civil service eligibility.
has been complied with. A written memorial that can • Appointment in an acting capacity is merely
render title to public office indubitable is required. temporary, one which is good only until
This written memorial is known as the commission. another appointment is made to take its
For purposes of appointments to the judiciary, place
therefore, the date the commission has been signed • Temporary appointments shall not exceed
by the President is the date of the appointment. 12 months.
Such date will determine the seniority of the • The appointee may be replaced
members of the Court of Appeals in connection with sooner if a qualified civil service
Section 3, Chapter I of BP 129, as amended by RA eligible becomes available.
8246. In other words, the earlier the date of the • Where a temporary appointee
acquires civil service eligibility
commission of an appointee, the more senior he is
during his tenure as such, his
over the other subsequent appointees. (Re: temporary appointment does not
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Seniority among the four most recent appointments thereby automatically become
to the position of Associate Justices of the Court of permanent. What is required is a
Appeals, A.M. 10-4-22-SC, 2010) new appointment.
• Temporary appointment given to a
C. MODES AND KINDS OF non-civil service eligible is without
APPOINTMENT a definite tenure and is dependent
upon the pleasure of the
General Rule: Acceptance of appointment is not appointing power.
necessary for the completion or validity of • Acquisition of civil service eligibility
appointment. during tenure of a temporary
appointee does not necessarily
Exception: Acceptance is necessary to possession translate to permanent
of office, and to enable appointees to the enjoyment appointment. A new appointment
and responsibility of an office. which is permanent is necessary.
(Province of Camarines Sur v. CA,
General Rule: An appointment to an office, once G.R. No. 104639, 1995)
made and complete, is not subject to • Power of President to make
reconsideration or revocation. temporary appointment: The
President may temporarily
Exception: An officer is removable at the will of the designate an officer already in the
appointing power. government service or any other
competent person to perform the
Acceptance may be express when it is done verbally functions of an office in the
or in writing. Acceptance is implied when, without executive branch, appointment to
formal acceptance, the appointee enters upon the which is vested in him by law,
exercise of the duties and functions of an office. when:
i. The officer regularly appointed
Kinds of Appointment under the Civil Service to the office is unable to
Law perform his duties by reason of
illness, absence or any other
cause; or
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ii. there exists a vacancy (6) Officers whose appointments are Not otherwise
• Instances of Temporary Appointment provided for by law
(1) Appointee does not possess civil (7) Officers whom the president may be authorized
service eligibility by Law to appoint
(2) Appointment by the President in an (8) Officers Lower in rank whose appointments the
executive office during the absence or Congress, by law, vested in the President
incapacity of the incumbent
(3) Designation as officer in charge Constitutional Limitations on the Presidential
(4) Appointment held at the pleasure of the Power to Appoint:
appointing power (1) Nepotism (see discussion and exceptions
below)
(3) Regular Appointment - made by the President (2) Midnight appointments
while Congress is in session and becomes (3) Those relating to an Acting President (Sections
effective after the nomination is confirmed by 13, 14 and 15 of Art. VII)
the Commission on Appointments.
The constitutional limitations refer to appointments
(4) Provisional Appointment - A person who has in the executive and not the judicial branch of
not qualified in an appropriate examination but government. (De Castro v. JBC, G.R. 191002, 2010)
who otherwise meets the requirements for
appointment to a regular position in the Revocability of Appointment
competitive service, whenever a vacancy General Rule: Appointment to an office once made
occurs and the filling thereof is necessary in the and completed, is not subject to reconsideration or
interest of the service and there is no revocation because revocation after a complete
appropriate register of eligibles at the time of appointment is tantamount to removal.
appointment.
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Exception: Where the appointment is temporary.
(5) Ad Interim Appointment - it is made while (Ong v. Office of the President, GR No 184219,
Congress is not in session, before confirmation January 30, 2012)
by the CA; it is immediately effective, and
ceases to be valid if disapproved or by-passed
Nepotism
by the CA or until the next adjournment of the Since a public office is a public trust, created for the
Congress. benefit and in the interest of the people,
appointments thereto should be based solely on
(6) Midnight Appointment - made by the merit and fitness uninfluenced by any personal or
President or acting president within 2 months filial consideration.
immediately before the next presidential (1) The Constitution prohibits the president from
elections and up to the end of his term, whether appointing his close relatives (within the 4th civil
or not it is confirmed by the Commission. degree by consanguinity or affinity to the
president or his spouse) to high positions in
Officers that the President Shall Appoint: (E- government during his tenure. No relative of the
MA2CJC2AR-NL2) President, within the 4th civil degree, shall be
(1) Heads of Executive departments appointed to/as:
(2) Ambassadors (a) Constitutional Commission
(3) Other public Ministers and consuls (b) The Office of the Ombudsman
(4) Officers of the Armed forces from the rank of (c) Secretary of a Department
colonel or naval captain (d) Undersecretary of a Department
(5) Other officers whose appointment are vested in (e) Chairman or Head of Bureaus of Offices
him in the Constitution (f) Any GOCC
a. Regular members of the Judicial and Bar (g) Any GOCC subsidiary
Council (2) Under the Civil Service Decree, all
b. The Chairman and Commissioners of the appointments in the national, provincial, city,
Civil Service Commission and municipal governments or in any branch or
c. The Chairman and Commissioners of the instrumentality, including GOCCs, made in
COMELEC favor of the appointing or recommending
d. The Chairman and Commissioners of the authority, or of the chief of the bureau of the
Commission on Audit office, or of persons exercising supervision over
e. Members of the Regional Consultative him, are prohibited. As used in the Civil Service
Commission
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Law, the term “relative” and members of the Principles of Vacancy
family referred to those within the 3rd degree of (1) A person no matter how qualified cannot be
consanguinity or affinity. appointed to an office which is not vacant
(Costin v Quimbo, GR No 32271, January
Exceptions: (CTAP) 27, 1983)
(1) Persons employed in Confidential capacity (2) One who is legally dismissed from office is,
(2) Teachers by fiction of law, deemed not to have
(3) Physicians vacated his office (Fernandez v Cuneta,
(4) Members of AFP GR No 14392, May 30, 1960)
The restriction shall not be applicable to any D. ELIGIBILITY AND QUALIFICATION

member who, after his or her appointment to any REQUIREMENTS
position in an office or bureau, contracts marriage
with someone in the same office or bureau. In this Eligibility
event, the employment or retention therein of both State of being legally fit to be chosen. It is of a
husband and wife may be allowed. continuing nature and must exist both at the
commencement and during the occupancy of an
The mere issuance of appointment in favor of a office. (De Leon, The Law on Public Officers and
relative within the third degree of consanguinity or Election Law, 19, 2011)
affinity is sufficient to constitute nepotism. Also,
even if the case is one of falsification of public Eligible
documents, the requirement of disclosure of Under the Admin Code, it is used to refer to a
relationship to the appointing power in the local person who obtains a passing grade in a civil
government units simply aims to ensure strict service examination and whose name is entered
enforcement of the prohibition against nepotism. in the register of eligibles from which
(Galeos v. People, G.R. 174730-37, 2011)
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appointments must be made. (ADMIN CODE,
Book V, TITLE 1-a, SEC.5, PAR. (8))
The rule on nepotism also applies to designations
made in favor of a relative of the authority making a Nature of Right to Hold Public Office
designation. A designation accomplishes the same The right to hold public office is not a natural right. It
purpose as appointment. (Laurel v. Civil Service exists only because and by virtue of some law
Commission, G.R. No. 71562, 1991) expressly or impliedly creating and conferring it.
Vacancy The qualifications which relate to an office must be

There is a vacancy when an office is empty and complied with by persons seeking that office. An
without a legally qualified incumbent appointed or election or appointment to office of a person who is
elected to it with a lawful right to exercise its powers ineligible or unqualified gives him no right to hold the
and perform its duties. There can be no appointment office.
to a non-vacant position.
Qualifications
CAUSES: (I-RACED-PAR2C) Acts which a person is required to do before
(1) Impeachment entering upon position. Means two things:
(2) Removal from office or resignation of the (1) Endowments, qualities, or attributes that
incumbent make an individual eligible for public office
(3) Abandonment (2) Act of entering into performance of public
(4) Conviction of a crime office
(5) Expiration of term
(6) Death
(7) Permanent disability
(8) Acceptance of incompatible office
(9) Reaching the age limit
(10) Recall
(11) Creation of a new profile
For appointments not needing confirmation,
removal may be by President or officer designated
by law. If the appointment is permanent, removal is
allowed only for cause.
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Two Meanings of Qualifications eligibility for government service, is guilty of plain

WHEN REFERRING TO and simple dishonesty as it refers to the act of
WHEN USED IN THE
THE ACT OF ENTERING intentionally making a false statement on any
SENSE OF
INTO THE material fact in securing one’s appointment.
ENDOWMENTS,
PERFORMANCE OF THE (Momongan v. Sumayo, A.M. No. P-10-2767, 2011)
QUALITIES OR
FUNCTIONS OF A
ATTRIBUTES
PUBLIC OFFICE All public officers and employees shall take an oath
The individual must Failure of an officer to or affirmation to uphold and defend the Constitution.
possess the perform an act required by (Phil. Const., art. IX-B, § 4)
qualifications at the law could affect the officer’s
time of appointment or title to the office. Limits on Legislature’s Power to Prescribe
election and Qualifications:
continuously for as NOTE: 1. The legislature may not reduce or increase the
long as the official Prolonged failure or refusal qualifications prescribed in an exclusive
relationship continues. to take the office could manner by the Constitution.
result in forfeiture of office. 2. The legislature may prescribe only general
NOTE: An oath of office taken qualifications.
Property qualifications before one who has no 3. The qualifications must be relevant to the office
may not be imposed authority to administer oath for which they are prescribed.
for the exercise of the is no oath at all.
right to run for public Where a person is prohibited from holding two
office. Loss of any of Once proclaimed and duly offices at the same time, his appointment or election
the qualifications sworn in office, a public to a second office may operate to vacate the first or
during incumbency will officer is entitled to assume he may be ineligible for the second.
be a ground for office and to exercise the
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termination. functions thereof. The A person who accepts and qualifies for a second
pendency of an election and incompatible office is deemed to vacate, or by
protest is not sufficient implication, to resign from the first office. The same
basis to enjoin him from rule obtains where the holding of more than one
assuming office. position is prohibited by constitutional or statutory
Formal Qualifications: (CAP-CARES)
(1) Citizenship
(2) Age
provision although the second position is not
incompatible with the first.
In the absence of constitutional inhibition, Congress

(3) Political affiliation has the same right to provide disqualifications that it
(4) Civil service examination has to provide qualifications for office.
(5) Ability to read and write
(6) Residence Those Prescribed by the Constitution
(7) Education POSITION QUALIFICATIONS
(8) Suffrage 1. A natural-born citizen of the
Philippines
Only accountable public officers or those who are 2. A registered voter
entrusted with the collection and custody of public 3. Able to read and write
money, and public ministerial officers whose actions
President and 4. At least 40 years of age on
may affect the rights and interests of individuals are
required to give an official bond. Vice President the day of the election; and
5. A resident of the Philippines
Improper notarization is not among the grounds for for at least 10 years
disqualification as stated under the OEC and LGC. immediately preceding such
Apart from the qualifications provided for in the election.
Constitution, the power to prescribe additional 1. A natural-born citizen of the
qualifications for elective office and grounds for Philippines
disqualification therefrom, consistent with the 2. On the day of the election, is
constitutional provisions, is vested in Congress. Senators at least 35 years of age
(Amora v. COMELEC, G.R. 19228, 2011)
3. Able to read and write
An officer who misrepresented his or her 4. A registered voter; and
qualification, e.g. educational attainment and
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5. A resident of the Philippines 1. Natural-born citizens of the

for not less than 2 years Philippines and
immediately preceding the 2. At the time of their
day of the election appointment, at least 35
years of age
3. Holders of a college degree;
Chairman and and
1. A natural-born citizen of the the 4. Must not have been
Philippines Commissioners candidates for any elective
2. On the day of the election, is of the positions in the immediately
at least 25 years of age COMELEC preceding elections
3. Able to read and write 5. However, a majority thereof,
Members of the 4. Except the party-list including the Chairman, shall
House of representatives, a registered be members of the Philippine
Representatives voter in the district in which Bar who have been engaged
he shall be elected; and in the practice of law for at
5. A resident thereof for a least 10 years.
period of not less than 1 year 1. A natural-born citizens of the
immediately preceding the Philippines
day of the election. 2. At the time of their
1. A natural-born citizen of the appointment, at least 35
Philippines years of age
2. A Member of the SC must be 3. Certified Public Accountants
at least 40 years of age; and
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with not less than 10 years of
3. Must have been for 15 years auditing experience, or
or more, a judge of a lower Chairman and members of the Philippine
Members of the court or engaged in the the Bar who have been engaged
SC and lower practice of law in the
Commissioners in the practice of law for at
collegiate court Philippines. of the COA least 10 years; and
4. A member of the judiciary 4. Must not have been
must be a person of proven candidates for any elective
competence, integrity, position in the elections
probity and independence. immediately preceding their
(1987 Consti, art. VIII, sec. appointment
7(3)) 5. At no time shall all Members
1. Natural-born citizens of the of the Commission belong to
Philippines and the same profession.
2. At the time of their 1. Natural-born citizens of the
appointment, at least 35 Philippines; and
Chairman and years of age 2. A majority of whom shall be
the 3. With proven capacity for Chairman and
members of the Bar.
Commissioners public administration; and Members of the
3. The term of office and other
of the CSC 4. Must not have been Commission on
qualifications and disabilities
candidates for any elective Human Rights
of the Members of the
position in the elections Commission shall be
immediately preceding their provided by law.
appointment.
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E. DISABILITIES AND INHIBITIONS (2) No elective official shall be eligible for

OF PUBLIC OFFICERS appointment or designation in any capacity to
any public office or position during his tenure.
Disqualification (Phil. Const., art. IX-B, §7(1))
It is the presence of circumstances and qualities (3) Unless otherwise provided by law or by the
which makes an individual ineligible from holding a primary functions of his position, no appointive
public office. Lack of disqualifications is itself a official shall hold any other position in
qualification. Government. (Phil. Const., art. IX-B, § 7(2))
Disqualifications: (IM-RIPE-C2ORN-LG) Special Disqualifications under the

(1) Mental or physical Incapacity Constitution:
(1) The President, Vice-president, the Members of
(2) Misconduct or crime
the Cabinet, and their deputies or assistants
(3) Removal or suspension from office shall not, unless otherwise provided in the
(4) Impeachment Constitution, hold any other office or
(5) Previous tenure of office employment during their tenure. (Phil. Const.
(6) Being an Elective official art. VIII, §13)
(7) Consecutive terms (2) No Senator or Member of the House of
(8) Having been a Candidate for any elective Representatives may hold any other office or
employment in the Government, or any
position
subdivision, agency or instrumentality thereof,
(9) Holding more than One office including government-owned or controlled
(10) Relationship with the appointing power corporations or their subsidiaries, during his
(11) Office Newly created or the emoluments of term, without forfeiting his seat. Neither shall he
which have been increased be appointed to any office which may have been
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(12) Grounds under the Local Government Code created or the emoluments thereof increase
during the term for which he was elected. (Phil.
General Rule: Appointive and elective officials Const. art. VI, § 13)
cannot hold multiple employment or office during (3) The Members of the Supreme Court and of
other courts established by law shall not be
their tenure.
designated to any agency performing quasi-
Exception: Appointive officials may hold other judicial or administrative functions. (Phil. Const.
office when allowed by law or by the primary art. VIII, § 12)
functions of their positions. (Sec 7, Art IX-B) (4) No Member of a Constitutional Commission
shall, during his tenure, hold any other office or
Exception to holding multiple offices: employment. (Phil. Const. art. IX-A, § 2) The
(1) Those provided for under the Constitution, such same disqualification applies to the
as: Ombudsman and his deputies. (Phil. Const. art.
(a) President as head of NEDA (Art XII, Sec. 9) XI, § 8)
(b) VP may be appointed as Cabinet Member (5) The Ombudsman and his Deputies shall not be
(Art VII, Sec. 3) qualified to run for any office in the election
(c) VP as Acting President (Art VII, Sec. 7) immediately succeeding their cessation from
(d) In and ex-officio capacity (CLU v. Exec. office. (Phil. Const. art. XI, § 11)
Sec., G.R. No. 83896, 1991) and (6) Members of Constitutional Commissions, the
(2) Posts occupied by Executive officials specified Ombudsman and his deputies must not have
in Section 13, Article VII without additional been Candidates for any elective position in the
compensation in ex officio capacities as elections immediately preceding their
provided by law and as required by the primary appointment. (Phil. Const. art. IX-B, IX-C, IX-D,
functions of the officials’ offices. (Funa v. Agra, §. 1; art. XI, § 8)
G.R. 191644, 2013) (7) Members of the Constitutional Commissions,
the Ombudsman and his deputies are
General Disqualifications under the appointed to a term of seven (7) years, without
Constitution: reappointment. (Phil. Const. art. IX-B, § 1(2);
(1) No candidate who lost in an election shall, art. IX-C, § 1(2); Art. IX-D, §. 1(2); art. IX, §11)
within one year after such election, be (8) The spouse and relatives by consanguinity or
appointed to any office in Government. (Phil. affinity within the fourth civil degree of the
Const. art. IX-B, §VI) President shall not during his tenure be
appointed as Members of the Constitutional
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Commissions, or the Office of the Ombudsman, Spoils Systems and Political Lame Ducks
or as Secretaries, Undersecretaries, chairmen
SPOILS SYSTEM POLITICAL LAME
or heads of bureaus or offices, including
DUCKS
government-owned or controlled corporations
(Phil. Const.art. VII, § 13, Art. VII) No elective official No candidate who has lost
shall be eligible for in any election shall, within
PD 807, Sec. 49 prohibits the appointment of a appointment or one year after such
Senator or Congressman to any office which may designation in any election, be appointed to
have been created or emoluments thereof capacity to any public any office in the
increased during the term for which he was elected. office or position Government of any
during his tenure. government-owned or
When the Constitution has attached a (1987 Const, art. IX-B, controlled corporations or in
disqualification to the holding of any office, sec. 7) any of its subsidiaries.
Congress cannot remove it under the power to (1987 Const, Art. IX-B, Sec.
prescribe qualifications as to such offices as it may The disqualification 6)
create. The Constitution imposes limitations on the subsists only during
right of certain officials to hold more than one office the tenure in office of Members of the Civil
at the same time. the elective official. He Service shall not have been
may be appointed candidates for any elective
(1) The President, Vice President, Members of the provided he forfeits his position in the elections
Cabinet, their deputies or assistants shall not, seat. immediately preceding their
unless otherwise provided in the Constitution, appointment. (1987 Const,
hold any other office or employment during their Examples of art. IX-B, sec. 1(1))
tenure. exceptions:
(2) A Senator or Member of the House of 1. The Vice
Representatives may not hold any office or
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President may be
employment in the Government, or any appointed as a
subdivision, agency, or instrumentality, Cabinet member
including GOCCS or their subsidiaries, during 2. A Congressman
his term (not tenure) without forfeiting his seat. may sit in the
(3) The members of the Supreme Court and of Judicial and Bar
other courts established bylaw shall not be Council
designated to any agency performing quasi- 3. To be eligible to
judicial or administrative functions. hold any other
(4) A member of the Constitutional Commission office, the elected
shall not, during his tenure, hold any other office official must first
or employment. resign from his
(5) During their tenure, the Ombudsman and his office
deputies are subject to the same
disqualifications and prohibitions as provided Except for losing
for members of the Constitutional candidates in barangay
Commissions. elections no candidate who
(6) Unless otherwise allowed by law or by the lost in any election shall,
primary functions of his position, no appointive within 1 year after such
official shall hold any other office or employment election, be appointed to
in the government or any subdivision, agency, any office in the
or instrumentality, including GOCCs or their Government or any
subsidiaries. government-owned or
(7) No member of the armed forces in the active controlled corporations or in
service shall, at any time, be appointed or a any of their subsidiaries.”
designated in any capacity to a civilian position (Local Government Code,
in the government including GOCCs or any of Sec. 94)
their subsidiaries.
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Power of Congress to Prescribe Inhibitions under the Constitution

Disqualifications (1) The President, Vice-President, Cabinet
In the absence of constitutional inhibition, Congress Members and their deputies and assistants
has the same right to provide disqualifications that it shall not, during tenure, directly or indirectly
has to provide qualifications for office. practice any other profession, participate in any
business or be financially interested in any
Restrictions contract with the Government. They shall
(1) Congress may not add disqualifications where strictly avoid conflict of interest in the conduct of
the Constitution has provided them in such a their office.
way as to indicate an intention that the (2) No Senator or Member of the House may hold
disqualifications provided shall embrace all that any other office or employment in the
are to be permitted; and Government during his term without forfeiting
(2) When the Constitution has attached a his seat
disqualification to the holding of any office, (3) No Senator or Member of the House may
Congress cannot remove it under the power to personally appear as counsel before any court
prescribe qualifications as to such offices as it of justice or before the Electoral Tribunal, or
may create quasi-judicial and other administrative bodies
(4) No Senator or Member of the House shall
Divestment directly or indirectly, be interested financially in
When a public official is in a conflict-of-interest any contract with, or in any franchise or special
situation. Such official must resign from his position privilege granted by the Government, during his
in any private business enterprise within 30 days term of office
from his assumption of office and/ or divest himself (5) No Member of the Constitutional Commission
of his shareholdings or interest within 60 days from shall, during his tenure, hold any other office or
such assumption. employment. Neither shall he engage in the
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practice of any profession or in the active
Duration of Qualification management or control of business which in
Eligibility to an office should be construed as of a any way may be affected by the functions of his
continuing nature and must exist at the office, nor shall he be financially interested,
commencement of the term and during occupancy directly or indirectly, in any contract with, or in
of the office. The reckoning point in determining the any franchise or special privilege granted by the
qualifications of an appointee is the date of issuance Government during his term of office. This
of the appointment and not the date of its approval inhibition applies as well to the Ombudsman
by the CSC or the date of resolution of the protest and his deputies.
against it (CSC v de la Cruz, GR No 158737, August (6) No officer or employee in the civil service shall
31, 2004) engage, directly or indirectly, in any
electioneering or partisan political campaign.
Persons required to take an Oath of Office
under the Constitution Practice of Profession
(1) All public officers and employees (1) All governors, city and municipality mayors, are
(2) President, VP, or the acting President prohibited from practicing their profession or
(3) All members of the AFP engaging in any occupation other than the
exercise of their functions as local chief
Oath of Office executives;
It is a qualifying requirement for a public office. Only (2) Sanggunian members may practice their
when the public officer has satisfied this prerequisite professions, engage in any occupation, or teach
can his right to enter into the position be considered in schools, except during session hours,
plenary and complete. Until then, he has none at all Sanggunian members who are also members
and for as long as he has not qualified, the holdover of the Bar shall not:
officer is the rightful occupant. (a) Appear as counsel before any court in any
civil case wherein a local government unit
Inhibitions or any office, agency or instrumentality of
It is a restraint upon the public officer against the the government is the adverse party;
doing of certain acts which may be legally done by (b) Appear as counsel in any criminal case
others. wherein an officer or employee of the
national or local government is accused of
an offense committed in relation to his
office;
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(c) Collect any fee for their appearance in It is susceptible of General Rule: It cannot
administrative proceeding involving the delegation and can be be delegated to another
local government until of which he is an compelled by judicial
official; and action. Exception: Power of the
(d) Use property and personnel of the President to conclude
Government except when the Sanggunian treaties may be assigned
member concerned is defending the to a treaty panel, which
interest of the government can negotiate the treaty
(3) Doctors of medicine may practice their on his behalf, under his
profession even during official hours of work instructions and subject
only on occasions of emergency, provided that to his approval.
officials concerned do not derive monetary
compensation therefrom. Constitutional Duties of Public Officers
(1) To be accountable to the people, to serve them
F. POWERS AND DUTIES OF with utmost responsibility, integrity, loyalty, and
PUBLIC OFFICERS efficiency; to act with patriotism and justice; and
to lead modest lives
Extent of Powers or Authority (2) Submit a declaration under oath of assets,
liabilities, and net worth upon assumption of
(1) Expressly conferred upon him by the law under
officer and thereafter as may be required;
which he has been appointed or elected.
(3) Owe the State and Constitution allegiance at all
(2) Expressly annexed to the office by the law
times.
which created it or some other law referring to
it.
Duties of Public officers, In General
(3) Attached to the office as an incident to it.
(1) Duty to obey the law;
(2) Duty to accept and continue in office;
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Consequence of Holding Office
(3) Duty to accept burden of office;
To hold an office means to possess or to occupy the
(4) Duty as to diligence and care in the
office, or to be in possession and administration of
performance of official duties;
the office, which implies nothing less than the actual
(5) Duty in choice and supervision of subordinates;
discharge of the functions and duties of the office.
(6) Duty to perform official acts honestly, faithfully,
(Funa v. Agra, G.R. 191644, 2013)
and to the best of his ability;
(7) Duty not to use his official power to further his
Doctrine of necessary implication
own interest
All powers necessary to the exercise of the power
expressly granted are deemed impliedly granted.
Territorial Limitation and Duration of Authority
The fact that a particular power has not been
The authority of all public officers is limited and
expressly conferred does not necessarily mean that
confined to that territory over which the law, by virtue
it is not possessed by the officer claiming it.
of which they claim, has sovereign force. The
authority is limited in its exercise to that term during
Ministerial Powers v. Discretionary Powers
which he is by law invested with the rights and duties
Ministerial Powers Discretionary Powers of the office.
When it is absolute, When it requires the
certain, and imperative exercise of reason and Alter Ego Principle
involving merely discretion in determining The acts of the Secretaries of the departments,
execution of a specific how or whether the act performed and promulgated in the regular course of
duty arising from fixed shall be done or the business are, unless disapproved or reprobated by
and designated facts. course the President, presumptively the acts of the
pursued. President. (Carpio v Executive Secretary, GR No
NOTE: The law exacting 96409, February 14, 1992)
its discharge prescribes NOTE: The officer is
and defines the time, expected to discharge
mode, and occasion of its the duty directly and not
performance with such through the intervening
Limits of the Alter Ego Doctrine
certainty that nothing is mind of another.
There are certain powers that are reserved to the
left for judgment or
President which cannot be exercised by the
discretion.
Secretaries of the departments such as:
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(1) Declaration of Martial Law to prevent a sacrifice of his property, and by

(2) Suspension of the privilege of writ of habeas a disregard of such provision, his rights
corpus might be and generally would be injuriously
(3) Pardoning Power affected
(4) Purely discretionary powers (e.g. Presidential (2) Permissive — statutes define the time and
Appointments) mode in which the public officers will
discharge their duties, and those which are
Principle of Hold-Over obviously designed merely to secure order,
In the absence of any express of implied uniformity, system and dispatch in public
constitutional or statutory provision to the contrary, business.
the public officer is entitled to hold office until his
successor shall have been duly chosen and shall As to the relationship of the officer to his
have qualified. (Lecaroz v. Sandiganbayan, GR No subordinates
130872, March 25, 1999) (1) Power of Control — power of an officer to
manage, direct or govern, including the
Effect when law fixes specific date for the end power to alter or modify or set aside what a
of a term subordinate had done in the performance
When the law fixes a specific date for the end of the of his duties and to substitute his judgment
term, there is an implied prohibition against hold- for that of the latter
over (Nueno v Angeles, GR no 89, February 1, (2) Power of Supervision — it is the power of
1946) mere oversight over an inferior body and
does not include any restraining authority
Nature of Officer during Hold-Over over such body. The officer merely sees to
During the period of hold-over, the public officer is a it that rules are followed but he himself does
de jure officer (Bautista v Fajardo, GR No 13799, not lay down such rules, nor does he have
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September 23, 1918) the discretion to modify or replace them.
Classifications of Powers and Duties As to their G. RIGHTS OF PUBLIC OFFICERS

Nature
(1) Ministerial — the law exacting its
In General
discharge prescribes and defines the time, (1) Rights incident to public office
mode and occasion of its performance and (a) The rights of one elected or
requires neither judgment nor discretion. appointed to office are, in general,
This kind of duty is susceptible of measured by the Constitution or
delegation. the law under which he was
(2) Discretionary — a public officer has the elected or appointed
right to decide how and when the duty shall (b) Right to office –The just and legal
be performed. A public officer cannot claim to exercise the powers and
delegate this kind of duty. the responsibilities of the public
office.
General Rule: Mandamus will not lie for the
performance of a discretionary duty (2) Rights as a citizen
(a) Protection from publication
Exceptions: commenting on his fitness and the
(a) When the discretion granted is only as to like
the manner of its exercise and not the • The mere fact that one
discretion to act or not to act, the court may occupies a public office
require a general action does not deprive him of
(b) Grave abuse of discretion the protection accorded to
citizens by the
Constitution and the laws.
• However, by reason of
the public character of his
As to the obligation of the officer to perform his
employment or office, a
powers and duties
public officer is, in
(1) Mandatory — where the provisions of a
general, held not entitled
statute relating to public officers are
to the same protection
intended for the protection of the citizen and
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from publications (3) The garnishment or attachment of an
commenting on his fitness officer’s salary is tantamount to a suit
and the like, as is against the State in its own court, which is
accorded to the ordinary prohibited except with his consent
citizen.
(b) Engaging in certain political and Prohibition on Double Compensation
business activities The purpose of the prohibition against
• The governmental additional or double compensation for public
interest in maintaining a officials: to manifest a commitment to the
high level service by fundamental principle that a public office is a public
assuring the efficiency of trust. It is expected of a government official or
its employees in the employee that he keeps uppermost in mind the
performance of their tasks demands of public welfare. He is there to render
may require public public service. He is entitled to be rewarded for the
employees to suspend or performance of the functions entrusted to him, but
refrain from certain that should not be the overriding consideration. The
political or business temptation to further personal ends, public
activities that are employment as a means for the acquisition of
embraced within the wealth, is to be resisted. There must be awareness
constitutional rights of on the part of the officer or employee of the
others, when such government that he will receive only such
activities are reasonably compensation as may be fixed by law. With such a
deemed inconsistent with realization, he is expected not to avail himself of
their public status and devious or circuitous means to increase the
duties. remuneration attached to his position. (Veloso v.
COA, G.R. 193677, 2011)
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(1) Right to Wages;
(2) Right to Preference in Promotion subject to Claims for double retirement benefits fall under the
the discretion of the appointing authority; prohibition against the receipt of double
(3) Right to Vacation and Sick leave; compensation when they are based on exactly the
same services and on the same creditable period.
(4) Right to Maternity Leave;
(Ocampo v. Commission on Audit, G.R 188716,
(5) Right to Retirement Pay; 2013)
(6) Other rights:
a. Right to reimbursement for RIGHT TO ORGANIZATION
expenses incurred in due This shall not be denied to government employees.
performance of duty (but this does The Constitution grants to government employees
not include transportation in the civil service the right to form unions enjoyed
by workers in the private sector.
allowance for those using
government vehicles);
Section 8 of Article 3 – “Right of the people including
b. Right to be indemnified against those employed in the public and private sectors to
liabilities they may incur in bona form associations, unions, or societies for purposes
fide discharge of duties; not contrary to law shall not be abridged.”
c. Right to longevity pay;
d. Right to self-organization Section 3 Par 2 of Article 13 which mandates the
State to “guarantee the rights of all workers to self
organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right
Salary not subject to garnishment
to strike in accordance with law.
Reasons:
(1) While the money is still in the hands of the
disbursing officer, it belongs to the PROMOTION
government The movement from one position to another with
increase in duties and responsibilities as authorized
(2) Public policy forbids such practice since it
by law and usually accompanied by an increase in
would be fatal to the public service
pay.
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DEMOTION of solutio indebiti (GSIS v. COA, G.R. No. 138381,

There is demotion when an employee is appointed 2004).
to a position resulting in diminution of duties,
responsibilities, status or rank, which may or may H. LIABILITIES OF PUBLIC
not involve a reduction in salary. Where an OFFICERS
employee is appointed to a position with the same
duties and responsibilities but with rank and salary General Rule: A public officer is not liable for
higher than those enjoyed in his previous position, injuries sustained by another due to official acts
there is no demotion and the appointment is done within the scope of his authority. (REVISED
valid. (Bautista v. CSC, G.R. 185215, 2010) PENAL CODE, art. 11 (5)).
Demotion to a lower rate of compensation is Exceptions: (BM-NID)
equivalent to removal if no cause is shown for it (1) Bad faith
when it is not part of any disciplinary action. In this (2) Malice;
case, demotion is not proper. (3) Negligence;
(4) Death or Injury to persons or damage to
NEXT-IN-RANK RULE property
The person next in rank shall be given preference in
promotion when the position immediately above his
Administrative liability is separate from and
is vacated.
independent of criminal and civil liability
It is a fundamental principle in the law on public
The concept of next-in-rank does not import any
officers that administrative liability is separate and
mandatory or peremptory requirement that the
distinct from penal and civil liabilities for the same
person next in rank must be appointed to the
act or omission. A simple act or omission can give
vacancy.
rise to criminal, civil or administrative liability, each
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independently of the others. This is known as the
The appointing authority has the discretion to fill the
threefold liability rule.
vacancy under the next-in-rank rule or by any other
method authorized by law (e.g. by transfer).
Thus, absolution from a criminal charge is not a bar
to an administrative prosecution, and vice versa.
HOLD-OVER
The dismissal of the administrative cases against
When a public officer’s term has expired or his
the petitioners will not necessarily result in the
services are terminated, but he should continue
dismissal of the criminal complaints filed against
holding his office until his successor is appointed or
them.
chosen and qualifies.
In the same vein, the finding of civil liability against
RETIREMENT
a public officer will not necessarily lead to a similar
Retirement has been defined as a withdrawal from
finding in the administrative action; nor will a
office, public station, business, occupation, or public
favorable disposition in the civil action absolve him
duty. It involves a bilateral act of the parties, a
from administrative liability.
voluntary agreement between the employer and the
(Regidor, Jr. v. People, G.R. 166086-92, 2009;
employee whereby the latter, after reaching a
Office of the President v. Cataquiz, G.R. 183445,
certain age, agrees and/or consents to sever his
2011)
employment with the former. Retirement plans
create a contractual obligation in which the promise
to pay benefits is made in consideration of the Proof of damage or actual injury
continued faithful service of the employee for the Proof of damage or actual injury is not required for
requisite period. Before a right to retirement benefits administrative liability to attach to a public officer. It
vests in an employee, he must have met the stated is enough that the act was contrary to the
conditions of eligibility with respect to the nature of established norms of conduct for government
employment, age, and length of service. This is a service. However, an employee of GSIS who altered
condition precedent to his acquisition of rights IP addresses without authority, not in the
thereunder. (Reyes v. CA, G.R. 167002, 2011) performance of his duties, will not be guilty of grave
misconduct but conduct prejudicial to the best
If retirement benefits have been given to an entity interest of service. To constitute misconduct, the act
disqualified to receive the same, there is an or acts must have a direct relation to and be
obligation to return the amounts under the principle connected with the performance of official duties.
(GSIS v. Mayordomo, G.R. No. 191218, 2011)
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applies in the law of public officers. The negligence
Presumption of good faith in the discharge of of the subordinate cannot be ascribed to his superior
official duties in the absence of evidence of the latter’s own
Every public official is entitled to the presumption of negligence (Reyes v. Rural Bank of San Miguel,
good faith in the discharge of official duties. G.R. No. 154499, 2004)
Although a public officer is the final approving
authority and the employees who processed the Exception: The President, being the commander-
transaction were directly under his supervision, in-chief of all armed forces, necessarily possesses
personal liability does not automatically attach to control over the military that qualifies him as a
him but only upon those directly responsible for the superior within the purview of the command
unlawful expenditures. (Dimapilis-Baldoz v. responsibility doctrine. (In the Matter of the Petition
Commission on Audit, G.R. 199114, 2013) for Writ of Amparo and Habeas Data in favor of
Noriel H. Rodriguez; Rodriguez v. Macapagal-
Concept of public office is a public trust Arroyo,G.R. No. 191805, 2011)
The concept of public office is a public trust and the
corollary requirement of accountability to the people Three-Fold Responsibility of Public Officers
at all times, as mandated under the 1987 A public officer is under a three-fold responsibility for
Constitution, is plainly inconsistent with the idea that violation of duty or for wrongful act or omission:
an elective local official's administrative liability for a (1) Civil Liability: if the individual is damaged by
misconduct committed during a prior term can be such violation, the official shall, in some cases,
wiped off by the fact that he was elected to a second be held liable civilly to reimburse the injured
term of office, or even another elective post. Election party
is not a mode of condoning an administrative (2) Criminal Liability: if the law has attached a
offense, and there is simply no constitutional or penal sanction, the officer may be punished
statutory basis in our jurisdiction to support the criminally. The mere fact that an officer is acting
notion that an official elected for a different term is in an official capacity will not relieve him from
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fully absolved of any administrative liability arising criminal liability.
from an offense done during a prior term. (Carpio- (3) Administrative Liability: such violation may
Morales v. CA and Binay, G.R. 217126-27, 2015) also lead to imposition of fine, reprimand,
suspension or removal from office, as the case
Liability for acts done by direction of superior may be. (De Leon, The Law on Public Officers
officer and Election Law, 249-250, 2019)
No accountable officer shall be relieved from liability
by reason of his having acted under the direction of Sexual harassment engenders threefold liability
a superior officer in paying out, applying, or Under RA 7877, sexual harassment engenders
disposing of the funds of property with which he is three-fold liability, one of which is administrative
chargeable, unless prior to that act, he notified the liability in order to protect public service. The
superior officer in writing of the illegality of the purpose of an administrative action is to protect the
payment, application, or disposition. (De Leon, The public service by imposing administrative sanctions
Law on Public Officers and Election Law, 306-307, to an erring public officer. Courts and administrative
2019) bodies should not hesitate to penalize insidious acts
of sexual harassment, especially when committed
Liability of Subordinate Officers by high-ranking public officers. In the government,
No subordinate officer or employee shall be civilly the CSC promulgated CSC Resolution No. 01-0940
liable for acts done by him in good faith in the which applies to all government officials and
performance of his duties. However, he shall be employees. The said resolution provides for the
liable for willful or negligent acts done by him which definition of sexual harassment, how it may take
are contrary to law, morals, public policy and good place, and the different forms it may be
customs even if he acted under orders or demonstrated. The Court stated that casual
instructions ofhis superiors (Sec. 39, Chapter 9, gestures of friendship and camaraderie, done
Book I, Admin. Code) during festive or special occasions and with other
Non-Applicability of the Doctrine of Command people present, do not constitute sexual
Responsibility and the Principle of Respondeat harassment. However in this case, the Court found
Superiorto Public Officers that the acts done by the petitioner such as grabbing
Neither the principle of command responsibility (in her hand, kissing her, touching her thigh, etc.
military or political structural dynamics) nor the constituted sexual harassment. (Escandor v.
doctrine of respondeat superior(in quasi delicts)
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People, G.R. No. 211962, July 06, 2020; Penned by Preventive suspension is merely a preventive
J. Leonen) measure, a preliminary step in an administrative
investigation; the purpose thereof is to prevent the
Liability of Ministerial Officers accused from using his position and the powers and
(1) Nonfeasance -Neglect or refusal to prerogatives of his office to influence potential
perform an act which is the officer’s legal witnesses or tamper with records which may be vital
obligation to perform in the prosecution of the case against him.
(2) Misfeasance –Failure to use that degree of (Ombudsman v. Francisco, G.R. 172553, 2011)
care, skill, and diligence required in the
performance of official duty It is now settled that Sec. 13 of Republic Act No.
(3) Malfeasance–The doing, through 3019 makes it mandatory for the Sandiganbayan to
ignorance, inattention or malice, of an act suspend any public official against whom a valid
which he had no legal right to perform information charging violation of that law, Book II,
Title 7 of the Revised Penal Code, or any offense
Statutory Liability involving fraud upon government or public funds or
(1) Art. 32, Civil Code – liability for failure or property is filed. The court trying a case has neither
neglect to perform official duty discretion nor duty to determine whether preventive
(2) Art. 33, Civil Code – liability for violating suspension is required to prevent the accused from
rights and liberties of private individuals using his office to intimidate witnesses or frustrate
(3) Art. 34, Civil Code–liability of his prosecution or continuing committing
peaceofficers for render aid or protection to malfeasance in office. (Villasenor v.
a person; subsidiary liability of municipal Sandiganbayan, G.R. 180700, 2008)
corporations in such case4.Sec. 38(2),
Chapter 9, Book I, Admin. Code–liability for There is no dispute as to the power of the
neglecting to perform a duty without just Ombudsman to place a public officer charged with
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cause within (i) a period fixed by law or an administrative offense under preventive
regulation; or (ii)a reasonable period, if no suspension. That power is clearly confined under
period is fixed (Nachura, Outline review in Section 24 of R.A. No. 6770. The law sets forth two
political Law) conditions that must be satisfied to justify the
issuance of an order of preventive suspension
1. PREVENTIVE SUSPENSION AND pending an investigation, to wit:
BACK SALARIES
(1) The evidence of guilt is strong; and
PREVENTIVE SUSPENSION (2) Either the following circumstance co-existing
Merely a preventive measure, a preliminary step in with the first requirement:
an administrative investigation. The purpose of the (a) The charge involves dishonesty, oppression
suspension order is to prevent the accused from or grave misconduct or neglect in the
using his position and the powers and prerogatives performance of duty;
of his office to influence potential witnesses or (b) The charge would warrant removal from the
tamper with records which may be vital in the service; or
prosecution of the case against him. If after such (c) The respondent’s continued stay in office
investigation, the charge is established and the may prejudice the case filed against him.
person investigated is found guilty of acts warranting (Ombudsman v. Valeroso, G.R. 167828,
his suspension or removal, then, as a penalty, he is 2007)
suspended, removed or dismissed. (Villasenor v.
Sandiganbayan, G.R. No. 180700, 2008) Prior notice and hearing are not required in the
issuance of a preventive suspension order.
Two kinds of preventive suspension of Settled is the rule that prior notice and hearing are
government employees charged with offenses not required in the issuance of a preventive
punishable by removal or suspension: suspension order. (Carabeo v. CA, G.R.
(1) Preventive suspension pending investigation; 178000/178003, 2009)
and
(2) Preventive suspension pending appeal if the GROUNDS FOR PREVENTIVE SUSPENSION OF
penalty imposed by the disciplining authority is POLICE OFFICERS [RA 8551, SEC. 55]
suspension or dismissal and, after review, the (Preventive Suspension Pending Criminal
respondent is exonerated. Case)
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The court shall immediately suspend the accused ultimate finding is not the same as the
from office for a period not exceeding 90 days from administrative charge.
arraignment: b) If administrative penalty is suspension,
(1) Upon the filing of a complaint or information then suspension is justified – not entitled to
sufficient in form and substance against a back salary.
member of the PNP;
(2) For grave felonies where the penalty imposed The reasoning behind these conditions runs this
by law is 6 years and 1 day or more. way: although an employee is considered under
preventive suspension during the pendency of a
Exception: If it can be shown by evidence that the successful appeal, the law itself only authorizes
accused is harassing the complainant and/or preventive suspension for a fixed period; hence, his
witnesses, the court may order the preventive suspension beyond this fixed period is unjustified
suspension of the accused PNP member even if the and must be compensated. The rule on payment of
charge is punishable by a penalty lower than 6 years back salaries during the period of suspension of a
and 1 day. member of the civil service who is subsequently
ordered reinstated, is already settled in this
General Rule: The period of preventive suspension jurisdiction. Such payment of salaries
shall not be more than 90 days. corresponding to the period when an employee is
not allowed to work may be decreed not only if he is
Exception: If the delay in the disposition of the case found innocent of the charges that caused his
is due to the fault, negligence or petitions of the suspension (Sec. 35, RA 2260), but also when the
respondent. suspension is unjustified. (CSC v. Cruz, G.R.
187858, 2011).
The preventive suspension may be sooner lifted by
the court in the exigency of the service upon The mere reduction of the penalty on appeal does
recommendation of the chief, PNP. Such case shall not entitle a government employee to back salaries
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be subject to continuous trial and shall be if he was not exonerated of the charge against
terminated within 90 days from arraignment of the him. If the exoneration of the employee is relative
accused. (as distinguished from complete exoneration), an
inquiry into the factual premise of the offense
Back salaries during preventive suspension charged and of the offense committed must be
General Rule: A public official is not entitled to any made. If the administrative offense found to have
compensation if he has not rendered any service. been actually committed is of lesser gravity than the
(Reyes v. Hernandez, G.R. No. Apr. 8, 1941) offense charged, the employee cannot be
considered exonerated if the factual premise for the
Two conditions before an employee may be imposition of the lesser penalty remains the same.
entitled to back salaries in preventive (CSC v. Cruz, G.R. No. 187858, 2011).
suspension cases:
(1) The employee must be found innocent (or Preventive Suspension Pending Investigation
exonerated) of the charges; and vs. Pending Appeal
(2) His suspension must be unjustified or the official
was innocent. (CSC v. Cruz, G.R. 187858, PREVENTIVE PREVENTIVE
2011) SUSPENSION PENDING SUSPENSION
INVESTIGATION PENDING APPEAL
REMEMBER:
Not a penalty. It is a If the penalty imposed
1) For Preventive Suspension Pending
measure intended to by the disciplining
Investigation – No payment of salary during the
enable the disciplining authority is suspension
suspended period even if exonerated. (Gloria
authority to investigate or dismissal and, after
v. CA, GR No. 131012, 21 April 1999)
charges against review, the respondent
2) For Preventive Suspension Pending Appeal –
respondent by preventing is exonerated.
Payment of salary allowed during the
the latter from intimidating
suspended period if exonerated and
or in any way influencing No back salaries shall
suspension is unjustified. (Gloria v. CA, GR No.
witnesses against him. If be due for the period of
131012, 21 April 1999) Thus:
the investigation is not preventive suspension
a) Exonerated means that the finding of
finished and a decision is PENDING
administrative liability is reversed OR the
not rendered within that INVESTIGATION but
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reason of his discharge from the service even if

period, the suspension will only for the period of
there has been valid suspension from the service
be lifted and the preventive suspension
pending the adjudication of the criminal case.
respondent will PENDING APPEAL, in
(P/Chief Superintendent Calinisan v. SPO2
automatically be the event the employee
Roaquin, G.R. 159588, 2010)
reinstated. If after is exonerated. (Gloria v.
investigation, respondent CA, G.R. 131012,
is found innocent of the 1999) Reinstatement v. Backwages:
charges and is REINSTATEMENT BACKWAGES
exonerated, he should be
reinstated. (CSC v. Restoration to a state A form of relief that
Alfonso, G.R. 179452, or condition from restores the income that
2009) which one had been was lost by reason of
removed or unlawful dismissal.
separated. One who is
2. ILLEGAL DISMISSAL, reinstated assumes
REINSTATEMENT AND BACK the position he had
SALARIES occupied prior to the
dismissal and is, as an
Reinstatement ordinary rule, entitled
The issuance of an appointment to a person who only to the last salary
has been previously appointed to a position in the in that position.
career service and who has, through no delinquency
or misconduct, been separated therefrom, or to the
restoration of one who has been exonerated of the Where to file claims for backwages: The claim for
administrative charges filed against him. (Galang v. recovery of back salaries involves settlement of
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Land Bank, G.R. 175276, 2011) accounts or claims against the government and
should therefore be filed with the Commission on
The rule is settled that back salaries may be Audit.
awarded to civil servants only if they have been
Amount of Back Salaries
illegally dismissed and thenceforth ordered
reinstated, or to those acquitted of the charge An illegally terminated civil service employee is
against them. (Tanjay Water District v. Quinit, Jr., entitled to back salaries limited only to a maximum
G.R. 160502, 2007) period of five years, and not full back salaries from
his illegal termination up to his reinstatement.
When an official or employee was illegally dismissed (Galang v. Land Bank, G.R. 175276, 2011)
and his reinstatement has later been ordered, for all
legal purposes he is considered as not having left I. IMMUNITY OF PUBLIC OFFICERS
his office. Therefore, he is entitled to all the rights
and privileges that accrue to him by virtue of the Official immunity
office he held. (Galang v. Land Bank, G.R. 175276, Only protects public officials from tort liability for
2011) damages arising from acts or functions in the
performance of their official duties.
A public officer is not entitled to reinstatement and
back salaries, when removal or suspension is lawful. Public officers may be sued to restrain them from
The denial of salary to an employee during the enforcing an act claimed to be unconstitutional.
period of his suspension, if he should later be found
guilty, is proper because he had given ground for his Exceptions: when liability does not devolve
suspension. It does not impair his constitutional ultimately to the State such as:
rights because the Constitution itself allows (1) A petition to require official to do his duty;
suspension for cause as provided by law and the (2) A petition to restrain him from doing an act;
law provides that an employee may be suspended (3) To recover taxes from him;
pending an investigation or by way of penalty. (4) Those where the officer impleaded may by
(Bangalisan v. CA, G.R. 124678, 1997) himself alone comply with the decision of the
court;
A public officer is entitled after his acquittal not only (5) Where the government itself has violated its
to reinstatement but also to payment of the salaries, own laws.
allowances, and other benefits withheld from him by
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Where a public officer has committed an ultra vires some defect or irregularity in its exercise, such
act, or where there is a showing of bad faith, malice ineligibility, want of power or defect being
or gross negligence, the officer can be held unknown to the public; and
personally accountable even if such acts are
claimed to have been performed in connection with (d) Under color of an election, or appointment,
official duties. (Wylie v. Rarang, G.R. 74135, 1992) by or pursuant to a public unconstitutional law,
before the same is adjudged to be such. [Citing
Immunity from suit cannot institutionalize State v. Carroll, 38 Conn., 449; Wilcox v. Smith, 5
irresponsibility and non-accountability nor grant a Wendell [N.Y. ], 231; 21 Am. Dec., 213; Sheehan’s
privileged status not claimed by any other official of Case, 122 Mass., 445; 23 Am. Rep., 323.]
the Republic. (Republic v. Sandoval, G.R. 84607,
1993) Requisites
(1) Valid and legitimate office;
Where the public officer is sued in his personal (2) Actual physical possession of the office in good
capacity, state immunity will not apply. (Lansang v. faith;
CA, G.R. 102667, 2000) (3) Color of right or general acquiescence by the
public
Presidential Immunity
Settled is the doctrine that the President, during his Legal Effects of Acts of De Facto Officers:
tenure of office or actual incumbency, may not be The De Facto Office Doctrine
sued in any civil or criminal case. However, this The primordial concern that the doctrine seeks to
does not mean that the President is not accountable address remains to be the protection of the public,
to anyone. Like any other official, he remains who rely on the acts of a person performing the
accountable to the people but he may be removed duties of an office pursuant to an irregular or
from office only in the mode provided by law and that defective authority. Precluding its application to
is by impeachment. (David v. Arroyo, G.R. No. cases where there was no good faith possession of
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171396, 2006) the office, despite having a color of authority or right
to the office, would render the doctrine's purpose
J. DISTINGUISH: DE FACTO AND DE nugatory. [Arroyo v. CA, GR No. 202860, 10 April
2019]
JURE OFFICERS
De Facto Officer
In Luna v. Rodriguez, GR No. L-12647, 26
November 1917, the Supreme Court
A de facto officer’s acts are just as valid for all
purposes as those of a de jure officer, in so far as
the public or third persons who are interested
therein are concerned, viz.: “A de facto officer is one
explained/described the doctrine as follows:
who derives his appointment from one having
[O]ne whose acts, though not those of a lawful
colorable authority to appoint, if the office is an
officer, the law, upon principles of policy and
appointive office, and whose appointment is valid on
justice will hold valid so far as they involve the
its face. He may also be one who is in possession
interest of the public and third persons, where
of an office, and is discharging [his] duties under
the duties of the office were exercised:
color of authority, by which is meant authority
derived from an appointment, however irregular or
(a) Without a known appointment/election, but
informal, so that the incumbent is not a mere
under such circumstances of reputation or
volunteer. Consequently, the acts of the de facto
acquiescence as were calculated to induce people,
officer are just as valid for all purposes as those of
without inquiry, to submit to or invoke his action,
a de jure officer, in so far as the public or third
supposing him to be the officer he assumes to be;
persons who are interested therein are concerned.”
(Funa v. Agra, GR No. 191644, 19 February 2013)
(b) Under color of a known or valid appointment
or election, where the officer has failed to conform
So far as the rights of a third person are concerned,
to some precedent requirement or conditions,
the lawful acts of a de facto officer if done within the
for example, a failure to take the oath or give a bond
scope and by the apparent authority of the office, is
or similar defect;
considered valid and binding as if he were the officer
legally elected and qualified for the office and in full
(c) Under color of a known election or
possession thereof.
appointment, void because the officer was not
eligible, or because there was a want of power in
the electing or appointing body, or by reason of
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Entitlement to Salary
authority, either actual or
General Rule: Rightful incumbent may recover from
apparent.
a de facto officer the salary received by the latter
during the time of wrongful tenure even though the
AS TO COLOR OF AUTHORITY
latter is in good faith and under color of title.
Has color of authority Has neither lawful title nor
Exception: When there is no de jure officer, the de color of right or title to office
facto officer is entitled to salaries for the period when
he actually discharged functions. (Civil Liberties AS TO VALIDITY OF ACTS
Union v. Executive Secretary, GR No 83896,
February 22, 1991) Acts are valid as to Acts are absolutely void and
the public until such can be impeached in any
How De Facto Officer Ousted time as his title to the proceeding at any time,
A de facto officer may be ousted in a direct office is adjudged unless and until he
proceeding where the title will be the principal issue, insufficient continues to act for so long a
not in a collateral action or in an action to which he time as to afford a
is not a party. presumption of his right to
act
The proper remedy is to institute quo warranto
proceeding under Rule 66 of the ROC. The title to a AS TO ENTITLEMENT OF SALARIES
public office may not be contested except directly,
by quo warranto. May be entitled to Not entitled to compensation
compensation for
De Jure Officer services rendered
One who has the lawful right to the office in all
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respects, but who has either been ousted from it, or
who has never actually taken possession of it. When K. TERMINATION OF OFFICIAL
the officer de jure is also the officer de facto, the RELATION
lawful title and possession are united.
General rule: Upon the expiration of the officer’s
Usurper term, his rights, duties and authority as a public
One who takes possession of the office and officer must ipso facto cease.
undertakes to act officially without any color of right
or authority, either actual or apparent. Note that it is Exception: Unless he is authorized by law to hold
the color of authority, not the color of title, that over.
distinguishes an officer de facto from a usurper. It
means that the authority to hold office is by some Where an office is created, or an officer is
election or appointment, however irregular or appointed, for the purpose of performing a single act
informal. or the accomplishment of a given result, the office
terminates and the officer’s authority ceases with
De Jure v De Facto Officer the accomplishment ofthe purposes which called it
A de jure officer has a legal right to the office but he into being.
may not be in possession of the office; while a de
facto officer possesses the office because of the Term of office–the time during which the officer
color of authority. may claim to hold the office as of right and fixes the
interval after which the several incumbents shall
De Facto v. Usurper succeed one another. It is a fixed and definite period
DE FACTO oftime to hold office, perform its functions and enjoy
USURPER its privileges and emoluments until the expiration of
OFFICER
said period.
AS TO MODE OF ACQUIRING POSSESSION OF
OFFICE Tenure of office–the period during which the
incumbent actually holds office.
Officer under any of One who takes possession
the 4 circumstances of an office and undertakes
mentioned. to act officially without any
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Modes of Termination: (TAD PAIR CAIRR) abandonment of the office. (Canonizado v.
(1) Natural causes: (TAD) Aguirre, G.R. 133132, 2001)
(a) Expiration of the Term or tenure of
office - his/her rights and duties ipso (c) Acceptance of an Incompatible office - It is a
facto ceases, unless authorized to well-settled rule that he who, while occupying
holdover. one office, accepts another incompatible with
i. Tenure represents the term the first, ipso facto vacates the first office and
during which the incumbent his title is thereby terminated without any other
actually holds office. act or proceeding. Public policy considerations
ii. The tenure may be shorter (or, dictate against allowing the same individual to
in case of holdover, longer) perform inconsistent and incompatible
than the term for reasons duties. The incompatibility contemplated is not
within or beyond the power of the mere physical impossibility of one person’s
the incumbent. However, a performing the duties of the two offices due to a
term, or the time during which lack of time or the inability to be in two places at
the officer may claim to hold the same moment, but that which proceeds
the office as of right, is not from the nature and relations of the two
affected by the holdover. positions to each other as to give rise to
(Valle Verde v. Africa, G.R. contrariety and antagonism should one person
151969, 2009) attempt to faithfully and impartially discharge
the duties of one toward the incumbent of the
(b) Reaching the Age limit (retirement) - other. (Canonizado v. Aguirre, G.R. 133132,
65 years for public officers and 2001).
employees
(c) Death or permanent disability (d) Resignation – Formal renunciation or
relinquishment of office. To constitute a
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Acts or neglect of officer: (PAIR) complete and operative act of resignation, the
(a) Prescription of Right to Office - Quo warranto officer or employee must show a clear intention
is the proper remedy against a public officer or to relinquish or surrender his position
employee for his/her ouster from office which accompanied by the act of relinquishment.
should be commenced within 1 year after the Resignation implies an expression of the
cause of such ouster; otherwise the action shall incumbent in some form, express or implied, of
be barred. the intention to surrender, renounce and
relinquish the office, and its acceptance by
(b) Abandonment of Office - the voluntary competent and lawful authority. A "courtesy
relinquishment of an office by the holder, with resignation" cannot properly be interpreted as
the intention of terminating his possession and resignation in the legal sense for it is not
control thereof. There are, therefore, two necessarily a reflection of a public official's
essential elements of abandonment: first, an intention to surrender his position. Rather, it
intention to abandon and second, an overt or manifests his submission to the will of the
“external” act by which the intention is carried political authority and the appointing power.
into effect. (Ortiz v. COMELEC, G.R. 78957, 1988)
Generally, a person holding a public office may Cessation from office by virtue of intervening
abandon such office by nonuser or resignation did not warrant the dismissal of the
acquiescence. Non-user refers to a neglect to administrative complaint against the public
use a right or privilege or to exercise an officer, for the act complained of had been
office. However, nonperformance of the duties committed when he or she was still in the
of an office does not constitute abandonment service. (Concerned Citizen v. Catena, A.M.
where such nonperformance results from OCA IPI 02-1321-P, 2013)
temporary disability or from involuntary failure
to perform. Abandonment may also result from Acts of the government or people: (CAIRR)
an acquiescence by the officer in his wrongful
removal or discharge, for instance, after a (a) Conviction of a crime - termination results
summary removal, an unreasonable delay by when the penalties of perpetual or temporary
an officer illegally removed in taking steps to absolute disqualification or penalties of
vindicate his rights may constitute an perpetual or temporary special disqualification
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are imposed upon conviction by final judgment

in a trial court If the reorganization was done in good faith, the
(b) Abolition of office abolition of positions, which resulted in loss of
(c) Impeachment - way of removing security of tenure of affected government
the President, Vice President, employees, would be valid. Except those who hold
Members of the Supreme Court constitutional offices, which provide for special
and the Constitutional immunity as regards salary and tenure, no one can
Commissions and the be said to have any vested right to an office or
Ombudsman. salary. (Banda v. Ermita, G.R. No. 166620, 2010)
(d) Removal - ouster of the incumbent
before the expiration of his/her The creation of the Truth Commission does not fall
term within the President’s power to reorganize. Section
Grounds: 31 of the Revised Administrative Code refers to
i. Members of Congress – each reduction of personnel, consolidation of offices, or
House may punish its members for abolition thereof by reason of economy or
disorderly behavior with the redundancy of functions. These refer to situations
concurrence of 2/3 of ALL its where a body or an office is already existent but a
members. Suspension if imposed modification or alteration thereof has to be
shall not exceed 60 days. effected. (Biraogo v. The Philippine Truth
ii. Civil Service Officers or Commission, G.R. 192935-36, 2010).
Employees – for causes provided
by law The existence of any or some of the following
circumstances may be considered as evidence of
As a matter of law, a department bad faith in the removals made as a result of
secretary’s decision confirming the reorganization, giving rise to a claim for
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removal of an officer under his reinstatement or reappointment by an aggrieved
authority is immediately executory, party:
even pending further remedy by (1) Where there is a significant increase in the
the dismissed public number of positions in the new staffing pattern
officer. (Dimapilis-Baldoz v.
of the department or agency concerned;
Commission on Audit, G.R.
(2) Where an office is abolished and others are
199114, 2013)Recall - refers to
the election itself by means of performing substantially the same functions is
which voters decide whether they created;
should retain their local official or (3) Where incumbents are replaced by those less
elect replacement. The ground for qualified in terms of status of appointment,
recall is “loss of confidence.” performance and merit;
(4) Where there is a reclassification of offices in the
A petition for recall should be
initiated by at least 25% of the total department or agency concerned and the
number of registered voters of the reclassified offices perform substantially the
concerned LGU. same function as the original offices;
(5) Where the removal violates the order of
REORGANIZATION separation provided in Section 3 hereof.
involves the reduction of personnel, consolidation of (Cotiangco v. Province of Biliran, G.R. 157139,
offices, or abolition thereof by reason of economy or
2011)
redundancy of functions. It alters the existing
structure of government offices or units therein,
including the lines of control, authority and Prohibition on Financial Accommodation
responsibility between them to make the (PHIL. CONST., art. XI, § 16.)
bureaucracy more responsive to the needs of the No loan, guaranty, or other form of financial
public clientele as authorized by law. It could result accommodation for any business purpose may be
in the loss of one’s position through removal or granted, directly or indirectly, by any government-
abolition of an office. A valid reorganization for the owned or controlled bank or financial institution to
purpose of economy or for making the bureaucracy the:
more efficient must pass the test of good faith;
(1) President
otherwise it is void ab initio. (Pan v. Pena, G.R.
(2) Vice President
174244, 2009)
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(3) Members of the • Appointed by the President with consent of
(a) Cabinet the Commission on Appointments for a
(b) Congress term of 7 years, without reappointment
(c) Supreme Court
(d) Constitutional Commissions Coverage of the Civil Service
(4) Ombudsman All branches, subdivisions, instrumentalities, and
agencies of the government including GOCC with
(5) Any firm or entity in which they have
original charters.
controlling interest, during their tenure
Authority of the Civil Service Commission
Statement of Assets and Liabilities and Net (1) Limited to reviewing appointments on the basis
Worth (PHIL. CONST., art. XI, § 17.) of the Civil Service Law
A public officer or employee shall upon assumption (2) Only allowed to check whether the appointee
of office and as often thereafter as may be required possesses the appropriate civil eligibility or the
by law, submit a declaration under oath of his required qualification; CSC has no discretionary
assets, liabilities, and net worth. power
Limitations to the power to appoint

The following are required to disclose their
(1) The power does not include authority to make
declaration to the public in the manner provided by
the appointment itself or to direct the appointing
law: authority to change the employment status of an
1. President employee.
2. Vice President (2) No authority to revoke appointment simply
3. Members of the because it believed that another person is better
a. Cabinet qualified
b. Congress (3) No power to pass upon the qualifications or
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c. Supreme Court
d. Constitutional Commissions
e. Other constitutional offices
4. Officers of the Armed Forces with general
tenure of the appointing officer or declare the
latter’s position vacant for an act that produced
forfeiture of his office
(4) Cannot change the tenure of office granted to
appointee such as where the appointing
or flag rank
authority indicated permanent appointment but
CSC approved as temporary such appointment
Involuntary Retirement
Retirement is the termination of one's own
employment or career, especially upon reaching a 2. Appointments to Civil Service
certain age or for health reasons. Retirement is
voluntary when one decides upon one's own Classifications
unilateral and independent volition to permanently
cease the exercise of one's occupation. Retirement (1) Career
is deemed involuntary when one's profession is
terminated for reasons outside the control and Characteristics:
discretion of the worker. Impeachment resulting in (1) Entrance based on merit and fitness to be
removal from holding office falls under the column determined by competitive examinations or
on involuntary retirement. (Re: Letter of Mrs. Ma. based on highly technical qualifications;
Cristina Roco Corona, A.M. No. 20-07-10-SC, (2) Opportunity for advancement to higher career
January 12, 2021) positions; and
(3) Security of tenure
L. THE CIVIL SERVICE
Levels of Positions
1st Level: Clerical, trades, crafts and custodial
1. SCOPE service positions involving non-professional/sub-
professional in a non-supervisory or supervisory
Civil Service Commission (CSC) capacity requiring less than 4 years of collegiate
Central personnel agency of the government studies.
Composition
2nd Level: Professional, technical and scientific
• Chairman and 2 commissioners
positions in a non-supervisory/supervisory capacity
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requiring at least 4 years of college work up to

division chief level. Grounds when CSC has power to recall, on its
own initiative, an appointment initially
3rd Level: Career Executive Service positions approved:
(1) Non-compliance with the procedures/criteria
The position of department manager is not a third provided in the agency’s merit promotional plan
level position which is appointed by the President. (2) Failure to pass through the agency’s
For said reason, a PEZA department manager only selection/promotion board
needs the approval of the PEZA Director-General to (3) Violation of the existing collective agreement
validate his appointment or re-appointment. As he between management and employees relative
need not possess a CESO or CSEE eligibility, the to promotion
CSC has no valid and legal basis in invalidating his (4) Violation of other existing civil service law, rules
appointment or re-appointment. (Agyao v. CSC, and regulations
G.R. 182591, 2011)
3. Personnel Actions
(2) Non-career
Personnel action
Characteristics:
Any action denoting movement or progress of
(1) Entrance on bases other than those of the usual
personnel in the civil service. (EO 292, Rule V, § 1,
test of merit and fitness;
cited in City Mayor Debulgado v. CSC, G.R. 111471,
(2) Tenure which is limited to:
1994).
(a) Period specified by law;
(b) Coterminous with that of appointing
Includes the following: (PART R2D2)
authority;
(1) Appointment through certification
(c) Subject to appointing authority’s pleasure;
(2) Promotion
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(d) Limited to the duration of a particular
(3) Transfer
project.
(4) Reinstatement
(5) Reemployment
They, however, enjoy constitutional guarantee that
(6) Detail
they cannot be removed except for cause and after
(7) Reassignment
due hearing.
(8) Demotion
Oppositions to Appointment
It is the CSC which is empowered to look into the
Any person who feels aggrieved by the appointment
validity of creation of positions and appointments of
of a person may file a protest against the
personnel appointed by the Mayor whose
appointment.
appointments were confirmed by the CSC. There
being a valid appointment confirmed by CSC and
Causes for protesting appointment
the concerned personnel having rendered services,
(1) Appointee not qualified;
payment of their salaries is proper and legal.
(2) Appointee is not the next-in-rank;
(Tolentino v. Loyola, G.R. 153809, 2011)
(3) In the case of appointment by transfer,
reinstatement, or by original appointment, that
Valid personnel actions
the protestant is not satisfied with the written
(1) Extending temporary appointment,
special reason(s) given by the appointing
however, this must not amount to removal.
authority.
(2) Transfer or re-assignment but this must not
involve a reduction in rank, status, and
Meaning of “For Cause”
salary, without break in service.
For reasons which the law and sound public policy
(3) Detail must be made in the interest of public
recognized as sufficient warrant for approval, that is,
service, absent showing of manifest abuse
legal cause, and not merely causes which
or improper motive or purpose.
appointing power in the exercise of discretion may
deem sufficient. The cause must relate to and affect
Personnel actions amounting to removal
the administration of the office, and must be
(1) Shortening term is removal
restricted to something substantial in nature.
(2) Control does not extend to removal
(3) Demotion
Revocation or Recall of Appointment
(4) Denial of optional retirement and refusal to
General Rule: Appointment once made is
reinstate
irrevocable and not subject to reconsideration.
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While a temporary transfer or assignment of
gross negligence when fraud in order to secure his
personnel is permissible even without the
a breach of duty is examination, registration,
employee’s prior consent, it cannot be done when
flagrant and palpable. appointment or promotion.
the transfer is a preliminary step toward his removal,
or is a scheme to lure him away from his permanent
Failing to comply with It should be emphasized
position, or designed to indirectly terminate his
his duty to provide a only when the
service, or force his resignation. Such a transfer
detailed list of his accumulated wealth
would in effect circumvent the provision which
assets and business becomes manifestly
safeguards the tenure of office of those who are in
interests in his SALN disproportionate to the
the Civil Service. (Garcia v. Lejano, G.R. L-12220,
and for relying on the employee’s income or
1960).
family bookkeeper/ other sources of income
accountant to fill out his and his failure to properly
Waiver of security of tenure
SALN and in signing the account or explain his
Acceptance of temporary appointment or
same without checking other sources of income
assignment, without reservations is a waiver of
or verifying the entries does he become
security of tenure.
is negligence. susceptible to dishonesty.
(Presidential Anti-Graft (Ombudsman v. Nieto,
M. ACCOUNTABILITY OF PUBLIC Commission and the G.R. 185685, 2011)
OFFICERS Office of the President
v. Pleyto, G.R. 176058,
1. TYPES OF ACCOUNTABILITY 2011)
a. Administrative Liability Good Faith

Good faith is ordinarily used to describe that state of
Grounds for Discipline: (DOOD IPOD MINI mind denoting honesty of intention and freedom
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MUG) from knowledge of circumstances which ought to put
(1) Discourtesy in the course of official duties; the holder upon inquiry. In other words, good faith is
(2) Refusal to perform Official duty or render actually a question of intention. Although this is
overtime service; something internal, one can ascertain a person’s
(3) Falsification of Official documents; intention not from his own protestation of good faith,
(4) Habitual Drunkenness; which is self-serving, but from evidence of his
(5) Inefficiency and incompetence in the conduct and outward acts. (Dumduma v. CSC, G.R.
performance of official duties; 182606, 2011)
(6) Willful refusal to Pay just debts or willful failure
to pay taxes due to the government; Every public official who signs or initials documents
(7) Oppression; in the course of standard operating procedures does
(8) Dishonesty; not automatically become a conspirator in a crime
(9) Misconduct; that transpired at some stage in which the official
(10) Disgraceful and Immoral conduct; had no participation. (Peralta v. Desierto, G.R.
(11) Neglect of duty; 153152, 2005)
(12) Physical or mental Incapacity due to immoral or
vicious habits; Even if the dishonest act was committed by the
(13) Conviction of a crime involving Moral turpitude; employee prior to entering government service,
(14) Being notoriously Undesirable; such act is still a ground for disciplinary action.
(15) Gambling (Orbase v. Ombudsman, G.R. 175115, 2009)
Negligence v. Dishonesty Misconduct in office

NEGLIGENCE DISHONESTY refers to "any unlawful behavior by a public officer in
relation to the duties of his office, willful in character.
In the case of public Dishonesty begins when The term embraces acts which the office holder had
officials, there is an individual intentionally no right to perform, acts performed improperly, and
negligence when there makes a false statement in failure to act in the face of an affirmative duty to act."
is a breach of duty or any material fact, or In grave misconduct, as distinguished from simple
failure to perform the practicing or attempting to misconduct, the elements of corruption, clear intent
obligation, and there is practice any deception or to violate the law, or flagrant disregard of
established rule must be manifest. Corruption as an
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element of grave misconduct consists in the act of assistance, maltreatment of prisoners,

an official or employee who unlawfully or wrongfully anticipation, prolongation and
uses his station or character to procure some benefit abandonment of the duties and powers
for himself or for another, contrary to the rights of of public office, usurpation of powers
others. (Gabon v. Merka, A.M. P-11-3000, 2011) and unlawful appointments
Grave misconduct (2) Anti-Graft and Corrupt Practices Act

Consists in a government official’s deliberate (3) Code of Conduct and Ethical Standards
violation of a rule of law or standard of behavior. It (a) Any violation hereof proven in a
is regarded as grave when the elements of proper administrative proceeding
corruption, clear intent to violate the law, or flagrant shall be sufficient cause for
disregard of established rules are present. In removal or dismissal of a public
particular, corruption as an element of grave official or employee, even if no
misconduct consists in the official’s unlawful and criminal prosecution is instituted
wrongful use of his station or character to procure against him.
some benefit for himself or for another person,
contrary to duty and the rights of others. Rigging by (4) Forfeiture of Unexplained Wealth Act
a public official at a bidding in the organization (5) Civil Service Decree
where he belongs is a specie of corruption. (NPC v. (a) For any violation of the provisions on:
CSC, G.R. 152093, 2012) i. Warrant and checks receivables
for taxes or other indebtedness of
Simple neglect of duty the government
Defined as the failure of an employee to give proper ii. Issuance of official receipts
attention to a required task or to discharge a duty iii. Limitation on cash advances
due to carelessness or indifference. On the other iv. Liability for acts done by direction
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hand, gross neglect of duty is characterized by want of a superior officer
of even the slightest care, or by conscious v. Prohibition against pecuniary
indifference to the consequences, and in cases interest
involving public officials, by flagrant and palpable
breach of duty. It is the omission of that care that (6) Government Auditing Code
even inattentive and thoughtless men never fail to (7) Local Government Code
take on their own property. (Land Bank of the (8) National Internal Revenue Code
Philippines vs. San Juan Jr., G.R. 192890, 2013) (9) Omnibus Election Code
Ultra vires acts Public officers may not be held criminally liable for
Acts which are clearly beyond the scope of one's failure to perform a duty commanded by law when,
authority. They are null and void and cannot be for causes beyond their control, performance is
given any effect. The doctrine of estoppel cannot impossible.
operate to give effect to an act which is otherwise
null and void or ultra vires. (Acebedo Optical However, the absence of corrupt intent is not a
Company v. CA, G.R. No. 100152, 2000) defense to an action against an officer for a statutory
penalty for misconduct such as taking illegal fees, or
for willful failure or refusal to perform a mandatory
b. Criminal Liability
ministerial duty.
Crimes peculiar to certain public officers The mere expiration of his term of office will not
Crimes committed by public officers are classified prevent the prosecution and punishment of a
under: public officer for a misdemeanor committed in
(1) Revised Penal Code office; nor the re-election of a public official
extinguishes the criminal liability incurred by
(a) Malfeasance and misfeasance in office him during his previous term of office.
(b) Frauds and illegal exactions and
transactions
(c) Malversation of public
(d) Infidelity of public officers
(e) Other offenses and irregularities
committed by public officers which
include disobedience, refusal of
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2. DISCIPLINE Concept of public office is a public trust

The concept of public office is a public trust and the
a. Grounds corollary requirement of accountability to the people
at all times, as mandated under the 1987
General Rule: A public officer is not liable for Constitution, is plainly inconsistent with the idea that
injuries sustained by another due to official acts an elective local official's administrative liability for a
done within the scope of his authority. misconduct committed during a prior term can be
wiped off by the fact that he was elected to a second
Exceptions: (BM-NID) term of office, or even another elective post. Election
(1) Bad faith; is not a mode of condoning an administrative
(2) Malice; offense, and there is simply no constitutional or
(3) Negligence; statutory basis in our jurisdiction to support the
(4) Death or Injury to persons or damage to notion that an official elected for a different term is
property fully absolved of any administrative liability arising
from an offense done during a prior term. (Carpio-
Administrative liability is separate from and Morales v. CA and Binay, G.R. 217126-27, 2015)
independent of criminal liability
It is a fundamental principle in the law on public Public officers and employees must at all times be
officers that administrative liability is separate from accountable to the people, serve them with utmost
and independent of criminal liability. A simple act or responsibility, integrity, loyalty, and efficiency, act
omission can give rise to criminal, civil or with patriotism and justice, and lead modest lives.
administrative liability, each independently of the
others. This is known as the threefold liability rule. The basic idea of government in the Philippines is
Thus, absolution from a criminal charge is not a bar that of a representative government, the officers
to an administrative prosecution, and vice versa. being mere agents and not rulers of the people, one
where no one man or set of men had a proprietary
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The dismissal of the administrative cases against
the petitioners will not necessarily result in the or contractual right to an office, but where every
dismissal of the criminal complaints filed against officer accepts office pursuant to the provisions of
them. (Regidor, Jr. v. People, G.R. 166086-92, law and holds the office as a trust for the people
2009; Office of the President v. Cataquiz, G.R. whom he represents. (Bernas, 1987 Philippine
183445, 2011) Constitution: A Commentary, 924, 2009, citing
Cornejo v. Gabriel, 41 Phil. 188, 1920)
Proof of damage or actual injury
Public Officers and employees owe the State and
Proof of damage or actual injury is not required for
this Constitution allegiance at all times and any
administrative liability to attach to a public officer. It
public officer or employee who seeks to change his
is enough that the act was contrary to the
citizenship or acquire the status of an immigrant of
established norms of conduct for government
another country during his tenure shall be dealt with
service. However, an employee of GSIS who altered
by law (PHIL. CONST., art. XI, § 18.)
IP addresses without authority, not in the
performance of his duties, will not be guilty of grave
misconduct but conduct prejudicial to the best b. Jurisdiction
interest of service. To constitute misconduct, the act
or acts must have a direct relation to and be Jurisdiction in Disciplinary Cases
connected with the performance of official duties. (1) The Secretaries and heads of agencies and
(GSIS v. Mayordomo, G.R. No. 191218, 2011) instrumentalities, provinces, cities and
municipalities shall have jurisdiction to
Presumption of good faith in the discharge of investigate and decide matters involving
official duties disciplinary action against officers and
Every public official is entitled to the presumption of employees under their jurisdiction. Their
good faith in the discharge of official duties. decision shall be final in case the penalty
Although a public officer is the final approving imposed is suspension for not more than 30
authority and the employees who processed the days or fine in an amount not exceeding 30
transaction were directly under his supervision, days’ salary.
personal liability does not automatically attach to (2) In case the decision rendered by a bureau or
him but only upon those directly responsible for the office head is appealable to the Commission,
unlawful expenditures. (Dimapilis-Baldoz v. the same may be initially appealed to the
Commission on Audit, G.R. 199114, 2013) department and finally to the Commission and
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pending appeal, the same shall be executory administrative liability. An action for each can
except when the penalty is removal, in which proceed independently of the others (Domingo v.
case the same shall be executory only after Rayala, G.R. No. 155831, February 18, 2008 citing
confirmation by the Secretary concerned. OCA v Enriquez, A.M. No. P-89-290, January, 29,
(3) The Commission shall decide upon appeal all 1993).
administrative disciplinary cases involving the
imposition of a penalty of suspension for more Preventive Suspension
than 30 days, or fine in an amount exceeding 30 FOR ALL APPOINTIVE AND ELECTIVE
days’ salary, demotion in rank or salary, OFFICIALS AND EMPLOYEES EXCEPT
transfer, removal or dismissal from office. EXCLUDED OFFICIALS (i.e. IMPEACHABLE
(4) A complaint may be filed directly with the OFFICERS)
Commission by a private citizen against a
government official or employee in which case The Ombudsman or his Deputy may preventively
it may hear and decide the case or it may suspend any officer or employee under his authority
deputize any department, agency, official, or pending an investigation, if in his judgment the
group of officials to conduct the investigation. evidence of guilt is strong, and (a) the charge
(5) Disciplinary cases and cases involving against such officer or employee involves
“personnel actions” affecting employees in the dishonesty, oppression or grave misconduct or
civil service are within the exclusive jurisdiction neglect in the performance of duty; (b) the charges
of the Civil Service Commission, which is the would warrant removal from the service; or (c) the
sole arbiter of controversies relating to the civil respondents continued stay in office may prejudice
service. the case filed against him.
(6) Executive Order No. 151, or the Presidential
Commission Against Graft and Corruption, The preventive suspension shall continue until the
exercises jurisdiction to investigate all case is terminated by the Office of the Ombudsman
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administrative complaints involving graft and but not more than six months, without pay, except
corruption filed in any form or manner against when the delay in the disposition of the case by the
presidential appointees in the executive Office of the Ombudsman is due to the fault,
department of the government, including those negligence or petition of the respondent, in which
in GOCCs. Such jurisdiction extends to case the period of such delay shall not be counted
nonpresidential appointees who may have in computing the period of suspension herein
acted in conspiracy or who may have been provided. (Sec. 24 RA 6770 The Ombudsman Act of
involved with a presidential appointee. 1989)
(7) The Sandiganbayan has exclusive original
jurisdiction over presidents, directors or FOR APPOINTIVE NATIONAL OFFICIALS AND
trustees, or managers of GOCCs, without any EMPLOYEES
distinction with respect to the manner of their
creation, whenever charges of graft and An appeal shall not stop the decision from being
corruption are involved. executory, and in case the penalty is suspension or
(8) RA No. 4670, otherwise known as the Magna removal, the respondent shall be considered shall
Carta for Public School Teachers, covers and be considered having been under preventive
governs administrative proceedings involving suspension during the pendency of the appeal in the
public school teachers. event he wins an appeal (EO 292, Book V, Title IA,
§ 47(4)).
c. Dismissal, Preventive
Suspension, Reinstatement The proper disciplining authority may preventively
and Back Salaries suspend any subordinate officer or employee under
his authority pending as investigation, if the charge
against such officers or employee involves
Dismissal
dishonesty, oppression or grave misconduct, or
Section 11(b) of Republic Act No. 6713 explicitly
neglect in the performance of duty, or if there are
states that dismissal from the service may be
reasons to believe that the respondent is guilty of
warranted through an administrative proceeding,
charges which would warrant his removal from the
even if the erring officer is not subjected to criminal
service (EO 292, Book V, Title IA, § 51).
prosecution. This is in keeping with the three (3)-fold
liability rule in the law on public officers, "which
When the administrative case against the officers or
states that the wrongful acts or omissions of a public
employee under preventive suspension is not finally
officer may give rise to civil, criminal and
decided by the disciplining authority within the
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period of ninety (90) days after the date of during such suspension; but upon subsequent
suspension of the respondent who is not a exoneration and reinstatement, he shall be paid full
presidential appointee, the respondent shall be salary or compensation including such emoluments
automatically reinstated in the service: Provided, accruing during such suspension (RA 7160, The
That when the delay in the disposition of the case is Local Government Code, § 64).
due to the fault, negligence or petition of the
respondents, the period of delay shall not be An appeal shall not prevent a decision from
counted in computing the period of suspension becoming final or executory. The respondent shall
herein provided (EO 292, Book V, Title IA, § 52). be considered as having been placed under
preventive suspension during the pendency of an
FOR ELECTIVE LOCAL OFFICIALS appeal in the event he wins such appeal. In the
event the appeal results in an exoneration, he shall
(a) Preventive suspension may be imposed: be paid his salary and such other emoluments
(1) By the President, if the respondent is an during the pendency of the appeal (RA 7160, The
elective official of a province, a highly Local Government Code, § 68).
urbanized or an independent component
city; FOR LOCAL APPOINTIVE OFFICIALS AND
(2) By the governor, if the respondent is an EMPLOYEES
elective official of a component city or (a) The local chief executives may preventively
municipality; or suspend for a period not exceeding sixty (60) days
(3) By the mayor, if the respondent is an and subordinate official or employee under his
elective official of the barangay. authority pending investigation if the charge against
(b) Preventive suspension may be imposed at any such official or employee involves dishonesty,
time after the issues are joined, when the evidence oppression or grave misconduct or neglect in the
of guilt is strong, and given the gravity of the offense, performance of duty, or if there is reason to believe
there is great probability that the continuance in that the respondent is guilty of the charges which
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office of the respondent could influence the would warrant his removal from the service.
witnesses or pose a threat to the safety and integrity
of the records and other evidence: Provided, That, (b) Upon expiration of the preventive suspension,
any single preventive suspension of local elective the suspended official or employee shall be
officials shall not extend beyond sixty (60) days: automatically reinstated in office without prejudice to
Provided, further, That in the event that several the continuation of the administrative proceedings
administrative cases are filed against an elective against him until its termination. If the delay in the
official, he cannot be preventively suspended for proceedings of the case is due to the fault, neglect
more than ninety (90) days within a single year on or request of the respondent, the time of the delay
the same ground or grounds existing and known at shall not be counted in computing the period of
the time of the first suspension. suspension herein provided (RA 7160, The Local
Government Code, § 85).
(c) Upon expiration of the preventive suspension,
the suspended elective official shall be deemed Reinstatement
reinstated in office without prejudice to the When a government official or employee has been
continuation of the proceedings against him, which illegally dismissed, and his reinstatement has later
shall be terminated within one hundred twenty (120) been ordered, for all legal purposes he is considered
days from the time he was formally notified of the as not having left his office, so that he is entitled to
case against him. However, if the delay in the all the rights and privileges to accrue to him by virtue
proceedings of the case is due to his fault, neglect, of the office that he held (Cuevas v. Bacal, G.R. No.
or request, other than the appeal duly filed, the 139382. December 6, 2000)
duration of such delay shall not be counted in
computing the time of termination of the case. The general rule is that a person suspended or
dismissed from the public office through no fault of
(d) Any abuse of the exercise of the power of his own is entitled to be reinstated to his former
preventive suspension shall be penalized as abuse position or at least to a comparable position, if
of authority (RA 7160, The Local Government Code, feasible. (De Leon, The Law on Public Officers and
§ 63). Election Law, 237, 2011)
The respondent official preventively suspended

from office shall receive no salary or compensation
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Back Salaries 3. IMPEACHMENT v. QUO

The "no work, no pay" principle does not apply WARRANTO
where it has been sufficiently shown that a public
official was wrongfully prevented from entering the Impeachment
office and carrying out his duties. He may recover Pertains to the power of Congress to remove a
his salary for the duration that he was thus public official for serious crimes or misconduct as
prevented from assuming his post, and it is provided in the Constitution. It is a mechanism
immaterial that his appointment is temporary designed to check abuse of power. (Chief Justice
because what is material is not the nature of the Renato C. Corona v. Senate of the Philippines
appointment but the act of wrongful deprivation of sitting as an Impeachment Court, G.R. No. 200242,
office. (De Leon, The Law on Public Officers and 2012)
Election Law, 234, 2011 citing Celerian v. Tantuico
Jr., G.R. No. L-50147, 1990) Who may be impeached: (VP-SOC)
(1) President
If the illegal dismissal is found to have been made in (2) Vice President
bad faith by the superior officers, then they will be (3) Supreme Court Justices
held personally accountable for back salaries of the (4) Constitutional Commission members
illegally dismissed employee. (De Leon, The Law on (5) Ombudsman (Phil. Const., art. XI, sec. 2)
Public Officers and Election Law, 234, 2011 citing
David v. Gania, G.R. No. 156039, 1990) Grounds: (GOT BBC)
(1) Graft and corruption
d. Condonation Doctrine (2) Other high crimes
(3) Treason
The condonation doctrine is the doctrine that (4) Betrayal of public trust
provides that a reelected official should no longer be (5) Bribery
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made accountable for an administrative offense (6) Culpable violation of the Constitution (Phil.
committed during his previous term. Const., art. XI, sec. 2)
In Carpio-Morales, the Court abandoned the It is an exclusive list. Congress cannot add to the list
"condonation doctrine," explaining that "election is of impeachable offenses.
not a mode of condoning an administrative offense,
and there is simply no constitutional or statutory These officers cannot be charged in court with
basis in our jurisdiction to support the notion that an offenses that have removal from office as penalty.
official elected for a different term is fully absolved But after an official has been impeached, he can be
of any administrative liability arising from an offense charged with the appropriate offense.
done during a prior term."
Resignation by an impeachable official does not
The abandonment should be prospectively applied. place him beyond the reach of impeachment
(Dimapilis v. Commission on Elections, G.R. No. proceedings; he can still be impeached.
227158, April 18, 2017)
Disbarment. Members of the Supreme Court must,
The ruling promulgated in Carpio-Morales v. Court under Article VIII (7) (1) of the Constitution, be
of Appeals on the abandonment of the doctrine of members of the Philippine Bar and may be removed
condonation had, indeed, become final only on April from office only by impeachment (Article XI [2],
12, 2016, and thus the abandonment should be Constitution). To grant a complaint for disbarment of
reckoned from April 12, 2016. (Crebello v. a Member of the Court during the Member's
Ombudsman, GR No. 232325, 2019) incumbency, would in effect be to circumvent and
hence to ran afoul of the constitutional mandate that
NOTE: Thus, OMB decisions prior to April 12, 2016 Members of the Court may be removed from office
absolving respondent public officials from only by impeachment for and conviction of certain
administrative charges by reason of the application offenses listed in Article XI (2) of the Constitution.
of the doctrine of condonation would still be valid. (Cuenco v. Fernan, GR No. 3135, 1988)
Other public officers and employees

They may be removed from office as provided by
law but, not by impeachment. (Phil. Const., art. XI,
sec. 2)
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Who may initiate impeachment case Limitation
The House of Representatives has exclusive power Only one impeachment proceeding should be
to initiate all cases of impeachment. (Phil. Const., initiated against an impeachable officer within a
art. XI, sec. 3, par. (1)) period of one year. (Gutierrez v. House Committee
on Justice, G.R. 193459, 2011)
Procedure:
(1) Filing of a verified complaint for The SC found it well-within its power to determine
impeachment, which may be filed by: whether Congress committed a violation of the
(a) Any member of the House of Constitution or gravely abused its discretion in the
Representatives or exercise of its functions and prerogatives that could
• If the verified complaint or translate as lack or excess of jurisdiction in taking
resolution is filed by at cognizance of two impeachment complaints that are
least 1/3 of all the inquisitorial in function, akin to a preliminary
Members of the House, investigation. (Gutierrez v. House Committee on
the same shall constitute Justice, G.R. 193459, 2011).
the Articles of
Impeachment, and trial by 1-year period; When reckoned
the Senate shall proceed The 1-year period shall be counted from the time of
(b) Any citizen upon a resolution or the filing of the first impeachment complaint.
endorsement by any Member of the Impeachment proceedings pertain to the
House proceedings in the House of Representative which
(2) Inclusion of the complaint in the Order of commences from the initiation of the complaint, to
Business within 10 session days the referral to proper committees, to submission of
(3) Referral to the proper Committee (i.e. the report to the House, subsequent deliberation,
Committee on Justice) within 3 session and ends with the transmittal of the Article of
days Impeachment to the Senate. An impeachment case
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(4) Submission by the Committee of its report pertains to a trial in the Senate which commences
with the corresponding resolution, after at the time the Articles of Impeachment are
hearing and by a majority vote, to the transmitted to the Upper House. (Gutierrez v. House
House within 60 days from such referral Committee on Justice, G.R. 193459, 2011).
(5) Calendaring of the resolution for
consideration by the House within 10 Effects of impeachment: (LDR)
session days from receipt thereof (1) Removal from office of the official
(6) At least 1/3 vote of all the members of the concerned
House shall be necessary to: (2) Disqualification to hold any public office
(a) Affirm the resolution with the Articles of (3) Public officer still Liable to prosecution,
Impeachment of the Committee or trial, and punishment if the impeachable
(b) Override its contrary resolution (Phil. offense committed also constitutes a felony
Const., art. XI, sec. 3, par. (2) to (4)) or crime. (Phil. Const., art. XI, sec. 3, par.
(7))
Roles of the 3 branches of Government in
impeachment: Sufficiency of form and substance of the
(1) Senate has sole power to try and decide complaint
cases of impeachment (Phil. Const., art. XI, The determination of sufficiency of form and
sec. 3, par. (6)); substance of an impeachment complaint is an
(2) If the President is on trial, the Chief Justice exponent of the express constitutional grant of rule-
presides but does not vote (Id.); making powers of the House of Representatives. In
(3) The Supreme Court can determine if the discharge of that power and in the exercise of its
Congress committed grave abuse of discretion, the House has formulated determinable
discretion amounting to lack or excess of standards as to the form and substance of an
jurisdiction (ex. recognizing two impeachment complaint. Furthermore, the
impeachment complaints). Impeachment Rules are clear in echoing the
constitutional requirements and providing that
For impeachment, judgment of conviction requires there must be a "verified complaint or resolution,”
the concurrence of 2/3 of all the Members of the and that the substance requirement is met if there
Senate. (Phil. Const., art. XI, sec. 3, par. (6)) is "a recital of facts constituting the offense
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charged and determinative of the jurisdiction of 4. THE OMBUDSMAN AND THE

the committee.” The Supreme Court cannot look OFFICE OF THE SPECIAL
into the narration of facts constitutive of the PROSECUTOR
offenses, because such would require the Court
to make a determination of what constitutes an a. Functions
impeachable offense. Such a determination is
considered to be purely a political question and The Ombudsman
thus left to the sound determination of the The Ombudsman and his Deputies, as protectors of
legislature. (Gutierrez v. House Committee on the people, shall act promptly on complaints filed in
Justice, G.R. 193459, 2011). any form or manner against officers or employees of
the Government, or of any subdivision, agency or
Impeachment v. Quo Warranto instrumentality thereof, including government-
While both impeachment and quo warranto seek the owned or controlled corporations, and enforce their
ultimate removal of an incumbent government administrative, civil and criminal liability in every
officer, the two differ as to nature, jurisdiction, case where the evidence warrants in order to
grounds, the applicable procedural rules, and promote efficient service by the Government to the
limitations. people. (Sec. 13, R.A. 6770)
Impeachment is political; quo warranto is judicial. In Powers, Functions and Duties of the Office of
impeachment, the Congress is the prosecutor, the the Ombudsman
trier, and the judge, whereas quo warranto petitions
are instituted either by the Solicitor General in behalf (1) Investigate on its own, or on complaint by
of the Republic of the Philippines or by an individual any person, any act or omission of any
claiming the public office in issue, both of which public official, employee, office or agency,
petitions are cognizable only by the Supreme Court. when such act or omission appears to be
FOR ONE ATENEO

illegal, unjust, improper, or inefficient.
Impeachment proceedings seek to confirm and (2) Direct, upon complaint or at its own
vindicate the breach of the trust reposed by the instance, any public official or employee of
Filipino people upon the impeachable official, but the Government, or any subdivision,
quo warranto determines the legal right, title, agency or instrumentality thereof, as well
eligibility, or qualifications of the incumbent to the as of any government-owned or controlled
contested public office. corporation with original charter, to perform
The 1987 Constitution, as supplemented by the and expedite any act or duty required by
internal rules of procedure of the Congress, directs law, or to stop, prevent, and correct any
the course of impeachment proceedings. Quo abuse or impropriety in the performance of
warranto cases, on the other hand, are dictated by duties.
the Rules of Court. The end result of an (3) Direct the officer concerned to take
impeachment proceeding is the removal of the appropriate action against a public official
public officer, and his or her perpetual political or employee at fault, and recommend his
disqualification from holding public office. On the removal, suspension, demotion, fine,
other hand, when a quo warranto petition is granted, censure, or prosecution, and ensure
ouster from office is likewise meted, but the Court compliance therewith.
can likewise impose upon the public officer (4) Direct the officer concerned, in any
additional penalties such as reimbursement of costs appropriate case, and subject to such
pertaining to the rightful holder of the public office limitations as may be provided by law, to
and such further judgment determining the furnish it with copies of documents relating
respective rights in and to the public office, position, to contracts or transactions entered into by
or franchise of all the parties to the action as justice his office involving the disbursement or use
requires. [Re: Letter of Mrs. Ma. Cristina Roco of public funds or properties and report any
Corona, A.M.No. 20-7-10-SC, January 12, 2011] irregularity to the Commission on Audit for
appropriate action.
(5) Request any government agency for
assistance and information necessary in
the discharge of its responsibilities, and to
examine, if necessary, pertinent records
and documents.
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(6) Publicize matters covered by its Under the present Constitution, the Special
investigation when circumstances so Prosecutor (Raul Gonzalez) is a mere subordinate
warrant and with due prudence. of the Tanodbayan Ombudsman) and can
(7) Determine the causes of inefficiency, red investigate and prosecute cases only upon the
tape, mismanagement, fraud, and latter's authority or orders. The Special Prosecutor
corruption in the Government and make cannot initiate the prosecution of cases but can only
recommendations for their elimination and conduct the same if instructed to do so by the
the observance of high standards of ethics Ombudsman. Even his original power to issue
and efficiency. subpoena, which he still claims under Section 10(d)
(8) Promulgate its rules of procedure and of PD 1630, is now deemed transferred to the
exercise such other powers or perform Ombudsman, who may, however, retain it in the
such functions or duties as may be Spedal Prosecutor in connection with the cases he
provided by law. (Sec. 13, Art. XI, 1987 is ordered to investigate. (Zaldivar v.
Constitution) Sandiganbayan, G.R. No. 79690-707, April 27,
1988).
b. Judicial Review in
Administrative Proceedings Under PD 1487, as amended by PD 1607,
c. Judicial Review in Penal Tanodbayan was both prosecutor and Ombudsman.
Harmonisation of the laws left the Special
Proceedings
Prosecutor to continue to exercise powers of the
former Tanodbayan except those specifically
Judicial Review in Administrative Proceedings
passed on to the Ombudsman.
v. Judicial Review in Penal Proceedings
ADMIN. PENAL Since the power to investigate has been vested to
the Ombudsman, the Special Prosecutor can only
Appeals from resolutions Supreme Court is not investigate and prosecute if authorised by the
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of the Office of the precluded from Ombudsman.
Ombudsman in reviewing the
administrative Ombudsman’s action 5. THE SANDIGANBAYAN
disciplinary cases should when there is an abuse
be taken to the Court of of discretion, in which Jurisdiction, in general
Appeals via Petition for case Rule 65 of the (1) Violations of Anti-graft and Corrupt
Review under Rule 43 of Rules of Court. (Garcia- Practices Act (R.A. No. 3019);
the Rules of Court. Rueda v. Pascasio, G.R. (2) Republic Act No. 1379
(Fabian v. Desierto, G.R. 118141, 1997) (3) Chapter II, Section 2, Title VII, Book II of the
129742, 1998) Revised Penal Code
(4) One or more of the accused are officials
Non-Administrative v. Administrative occupying the following positions in the
government whether in a permanent, acting
FROM APPEAL TO
or interim capacity, at the time of the
commission of the offense:
Ombudsman (non- Supreme Court via
(a) Officials of the executive branch
administrative cases) Rule 65
occupying the positions of regional
Ombudsman (administrative Court of Appeals director and higher, otherwise
cases ONLY) via Rule 43 classified as Grade '27' and higher, of
the Compensation and Position
Classification Act of 1989 (Republic
The Office of the Special Prosecutor Act No. 6758), specifically including:
(i) Provincial governors,
The existing Tanodbayan shall hereafter be known vice-governors,
as the Office of the Special Prosecutor. It shall members of the
continue to function and exercise its powers as now Sangguniang
or hereafter may be provided by law, except those Panlalawigan and
conferred on the Office of the Ombudsman created provincial treasurers,
under this Constitution. (PHIL. CONST., art. XI, § 7.) assessors, engineers
and other provincial
department heads;
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(ii) City mayors, vice- (6) Civil and criminal cases filed pursuant to
mayors, members of and in connection with EO Nos. 1, 2, 14 and
the Sangguniang 14-A, issued in 1986 [Cases in connection
Panlungsod, city with the ill-gotten wealth of Marcos and his
treasurers, assessors, family members and cronies that are filed
engineers and other and prosecuted by the PCGG.
city department heads;
(iii) Officials of the NOTE: The INFORMATION for the aforementioned
diplomatic service offenses committed by the covered public officers,
occupying the position in order to be under the EXCLUSIVE ORIGINAL
of consul and higher; JURISDICTION of the Sandiganbayan, must
(iv) Philippine army and air allege damage to the government or bribery
force colonels, naval arising from the same or closely related
captains, and all transactions or acts in an amount exceeding
officers of higher rank; One million pesos (P1,000,000.00). [Sec. 4, RA
(v) Officers of the 8249 as amended by RA 10660]
Philippine National
Police while occupying Otherwise, the Regional Trial Court shall have
the position of EXCLUSIVE ORIGINAL JURISDICTION where the
provincial director and information: (a) does not allege any damage to the
those holding the rank government or any bribery; or (b) alleges damage to
of senior the government or bribery arising from the same or
superintendent or closely related transactions or acts in an amount not
higher; exceeding One million pesos (P1,000,000.00). [Sec.
(vi) City and provincial 4, RA 8249 as amended by RA 10660
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prosecutors and their
assistants, and officials The modified exclusive original jurisdiction of the
and prosecutors in the Sandiganbayan in relation to the expanded
Office of the exclusive original jurisdiction of the RTC shall be
Ombudsman and effective 05 May 2015. All offenses committed by
special prosecutor; covered public officers prior to 05 May 2015
(vii) Presidents, directors or shall still be under the Sandiganbayan. [People
trustees, or managers v. Bacaltos, GR No. 248701, 2020; Ampongan v.
of government-owned Sandiganbayan, GR No. 234670, 2019]
or controlled
corporations, state THUS:
universities or INFORMATION JURISDICTION
educational institutions
or foundations; Damage +
(b) Members of Congress and officials more than Sandiganbayan
thereof classified as Grade 27 and up PhP1M
under the Compensation and Position
Classification Act of 1989; Bribery + more
(c) Members of the judiciary without Sandiganbayan
than PhP1M
prejudice to the provisions of the
Constitution; Damage +
(d) Chairmen and members of PhP1M and RTC
Constitutional Commissions, without below
prejudice to the provisions of the
Constitution; Bribery + more
(e) All other national and local officials RTC
than PhP1M
classified as Grade 27 and higher
under the Compensation and Position
No Damage or No
Classification Act of 1989. RTC
Bribery
(5) Other offenses or felonies whether simple
or complexed with other crimes committed
by the public officials and employees
mentioned above in relation to their office.
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EFFECTIVITY of RA 10660: 05 May 2015 proper regional trial court, metropolitan trial
Civil and criminal cases filed pursuant to and in court, municipal trial court, and municipal
connection with Executive Order Nos. 1, 2, 14 and circuit trial court, as the case may be,
14- A, issued in 1986. [Cases in connection with the pursuant to their respective jurisdictions as
ill-gotten wealth of Marcos and his family members provided in Batas Pambansa Blg. 129, as
and cronies that are filed and prosecuted by the amended. [Sec. 4, RA 8249 as amended by
PCGG]. [Sec. 4, RA 8249 as amended by RA RA 10660]
10660]
Offenses committed in relation to public office
The Sandiganbayan shall have exclusive original (1) Accused is any one of the Public Officers
jurisdiction over petitions for the issuance of the and Employees in Subsection (a) of
writs of mandamus, prohibition, certiorari, habeas Section 4 of RA 8249 or with Salary Grade
corpus, injunctions, and other ancillary writs and 27 and above;
processes in aid of its appellate jurisdiction and over (2) Accused commits any other offense/felony,
petitions of similar nature, including quo warranto, than those specified in Subsection (a),
arising or that may arise in cases filed or which may whether simple or complexed with other
be filed under Executive Order Nos. 1, 2, 14 and 14- crimes;
A, issued in 1986: Provided, That the jurisdiction (3) The offender commits such other
over these petitions shall not be exclusive of the offense/felony in relation to his office.
Supreme Court. [Sec. 4, RA 8249 as amended by
RA 10660] “In relation to his office” [WIC]
(1) It cannot exist Without the office, or
REGIONAL TRIAL COURT: (2) If the office is a Constituent element of the
crime as defined in the statute, or
EXCLUSIVE ORIGINAL JURISDICTION (3) Must be Intimately connected with the
(1) The Regional Trial Court shall have office of the offender
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exclusive original jurisdiction where the
information: (a) does not allege any
damage to the government or any bribery;
or (b) alleges damage to the government or
APPELLATE JURISDICTION
Cases decided by the RTC filed against lower level
public officials or those classified as Grade 26 and
bribery arising from the same or closely lower, involving:
related transactions or acts in an amount (1) Violations of RA 3019;
not exceeding One million pesos (2) RA 1379;
(P1,000,000.00). [Sec. 4, RA 8249 as (3) Direct/indirect bribery and Corruption of
amended by RA 10660] Public officials
(2) Subject to the rules promulgated by the
Supreme Court, the cases falling under the It is the Sandiganbayan which has jurisdiction over
jurisdiction of the Regional Trial Court appeals from criminal cases where the accused is a
under this section (Sec. 4 as amended) government employee. Pursuant to RA 8249, the
shall be tried in a judicial region other than Sandiganbayan shall exercise exclusive appellate
where the official holds office. [Sec. 4, RA jurisdiction over final judgments, resolutions or
8249 as amended by RA 10660] Failure to orders of regional trial courts whether in the exercise
comply with this jurisdictional requirement of their own original jurisdiction or of their appellate
as conferred by law shall cause the jurisdiction as herein provided. (Filomena v. People,
dismissal of the criminal case, with all the G.R. 188630, 2011)
actions and proceedings undertaken
declared as null and void, for lack of While it is the Ombudsman who has the full
jurisdiction even if the Supreme Court has discretion to determine whether or not a criminal
not yet promulgated the rules. [Non v. case should be filed in the Sandiganbayan, once the
Sandiganbayan, GR No. 251177, 2020] case has been filed with said court, it is the
(3) In cases where none of the accused are Sandiganbayan, and no longer the Ombudsman,
occupying positions corresponding to which has full control of the case so much so that
Salary Grade ’27’ or higher, as prescribed the Information may not be dismissed without the
in the said Republic Act No. 6758 (now RA approval of said court. In this case, the
11466), or military and PNP officers Sandiganbayan ordered the Special Prosecutor to
mentioned above, exclusive original conduct a reinvestigation and subsequently granted
jurisdiction thereof shall be vested in the his motion to withdraw the informations, after finding
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no probable cause against the latter on Term limits for National and Local Elective
reinvestigation. The Sandiganbayan thus gave its Officials
approval to the withdrawal of the informations and
NO. OF
ordered the dismissal of the cases. Since no appeal TERM
POSITION YEARS
was taken by the Special Prosecutor from the order LIMIT
PER TERM
of dismissal within the reglementary period, the
same had become final and executory. (City President 6 years 1 term
Government of Tuguegarao v. Ting, G.R. 192435-
36, 2011) Vice President 6 years 2 terms
In all cases elevated to the Sandiganbayan and from Senator 6 years 2 terms
the Sandiganbayan to the Supreme Court, the
Office of the Ombudsman, through its Special Member of the 3 years 3 terms
Prosecutor, shall represent the People, except in House of
cases filed pursuant to Executive Order Nos. 1, 2, Representatives
14 and 14-A. A private complainant in a criminal
case before the Sandiganbayan is allowed to appeal Governor 3 years 3 terms
only the civil aspect of the criminal case after its
dismissal by said court. (City Government of Vice Governor
Tuguegarao v. Ting, G.R. 192435-36, Sept.14,
2011) Member of the
Sangguniang
The special civil action of certiorari is not the proper Panlalawigan
remedy to challenge a judgment conviction
rendered by the Sandiganbayan. Petitioner should Mayor
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have filed a petition for review on certiorari under
Rule 45. Pursuant to Section 7 of Presidential Vice Mayor
Decree No. 1606, as amended by Republic Act No.
8249, decisions and final orders of the Member of the
Sandiganbayan shall be appealable to the Supreme Sangguniang
Court by petition for review on certiorari raising pure Panlungsod/
questions of law in accordance with Rule 45 of the Bayan
Rules of Court. (Icdang v. Sandiganbayan, G.R.
185960, 2012) Punong Barangay
The Sandiganbayan has the authority to order the Members of the

preventive suspension of an incumbent Senator Sangguniang
charged with violation of the provisions of RA 3019 Barangay
or the Anti-Graft and Corrupt Practices Act.
(Santiago vs. Sandiganbayan, G.R. 128055, 2001) Sangguniang
Kabataan
N. TERM LIMITS
Term limit for the President and Vice-President
Term v. Tenure The President is given a fixed term of six (6) years.
Term is the period during which an official is entitled He or she is not eligible for reelection. (Phil. Const.,
to hold office. Tenure is the period during which the art. VII, sec. 4, para. 1) However, a person who has
official actually holds office. Tenure can be succeeded as President for a period not exceeding
shortened, e.g., by death or removal, but term is four (4) years shall be qualified for election to the
changed only by amendment. (Dimaporo v. Mitra, same office. (Id.)
Jr., G.R. No. 96859, 1991)
On the other hand, the Vice-President shall have a
term of six (6) years, but shall not serve for more
than two successive terms. (Id., para. 2)
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Term limit for Members of Congress with the consent of the Commission on
No senator shall serve for more than two Appointments for a term of seven (7) years without
consecutive terms. (Phil. Const., art. VI, sec. 4, reappointment. Of those first appointed, the
para. 2) Chairman shall hold office for seven (7) years,
one (1) Commissioner for five (5) years, and the
This limitation means that a senator who has served other Commissioner for three (3) years, without
two consecutive terms could run again three years reappointment. Appointment to any vacancy shall
after the expiration of his second term. (Bernas, be only for the unexpired portion of the term of the
S.J., 2009 ed., p. 699) For example, a senator who predecessor. In no case shall any Member be
has fully served two terms ending in 2019, may run appointed or designated in a temporary or acting
again at the 2022 elections. capacity. [Sec. 1(2), Art. IX-D, 1987 Constitution]
On the other hand, Members of the House of OMBUDSMAN. The Ombudsman and his Deputies
Representatives are allowed to serve for a term of shall serve for a term of seven (7) years without
three years, but shall not serve for more than three reappointment. They shall not be qualified to run
consecutive terms. (Phil. Const., art. VI, sec. 7) for any office in the election immediately succeeding
their cessation from office. [Sec. 11, Art. XI, 1987
Voluntary renunciation for any length of time shall Constitution]
not be considered as an interruption in the continuity
of his/her service for the full term for which he was In case of death, resignation, removal, or permanent
elected. (Phil. Const., art. VI, sec. & 7) If one is disability of the Ombudsman, the new Ombudsman
elected to serve the unexpired term of another, that shall be appointed for a full term. Undoubtedly,
unexpired term, no matter how short, will be Sec. 8(3), R.A. No. 6770 is consistent with Sec. 11,
considered one term for the purpose of computing Art. XI of the 1987 Constitution in so far as it
the number of successive terms allowed. (Bernas, provides that the Ombudsman and the deputies
S.J., 2009 ed., p. 720) shall serve for a term of seven years. [Ifurung v.
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Carpio-Morales, GR No. 232131, 2018]
CIVIL SERVICE COMMISSION. The Chairman and
the Commissioners shall be appointed by the Term limit for local elective officials; When
President with the consent of the Commission on considered fully served
Appointments for a term of seven (7) years without The term of office of elective local officials, except
reappointment. Of those first appointed, the barangay officials, shall be three (3) years and no
Chairman shall hold office for seven (7) years, a such official shall serve for more than three (3)
Commissioner for five (5) years, and another consecutive terms. (Phil. Const., art. X, sec. 8, para.
Commissioner for three (3) years, without 1)
reappointment. Appointment to any vacancy shall
be only for the unexpired term of the predecessor. Furthermore, the voluntary renunciation of office for
In no case shall any Member be appointed or any length of time shall not be considered as an
designated in a temporary or acting capacity. [Sec. interruption in the continuity of his service for the full
1(2), Art. IX-B, 1987 Constitution] term for which he was elected. (Id., para. 2)
COMMISSION ON ELECTIONS. The Chairman The 2nd paragraph of Article X, Section 8 of the
and the Commissioners shall be appointed by the Constitution "simply explains when an elective local
President with the consent of the Commission on official may be deemed to have served his full term
Appointments for a term of seven (7) years without of office. The term served must therefore be one for
reappointment. Of those first appointed, three (3) which the official concerned was elected. The
Members shall hold office for seven (7) years, purpose of this provision is to prevent a
two (2) Members for five (5) years, and the last circumvention of the limitation on the number of
Members for three (3) years, without terms an elective local official may serve.
reappointment. Appointment to any vacancy shall Conversely, if he is not serving a term for which he
be only for the unexpired term of the predecessor. was elected because he is simply continuing the
In no case shall any Member be appointed or service of the official he succeeds, such official
designated in a temporary or acting capacity. [Sec. cannot be considered to have fully served the term
1(2), Art. IX-C, 1987 Constitution] notwithstanding his voluntary renunciation of office
prior to its expiration." (Borja, Jr. v. Commission on
COMMISSION ON AUDIT. The Chairman and the Elections, G.R. No. 133495, 1998)
Commissioners shall be appointed by the President
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"The term limit for elective local officials must be (6) Preventive Suspension. Preventive
taken to refer to the right to be elected as well as the suspension is not an interruption. Just a
right to serve in the same elective position. temporary inability; not unseated and continued
Consequently, it is not enough that an individual has to hold office; just temporarily barred to exercise
served three consecutive terms in an elective local functions. (Aldovino v. COMELEC, G.R. No.
office, he must also have been elected to the same 184836, 2009)
position for the same number of times before the (7) Election protest but served 3 Full Terms.
disqualification can apply." (Id.) Election protest, but able to serve 3 full terms,
including the 2nd term (fully served) where the
NOT AN INTERRUPTION TO THE FULL TERM proclamation was voided. (Ong v. COMELEC,
(3-TERM LIMIT APPLIES – HENCE, BARRED) G.R. N0. 163295, 2006; Rivera v. COMELEC,
G.R. No. 167591, 2007)
CONSTITUTIONAL RULE: The term of office of
elective local officials, except barangay officials, AN INTERRUPTION TO THE FULL TERM (3-
which shall be determined by law, shall be three TERM LIMIT DOES NOT APPLY – HENCE, NOT
years and no such official shall serve for more than BARRED)
three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be (1) Succession. Assumption by succession is by
considered as an interruption in the continuity of his operation of law. To count as a term, one must
service for the full term for which he was elected. have been elected and fully served. Law allows
[Sec. 8, Art. X, 1987 Constitution; also Sec. 43(b), the severance to effectuate succession. (Borja
RA 7160] v. COMELEC, G.R. No. 133495, 1998;
Montebon v. COMELEC, G.R. No. 180444,
(1) Running, winning and serving a different 2008)
elective position is voluntary renunciation.
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Punong barangay, while serving 3rd term, ran (2) Recall Election. Previously served for 3 full
and won as municipal councilor and served the terms as mayor, then participated in a recall
full term. Considered as voluntary renunciation. election; not barred. The prohibited election
(Bolos v. COMELEC, G.R. No. 184082, 2009) refers to the next regular election for the same
office following the end of the third consecutive
(2) Circumvention. After serving 3 terms as
Punong Barangay, got elected as barangay term. Any subsequent election, like a recall
kagawad with sister elected as Punong election, is no longer covered by the prohibition
Barangay, who resigned the following day after for two reasons. First, a subsequent election
oath of office to allow succession. Considered like a recall election is no longer an immediate
as a conspiracy and hence, a circumvention of reelection after three consecutive terms.
the 3-term limit. (Aguilar v. Benlot, G.R. No. Second, the intervening period constitutes an
232806, 2019) involuntary interruption in the continuity of
(3) Conversion. Conversion of a municipality to a service. (Socrates v. COMELEC, GR No.
city with no break in the service as a local chief 154512, 2002) Previously served for 2 full
executive. (Latasa v. COMELEC, GR No. terms as mayor (1992-1998), ran for a 3rd term
154829, 2003; Halili v. COMELEC, G.R. No. (1998-2001) but lost, then subsequently
231643, 2019) participated in a recall election (2000), which he
(4) Reapportionment of District. Served for 2 won served the unexpired term; not barred to
terms (2004, 2007) as Provincial Board run again for another term – not elected for 3
Member (BM) in the Cam. Sur 2nd dist. Cam. consecutive terms, continuity as mayor was
Sur was reapportioned by RA9716. In 2010 and disrupted with the defeat, and was a private
2013 he ran and won as BM in the 3rd dist citizen for 2 years prior to the recall election.
(which is essentially the same as the old 2nd (Adormeo v. COMELEC, G.R. No. 147927,
dist). (Naval v. COMELEC, G.R. No. 207851, 2002)
2014)
(5) Merger. Municipalities were merged and (3) Dismissal as Penalty. Dismissals (as
converted into a city, but the Punong Barangay penalties) were involuntary interruptions; not
from the former municipality is the same as that considered to have fully served a 3rd
in the city as the new political unit with the same successive term of office. (Tallado v.
territory and inhabitants (hence, same group of COMELEC, G.R. No. 246679, 2019)
voters). (Laceda v. Limena, G.R. No. 182867,
2008)
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(4) Election Protest.
(a) Unseated during 3rd term as mayor
because of an election protest; not barred
as not deemed to have been elected for
that term – merely assumed office as a
presumptive winner. (Lonzanida v.
COMELEC, G.R. No. 135150, 1999)
(b) Served as mayor in 2001, 2004, and 2007,
but the 2004 (2nd term) was by virtue of an
election protest and served only the
remainder of the 2nd term; not barred to run
in 2010. (Abundo v. COMELEC, G.R. No.
201716, 2013)
(c) Unseated for running and winning a 4th
term (NOTE: 4th term was invalidated by
the SC in Rivera v. COMELEC), then
relinquished office; not barred to run in the
subsequent election. (Dizon v. COMELEC,
GR No. 182088, 2009)
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Page 302 of 479

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II. ADMINISTRATIVE LAW A. GENERAL PRINCIPLES

Administrative Law
1) Dean Roscoe Pound: It is the branch of modern
A. GENERAL PRINCIPLES
law under which the executive department of the
B. ADMINISTRATIVE AGENCIES government, acting in a quasi-legislative or quasi-
C. POWERS OF ADMINISTRATIVE judicial capacity, interferes with the conduct of the
AGENCIES individual for the purposes of promoting the well-
1. Quasi-Legislative (Rule-Making) Power being of the community, as under laws regulating
a. Kinds Of Administrative public interest, professions, trades and callings,
rates and prices, laws for the protection of public
Rules And Regulations
health and safety, and the promotion of public
b. Requisites For Validity convenience. (Carlo Cruz, Philippine Administrative
2. Quasi-Judicial (Adjudicatory) Power Law 1, 2016)
a. Administrative Due Process
b. Administrative Appeal And Review 2) Professor Goodnow: That part of public law
which fixes the organization of the government and
c. Administrative Res Judicata
determines the competence of the authorities who
3. Fact-Finding, Investigative, Licensing, execute the law and indicates to the individual
And Rate-Fixing Law Powers remedies for the violation of rights. (Carlo Cruz,
Philippine Administrative Law 2, 2016)
D. JUDICIAL RECOURSE AND REVIEW
1. Doctrine of Primary Administrative 3) Justice Frankfurter: That branch of the law
which deals with the field of legal control exercised
Jurisdiction by law-administering agencies other than courts,
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2. Doctrine of Exhaustion of Administrative and the field of control exercised by courts over such
Remedies agencies. (Carlo Cruz, Philippine Administrative
3. Doctrine of Finality of Administrative Law 2, 2016)
Action
Administration: Internal or External.
INTERNAL EXTERNAL
ADMINISTRATION ADMINISTRATION
Covers those rules Defines the relations of

defining the relations of the public office with the
public functionaries inter public in general.
se and embraces the
whole range of the law of
public officers, i.e.
qualifications, powers,
rights, duties, and
liabilities.
(Carlo Cruz, Philippine Administrative Law 8, 2016)
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Administration of Government v. Administration forms of local government (Sec. 2(1),

of Justice Introductory Provisions, Administrative Code).
ADMINISTRATION OF ADMINISTRATION OF
(2) National Government - refers to the entire
GOVERNMENT JUSTICE
machinery of the central government, as
Administrative officers Work done consists in distinguished from the different forms of local
must determine what is the decision of governments (Sec. 2(2), Introductory Provisions,
the law in order to controversies between Administrative Code).
determine whether they individuals and
are competent to act and government officers, as The National Government then is composed of the
if it is wise to act. to the applicability in three great departments: the executive, the
the cases in question; legislative and the judicial. (Mactan Cebu
all that judicial officers International Airport Authority v. Marcos, G.R. No.
have to do is determine 120082)
what law is applicable
to the facts brought (3) Local Government - refers to the political
before them. (De Leon, subdivisions established by or in accordance
Administrative Law: with the Constitution (Sec. 2(3), Introductory
Text and Cases 19, Provisions, Administrative Code).
2016)
(4) Agency - refers to any of the various units of the
ADMINISTRATION GOVERNMENT Government, including a department, bureau,
office, instrumentality, or government-owned or
Refers to the aggregate Institution or aggregate controlled corporation, or a local government or
of persons in whose of institutions by which a distinct unit therein (Sec. 2(4), Introductory
hands the reins of the an independent society
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Provisions, Administrative Code).
government are makes and carries out
entrusted by the people those rules of action Agency v. Instrumentality
for the time being. (US v. which are necessary to
Dorr) enable men to live in a Agency Instrumentality
civilized state, or which
are imposed upon the
Any of the various units Any agency of the
people forming that
of the Government, National Government,
society by those who
including a department, not integrated within
possess the power or
bureau, office, the department
authority of prescribing
instrumentality, or framework, vested with
them. Government is
government-owned or special functions or
the aggregate of
controlled corporation, or jurisdiction by law,
authorities which rule a
a local government or a endowed with some if
society. (US v. Dorr,
distinct unit therein. not all corporate
GR No. 1051, 1903)
powers, administering
special funds, and
B. ADMINISTRATIVE AGENCIES enjoying operational
(Mactan Cebu autonomy, usually,
International Airport through a charter. This
Definitions:
Authority v. Marcos, term includes
G.R. No. 120082) regulatory agencies,
(1) Government of the Republic of the
Philippines - refers to the corporate chartered institutions
governmental entity through which the functions and government-
of government are exercised throughout the owned and controlled
Philippines, including, save as the contrary corporations.
appears from the context, the various arms (Mactan Cebu
through which political authority is made effective International Airport
in the Philippines, whether pertaining to the Authority v. Marcos,
autonomous regions, the provincial, city, G.R. No. 120082)
municipal or barangay subdivisions or other
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(5) National Agency - refers to a unit of the National instrumentality is organized as a stock or non-stock
Government (Sec. 2(5), Introductory Provisions, corporation, it remains a government instrumentality
Administrative Code). exercising not only governmental but also corporate
powers (Manila International Airport Authority v.
(6) Local Agency - refers to a local government or Court of Appeals, G.R. No. 155650).
a distinct unit therein (Sec. 2(6), Introductory
Provisions, Administrative Code). Many government instrumentalities are vested with
corporate powers but they do not become stock or
(7) Department - refers to an executive department non-stock corporations, which is a necessary
created by law. For purposes of Book IV, this condition before an agency or instrumentality is
shall include any instrumentality, as herein deemed a government-owned or controlled
defined, having or assigned the rank of a corporation. Examples are the Mactan International
department, regardless of its name or Airport Authority, the Philippine Ports Authority, the
designation (Sec. 2(7), Introductory Provisions, University of the Philippines and Bangko Sentral ng
Administrative Code). Pilipinas. All these government instrumentalities
exercise corporate powers but they are not organized
(8) Bureau - refers to any principal subdivision or as stock or non-stock corporations as required by
unit of any department. For purposes of Book IV, Section 2(13) of the Introductory Provisions of the
this shall include any principal subdivision or unit Administrative Code (Manila International Airport
of any instrumentality given or assigned the rank Authority v. Court of Appeals, G.R. No. 155650).
of a bureau, regardless of actual name or
designation, as in the case of department-wide (11) Government-Owned or -Controlled
regional offices (Sec. 2(8), Introductory Corporation (GOCC) - refers to any agency
Provisions, Administrative Code). organized as a stock or nonstock corporation,
vested with functions relating to public needs
(9) Office - refers, within the framework of whether governmental or proprietary in nature,
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governmental organization, to any major and owned by the Government of the Republic of
functional unit of a department or bureau the Philippines directly or through its
including regional offices. It may also refer to any instrumentalities either wholly or, where
position held or occupied by individual persons, applicable as in the case of stock corporations,
whose functions are defined by law or regulation to the extent of at least a majority of its
(Sec. 2(9), Introductory Provisions, outstanding capital stock: Provided,
Administrative Code). however, That for purposes of this Act, the term
"GOCC" shall include GICP/GCE and GFI as
(10) Instrumentality - refers to any agency of the defined herein. (GOCC Governance Act of 2011,
National Government, not integrated within the Republic Act No. 10149, [June 6, 2011])
department framework vested with special
functions or jurisdiction by law, endowed with (12) Government Instrumentalities with
some if not all corporate powers, administering Corporate Powers (GICP)/Government
special funds, and enjoying operational Corporate Entities (GCE) - refer to
autonomy, usually through a charter. This term instrumentalities or agencies of the government,
includes regulatory agencies, chartered which are neither corporations nor agencies
institutions and government-owned or controlled integrated within the departmental framework,
corporations (Sec. 2(10), Introductory but vested by law with special functions or
Provisions, Administrative Code). jurisdiction, endowed with some if not all
corporate powers, administering special funds,
NOTE: Definition of “Instrumentality” under the and enjoying operational autonomy usually
Administrative Code is still relevant, especially to through a charter (Sec. 3(n), GOCC Governance
regulatory agencies EXCEPT for those corporate Act of 2011).
entities or those endowed with corporate powers,
which are now covered under the definition of An agency will be classified as a government
GICP/GCE under the GOCC Governance Act of instrumentality vested with corporate powers when
2011. the following elements concur:
a. it performs governmental functions; and
When the law vests in a government instrumentality b. it enjoys operational autonomy. It does not
corporate powers, the instrumentality does not matter that the government instrumentality
become a corporation. Unless the government is endowed with corporate powers (Light
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Rail Transit Authority v. Quezon City, G.R.

No. 221626, 2019). (16) “Employee” - when used with reference to a
person in the public service, includes any person
NOTE: Legal consequence of being classified as a in the service of the government or any of its
government instrumentality is that it’s exempted agencies, divisions, subdivisions or
from real property tax. (Light Rail Transit Authority instrumentalities (Sec. 2(15), Introductory
v. Quezon City, G.R. No. 221626, 2019) Provisions, Administrative Code).
Hence, in addition to government-owned and C. POWERS OF ADMINISTRATIVE

controlled corporations (GOCCs) and AGENCIES
instrumentalities, a third category of government
agencies under the jurisdiction of the OGCC is Nature of Powers
now recognized — government instrumentalities (1) Special and Limited Jurisdiction. In general,
vested with corporate powers or government the jurisdiction of administrative officers and
corporate entities. These entities remain agencies is special and limited. They possess a
government instrumentalities because they are limited jurisdiction, or purely constitutional or
not integrated within the department framework statutory powers, and they possess only such
and are vested with special functions to carry out powers and authority as have been specifically
a declared policy of the national government. An conferred upon them by the Constitution or
agency will be classified as a government specifically granted to them by their enabling
instrumentality vested with corporate powers statutes and those as may be necessarily
when the following elements concur: a) it performs implied in the exercise thereof or incidental to
governmental functions, and b) it enjoys the attainment of their purposes or objectives.
operational autonomy. The PHC passes these (2) Broad Powers within Jurisdiction. However,
twin criteria. (Philippine Heart Center v. Local the powers conferred on them must be
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Government of Quezon City, G.R. No. 225409, commensurate with the duties to be performed
[March 11, 2020]) and the purposes to be lawfully effected. In
various instances, the powers of particular
(13) Regulatory agency - refers to any agency administrative bodies have been held broad
expressly vested with jurisdiction to regulate,
and plenary within their fields, and in such case,
administer or adjudicate matters affecting it is only where such power and authority have
substantial rights and interest of private persons, been manifestly abused that a court may
the principal powers of which are exercised by a interfere.
collective body, such as a commission, board or
council (Sec. 2(11), Introductory Provisions, (3) Powers Limited by Constitution, Law, and
Administrative Code). Regulations. A government agency must
respect the presumption of constitutionality and
(14) Chartered institution - refers to any agency legality to which statutes and administrative
organized or operating under a special charter, regulations are entitled until such statute or
and vested by law with functions relating to regulation is repealed or amended, or until set
specific constitutional policies or objectives. This aside in an appropriate case by a competent
term includes the state universities and colleges court, and ultimately by the Supreme Court. It is
and the monetary authority of the State (Sec. not authorized to substitute its own judgment for
2(12), Introductory Provisions, Administrative any applicable law or administrative regulation
Code). with the wisdom or propriety of which it does not
agree, at least not before such law or regulation
(15) “Officer” - as distinguished from “clerk” or is set aside by the authorized agency of the
“employee”, refers to a person whose duties, not government. (De Leon, Administrative Law:
being of a clerical or manual nature, involves the Text and Cases 66, 2016)
exercise of discretion in the performance of the
functions of the government. When used with While it is a fundamental rule that an administrative
reference to a person having authority to do a agency has only such powers as are expressly
particular act or perform a particular function in granted to it by law, it is likewise a settled rule that
the exercise of governmental power, “officer” an administrative agency has also such powers
includes any government employee, agent or as are necessarily implied in the exercise of its
body having authority to do the act or exercise express powers. (LLDA v. CA, GR No. 110120,
that function (Sec. 2(14), Introductory Provisions, 1994)
Administrative Code).
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The Laguna Lake Development Authority also has NOTE: According to Professor Cruz, determinative
power to impose fines in the exercise of its function powers are part of the exercise of quasi-judicial
as a regulatory and quasi-judicial body with respect authority. It is submitted, however, that these
to pollution cases in the Laguna Lake region. (Public determinative powers can also be exercised as part
Hearing Committee of the Laguna Lake of the quasi-legislative authority and are very much
Development Authority v. SM Prime Holding, G.R. part of the executive and regulatory functions of
170599, 2010). administrative bodies whenever allowed by their
charters.
Discretionary vs. Ministerial
1. Discretionary - The power or right conferred 1. QUASI-LEGISLATIVE (RULE-
upon them by law to act officially under certain MAKING) POWER
circumstances, according to the dictates of their
own judgment and conscience, and not DEFINITION. The authority delegated by the law-
controlled by the judgment or conscience of making body to the administrative body to adopt
others. rules and regulations intended to carry out the
2. Ministerial - Nothing is left to discretion; a provisions of a law and implement legislative policy.
simple, definite duty arising under conditions (Carlo Cruz, Philippine Administrative Law 36, 2016)
admitted or proved to exist, and imposed by
law; a duty performed in response to what has
been imposed by law under conditions specified Administrative agencies are endowed with powers
by law not being dependent upon the officer’s legislative in nature or quasi-legislative (i.e., to make
judgment or discretion. rules and regulations), and, in practical effect, with
the power to make law. However, the essential
DETERMINATIVE POWERS legislative functions may not be delegated to
administrative agencies and in this sense, it is said
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To better enable the administrative body to exercise that administrative agencies have no legislative
its executive functions, it is also vested with power and are precluded from legislating in the strict
Determinative powers classified generally by sense.' What may be granted to an administrative
Professor Freund as follows: agency is rule-making power to implement the law it
is entrusted to enforce. It necessarily includes the
Enabling – Permits the doing of an act, without power to amend, revise, alter, or repeal its rules and
which it would be unlawful (e.g. issuing of licenses regulations. It is a standard provision in
and permits). administrative rules that prior issuances that are
inconsistent therewith are declared repeated or
Directing – Orders the doing or performance of modified. (De Leon, Administrative Law: Text and
particular acts to ensure compliance with the law Cases 90, 2016)
and are often exercised for corrective purposes.
(e.g. installation of safety devises in common Authority delegated by Congress to the
carriers). administrative body to adopt rules and regulations
intended to carry out the provisions of a law, and
Dispensing – Relaxes the general operation of law implement legislative policy. This is a form of
or exempts the performance from a general duty delegated legislation. Valid regulations have the
(e.g. exemption from taxes by certain industries). force and effect of law.
Summary – Uses force upon persons or things LEGISLATIVE QUASI-LEGISLATIVE

without prior judicial warrant (e.g. padlocking by
Mayor of a business for lack of permit; confiscation
Involves the discretion to Only involves the
of items prohibited per se).
determine what the law discretion to determine
shall be how the law shall be
Examining – Inspects records and premises;
enforced
investigates persons, entities, and activities coming
under its jurisdiction (e.g. DOLE visitorial power; Cannot be delegated Can be delegated
Ombudsman powers).
(Carlo Cruz, Philippine Administrative Law 52-55,

2016)
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Exceptions (To the Rule Requiring Standards;

NON-DELEGABILITY PRINCIPLE. The rule is that When Not Required): (SPIRPE)
what has been delegated cannot be delegated, or (1) Handling of State property or funds
as expressed in the Latin maxim: potestas delegate (2) When the law does not involve Personal or
non delegare potest. This rule is based upon the property rights
ethical principle that such delegated power (3) Matters of Internal administration
constitutes not only a right but a duty to be (4) Power of the board to make
performed by the delegate by the instrumentality of Recommendation
his own judgment acting immediately upon the (5) Matters involving Privileges (like use of
matter of legislation and not through the intervening property, engaging in profession)
mind of another. This rule however admits of (6) Regulation or Exercise of police power to
recognized exceptions such as the grant of rule- protect general welfare, morals and public
making power to administrative agencies. They policy
have been granted by Congress with the authority
to issue rules to regulate the implementation of a law
NOTE: Still subject to reasonableness standard:
entrusted to them. Delegated rule-making has
(1) Bear reasonable relation to the purpose
become a practical necessity in modern governance
sought to be accomplished
due to the increasing complexity and variety of
(2) Supported by good reasons
public functions. [Dagan v. Philippine Racing
(3) Free from constitutional infirmities or
Commission, GR No. 175220, 2009]
charge of arbitrariness.
Notably, the principle of non-delegability should not
be confused as a restriction to delegate rule-making
EXAMPLES OF VALID DELEGATION
authority to implementing agencies for the limited
(1) Issuance prohibiting selling of shares
purpose of either filling up the details of the law for
without prior license for public interest.
its enforcement (supplementary rule-making) or
(People v. Rosenthal, GR No. 46076, 1939)
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ascertaining facts to bring the law into actual
operation (contingent rule-making).
(2) Prohibition of animal drawn carriage to use
the roads during certain times for public
TESTS OF DELEGATION. Two tests determine the
convenience and welfare. (Calalang v.
validity of delegation of legislative power: (1) the
Williams, GR No. 47800, 1940)
completeness test and (2) the sufficient standard
test. A law is complete when it sets forth therein
(3) Authorizing President to make reforms and
the policy to be executed, carried out or
changes in GOCCs for economy and
implemented by the delegate. It lays down a
efficiency. (Cervantes v. Auditor General,
sufficient standard when it provides adequate
GR No. L-4043, 1952)
guidelines or limitations in the law to map out
the boundaries of the delegate's authority and
(4) K to 12 Law implementation is complete in
prevent the delegation from running riot. To be
conditions and parameters through the
sufficient, the standard must specify the limits of the
legislative policy on the power delegated to
delegate's authority, announce the legislative policy
the DepEd, CHED, and TESDA. (Council of
and identify the conditions under which it is to be
Teachers v. Secretary of Education, GR
implemented. (Abakada Guro v. Purisima, GR No.
No. 216930, 2018)
166715, 2008)
EXAMPLES OF INVALID/UNDUE DELEGATION
NOTE:
(1) 2013 PDAF article – Post enactment
(1) If the law passes the completeness test
identification of by the legislators. (Belgica
(e.g. K to 12 Law), there is no need to
v. Ochoa, GR No. 208566, 2013)
comply with the sufficient standard test, it
would constitute as a valid delegation.
(2) Section 8, PD 910 (Malampaya Fund) - The
(2) If the law is not complete, but passes the
phrase "and for such other purposes as
sufficient standard test, it would
may be hereafter directed by the President"
constitute as a valid delegation.
under Section 8 of PD 910 constitutes an
(3) If the law fails the sufficient standard test,
undue delegation of legislative power.
then it would constitute as an undue
(Belgica v. Ochoa, GR No. 208566, 2013)
delegation and hence, unconstitutional.
(3) Section 12 of PD 1869, as amended by PD
1993, indicates that the Presidential Social
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Fund may be used "to [first,] finance the VII, Chapter 1, Sec. 2 (4), Administrative Code of
priority infrastructure development 1987]
projects” which gives a carte blanche
authority to use the fund for any Limitations on the Rule-Making Power
infrastructure project that the President A public administrative body may make only such
may deem as a priority. (Belgica v. Ochoa, rules and regulations as are within the limits of the
GR No. 208566, 2013) powers granted to it or what is found in the
legislative enactment itself; otherwise, they become
(4) EO 626 s.1980 that authorized the void.
distribution of confiscated carabao to (1) Must not be inconsistent with the provisions
charitable institutions that the Chairman of of the Constitution or a statute, particularly
the National Meal Inspection Commission the statute it is administering or which
“may see fit;” (Ynot v. IAC, GR No. 74457, created it, or which are in derogation of, or
1987) defeat, the purpose of a statute.
(2) It may not, by its rules and regulations,
(5) Act No. 2868 authorized Governor-General amend, alter, modify, supplant, enlarge or
to issue “in his discretion” a proclamation expand, restrict or limit the provisions or
fixing price of palay and making the coverage of the statute as this power
violation a crime. (US v. Ang Tang Ho, GR belongs to the legislature.
No. L-17122, 1922) (3) There is no dispute that in case of
discrepancy between the basic law and a
rule or regulation issued to implement said
DELEGATED RULE-MAKING. The conceptual
law, the basic law prevails because said
treatment and limitations of delegated rule-making
rule or regulation cannot go beyond the
were explained in the case of People v. Maceren as
terms and provisions of the basic law.
follows: “The grant of the rule-making power to
(4) A rule or regulation should be uniform in
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administrative agencies is a relaxation of the
operation, reasonable, and not unfair or
principle of separation of powers and is an
discriminatory.(De Leon, Administrative
exception to the nondelegation of legislative
Law: Text and Cases 96, 2016)
powers. Administrative regulations or "subordinate
legislation" calculated to promote the public interest
are necessary because of "the growing complexity
of modern life, the multiplication of the subjects of
governmental regulations, and the increased
difficulty of administering the law." xxx xxx xxx
Rule-Making Making Principles: (CURLAP)
(1) It must be Consistent with the law and the
constitution.
(2) It must be Uniform in operation, reasonable
[Nevertheless, it must be emphasized that] [t]he and not unfair or discriminatory.
rule-making power must be confined to details (3) It must have a Reasonable relationship to
for regulating the mode or proceeding to carry the purpose of the law.
into effect the law as it has been enacted. The (4) It must be within the Limits of the powers
power cannot be extended to amending or granted to administrative agencies.
expanding the statutory requirements or to (5) May not Amend, alter, modify, supplant,
embrace matters not covered by the statute. enlarge, limit or nullify the terms of the law.
Rules that subvert the statute cannot be sanctioned. (6) Must be promulgated in accordance with
(Belgica v. Ochoa, GR No. 208566, 2013) the Prescribed procedure.
Rule means any agency statement of general
NOTE:
applicability that (1) implements or (2) interprets a
(1) According to Justice Carpio in his Separate
law, (3) fixes and describes the procedures in, or
Concurring Opinion in Abakada Guro v.
practice requirements of, an agency, including its
Purisima cited in Genuino v. De Lima: The
regulations. The term includes memoranda or
inherent power of the Executive to
statements concerning the (4) internal
adopt rules and regulations to execute or
administration or management of an agency not
implement the law is different from the
affecting the rights of, or procedure available to, the
delegated legislative power to
public. [Book VII, Chapter 1, Sec. 2 (2),
prescribe rules. The inherent power of the
Administrative Code of 1987]
Executive to adopt rules to execute the law
does not require any legislative standards
Rule-making means an agency process for the
for its exercise while the delegated
formulation, amendment, or repeal of a rule. [Book
legislative power requires sufficient
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legislative standards for its exercise. xxx policy which affects individual rights and
xxx xxx Whether the rule-making power by obligations.
the Executive is a delegated legislative
power or an inherent Executive power (2) Interpretative rules are intended to interpret,
depends on the nature of the rule-making clarify or explain existing statutory regulations
power involved. If the rule-making power is under which the administrative body operates.
inherently a legislative power, such as the Their purpose or objective is merely to construe the
power to fix tariff rates, the rule-making statute being administered and purport to do no
power of the Executive is a delegated more than interpret the statute. Simply, they try to
legislative power. In such event, the say what the statute means and refer to no single
delegated power can be exercised only if person or party in particular but concern all those
sufficient standards are prescribed in the belonging to the same class which may be covered
law delegating the power. If the rules are by the said rules.
issued by the President in
implementation or execution of self- When an administrative rule is merely interpretative
executory constitutional powers vested in nature, its applicability needs nothing further than
in the President, the rule-making power its bare issuance for it gives no real consequence
of the President is not a delegated more than what the law itself has already
legislative power. x x x. The rule is that prescribed. When, upon the other hand, the
the President can execute the law administrative rule goes beyond merely providing for
without any delegation of power from the means that can facilitate or render least
the legislature. Otherwise, the President cumbersome the implementation of the law but
becomes a mere figure-head and not the substantially adds to or increases the burden of
sole Executive of the Government. those governed, it behooves the agency to accord
(Genuino v. De Lima, G.R. Nos. 197930, at least to those directly affected a chance to be
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199034 & 199046, April 17, 2018) heard, and thereafter to be duly informed, before
that new issuance is given the force and effect of
(2) However, the questioned circular in law. (CIR v. Court of Appeals, G.R. No. 119761,
Genuino v. De Lima does not come under 1996)
the inherent power of the executive
department to adopt rules and regulations
(3) Contingent rules are those issued
as clearly the issuance of HDO and WLO
by an administrative authority based on the
is not the DOJ's business. As such, it is
existence of certain facts or things upon which
a compulsory requirement that there be
the enforcement of the law depends.
an existing law, complete and sufficient
in itself, conferring the expressed
Congress may provide that a law shall take effect
authority to the concerned agency to
upon the happening of future specified
promulgate rules. On its own, the DOJ
contingencies leaving to some other person or body
cannot make rules, its authority being
the power to determine when the specified
confined to execution of laws. (Genuino v.
contingency has arisen.
De Lima, G.R. Nos. 197930, 199034 &
(1) It may delegate a power not legislative
199046, April 17, 2018)
which it may itself rightfully exercise. The
power to ascertain facts is such power
a. Kinds of Administrative Rules which may be delegated.
and Regulations (2) The finding by an administrative authority of
the existence of conditions defined in the
An administrative regulation may be classified as statute under which its provisions shall
follows (Republic v. Drugmaker's Laboratories, Inc., become operative comes under the head of
G.R. No. 190837, 2014): rule-making since it usually involves
judgment, if not discretion.
(1) Legislative rules are in the nature of
subordinate legislation and designed to The true distinction, therefore, is between the
implement a primary legislation by providing delegation of power to make the law which
the details thereof. They usually implement necessarily involves a discretion as to what it shall
existing law, imposing general, extra-statutory be and conferring an authority of or discretion as to
obligations pursuant to authority properly delegated its execution, to be exercised under and in
by Congress and effect a change in existing law or pursuance of the law. The first cannot be done, to
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the latter, no valid objection can be made. (De Leon, 164171, 164172 & 168741, 2006 citing Carlo Cruz,
Administrative Law: Text and Cases 108, 2016) Philippine Administrative Law)
(1) Its promulgation must be authorized by

Kinds of Administrative Rules
the legislature.
(1) Non-Legislative Rule
There is a delegation made by Congress
(a) No force of law
subject to the Completeness Test and the
(b) No need for notice, comment and
Sufficient Standard Test.
publication
(c) Exception: When rule affects third
(2) It must be promulgated in accordance
persons (Tañada v. Tuvera, GR No. L-
with the prescribed procedure.
63915, 1986)
(d) Examples: (SIPI)
(a) Notice and Hearing
(1) Supplementary - Those which
supply details, also known as
GENERAL RULE: Prior notice and hearing
detailed legislation.
not required in the following (Provincial Bus
(2) Interpretative - Those that do no
Operators v. DOLE, GR No. 78385, 2018,
more than to interpret a statute.
J. Leonen):
These are given weight and respect
(i) Interpretative Rule - no real
but are not conclusive to the courts.
consequence more than what the law
itself prescribes (Cawad v. Abad, GR
NOTE: Recall that administrative
No. 207145, 2015);
agencies are possessed of
specialized knowledge
(ii) Administrative regulation or issuance is
of general application (i.e. applies to
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(3) Procedural - Those which describe
all; not just to a selected class)
the method by which the agency will
(Philippine Consumers Foundation,
carry out its appointed functions
Inc. v. Secretary of Education, Culture
(4) Internal - Those issued by a superior
and Sports, G.R. No. 78385, 1987);
administrative or executive officer to
his subordinates for the proper and
efficient administration of law.
(2) Legislative/Substantive Rule

(iii)
(iv)
Internal in nature (Board of Trustees v.
Velasco, GR No. 170463, 2011);
Rule is procedural (Rules of

(a) With force of law
Procedure; since it’s also of general
(b) Needs notice, comment, and publication
application);
(Chap 2. Book VII, Administrative Code
and Art. 2, Civil Code)
(v) Rule is merely a legal opinion (hence,
(c) Examples: (PCS)
advisory and no adjudication; e.g. BIR
(i) Penal - Those that carry out penal or
or SEC opinions);
criminal sanctions for violation of the
same.
(vi) Substantive rule where class affected
(ii) Contingent - Those which determine
is at large and questions to be resolved
when a statute will go into effect.
require use of discretion by the rule-
Power to ascertain the happening of
making body. (Corona v. United Harbor
such facts may be delegated to
Pilots, GR No. 111953, 1997)
administrative agencies
(iii) Supplementary - Those which only
EXCEPTIONS: Prior notice & hearing
supply details, also known as
required if:
detailed legislation.
(i) Legislature itself requires it and
mandates that the regulation shall be
b. Requisites for Validity based on certain facts as determined at
an appropriate hearing or consultation
To be valid, an administrative issuance must comply (i.e. contained in the law itself);
with the following requisites (Executive Secretary v.
Southwing Heavy Industries, Inc., G.R. Nos.
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(ii) Rule requires determination of past than what the law itself prescribes
events or facts (through a hearing or (Cawad v. Abad, GR No. 207145, 2015;
proceeding); Tañada v. Tuvera, GR No. L-63915,
1986)
(iii) Regulation is settlement of a
controversy between specific parties (ii) Those merely internal in nature, that is,
(hence, considered as adjudication) regulating only the personnel of the
(Philcomsat v. Alcuaz, GR No. 84818, administrative agency and not the
1989); public, need not be published. (Board of
Trustees v. Velasco, GR No. 170463,
(iv) Rate-fixing in the exercise of quasi- 2011; Tañada v. Tuvera, GR No. L-
judicial authority (Philippine Consumers 63915, 1986
Foundation, Inc. v. Secretary of
Education, Culture and Sports, G.R. No. (iii) Letters of instructions issued by
78385, 1987) administrative superiors concerning the
rules or guidelines to be followed by
(b) Publication their subordinates in the performance of
their duties. (Tañada v. Tuvera, GR No.
GENERAL RULES: Publication required in L-63915, 1986)
the following:
(i) Administrative rules and regulations Interpretative regulations and those merely internal
must also be published if their purpose in nature, that is, regulating only the personnel of the
is to enforce or implement existing law administrative agency and not the public, need not
pursuant also to a valid delegation. be published. Neither is publication required of the
(Tañada v. Tuvera, GR No. L-63915, so-called letters of instructions issued by
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1986) administrative superiors concerning the rules on
guidelines to be followed by their subordinates in the
(ii) If the administrative rule substantially performance of their duties. (VFP v. Reyes, G.R.
adds or increases the burden of those No. 155027, 2006)
governed, publication is required.
(Manila Public School Teachers v. Summary Rules on the Publication and Notice
Garcia, GR No. 192708, 2017) and Hearing Requirements of Administrative
Rules and Regulations
(iii) Every rule establishing an offense or NOTICE
defining an act which, pursuant to law, PUBLI
KIND AND
is punishable as a crime or subject to a GRANT CATIO
(SIC PIP) COM-
penalty shall in all cases be published in N
MENT
full text. [Sec. 6(2), Chapter 2, Book VII,
Administrative Code of 1987] Legislative Express Yes Yes/No
(Supplementary/ or
Subordinate) Implied
Special Requisites of Penal Rules: (PFPO)
(1) The law which authorizes the promulgation
of rules and regulations must itself Provide Interpretative Express No No
for the imposition of a penalty for their or
violation; Implied
(2) The law must Fix or define such penalty;
(3) The violation for which the rules and Contingent Express Yes Yes
regulations impose a Penalty must be
punishable under the law itself; and
(4) The rules and regulations must be Procedural Express Yes No
published in the Official Gazette or or
Newspaper of General Circulation and Implied
archived at the UP Law Center.
Internal Express No No
EXCEPTIONS: Publication not required in or
the following: Implied
(i) Interpretative rule/circular/regulations,
which add no real consequence more
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Penal Express Yes Yes control does not encompass the power to absolutely
prohibit the advertising, marketing, and promotion of
(c) Filing with the UP Law Center-Office of breast milk substitutes. Neither the Milk Code nor
the Administrative Registrar the Revised Administrative Code grants the DOH
the authority to fix or impose administrative fines.
Every agency shall file with the University of the Without any express grant of power to fix or impose
Philippines Law Center three (3) certified copies of such fines, the DOH cannot provide for those fines
every rule adopted by it. Each rule shall become in the RIRR. The DOH exceeded its authority by
effective fifteen (15) days from the date of filing. providing for such fines or sanctions in the RIRR.
[Secs. 3-4, Chapter 2, Book VII, Administrative (Pharmaceuticals and Health Care Association of
Code of 1987] the Philippines v. Duque, G.R. 173034, 2007)
According to the Administrative Code, 3 copies of (4) It must be reasonable.

every rule should be filed in the Office of the The police power legislation must be firmly
National Administrative Register (ONAR) of the UP grounded on public interest and welfare, and a
Law Center. Failure to comply with this makes the reasonable relation must exist between purposes
administrative issuance ineffective & may not be and means. And if distinction and classification
enforced. (GMA v. MTRCB, G.R. 148579, 2007) ha[ve] been made, there must be a reasonable
This registration requirement is part of publication. basis for said distinction. (PBOAP v. DOLE citing
Ichong v. Hernandez)
Not all rules and regulations adopted by every
government agency are to be filed with the UP Law 2. QUASI-JUDICIAL
Center. Only those of general or of permanent (ADJUDICATORY) POWER
character are to be filed. Internal rules which are
meant to regulate the personnel of the GSIS are not
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subject to filing with the UP Law Center. (Board of Powers and functions which involve the decision or
Trustees v. Velasco, G.R. 17046, 2011). determination by administrative agencies of the
rights, duties, and obligations of specific individuals
and persons, as contrasted with powers (i.e., rule-
NOTE: Whenever publication is required, it is the
making) of administrative agencies which, while
condition sine qua non that will make the regulation
they may involve decisions or determinations in the
effective. Thus, filing alone without publication is not
broadest sense, involve persons generally rather
the operative act that will make the administrative
than specially, and usually operate only
rule effective. [Republic v. Express
prospectively. (De Leon, Administrative Law: Text
Telecommunications, GR No. 147096, 2002]
and Cases 172, 2016)
(3) It must be within the scope of the
DEFINITION. The Quasi-Judicial Power has been
authority given by the legislature (must
defined as the power of the administrative
not be ultra vires)
authorities to make determinations of facts in the
performance of their official duties and to apply the
This simply means that the resulting IRRs must not law as they construe it to the facts so found. The
be ultra vires as to be issued beyond the limits of the
exercise of this power is only incidental to their main
authority conferred. It is basic that an administrative
function, which is the enforcement of the law. (Carlo
agency cannot amend an act of Congress for
Cruz, Philippine Administrative Law 49, 2016)
administrative IRRs are solely intended to carry out,
not to supplant or to modify, the law. The
QUASI-JUDICIAL BODY. A quasi-judicial body has
administrative agency issuing the IRRs may not
been defined as "an organ of government other than
enlarge, alter, or restrict the provisions of the law it
a court and other than a legislature, which affects
administers and enforces, and cannot engraft
the rights of private parties through either
additional non-contradictory requirements not
adjudication or rule making." The most common
contemplated by the Legislature. (Lokin, Jr. v.
types of such bodies have been listed as follows
Commission on Elections, G.R. Nos. 179431-32 &
[Presidential Anti-Dollar Salting Task Force v. Court
180443, 2010)
of Appeals, G.R. No. 83578, March 16, 1989 citing
GONZALES, ADMINISTRATIVE LAW, A TEXT 13-
The DOH’s power under the Milk Code to control
15 (1979)]:
information regarding breast milk vis-a-vis breast
milk substitutes is not absolute, as the power to
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(1) Agencies created to function in situations

wherein the government is offering
some gratuity, grant, or special QUASI-JUDICIAL & QUASI-LEGISLATIVE
privilege, like the defunct Philippine POWERS DISTINGUISHED
Veterans Board, Board on Pensions for
Veterans, and NARRA, and Philippine Quasi-Legislative v. Quasi-Judicial:
Veterans Administration. QUASI- QUASI-
LEGISLATIVE JUDICIAL
(2) Agencies set up to function in situations Grant Express or Implied Express
wherein the government is seeking to (SIC PIP)
carry on certain government functions, Parties All / Sectors Particular
like the Bureau of Immigration, the Bureau involved
of Internal Revenue, the Board of Special Adversarial No Yes
Inquiry and Board of Commissioners, the Controversy None Exists
Civil Service Commission, the Central Bank Notice and Nor Required Required
of the Philippines. Hearing (unless requires it;
there is a radical
(3) Agencies set up to function in situations change)
wherein the government is performing Primary J./ Not applicable Applicable
some business service for the public, Exhaustion (Judicial Review at
like the Bureau of Posts, the Postal Savings of A.R. first instance)
Bank, Metropolitan Waterworks & Time Future Past/Present
Sewerage Authority, Philippine National
Publication Depends on type of Not Required
Railways, the Civil Aeronautics
rule (SIC PIP)
Administration.
Res Not Applicable Applicable
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Judicata
(4) Agencies set up to function in situations
wherein the government is seeking to
The Presidential Electoral Tribunal (PET) does NOT
regulate business affected with public
exercise quasi-judicial functions. When the
interest, like the Fiber Inspections Board,
Supreme Court, as the PET, resolves a presidential
the Philippine Patent Office, Office of the
or vice-presidential election contest, it performs
Insurance Commissioner.
what is essentially a judicial power. (Macalintal v.
Presidential Electoral Tribunal, G.R. 191618, 2010).
wherein the government is seeking
The classification of positions in career service is a
under the police power to regulate
quasi- legislative, not a quasi-judicial, issuance. This
private business and individuals, like the
distinction determines whether prior notice and
Securities & Exchange Commission, Board
hearing are necessary. It was an internal matter
of Food Inspectors, the Board of Review for
which did not need prior publication. It had been
Moving Pictures, and the Professional
issued as an incident of the administrative body’s
Regulation Commission.
power to issue guidelines for government officials to
follow in performing their duties. (Abella v. CSC,
G.R. 152574, 2004).
wherein the government is seeking to
adjust individual controversies because
The fact that the Toll Regulatory Board is exercising
of some strong social policy involved,
its administrative or executive functions such as the
such as the National Labor Relations
granting of franchises or awarding of contracts and
Commission, the Court of Agrarian
at the same time exercising its quasi-legislative
Relations, the Regional Offices of the
and/or quasi-judicial functions (e.g., rate-fixing),
Ministry of Labor, the Social Security
does not support a finding of a violation of due
Commission, Bureau of Labor Standards,
process or the Constitution. (Francisco, Jr., et al. vs.
Women and Minors Bureau.
Toll Regulatory Board, G.R. 166910 / 169917 /
173630 / 183599, 2010).
It is well settled that findings of fact of quasi-judicial

agencies, such as the COA, are generally accorded
respect and even finality by this Court, if supported
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by substantial evidence, in recognition of their The doctrine of judicial stability or non-interference
expertise on the specific matters under their in the regular orders or judgments of a co-equal
jurisdiction. (Reyna v. Commission on Audit, G.R. court is an elementary principle in the administration
167219, 2011). of justice: no court can interfere by injunction with
the judgments or orders of another court of
The doctrine of separate personality of a corporation concurrent jurisdiction having the power to grant the
finds no application in a government agency. Also, relief sought by the injunction. The rationale for the
the law states that expenditures of government rule is founded on the concept of jurisdiction: a court
funds or uses of government property in violation of that acquires jurisdiction over the case and renders
law or regulations shall be a personal liability of the judgment therein has jurisdiction over its
official or employee found to be directly responsible judgment, to the exclusion of all other coordinate
therefore. (Verzosa, Jr. v. Carague, G.R. 157838, courts, for its execution and over all its incidents,
2011). and to control, in furtherance of justice, the conduct
of ministerial officers acting in connection with this
Doctrine of Non-Interference judgment. [Barroso v. Omelio, G.R. No. 194767 ,
Another basic principle is the doctrine of non- 2015]
interference which should be regarded as highly
important in judicial stability and in the Enforcement of decisions
administration of justice whereby the judgment of a It must be in accordance with the manner prescribed
court of competent jurisdiction may not be opened, by the statute. If there is no provision, resort to the
modified or vacated by any court or tribunal of courts is necessary for enforcement.
concurrent jurisdiction.([Freeman, Inc. v. Securities
and Exchange Commission, G.R. No. 110265, [July
When fully authorized by law, administrative
7, 1994], 304 PHIL 139-148 citing Mercado v.
agencies (e.g. Civil Aeronautics Board) can impose
Ubay, GR No. L-35830, 24 July 1990)
fines in the nature of civil penalty for violations of its
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rules and regulations. Thus, in CAB v. PAL: There
As a rule, where legislation provides for an appeal
exists but an insignificant doubt in Our mind that the
from decisions of certain administrative bodies to
C.A.B. is fully authorized by law (Republic Act 776)
the Court of Appeals, it means that such bodies are
to impose fines in the nature of civil penalty for
co-equal with the Regional Trial Courts, in terms of
violations of its rules and regulations. To deprive the
rank and stature, and logically, beyond the control
C.A.B. of that power would amount to an absurd
of the latter. [Presidential Anti-Dollar Salting Task
interpretation of the pertinent legal provision
Force v. Court of Appeals, G.R. No. 83578, 1989]
because the CAB is given full power on its own
initiative to determine whether to "impose, remit,
Courts may not interfere with administrative and
mitigate, increase or compromise" "fines and civil
discretionary functions of administrative agencies. It
penalties", a power which is expressly given to the
should be emphasized here, as again stressed by
Civil Aeronautics Administrator whose orders or
the Court in the case of Republic, et al. vs. De los
decision may be reviewed, revised, reversed,
Angeles, et al., G.R. No. L-30240, March 25, 1988,
modified or affirmed by the CAB. Besides, to
that "it is well-recognized principle that purely
deprive the C.A.B. of its power to impose civil
administrative and discretionary functions may
penalties would negate its effective general
not be interfered with by the courts. In general,
supervision and control over air carriers if they
courts have no supervising power over the
can just disregard with impunity the rules and
proceedings and actions of the administrative
regulations designed to insure public safety and
departments of government. This is generally
convenience in air transportation. If every time
true with respect to acts involving the exercise
the C.A.B. would like to impose a civil penalty on
of judgment or discretion, and findings of fact.
an erring airline for violation of its rules and
There should be no thought of disregarding the
regulations it would have to resort to courts of
traditional line separating judicial and
justice in protracted litigations then it could not
administrative competence, the former being
serve its purpose of exercising a competent,
entrusted with the determination of legal
efficient and effective supervision and control
questions and the latter being limited as a result
over air carriers in their vital role of rendering
of its expertise to the ascertainment of the
public service by affording safe and convenient
decisive facts." [Presidential Commission on Good
air transit. (Civil Aeronautics Board v. Philippine Air
Government v. Peña, G.R. No. 77663, [April 12,
Lines, Inc., G.R. No. L-40245, April 30, 1975)
1988], 243 PHIL 93-135]
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NOTE: Administrative agencies that have been, by (e) Administrative agencies are creatures of
authority of law, granted the power to render the law and they have no general powers
decisions, issue orders, or impose fines would have but only such as conferred by law; where
the corresponding power to enforce the same as the law confines in an administrative officer
well, such as the Energy Regulatory Commission the power to determine particular questions
(ERC), National Telecommunications Commission or matters upon facts presented, the
(NTC), and Civil Aeronautics Board. jurisdiction of such office shall prevail over
courts.
Characteristics of Quasi-Judicial Proceedings –
(f) In order for the Court to acquire jurisdiction
(PJAC)
over an administrative case, the complaint
(1) Adversarial in nature; every proceeding is must be filed during the incumbency of the
adversary in substance if it may result in an respondent. Once jurisdiction is acquired, it
order in favor of one person against is not lost by reason of respondent’s
another. cessation from office. (Office of the Court
(2) Such proceedings partake of the nature of Administrator v. Andaya, A.M. RTJ-09-
Judicial proceedings if it involves taking 2181, 2013).
and evaluation of evidence, determination
of facts based upon evidence presented (2) Due Process — Doctrine of primary
and rendering an order or decision jurisdiction.
supported by the facts proved. (a) If the determination requires the expertise,
(3) Particular proceedings before an specialized skills and knowledge of the
administrative agency have been held proper administrative bodies because
Civil rather than criminal in nature. technical matters or intricate questions of
(4) The proceeding for forfeiture while facts are involved, then relief must first be
administrative in character thus possesses obtained in an administrative proceeding
a criminal or penal aspect. (Cabal v.
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before remedy will be supplied by the
Kapunan, G.R. L-19052, 1962). courts.
(b) Failure to comply with this doctrine renders
Requisites of Quasi-Judicial Proceedings: (JD) the action open to a motion to suspend
(1) Jurisdiction (defined by law/charter) - power pending referral of the issues to the
and authority given by law to hear and decide a administrative agency.
case; consists of TWO elements—jurisdiction
over subject-matter and over the person. a. Administrative Due Process
Without jurisdiction, acts are void and open to (HIP DESK)
collateral attack.
(a) Administrative agencies are tribunals of (1) The right to a Hearing, which includes the
specialized or limited jurisdiction, which is right to present one’s case and submit
dependent entirely upon the validity and the evidence in support thereof. However, a
terms of the statutes reposing power in “trial-type” proceeding is not required. The
them. essence is the opportunity to be heard.
(b) An administrative agency cannot enlarge (2) The tribunal or body or any of its judges
its own jurisdiction nor can jurisdiction be must act on its or his own Independent
conferred upon an agency by parties before consideration of the law and facts of the
it. controversy, and not simply accept the
(c) When a particular statute authorizes an views of a subordinate in arriving at a
administrative agency to act in a particular decision.
situation, it necessarily confers upon such (3) The decision must be based on the
agency authority to determine whether the evidence Presented at the hearing or at
situation is such as to authorize the agency least contained in the record and disclosed
to act; an administrative agency’s to the parties affected.
determination as to its jurisdiction is not (4) The Decision must have something to
conclusive to the courts. support itself.
(d) Expiration of a statute may be held not to (5) The tribunal must consider the Evidence
deprive an administrative agency of presented.
jurisdiction to enforce the statute as to (6) Evidence supporting the conclusion must
liabilities incurred while the statute was in be Substantial.
force, where a general saving statute (7) The board or body should, in all
continues such liabilities. controversial questions, render its decision
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in such a manner that the parties to the 114694, 2005)
proceeding can Know the various issues
involved and the reasons for the decision (7) There is no denial of due process just
rendered. (Ang Tibay v. CIR, G.R. L-46496, because no cross-examination took place.
1940) What is important is that she was given the
opportunity to do so. (Vertudes v.
Doctrines: Buenaflor, G.R. 153166, 2005)
(1) For as long as the parties were given fair
and reasonable opportunity to be heard (8) In administrative proceedings, the filing of
and to submit evidence in support of their charges and giving reasonable opportunity
arguments before judgment was rendered, for the person charged to answer the
the demands of due process are sufficiently accusation against him constitute the
met. (Casimiro v. Tandog G.R. 146137, minimum requirements of due process.
2005) (Cayago v. Lina, G.R. 149539, 2005)
(2) Procedural due process is the (9) Some proceedings are instituted by simple
constitutional standard demanding that ex parte applications. Others are instituted
notice and an opportunity to be heard be by filing of a charge or complaint by an
given before judgment is rendered. As long aggrieved person. Under other statutes,
as a party is given the opportunity to defend particular administrative agencies may
his interests in due course, he would have institute proceedings on their own initiative,
no reason to complain; the essence of due motion, or complaint.
process is in the opportunity to be heard. A
formal or trial-type hearing is not always (10) Due Process requirements are usually in
necessary. (Imperial v. GSIS, G.R. 191224, the statute, but if none is provided, the
2011) Constitutional guarantee of due process of
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law must be upheld. (Notice, to enable a
(3) A decision is void for lack of due process if, party to be heard and to present evidence,
as a result, a party is deprived of the is not a mere technicality or a trivial matter
opportunity to be heard. A void decision in any judicial or quasi-judicial proceedings.
may be assailed or impugned at any time The service of summons is a very vital and
either directly or collaterally by means of a indispensable ingredient of Due Process).
separate action, or by resisting such When an agency fails to afford previous
decision in any action or proceeding where notice, it may be cured by subsequently
it is invoked. (Uy vs. Court of Appeals, G.R. giving the party an opportunity to be heard.
109557, 2000) Motion for reconsideration is a means to
cure the defect of notice.
(4) The rule requiring an administrative officer
to exercise his own judgment and (11) Non-filing of any administrative charge
discretion does not preclude him from against the accused preparatory to his
utilizing the aid of his subordinates in the dismissal, and therefore the dismissal
hearing and reception of evidence. effected without any administrative
(American Tobacco v. Director of Patents, complaint, violated the right of the accused
G.R. No. 26803, 1975) to substantive and procedural due process.
He is entitled to reinstatement and to
(5) When an administrative agency acts as a payment of the salaries, allowances, and
collegiate body, its power and duties other benefits withheld from him by reason
cannot be exercised by the members of his discharge from the service.
individually. (GMCR v. Bell (Calinisan v. Roaquin, G.R. 159588, 2010)
Telecommunications, G.R. No. 126496,
1997) (12) The subsequent desistance by complainant
does not free the respondent from liability,
(6) The essence of due process in as the purpose of an administrative
administrative proceedings is the proceeding is to protect the public service
opportunity to explain one’s side or seek a based on the time-honored principle that a
reconsideration of the action or ruling public officer is a public trust. (Encinas v.
complained of. (Antonio v. Villa, G.R. Agustin Jr., G.R. 187317, 2013)
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decision has been remedied through an

(13) The Revised Rules on Administrative Order giving petitioners the right to
Cases in the Civil Service themselves participate in the hearing of the MR. The
provide that administrative investigations opportunity granted by, technically,
shall be conducted without strict recourse allowing petitioners to finally be able to file
to the technical rules of procedure and their comment in the case, resolves the
evidence applicable to judicial proceedings. procedural irregularity previously inflicted
(Adalin v. Taninas, G.R. L-198682, 2013) upon petitioners. (NASECORE v. ERC,
G.R. 190795, 2011)
(14) The dismissal of the criminal complaint
does not affect the administrative case (18) The Board of Medicine can properly admit
arising from the same incident which gave formal offer of evidence to prove that a
rise to said criminal case. (Gabriel v. person’s kidneys were in their “proper
Ramos, A.M. P-06-2256, 2013) anatomical locations” at the time she was
operated and that the BOM shall determine
(15) The essence of due process in the probative value thereof, if the original
administrative proceedings is the documentary evidence cannot be
opportunity to explain one's side or seek a produced. The rules of evidence are merely
reconsideration of the action or ruling the means for ascertaining the truth
complained of. As long as the parties are respecting a matter of fact. Rules of
given the opportunity to be heard before evidence are not strictly applied in
judgment is rendered, the demands of due proceedings before administrative bodies
process are sufficiently met. What is such as the BOM. (Atienza v. Board of
offensive to due process is the denial of the Medicine, G.R. 177407, 2011)
opportunity to be heard. Nothing is irregular
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in considering the investigation terminated WAIVER OF RIGHT TO NOTICE
and submitting the case for resolution • A failure to comply with the requirements may
based on available evidence upon failure of result in failure to acquire jurisdiction.
the respondent to file his counter-affidavit • Generally, the right to notice in an
or answer despite giving him ample administrative proceeding may be waived.
opportunity to do so. Moreover, Section 14, • If a general appearance is made, jurisdiction
Article VIII of the 19871 Constitution need over the person is conferred even though there
not apply to decisions rendered in was no proper notice or process.
administrative proceedings. Said section • Personal notice is not required where it is
applies only to decisions rendered in impossible to give such notice.
judicial proceedings. It would be error to
hold or even imply that decisions of Exceptions to Requirement of Notice and
executive departments or administrative Hearing: (UTOS CLAPP)
agencies are obliged to meet the (1) Urgency of immediate action
requirements under Section 14, Article VIII. (2) Tentativeness of the administrative action
(Flores v. Montemayor, G.R. 170146, (3) Right was previously Offered but not
2011) claimed
(4) Summary abatement of a nuisance per se
(16) A respondent in an administrative case is (5) Cancellation of a passport of a person
not entitled to be informed of the sought for criminal prosecution
preliminary findings and recommendations; (6) Summary proceedings of Levy upon
he is entitled only to a reasonable properties of a delinquent taxpayer
opportunity to be heard, and to the (7) Replacement of a temporary or Acting
administrative decision based on appointee
substantial evidence. (Velasquez v. CA, (8) Preventive suspension of a public servant
G.R. No. 150732, 2004) facing administrative charges
(9) Padlocking of filthy restaurants/ theaters
(17) There is no denial of due process if any showing obscene movies
irregularity in the premature issuance of a
1 No petition for review or motion for reconsideration of a

Section 14. No decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and decision of the court shall be refused due course or denied
the law on which it is based. without stating the legal basis therefor.
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quasi-judicial powers. Hence, Section 11 of the
AMLA, authorizing a bank inquiry court order,
Investigation v. Hearing: cannot be said to violate SPCMB’s constitutional
right to procedural process. (Subido Pagente
INVESTIGATION HEARING Certeza Mendoza and Binay Law Offices v. CA,
G.R. No. 216914, 2017)
By government There are parties and
officials, which may be issues of law and of fact Authority to hear can be delegated
held in private are to be tried and at the This subdelegation of power has been justified by
informal proceedings to conclusion of the "sound principles of organization" which demand
obtain Information to hearing, action is taken that "those at the top be able to concentrate their
govern future actions, which may affect the attention upon the larger and more important
have no parties, and parties’ rights and questions of policy and practice, and their time be
are not proceedings in parties are entitled to freed, so far as possible, from the consideration of
which action is taken be present in person the smaller and far less important matters of detail."
against anyone. and by counsel, Thus, it is well-settled that while the power to decide
participate in the resides solely in the administrative agency vested
hearing, and entitled to by law, this does not preclude a delegation of the
be furnished a record of power to hold a hearing on the basis of which the
the proceedings. decision of the administrative agency will be made.
(American Tobacco v. Director of Patents, GR No.
The filing of formal charges against the respondents 26803, 1975)
without complying with the mandated preliminary
investigation (provided by law) or at least giving the The (Securities and Exchange) Commission
respondents the opportunity to comment violated empowered the Prosecution And Enforcement
their right to due process. Accordingly, the formal Department (PED) to conduct the hearing and to
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charges are void ab initio and may be assailed decide on the revocation of a certificate of
directly or indirectly at any time. (Garcia v. Molina, registration. The provisions of Pres. Decree No.
G.R. 157383/174137, 2010) 902-A as amended do not prohibit the respondent
Commission from designating an officer or a division
A formal charge is a written specification of the to hear a case. The Court reiterates that in the
charge(s) against an employee. While its form may absence in the rules of the Commission of a
vary, it generally embodies a brief statement of the provision designating a particular officer or
material and relevant facts constituting the basis of department that should try a particular action, the
the charge(s); a directive for the employee to Commission can validly call upon any of its qualified
answer the charge(s) in writing and under oath, departments to try a particular action, including the
accompanied by his/her evidence; and advice for PED to hear and make a preliminary ruling on the
the employee to indicate in his/her answer whether case. This was what the Commission did to meet the
he/she elects a formal investigation; and a notice demands or orderly and responsible administration
that he/she may secure the assistance of a counsel of all the task assigned to it as a government
of his/her own choice. (PAGCOR v. CA, G.R. agency. [Skyworld v. SEC, GR No. 95778, 1992]
185668, 2011)
Preliminary Investigation is not a quasi-judicial
In administrative proceedings, the complainant proceeding
bears the onus of establishing, by substantial The prosecutor in a preliminary investigation does
evidence, the averments of his complaint. A not determine the guilt or innocence of the accused.
complainant cannot rely on mere conjectures and He does not exercise adjudication nor rule-making
suppositions. (Sasing v. Gelbolingo, A.M. No. P-12- functions. Preliminary investigation is merely
3032, 2013; Re: Letter Complaint of Merlita B. inquisitorial, and is often the only means of
Fabiana Against Presiding Justice Andres B. Reyes, discovering the persons who may be reasonably
A.M. No. CA-13-51-J, 2013) charged with a crime and to enable the fiscal to
prepare his complaint or information. It is not a trial
The AMLC’s investigation of money laundering of the case on the merits and has no purpose except
offenses and its determination of possible money that of determining whether a crime has been
laundering offenses, specifically its inquiry into committed and whether there is probable cause to
certain bank accounts allowed by court order, does believe that the accused is guilty thereof. While the
not transform it into an investigative body exercising fiscal makes that determination, he cannot be said
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to be acting as a quasi-court, for it is the courts, (5) Right to cross-examine witnesses.

ultimately, that pass judgment on the accused, not (6) Agency may make judicial notice to any
the fiscal. [Bautista v. Court of Appeals, GR No. technical or scientific facts within in its
143375, 2001] specialized knowledge.
Contempt Power. "The power to punish for (7) The agency shall have the power to require
contempt is inherent in all courts; its existence is the attendance of witnesses or the
essential to the preservation of order in judicial production of books, papers, documents
proceedings, and to the enforcement of judgments, and other pertinent data; may invoke the
orders and mandates of courts, and, consequently, aid of the RTC within whose jurisdiction the
in the administration of justice" (Slade contested case falls.
Perkins vs. Director of Prisons, 58 Phil., 271; U. (8) Decision - every decision rendered by the
S. vs. Loo Hoe, 36 Phil., 867; In Re Sotto, 46 Off. agency in a contested case shall be in
Gaz. 2570; In Re Kelly, 35 Phil., 944). The exercise writing and shall state clearly and distinctly
of this power has always been regarded as a the facts and the law on which it is based;
necessary incident and attribute of courts (Slade shall decide within 30 days following the
Perkins vs. Director of Prisons, Ibid.). [Guevara v. submission.
Commission on Elections, G.R. No. L-12596, [July (9) Finality of Order - decision shall be final
31, 1958], 104 PHIL 268-278)] and executory 15 days after the receipt of a
copy thereof.
Its exercise by administrative bodies has been (10) Publication and Compilation of
invariably limited to making effective the power to decisions - Every agency shall publish and
elicit testimony (People vs. Swena, 296 P., 271). make available for public inspection all
And the exercise of that power by an decisions and final orders. It shall be the
administrative body in furtherance of its duty of the records officer of the agency to
administrative function has been held invalid prepare a register or compilation of those
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(Langenberg vs. Decker, 31 N.E. 190; In Re Sims decisions or final orders.
37 P., 135; Roberts vs. Hacney, 58 S.W., 810).
[Guevara v. Commission on Elections, G.R. No. L- b. Administrative Appeal and
12596, [July 31, 1958], 104 PHIL 268-278)] Review
The power to hold in contempt, it has time and An appeal from a final decision of the agency may
again been held, must be exercised, not on the be taken to the department head.
vindictive, but on the preservative principle. It is
not to be meted out of pique, or from an imperial Perfection of Administrative Appeals
sense of the nature and functions of judicial office. Appeals shall be perfected within 15 days after the
[Dumarpa v. Dimaporo, G.R. Nos. 87014-16, receipt of a copy of the decision complained of by
[September 13, 1989], 258 PHIL 272-288] the party adversely affected.
NOTE: Exercise by the quasi-judicial body of the Effect
power to hold in contempt is through the Rules of The appeal shall stay the decision appealed from if
Court. the appellate agency does not direct otherwise.
Rules on Adjudication (EO 292, Book VII) Action on Appeal
(1) Compromise and Arbitration - every The appellate agency may review record and
agency shall, in the public interest, receive additional evidence.
encourage amicable settlement,
compromise and arbitration. Finality of Decision of Appellate Agency
(2) All parties shall be entitled to notice and Becomes final 15 days after receipt of the decision
hearing; the notice shall be served at least by the parties.
5 days before the date of hearing and shall
state the date, time, and place of the Judicial Review
hearing. Agency decisions shall be subject to judicial review.
(3) Parties shall be given opportunity to The action may be brought against the agency, its
present evidence and argument on all officers, and all indispensable and necessary
issues. parties.
(4) Rules on Evidence - May admit evidence
commonly accepted by reasonably prudent
men. Perfection of Appeal
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(1) The appeal shall be perfected by filing with “adjudicatory,” “judicial,” or “quasi- judicial.”
the agency within 15 days from receipt of On the other hand, it is inapplicable in administrative
copy; copies shall be served upon the determinations which are of “administrative,”
agency and all parties of records. “executive,” “legislative,” or “ministerial” nature.
(2) A petition for review shall be perfected
within 15 days from receipt of the final While it is true that this Court has declared that the
administrative decision; 1 month extension doctrine of res judicata applies only to judicial or
may be allowed. quasi-judicial proceedings, and not to the exercise
Controversies among Government Offices and of administrative powers, we have also limited the
Corporations latter to proceedings purely administrative in nature.
All disputes of government agencies and Therefore, when the administrative proceedings
corporations are settled administratively in the take on an adversary character, the doctrine of
manner provided by the Administrative Code. (EO res judicata certainly applies. As this Court held
292, Book IV, Chap. 14) in Fortich v. Corona: “The rule of res judicata
which forbids the reopening of a matter once
Submission for Decision for Questions of Law v. judicially determined by competent authority
Questions of Fact and Law applies as well to the judicial and quasi-judicial
QUESTIONS OF QUESTIONS OF FACT acts of public, executive or administrative
LAW AND LAW officers and boards acting within their
jurisdiction as to the judgments of courts having
Submitted to Secretary Solicitor-General - if the
general judicial powers.” (Derla v. Vda. de
of Justice as Attorney- dispute, claim or Hipolito, G.R. No. 157717, 2011)
General. His ruling controversy involves only
shall be binding on all departments, bureaus, Example: The principle of res judicata is applicable
the parties concerned offices, and other in labor relations proceedings which are “non-
agencies of the National litigious and summary in nature without regard to
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Government as well as legal technicalities obtaining in courts of law.” (Rules
the GOCCs. and Regulations Implementing the Labor Code,
Sec. 5, Rule XIII, Book V).
Secretary of Justice, in
all other cases not Not Applicable
mentioned above. (a) When the question of citizenship is
resolved by a court or an administrative
The determination of factual issues may be made by body as a material issue in the controversy
arbitration panel composed of representatives from after a full-blown hearing. (Zita Ngo Burca
each party, presided over by Secretary of Justice. v. Republic, G.R. 122226, 1998; United
Pepsi Cola v. Laguesma, G.R. L-24252,
General Rule: the decision of Solicitor-General and 1973)
Secretary of Justice is binding and final.
(b) When WCC Referee awards the employee
Exception: When the claim involves 1 million less than what the law provides (BF
pesos, in which case, the dispute is appealed to the Goodrich v. WCC, G.R. L-42319, 1978)
Office of the President.
(c) In the exercise of administrative powers,
c. Administrative Res Judicata such as when the Philippine Commission
Against Graft and Corruption conducts an
Decisions and orders of administrative agencies investigation over a presidential appointee
have upon their finality, the force and effect of a final that is administrative in nature, which is
judgment within the purview of the doctrine of res different from the investigation conducted
judicata. The extent of whether an administrative by the Ombudsman to determine criminal
decision operates as res judicata also depends on liability. (Montemayor v. Bundalian, G.R.
the interpretation of the enabling statute. No. 149335, 2003)
The application of the doctrine of res judicata is (d) If former judgment is based on a prohibited
dependent upon the type of determination and or null and void contract. Therefore, there
proceedings. It is applicable in administrative is no valid judgment which can be
actions that have been characterized as predicated on res judicata. (BF Goodrich v.
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WCC, G.R. No. 38569, 1988) The rule is that findings of fact of administrative
bodies, if based on substantial evidence, are
controlling on the reviewing authority. (Reyna v.
The essential requisites for the existence of res
COA, G.R. 167219, 2011)
judicata are: (1) the former judgment must be final;
(2) it must have been rendered by a court having The SEC Hearing Officer had the optimum
jurisdiction of the subject matter and the parties; opportunity to review the pieces of evidence
(3) it must be a judgment on the merits; and (4) presented before him and to observe the demeanor
there must be, between the first and second actions: of the witnesses. Administrative decisions on
(a) identity of parties (b) identity of subject matters within his jurisdiction are entitled to respect
matter and (c) identity of cause of action (Ipekdjian and can only be set aside on proof of grave abuse
v. CTA citing Navarro vs. Director of Lands, L- of discretion, fraud, or error of law. (Queensland-
18814, July 31, 1962; Aring vs. Original, L-18464, Tokyo Commodities, Inc. v. George, G.R. 172727,
Dec. 29, 1962). 2010)
Principle of res judicata in the mode of The right to counsel under Section 12 of the Bill of
"conclusiveness of judgment" Rights is meant to protect a suspect during custodial
The principle of res judicata in the mode of investigation. While investigations conducted by an
"conclusiveness of judgment" applies when the administrative body may at times be akin to a
NLRC ruling was affirmed by the Court of Appeals. criminal proceeding, the rule under existing laws is
It was a judicial affirmation through a decision duly that a party in an administrative inquiry may or may
promulgated and rendered final and executory when not be assisted by counsel, irrespective of the
no appeal was undertaken within the reglementary nature of the charges and of petitioner’s capacity to
period. The jurisdiction of the NLRC, which is a represent herself, and no duty rests on such body to
quasi-judicial body, was undisputed. Neither can the furnish the person being investigated with counsel.
jurisdiction of the Court of Appeals over the NLRC As such, the admissions made by petitioner during
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decision be the subject of a dispute. The NLRC case the investigation may be used as evidence to justify
was clearly decided on its merits; likewise on the her dismissal. (Carbonel v. CSC, G.R. 187689,
merits was the affirmation of the NLRC by the Court 2010)
of Appeals. With respect to the fourth element of
identity of parties, we hold that there is substantial 3. FACT-FINDING, INVESTIGATIVE,
compliance. The parties in SSC and NLRC cases LICENSING, AND RATE-FIXING
are not strictly identical. Jurisprudence however LAW POWERS
does not dictate absolute identity but only
substantial identity. There is substantial identity of INVESTIGATORY POWERS
parties when there is a community of interest
between a party in the first case and a party in the Investigatory or inquisitorial powers include the
second case, even if the latter was not impleaded in power of an administrative body to inspect the
the first case. (SSC v. Rizal Poultry and Livestock records and premises, and investigate the activities
Association, G.R. 167050, 2011) of persons or entities coming under its jurisdiction,'
or to secure, or to require the disclosure of
Inherent v. Implied v. Expressed: information by means of accounts, records, reports,
INHERENT IMPLIED EXPRESSED statements, testimony of witnesses, production of
documents, or otherwise.2 They are conferred on
practically all administrative agencies.
Requires 1. Fact-finding 1. Issue a In fact, the investigatory powers of administrative
disclosure of 2. Visitorial subpoena agencies, or their power and facilities to investigate,
books, etc. powers 2. Cite a initiate action, and control the range of investigation,
3. Ocular person in is one of the distinctive functions which sets them
inspection contempt apart from the court. (De Leon, Administrative Law:
4. Clearance 3. Search Text and Cases 75, 2016)
5. Investigative and
Anomalies Seizure It has been essayed that the lifeblood of the
(CSC) 4. Adjudicate administrative process is the flow of fact, the
5. Impose gathering, the organization and the analysis of
coercive evidence. Investigations are useful for all
measures administrative functions, not only for rule making,
adjudication, and licensing, but also for prosecuting,
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for supervising and directing, for determining NOTE: Rate-fixing power does not necessarily
general policy, for recommending, legislation, and include the right to impose fines unless expressly
for purposes no more specific than illuminating provided by its charter. (RCPI v. NTC, GR No.
obscure areas to find out what if anything should be 93237, 1992; PAL v. CAB, GR No. 119528, 1997)
done. An administrative agency may be authorized
to make investigations, not only in proceedings of a NOT THE POWER TO DESTROY. The rule is that
legislative or judicial nature, but also in proceedings the power of the State to regulate the conduct and
whose sole purpose is to obtain information upon business of public utilities is limited by the
which future action of a legislative or judicial nature consideration that it is not the owner of the property
may be taken and may require the attendance of of the utility, or clothed with the general power of
witnesses in proceedings of a purely investigatory management incident to ownership, since the
nature. It may conduct general inquiries into evils private right of ownership to such property remains
calling for correction, and to report findings to and is not to be destroyed by the regulatory power.
appropriate bodies and make recommendations for The power to regulate is not the power to destroy
actions. (Evangelista v. Jarencio, GR No. L-29274, useful and harmless enterprises, but is the power to
1975) protect, foster, promote, preserve, and control with
due regard for the interest, first and foremost, of the
Investigate vs. Adjudicate public, then of the utility and of its patrons. Any
The legal meaning of "investigate" is essentially the regulation, therefore, which operates as an effective
same: "(t)o follow up step by step by patient inquiry confiscation of private property or constitutes an
or observation. To trace or track; to search into; to arbitrary or unreasonable infringement of property
examine and inquire into with care and accuracy; to rights is void, because it is repugnant to the
find out by careful inquisition; examination; the constitutional guaranties of due process and equal
taking of evidence; a legal inquiry;" "to inquire; to protection of the laws. (Philippine Communications
make an investigation," "investigation" being in turn Satellite Corp. v. Alcuaz, G.R. No. 84818, 1989)
described as "(a)n administrative function, the
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exercise of which ordinarily does not require a PRESCRIBING RATES IS EITHER LEGISLATIVE
hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, OR ADJUDICATIVE. The function of prescribing
judicial or otherwise, for the discovery and collection rates by an administrative agency may be either a
of facts concerning a certain matter or legislative or an adjudicative function. If it were a
matters." (Cariño v. Commission on Human Rights, legislative function, the grant of prior notice and
G.R. No. 96681, 1991). hearing to the affected parties is not a
requirement of due process. As regards rates
In the legal sense, "adjudicate" means: "To settle in prescribed by an administrative agency in the
the exercise of judicial authority. To determine exercise of its quasi-judicial function, prior
finally. Synonymous with adjudge in its strictest notice and hearing are essential to the validity of
sense;" and "adjudge" means: "To such rates. When the rules and/or rates laid down
pass on judicially, to decide, settle or decree, or to by an administrative agency are meant to apply to
sentence or condemn. . . . Implies a judicial all enterprises of a given kind throughout the
determination of a fact, and the entry of a country, they may partake of a legislative character.
judgment." (Cariño v. Commission on Human Where the rules and the rates imposed apply
Rights, G.R. No. 96681, 1991). exclusively to a particular party, based upon a
finding of fact, then its function is quasi-judicial in
Thus, in Cariño v. Commission on Human Rights, character. (Philippine Consumers Foundation, Inc.
the CHR cannot try and resolve on the merits v. Secretary of Education, Culture and Sports, G.R.
(adjudicate) as it only has the power to investigate No. 78385, 1987)
under the 1987 Constitution. PROVISIONAL RATES. An administrative agency
may be empowered to approve provisionally, when
RATE-FIXING POWER demanded by urgent public need, rates of public
utilities without a hearing. The reason is easily
POLICE POWER. The regulation of rates to be discerned from the fact that provisional rates are by
charged by public utilities is founded upon the police their nature temporary and subject to adjustment in
powers of the State and statutes prescribing rules conformity with the definitive rates approved after
for the control and regulation of public utilities are a final hearing. [Padua v. Ranada, G.R. Nos. 141949
valid exercise thereof. (Republic v. MERALCO, GR & 151108, 2002].
No. 141314, 2002)
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SUBSEQUENT RATES. Subsequent toll rate ONLY OPERATING EXPENSES ARE INCLUDED
adjustments are mandated by law to undergo both IN THE DETERMINATION OF JUST AND
the requirements of public hearing and publication. REASONABLE RATE. The principle behind the
[Francisco, Jr. v. Toll Regulatory Board, G.R. Nos. inclusion of operating expenses in the determination
166910, 169917, 173630 & 183599, 2010] of a just and reasonable rate is to allow the public
utility to recoup the reasonable amount of expenses
REASONABLE AND JUST RATE. In the fixing of it has incurred in connection with the services it
rates, the only standard which the legislature is provides. It does not give the public utility the
required to prescribe for the guidance of the license to indiscriminately charge any and all
administrative authority is that the rate be types of expenses incurred without regard to the
reasonable and just. (Republic v. MERALCO, GR nature thereof, i.e., whether or not the expense
No. 141314, 2002) is attributable to the production of services by
the public utility. To charge consumers for
AGAINST ARBITRARY AND EXCESSIVE RATES. expenses incurred by a public utility which are not
In regulating rates charged by public utilities, the related to the service or benefit derived by the
State protects the public against arbitrary and customers from the public utility is unjustified and
excessive rates while maintaining the efficiency and inequitable. That’s why in Republic v. MERALCO,
quality of services rendered. However, the power to the SC ruled that income tax imposed on public
regulate rates does not give the State the right to utilities should not be included in the computation of
prescribe rates which are so low as to deprive the operating expenses for purposes of fixing the rates.
public utility of a reasonable return on Thuss the ERB correctly ruled that income tax
investment. Thus, the rates prescribed by the State should not be included in the computation of
must be one that yields a fair return on the public operating expenses of a public utility. Income
utility upon the value of the property performing the tax paid by a public utility is inconsistent with
service and one that is reasonable to the public for the nature of operating expenses. In general,
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the services rendered. The fixing of just and operating expenses are those which are reasonably
reasonable rates involves a balancing of the incurred in connection with business operations to
investor and the consumer interests. (Republic v. yield revenue or income. They are items of
MERALCO, GR No. 141314, 2002) expenses which contribute or are attributable to the
production of income or revenue. As correctly put
SUBJECT TO JUDICIAL REVIEW. While the power by the ERB, operating expenses "should be a
to fix rates is (generally) a legislative function, requisite of or necessary in the operation of a
whether exercised by the legislature itself or utility, recurring, and that it redounds to the
delegated through an administrative agency, a service or benefit of customers.” (Republic v.
determination of whether the rates so fixed are MERALCO, GR No. 141314, 2002)
reasonable and just is a purely judicial question and
is subject to the review of the courts. (Republic v. BASED ON PROPERTIES ACTUALLY USED OR
MERALCO, GR No. 141314, 2002) ARE USEFUL TO THE OPERATIONS OF THE
PUBLIC UTILITY. “Net average investment
FINDINGS AND CONCLUSIONS ON THE RATE method” (i.e. return only on the actual use of the
ARE RESPECTED. The findings and conclusions of property) treatment is consistent with the settled rule
the administrative body (e.g. ERB) on the rate that in rate regulation that the determination of the
can be charged by MERALCO to the public should rate base of a public utility entitled to a return
be respected. The function of the court, in exercising must be based on properties and equipment
its power of judicial review, is to determine whether actually being used or are useful to the
under the facts and circumstances, the final order operations of the public utility. (Republic v.
entered by the administrative agency is unlawful or MERALCO, GR No. 141314, 2002)
unreasonable. Thus, to the extent that the
administrative agency has not been arbitrary or Licensing v. Rate Fixing:
capricious in the exercise of its power, the time-
LICENSING RATE FIXING
honored principle is that courts should not interfere.
The principle of separation of powers dictates that Quasi-legislative - If the rules
courts should hesitate to review the acts of and rates are meant to apply to
administrative officers except in clear cases of grave Licensing is a
quasi-judicial all enterprises of a given kind
abuse of discretion. [Republic v. MERALCO, GR throughout the country, prior
No. 141314, 2002] function
notice and hearing is not
required. (General Application)
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regulatory statute administered. [Presidential
Quasi-judicial - If the rules and Commission on Good Government v. Peña, G.R.
rates imposed apply No. 77663, [April 12, 1988], 243 PHIL 93-135]
exclusively to a particular party,
based upon a finding of fact, Courts must allow specialized competence of
prior notice and hearing is administrative agencies through Primary
required. (Particular Jurisdiction and Exhaustion of Administrative
Application) Remedies. The Court recently had occasion to
stress once more, in G.R. No. 82218, Reyes vs.
A license may not be withdrawn, except for a Caneba, March 17, 1988, that "(T)he thrust of the
violation of pertinent laws, rules and regulation, or related doctrines of primary administrative
when public health and safety requires. An existing jurisdiction and exhaustion of administrative
license shall not expire if the licensee makes a timely remedies is that courts must allow administrative
application for the renewal. agencies to carry out their functions and discharge
their responsibilities within the specialized areas of
D. JUDICIAL RECOURSE AND their respective competence. Acts of an
administrative agency must not casually be
REVIEW overturned by a court, and a court should as a rule
not substitute its judgment for that of the
1. DOCTRINE OF PRIMARY administrative agency acting within the perimeters
JURISDICTION of its own competence." [Presidential Commission
on Good Government v. Peña, G.R. No. 77663,
If the case is such that its determination requires the [April 12, 1988], 243 PHIL 93-135]
expertise, specialized skills and knowledge of the
proper administrative bodies because technical Courts cannot or will not determine a controversy
matters or intricate questions of facts are involved, involving a question which is within the jurisdiction
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then relief must first be obtained in an administrative of the administrative tribunal prior to the resolution
proceeding before a remedy will be supplied by the of that question by the administrative tribunal, where
courts even though the matter is within the proper the question demands the exercise of sound
jurisdiction of a court. This is the doctrine of primary administrative discretion requiring the special
jurisdiction. knowledge, experience and services of the
administrative tribunal to determine technical and
It applies "where a claim is originally cognizable in intricate matters of fact. (Professional Regulation
the courts, and comes into play whenever Commission v. Alo, G.R. No. 214435, 2022).
enforcement of the claim requires the resolution of
issues which, under a regulatory scheme, have Relief must first be obtained in an administrative
been placed within the special competence of an proceeding before a remedy will be supplied by the
administrative body; in such case the judicial court, even if the matter is within the jurisdiction of
process is suspended pending referral of such a court. (Republic v. Martinez, G.R. No. 158253,
issues to the administrative body for its view" 2007)
(United States v. Western Pacific Railroad Co., 352
U.S. 59, emphasis supplied). (Industrial Enterprises, Exceptions to the Doctrine of Primary
Inc. v. Court of Appeals, G.R. No. 88550, [April 18, Jurisdiction
1990], 263 PHIL 352-360) There are established exceptions to the doctrine of
primary jurisdiction, such as:
Courts will respect the sense-making a.k.a. primary
jurisdiction of administrative agencies. Under the (a) where there is estoppel on the part of the
"sense-making and expeditious doctrine of primary party invoking the doctrine;
jurisdiction . . . the courts cannot or will not (b) where the challenged administrative act is
determine a controversy involving a question which patently illegal, amounting to lack of
is within the jurisdiction of an administrative tribunal, jurisdiction;
where the question demands the exercise of sound (c) where there is unreasonable delay or
administrative discretion requiring the special official inaction that will irretrievably
knowledge, experience, and services of the prejudice the complainant;
administrative tribunal to determine technical and (d) where the amount involved is relatively
intricate matters of fact, and a uniformity of ruling is small so as to make the rule impractical
essential to comply with the purposes of the and oppressive;
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(e) where the question involved is purely legal Lorenzo, G.R. 160367, 2009)
and will ultimately have to be decided by
the courts of justice; The court may raise the issue of primary
(f) where judicial intervention is urgent; jurisdiction motu proprio and its invocation
(g) when its application may cause great and cannot be waived by the failure of the parties to
irreparable damage; argue it, as the doctrine exists for the proper
(h) where the controverted acts violate due distribution of power between judicial and
process; administrative bodies and not for the
(i) when the issue of non-exhaustion of convenience of the parties. In such a case, the
administrative remedies has been court may (1) suspend the judicial process pending
rendered moot; referral of such issues to the administrative body for
(j) when there is no other plain, speedy and its view, or (2) if the parties would not be unfairly
adequate remedy; disadvantaged, dismiss the case w/o prejudice.
(k) when strong public interest is involved; (Euro-Med Laboratories Phil. v. Province of
and, Batangas, G.R. 148106, 2006)
(l) in quo warranto proceedings. (Aklan v.
Jody King Construction & Development The doctrine of primary administrative
Corp, G.R. No. 197592, 2013) jurisdiction is not an ironclad rule. An exception
to this rule is where there is already estoppel on
The Doctrine of Primary Jurisdiction does not the part of the party invoking the doctrine. In this
apply in a case seeking to enjoin the Senate case, the Puerto Princesa LGU neither objected to
Committee from conducting further hearings the RTC’s jurisdiction over the money claim filed by
against Senator Villar on the alleged double Company X nor did it invoke the doctrine of primary
insertion of P200 million for the C-5 Road jurisdiction of the COA over the money claim. In fact,
Extension Project in the 2008 General it even actively participated in the proceedings.
FOR ONE ATENEO

Appropriations Act. The issues presented here do Moreover, after the RTC decision became final and
not require the expertise, specialized skills and executory, Puerto Princesa did not even avail of the
knowledge of respondent for their resolution. On the remedies under the Rules of Court to assail the
contrary, the issues here are purely legal questions RTC’s jurisdiction such as an annulment of
which are within the competence and jurisdiction of judgment under Rule 47. Hence, Puerto Princesa is
the Court, and not an administrative agency or the already barred by laches from invoking the primary
Senate to resolve. (Pimentel v. Senate, G.R. No. jurisdiction of the COA. (Star Special Corporate
187714, 2011) Management Inc. v. COA, G.R. No. 225366, J.
Leonen, September 1, 2020)
The Supreme Court may defer to the competence
and expertise of the SEC if there are supervening 2. DOCTRINE OF EXHAUSTION OF
events which could have substantially changed the ADMINISTRATIVE REMEDIES
factual backdrop of the case while it was pending
before the Court. (Nestle v. Uniwide, G.R. 174674, General Rule: An administrative decision must first
2010). be appealed to the administrative superiors up to
the highest level before it may be elevated to a court
However, complaints for criminal violations of the of justice for review. It is a condition precedent that
Securities Regulation Code must be filed with the must be complied with. (Sps. Sadang v. CA, G.R.
SEC, not DOJ or the courts, because it is No. 140138, 2006)
considered a specialized dispute. (Baviera v.
Paglinawan, G.R. 168380, 2007). Non-observance of the doctrine of exhaustion
of administrative remedies would result in lack
It bears stressing that the remedies of mandamus of cause of action, and consequently, the
and prohibition may be availed of only when there is dismissal of the case. (Ejera v. Merto, 725 Phil.
no appeal or any other plain, speedy and adequate 180, 2014). Exhaustion of administrative remedies
remedy in the ordinary course of law. Moreover, is a prerequisite for judicial review. It is a
being extraordinary remedies, resort may be had condition precedent which must be complied with.
only in cases of extreme necessity where the
ordinary forms of procedure are powerless to afford Before a party may seek the intervention of the
relief. Thus, instead of immediately filing a court, he should first avail of all the means
petition with the CA, petitioners should have afforded him by administrative processes. The
first brought the matter to the CSC which has issues which administrative agencies are
primary jurisdiction over the case. (Cabungcal v.
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authorized to decide should not be summarily taken resort to the court is immediately made.
from them and submitted to a court without first (2) When the respondent is the Alter ego of
giving such administrative agency the opportunity to the President
dispose of the same after due deliberation (3) When no administrative Review is provided
(Professional Regulation Commission v. Alo, G.R. as a condition precedent for court action
No. 214435, 2022). (4) Where insistence on its observance would
result in the Nullification of the claim
Applicability of the Doctrine2 asserted
(5) When there was No decision rendered
EXERCISE OF QUASI- EXERCISE OF RULE- (6) When there are special circumstances
JUDICIAL FUNCTION MAKING POWER demanding immediate Judicial
In case the subject of However, if the rule or intervention
controversy is the regulation was issued (7) When the administrative remedy is
validity or pursuant to the Permissive or concurrent
constitutionality of a administrative agency’s (8) When the question raised is essentially and
rule or regulation quasi-legislative (or rule- purely Legal
issued by the making) function, a party (9) When strong public Interest is involved
administrative agency need not exhaust (10) Where the issue raised is the
in the performance of administrative remedies. Constitutionality of the statute, rule or
its quasi-judicial regulation
function (or The determination of (11) Where it is a civil action for Damages
administrative whether a specific rule or (12) Where the officer acted in utter disregard of
adjudicatory power), set of rules issued by an Due process
the assailing party administrative agency (13) When there is no other plain, speedy,
must exhaust contravenes the law or adequate Remedy
administrative the constitution is within (14) When act complained of is patently Illegal
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remedies before the jurisdiction of the amounting to lack or excess of jurisdiction
going to court. (Smart regular courts. (Id.) (15) When the administrative body or the person
Communications v. invoking the doctrine is in Estoppel
NTC, G.R. No. (16) When there is long-continued and
151908, 2003) unreasonable Delay
(17) When the subject of controversy is private
RATIONALE: Land
(1) To enable the administrative superiors to (18) When the controversy involves
correct the errors committed by their Possessory action involving public lands
subordinates; (19) When the claim involved is Small so that to
(2) Courts should refrain from disturbing the require exhaustion would be oppressive
findings of administrative bodies in and unreasonable
deference to the doctrine of separation of (20) When there is a Violation of due process
powers; (21) In Quo warranto proceedings
(3) Courts should not be saddled with the (22) When to require exhaustion of
review of administrative cases; administrative remedies would be
(4) Judicial review of administrative cases is Unreasonable
usually done through special civil actions
which are available only if there is no other A case where the issue raised is a purely legal
plain, speedy and adequate remedy. question, well within the competence and the
(5) Availment of administrative remedy entails jurisdiction of the court and not the administrative
lesser expenses and provides for a agency, would clearly constitute an exception.
speedier disposition of controversies Resolving questions of law, which involve the
interpretation and application of laws, constitutes
EXCEPTIONS: (DARNN JP LICD DRIED LPS essentially an exercise of judicial power that is
VQU) exclusively allocated to the Supreme Court and
(1) If it should appear that an irreparable such lower courts the Legislature may establish.
Damage will be suffered by a party unless (Ongsuco v. Malones, G.R. 182065, 2009)
2
Note: This rule also applies to the doctrine of primary
administrative jurisdiction.
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The special civil actions against administrative machinery before

officers should not be entertained if there are resort to courts is
superior administrative officers who could grant allowed. (Id.)
relief. (Dimson v. Local Water Utilities
Administration, G.R. 168656, 2010) EFFECT OF FAILURE TO OBSERVE
EXHAUSTION OF ADMINISTRATIVE
The validity and the enforceability of the “Contract REMEDIES. However, failure to observe the
of Agreement” entered into by the parties are doctrine of exhaustion of administrative remedies
questions purely of law and clearly beyond the does not affect the court's jurisdiction. Thus, the
expertise of the Commission on Audit or the DPWH. doctrine may be waived as in Soto v.
(Vigilar v. Aquino, G.R. 180388, 2011) Jareno: Failure to observe the doctrine of
exhaustion of administrative remedies does not
The rule on exhaustion of administrative remedies affect the jurisdiction of the court. We have
may be discarded when to require exhaustion of repeatedly stressed this in a long line of decisions.
administrative remedies would be unreasonable, The only effect of non-compliance with this rule is
such as in cases when the Comelec En Banc that it will deprive the complainant of a cause of
already approved the award of the bid to MPC, action, which is a ground for a motion to dismiss. If
without the BAC informing the bidders, thus not invoked at the proper time, this ground is
depriving the bidders of their opportunity to avail of deemed waived and the court can then take
administrative remedies. (Information Technology cognizance of the case and try it. [Republic v. Felix,
Foundation of the Philippines v. COMELEC (citing G.R. No. 203371, [June 30, 2020] citing Republic v.
Paat v. CA), G.R. No. 159139, 2004). Gallo, GR No. 207074, 2018, J. LEONEN]
Doctrine of Primary Jurisdiction v. Doctrine of WHEN THERE IS NO SPECIAL LAW, APPEAL

Exhaustion of Administrative Remedies TO OP
FOR ONE ATENEO

DOCTRINE OF Decisions of the various agencies of government
DOCTRINE OF
EXHAUSTION OF have been appealed to the OP, consistent with the
PRIMARY
ADMINISTRATIVE President's power of control over all the executive
JURISDICTION
REMEDIES departments, bureaus, and offices. The doctrine of
Though both concepts In contrast, exhaustion exhaustion of administrative remedies empowers
aim to maximize the of
special
knowledge
technical remedies
administrative
requires
of parties to exhaust all
administrative agencies, the remedies in the
the OP to review any determination or disposition of
a department head. The doctrine allows, indeed
requires, an administrative decision to first be
appealed to the administrative superiors up to the
the doctrine of primary administrative highest level before it may be elevated to a court of
administrative machinery before justice for review.
jurisdiction requires resorting to judicial
courts to not resolve or remedies. The doctrine In Phillips Seafood (Philippines) Corporation v.
determine a controversy of exhaustion Board of Investments, we recognized that under the
involving a question presupposes that the Office of the President’s Administrative Order No.
which is within the court and the 18, a decision or order issued by a department
jurisdiction of an administrative agency or agency need not be appealed to the OP when
administrative tribunal. have concurrent there is a special law that provides for a different
The issue is jurisdictional jurisdiction to take mode of appeal. R.A. No. 9295 does not provide
and the court, when cognizance of a for an appeal procedure; thus, the assailed decision
confronted with a case matter. However, in and resolution from the MARINA should have been
under the jurisdiction of deference to the appealed with the OP. (Peñafrancia v. 168 Shipping,
an administrative special and technical GR No. 188952, 2016)
agency, has no option expertise of the
but to dismiss it. administrative agency, WHEN THERE IS A SPECIAL LAW, GO TO
(Provincial Bus courts must yield to the COURT
Operators Association of administrative agency (1) Did not resort to court as per special law. In
the Philippines v. DOLE, by suspending the the instant case, the enabling law of respondent
G.R. No. 202275, 2018) proceedings. As such, BOI, E.O. No. 226, explicitly allows for immediate
parties must exhaust judicial relief from the decision of respondent BOI
all the remedies within involving petitioner's application for an Income Tax
the administrative Holiday (ITH). E.O. No. 226 is a law of special nature
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and should prevail over A.O. No. 18. (NOTE: within the period and in the manner herein
Otherwise, filed out of time that will result to provided, whether the appeal involves
dismissal.) (Phillips Seafood (Philippines) Corp. v. questions of fact, of law, or mixed
Board of Investments, G.R. No. 175787, 2009) questions of fact and law. [Sec. 3, Rule
43, Rules of Court]
(2) Resorted to court as per special law. In this
case, a special law, RA 7394, likewise expressly (d) Period of Appeal. The appeal shall be
provided for immediate judicial relief from decisions taken within fifteen (15) days from notice of
of the DTI Secretary by filing a petition the award, judgment, final order or
for certiorari with the "proper court." Hence, private resolution, or from the date of its last
respondent should have elevated the case directly publication, if publication is required by law
to the CA through a petition for certiorari. In filing a for its effectivity, or of the denial of
petition for certiorari before the CA raising the issue petitioner's motion for new trial or
of the OP's lack of jurisdiction, complainant Moran, reconsideration duly filed in accordance
Jr. thus availed of the proper remedy. (Moran v. OP, with the governing law of the court or
G.R. No. 192957, 2014) agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon
Modes of Judicial Review of Administrative proper motion and the payment of the full
Agencies Exercising Quasi-Judicial Power amount of the docket fee before the
expiration of the reglementary period, the
(1) Rule 43, Rules of Court Court of Appeals may grant an additional
period of fifteen (15) days only within which
(a) Scope. This Rule shall apply to appeals to file the petition for review. No further
from judgments or final orders of the Court extension shall be granted except for the
of Tax Appeals and from awards, most compelling reason and in no case to
judgments, final orders or resolutions of or exceed fifteen (15) days. [Sec. 4, Rule 43,
FOR ONE ATENEO

authorized by any quasi-judicial agency in Rules of Court]
the exercise of its quasi-judicial functions.
Among these agencies are the Civil Service NOTE: Enumeration of quasi-judicial under Rule
Commission, Central Board of Assessment 43 is not exclusive; hence, appeal from the
Appeals, Securities and Exchange decisions of quasi-judicial bodies like the
Commission, Office of the President, Land Professional Regulatory Commission and the
Registration Authority, Social Security Food and Drug Administration, even if not in the
Commission, Civil Aeronautics Board, list, can be appealed to the CA via Rule 43. The
Bureau of Patents, Trademarks and fact that the FDA is not among the agencies
Technology Transfer, National enumerated in Rule 43 as subject of a petition for
Electrification Administration, Energy review to the CA is of no consequence. In Cayao-
Regulatory Board, National Lasam v. Ramolete, the Court disagreed with the
Telecommunications Commission, opinion of the CA that the enumeration of the
Department of Agrarian Reform under agencies mentioned in Section 1 of Rule 43 was
Republic Act No. 6657, Government exclusive. Thus: Indeed, the PRC is not expressly
Service Insurance System, Employees mentioned as one of the agencies which are
Compensation Commission, Agricultural expressly enumerated under Section 1, Rule 43 of
Invention Board, Insurance Commission, the Rules of Court. However, its absence from the
Philippine Atomic Energy Commission, enumeration does not, by this fact alone, imply its
Board of Investments, Construction exclusion from the coverage of said Rule. The Rule
Industry Arbitration Commission, and expressly provides that it should be applied to
voluntary arbitrators authorized by law. appeals from awards, judgments, final orders or
[Sec. 1, Rule 43, Rules of Court] resolutions of any quasi-judicial agency in the
exercise of its quasi-judicial functions. The phrase
(b) Cases Not Covered. This Rule shall not "among these agencies" confirms that the
apply to judgments or final orders issued enumeration made in the Rule is not exclusive to the
under the Labor Code of the Philippines. agencies therein listed. [Alliance for the Family
[Sec. 2, Rule 43, Rules of Court] Foundation, Philippines, Inc. v. Garin, G.R. Nos.
217872 & 221866, August 24, 2016]
(c) Where to Appeal. An appeal under this
Rule may be taken to the Court of Appeals
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(2) Rule 65, Rules of Court Mixed Question of Fact and Question of
Law)
When any tribunal, board or officer exercising (2) Quasi-Judicial Agency to CA via Rule
judicial or quasi-judicial functions has acted 43; then CA to SC via Rule 45
without or in excess its or his jurisdiction, or (3) Quasi-Judicial Agency to SC – Rule 45?
with grave abuse of discretion amounting to lack – NO – Must go through CA even if only
or excess of jurisdiction, and there is no appeal, Question of Law.
or any plain, speedy, and adequate remedy in (4) CSC to CA – Rule 43 (Question of Fact or
the ordinary course of law, a person aggrieved Question of Law or Mixed Question of Fact
thereby may file a verified petition in the proper and Question of Law)
court, alleging the facts with certainty and praying
that judgment be rendered annulling or modifying Special Civil Action (Rule 65)
the proceedings of such tribunal, board or officer, (1) Quasi-Judicial Agency to CA – Rule 65
and granting such incidental reliefs as law and (quasi-judicial power + with grave abuse of
justice may require. [Sec. 1, Rule 65, Rules of Court] discretion + WITH plain, adequate, speedy
remedy, which is through CA)
Special Notes on COMELEC, COA, and CSC (2) Quasi-Judicial Agency to SC – Rule 65
(quasi-judicial power + with grave abuse of
(1) COMELEC and COA – Rule 64 via Rule 65 discretion + WITHOUT plain, adequate,
A judgment or final order or resolution of the speedy remedy; hence, direct resort to SC.)
Commission on Elections and the Commission on (3) COMELEC and COA to SC – Rule 64 via
Audit may be brought by the aggrieved party to the Rule 65 (Petition for Certiorari)
Supreme Court on certiorari under Rule 65, except
as hereinafter provided. [Sec. 1, Rule 64, Rules of 3. DOCTRINE OF FINALITY OF
Court citing Bar Matter No. 803, 17 February 1998] ADMINISTRATIVE ACTION
FOR ONE ATENEO

(2) CSC – via Rule 43; part of enumerated quasi-
judicial bodies.
BUT: Why is COMELEC and COA under Rule 64

General Rule: Decisions of administrative agencies
must be final before Judicial Review.
via Rule 65 while CSC is under Rule 43? Courts should be reluctant to interfere with
administrative action prior to its completion or
(3) ART. IX-A, Sec. 7, 1987 CONSTITUTION finality. The reason being that absence of a final
Unless otherwise provided by this Constitution or by order or decision, the power of the administrative
law, any decision, order, or ruling of each agency concerned has not been fully exercised and
Commission may be brought to the Supreme Court
there can be no irreparable harm. (Paredes v. Court
on certiorari by the aggrieved party within thirty days
from receipt of a copy thereof. of Appeals, G.R. No. 113357, 1996).
(4) RA 7902 (Expanding the CA Jurisdiction) is EXCEPTIONS: VIPE

the law that expressly provided that the Exclusive (1) Interlocutory orders
appellate jurisdiction over all final judgments, (2) Protect Rights
decisions, resolutions, orders or awards of Regional (3) When the administrative officer assumes
Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commissions, to act in Violation of the constitution and
including xxx the Civil Service Commission xxx. other laws.
Thus, by special law, final judgments, decisions, (4) When the questioned order is made in
resolutions, orders or awards of the CSC must Excess of power
be appealed to the CA; hence, CSC under Rule
43. Once Administrative Action and Judgment is
Final, it becomes immutable and unalterable, i.e.
Thus, the judicial review scenarios are as follows: Res Judicata. Well-settled is the rule that a
judgment that has acquired finality “becomes
Ordinary Appeal (Rule 43) immutable and unalterable, and may no longer be
(1) Quasi-Judicial Agency to CA – Rule 43 modified in any respect, even if the modification is
(Question of Fact or Question of Law or meant to correct erroneous conclusions of fact and
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law, and whether it be made by the court that
rendered it or by the Highest Court of the land.”
Rationale: To avoid delay in the administration of

justice and in order to put an end to judicial
controversies.
“The principle of immunity of judgment is grounded

on fundamental considerations of public policy and
sound practice, and that, at the risk of occasional
errors, the judgment or orders of courts must
become final at some definite time fixed by law;
otherwise, there would be no end to litigations, thus
setting to naught the main role of courts of justice
which is to assist in the enforcement of the rule of
law and the maintenance of peace and order by
settling judiciable controversies with finality.”
[Manotok Realty, Inc. v. CLT Realty Development
Corp. G.R. No. 123346 and G.R. No. 134385, 2007]
EXCEPTIONS: (CoNV-C)
(1) Correction of clerical errors
(2) The so-called Nunc pro tunc entries which
cause no prejudice to any party
(3) Void judgments
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(4) Whenever Circumstances transpire after
the finality of the decision rendering its
execution unjust and inequitable. [Spouses
Navarra v. Liongson, G.R. No. 217930,
2016]
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FOR ONE ATENEO

Page 332 of 479

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III. ELECTION LAW A. SUFFRAGE
1. QUALIFICATION AND
DISQUALIFICATION OF VOTERS
A. SUFFRAGE
Constitutional Rules:
1. Qualification and disqualification of voters
(1) Qualifications and Requirements.
2. Registration and deactivation
Suffrage may be exercised by all citizens of
3. Inclusion and exclusion proceedings
the Philippines not otherwise disqualified
4. Local and overseas absentee voting
by law, who are at least eighteen years of
5. Detainee voting
age, and who shall have resided in the
Philippines for at least one year and in the
B. CANDIDACY
place wherein they propose to vote for at
1. Qualifications and disqualifications of
least six months immediately preceding the
candidates
election. (Phil Const., art. V, § 1)
2. Filing of certificates of candidacy
(2) Prohibited Requirements. No literacy,
a. Effect of filing
property, or other substantive requirement
b. Substitution and withdrawal of
shall be imposed on the exercise of
candidates
suffrage. (Phil Const., art. V, § 1)
c. Nuisance candidates
(3) Ballot Secrecy. The Congress shall
d. Duties of the COMELEC
provide a system for securing the secrecy
and sanctity of the ballot as well as a
C. CAMPAIGN
system for absentee voting by qualified
1. Premature campaigning
Filipinos abroad. (Phil Const., art. V, § 2)
2. Prohibited contribution
(4) Disabled And Illiterates. The Congress
3. Lawful and prohibited election
FOR ONE ATENEO

shall also design a procedure for the
propaganda
disabled and the illiterates to vote without
4. Limitations on expenses
the assistance of other persons. Until then,
5. Statement of contributions and expenses
they shall be allowed to vote under existing
laws and such rules as the Commission on
D. REMEDIES AND JURISDICTION
Elections may promulgate to protect the
1. Petition not to give due course or cancel a
secrecy of the ballot. (Phil Const., art. V, §
certificate of candidacy
2)
2. Petition for disqualification
3. Postpone an election
Any person, who, on the day of registration may not
4. Failure of election, Call for Special
have reached the required age or period of
Election
residence but, who, on the day of the election shall
5. Pre-proclamation controversy
possess such qualifications, may register as a voter.
6. Election protest
(Sec. 9, RA 8189)
7. Quo Warranto
a. COMELEC
Qualifications (CD R2 18):
b. Senate Electoral Tribunal (SET)
(1) Citizen of the Philippines
c. House of Representatives Electoral
(2) Not Disqualified by law
Tribunal (HRET)
(3) Resident of the Philippines for at least 1
7. Recall
YEAR
(4) Resident of the place wherein he proposes
E. PROSECUTION OF ELECTION OFFENSES
to vote for at least 6 months immediately
[Exclude: Penal Provisions]
preceding the election
(5) At least 18 years old
REMEMBER: No literacy, property, or other

substantive requirement can be imposed on the
exercise of suffrage. (Phil Const., art. V, § 1)
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Grounds for Disqualification to Register as deemed citizens of the Philippines. (Citizenship

Voter: Retention and Re-acquisition Act of 2003, § 4)
(a) Any person who has been sentenced by final
judgment to suffer imprisonment of not less Requirements for Naturalized Citizens:
than one (1) year (i.e. 1 year or more To vote — swear an oath of allegiance.
imprisonment), such disability not having been
removed by plenary pardon or amnesty: To be elected to public office — renounce foreign
Provided, however, That any person citizenship.
disqualified to vote under this paragraph shall
automatically reacquire the right to vote upon To be appointed to public office — swear an oath
expiration of five (5) years after service of of allegiance to the Philippines and renounce foreign
sentence; citizenship.
(b) Any person who has been adjudged by final
judgment by a competent court or tribunal of (Citizenship Retention and Re-acquisition Act of
having committed any crime involving 2003, § 3)
disloyalty to the duly constituted
government such as rebellion, sedition, Residence — One’s domicile or legal residence. It
violation of the firearms laws or any crime is where a party actually or constructively has his
against national security, unless restored to permanent home, or where he, no matter where he
his full civil and political rights in accordance may be found, eventually intends to return and
with law: Provided, That he shall automatically remain. (Romualdez-Marcos v. Commission on
reacquire the right to vote upon expiration of five Elections, G.R. No. 119976)
(5) years after service of sentence; and
(c) Insane or incompetent persons declared as Residency Requirements:
such by competent authority unless Domicile — This is in reference to the 1-year
FOR ONE ATENEO

subsequently declared by proper authority that residency requirement in the Philippines.
such person is no longer insane or incompetent.
(Sec. 11, RA 8189) Elements: (VARP)
(1) Physical presence in the country
NOTE: These qualifications are continuing (2) Intention to Remain
requirements. Congress may not add qualifications (3) Intention to Abandon the old domicile
but can provide for procedural requirements and (4) It must be Voluntary, must concur.
disqualifications. However, the disqualifications
must not amount to qualifications. NOTE: All elements must concur.
Thus, the exercise of the right of suffrage, as in the Temporary Residence — This is in reference to the
enjoyment of all other rights, is subject to existing 6-month residency requirement in the place where
substantive and procedural requirements embodied one wants to vote. In this case, residence can either
in our Constitution, statute books and other mean domicile or temporary residence.
repositories of law. As to the procedural limitation,
the right of a citizen to vote is necessarily To successfully effect a transfer of domicile, one
conditioned upon certain procedural requirements must demonstrate:
he must undergo: among others, the process of (a) An actual removal or change of domicile;
registration. (Akbayan Youth v. COMELEC, G.R. (b) A bona fide intention of abandoning the
No. 147066, 2001) former place of residence and establishing
a new one; and
Dual Citizenship Law — Former natural-born (c) Acts which correspond with that purpose.
Filipino citizens who acquired foreign citizenship
through naturalization are deemed not to have lost There must be animus manendi coupled with
their Philippine citizenship under conditions animus non revertendi. (Asistio v. Canlas, G.R.
provided in this act. (Citizenship Retention and Re- No. 191124, Apr. 27, 2010)
acquisition Act of 2003, § 2)
Derivative Citizenship — The unmarried child,

whether legitimate, illegitimate, or adopted, under
18 years of age, of those who re-acquire Philippine
citizenship under the Dual Citizenship Law shall be
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2. REGISTRATION AND Validation

DEACTIVATION It is the process of taking the biometrics of
registered voters whose biometrics have not yet
Registration been captured. It shall be conducted by the City or
It does not confer the right to vote; it is just a Municipal Election Officer. (R.A. No. 10367, § 2)
condition precedent to the exercise of the right.
System of Continuing Registration of Voters
It is the act of accomplishing and filing of a sworn The personal filing of application of registration of
application for the registration by a qualified voter voters shall be conducted daily in the office of the
before the election officer of the city or municipality Election Officer during regular office hours. No
wherein he resides and including the same in the registration shall, however, be conducted
book of registered voters upon approval by the during the period starting one hundred twenty
Election Registration Board (ERB). (R.A. No. 8189, (120) days before a regular election and ninety
§ 3.) (90) days before a special election. (Sec. 8, RA
8189)
No Bio-No Boto Policy
Biometrics – refers to a quantitative analysis that REMEMBER: Registration can be done by voters
provides a positive identification of an individual daily anytime during office hours EXCEPT 120 days
such as voice, photograph, fingerprint, signature, before a regular election and 90 days before a
iris, and/or such other identifiable features. (R.A. No. special election.
10367s, § 2(b))
When is registration not allowed:
The biometrics registration requirement is not a (1) 120 days before regular election
"qualification" to the exercise of the right of (2) 90 days before special election. (R.A. No.
suffrage, but a mere aspect of the registration 8189, §8)
procedure, of which the State has the right to
FOR ONE ATENEO

reasonably regulate. Unless it is shown that a Disqualifications to Register as Voter: Same
registration requirement rises to the level of a grounds for disqualifications for suffrage:
literacy, property or other substantive requirement (1) Sentenced by final judgment to
as contemplated by the Framers of the imprisonment of at least 1 year
Constitution—that is, one which propagates a socio- (2) Conviction by final judgment of any of the
economic standard which is bereft of any rational following crimes:
basis to a person's ability to intelligently cast his vote (a) crime involving disloyalty to the
and to further the public good—the same cannot be government (i.e. rebellion, sedition)
struck down as unconstitutional. (Kabataan Party- (b) firearms law
list vs. COMELEC, G.R. No. 221318, Dec. 16, 2015) (c) crimes against national security
(3) Insanity or incompetence declared by
The public has been sufficiently apprised of the competent court. (OEC, § 118)
implementation of RA 10367, and its penalty of
deactivation in case of failure to comply. Thus, there Registration of Illiterates/Persons With
was no violation of procedural due process. Disabilities
(Kabataan Partylist vs. COMELEC, G.R. No. Illiterate or PWD voters may register with the
221318) assistance of the Election Officer or any member of
an accredited citizen’s arms; application for
However, the power of COMELEC to restrict a registration may be prepared by any relative within
citizen's right of suffrage should not be arbitrarily the fourth (4th) civil degree of consanguinity or
exercised. (Timbol vs. COMELEC, G.R. No. affinity or by the Election Officer or any member of
206004, Feb. 24, 2015) an accredited citizen’s arms using the data supplied
by the applicant. (R.A. No. 8189, § 14)
Who shall submit for biometrics registration?
(1) New Voters — COMELEC shall implement NOTE: Each precinct shall have no more than 200
a mandatory biometrics registration system voters and shall comprise contiguous and compact
(2) Registered voters whose biometrics have territories except when precincts are clustered.
not been captured. (R.A. No. 10367)
NOTE: No Election Officer shall hold office in a
particular city/municipality for more than 4 years.
COMELEC has the authority to effect transfer.
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Can COMELEC change the registration period • Bribery

by resolution? • Similar irregularity
No. Both R.A. No. 6646, Section 29 and R.A. No. • Contains data that are Statistically
8436, Section 28 grant the COMELEC the power to improbable (R.A. No. 8189, §39)
fix other periods and dates for pre-election activities
only if the same cannot be reasonably held within Grounds for Deactivation of Voter Registration
the period provided by law. This grant of power,
however, is for the purpose of enabling the people Deactivation — It is the removal of the registration
to exercise the right of suffrage – the common records of certain persons from the corresponding
underlying policy of RA 8189, RA 6646 and RA precinct book of voters and placing the same in the
8436. Thus, the Court found no ground to hold inactive file, properly marked “deactivated” and
that the mandate of continuing voter registration dated in indelible ink, after entering the cause of
cannot be reasonably held within the period deactivation. (R.A. No. 8189, §27)
provided by RA 8189, Sec. 8 – daily during office
hours, except during the period starting 120 The board shall deactivate the registration and
days before the May 10, 2010 regular elections. remove the registration records of the following
There is thus no occasion for the COMELEC to persons from the corresponding precinct book of
exercise its power to fix other dates or deadlines voters and place the same, properly marked and
therefor. (Palatino v. COMELEC, G.R. No. 189868, dated in indelible ink, in the inactive file after
2009) entering the cause or causes of deactivation:
List of Voters (a) Any person who has been sentenced by final
It refers to an enumeration of names of registered judgment to suffer imprisonment for not less
voters in a precinct duly certified by the Election than one (1) year, such disability not having
Registration Board for use in the election. (R.A. No been removed by plenary pardon or amnesty:
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8189) Provided, however, That any person
disqualified to vote under this paragraph shall
Book of voters automatically reacquire the right to vote upon
Classified as permanent whereby each precinct expiration of five (5) years after service of
shall have a permanent list of all registered voters
sentence as certified by the clerks of courts of
residing within the territorial jurisdiction of that the Municipal/Municipal
precinct. (R.A. No. 8189, §3) Circuit/Metropolitan/Regional Trial Courts and
the Sandiganbayan;
Alteration of Book Of Voters: (DECANT)
(1) Deactivation/Reactivation (b) Any person who has been adjudged by final
(2) Exclusion/Inclusion judgment by a competent court or tribunal of
(3) Cancellation of registration in case of death having caused/committed any crime involving
(4) Annulment of book of voters disloyalty to the duly constituted government
(5) New voters such as rebellion, sedition, violation of the anti-
(6) Transfer of residence subversion and firearms laws, or any crime
against national security, unless restored to his
Annulment of book of voters — A voter, election full civil and political rights in accordance with
officer, or duly registered political party may file a law; Provided, That he shall regain his right to
verified petition for the annulment of a book of voters vote automatically upon expiration of five (5)
with the COMELEC. Last day for filing is within 90 years after service of sentence;
days before an election.
(OEC, §145) (c) Any person declared by competent authority to
be insane or incompetent unless such
Grounds for Annulment of Book of Voters (S2N- disqualification has been subsequently
F3I2B): removed by a declaration of a proper authority
(1) Not prepared in accordance with law that such person is no longer insane or
(2) Prepared through: incompetent;
• Fraud
• Forgery (d) Any person who did not vote in the two (2)
• Force successive preceding regular elections as
shown by their voting records. For this purpose,
• Intimidation
• Impersonation
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regular elections do not include the new residence for the transfer of his
Sangguniang Kabataan (SK) elections; registration records.
(2) The application for transfer of registration
(e) Any person whose registration has been shall be subject to the requirements of
ordered excluded by the Court; and notice and hearing and the approval of the
Election Registration Board, in accordance
(f) Any person who has lost his Filipino citizenship; with this Act.
(R.A. 8189, §27) (3) Upon approval of the application for
transfer, and after notice of such approval
(g) Voters who fail to submit for [Biometrics] to the Election Officer of the former
validation on or before the last day of filing of residence of the voter, said Election Officer
application for registration shall be deactivated shall transmit by registered mail the voter’s
pursuant to the Biometrics Registration Act registration record to the Election Officer of
(R.A. 10367, §7). the voter’s new residence. [Sec. 12, RA
8189]
Grounds for Deactivation: (IDI-L2EB) (4) Any person who temporarily resides in
(1) Convicted by final judgment to suffer another city, municipality or country solely
Imprisonment of not less than 1 year; by reason of his occupation, profession,
(2) Disloyalty; employment in private or public service,
(3) Insanity; educational activities, work in the military or
(4) Loss of citizenship; naval reservations within the Philippines,
(5) Failed to vote for 2 successive preceding service in the Armed Forces of the
regular elections; Philippines, the National Police Forces, or
(6) Registration was ordered Excluded by the confinement or detention in government
court; and institutions in accordance with law, shall not
(7) Failure to submit Biometrics validation. be deemed to have lost his original
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residence. [Sec. 9, RA 8189]
Reactivation of Voter Registration (STERN):
(1) Voter whose registration has been Post-Approval Remedies: (IAE)
deactivated may file with the Election (a) Petition for Inclusion,
Officer a Sworn application for reactivation (b) Annulment of Book of Voters, and
of his registration in the form of an affidavit (c) Petition for Exclusion
stating that the grounds for the deactivation (OEC, §139, 142, 145)
no longer exist;
(2) Any Time but not later than 120 days before 3. INCLUSION AND EXCLUSION
a regular election and 90 days before a PROCEEDINGS
special election;
(3) Election officer shall submit said Jurisdiction Over All Cases of Inclusion and
application to the ERB for appropriate Exclusion of Voters
action; (1) The Municipal and Metropolitan Trial
(4) In case the application is approved, the Courts shall have original and exclusive
Election officer shall Retrieve the jurisdiction over all cases of inclusion and
registration record from the inactive file and exclusion of voters in their respective cities
include the same in the corresponding or municipalities.
precinct book of voters; (2) Decisions of the Municipal or Metropolitan
(5) Local heads or representatives of political Trial Courts may be appealed by the
parties shall be properly Notified on aggrieved party to the Regional Trial Court
approved applications. (R.A. No. 8189) within five (5) days from receipt of notice
thereof. Otherwise, said decision shall
NOTE: Reactivation procedure here also applies to become final and executory.
those deactivated for non-validation under RA (3) The regional trial court shall decide the
10367. appeal within ten (10) days from the time it
is received, and the decision shall
Rules on Transfer of Voter Registration immediately become final and executory.
(1) Any registered voter who has transferred No motion for reconsideration shall be
residence to another city or municipality entertained. (R.A. 8189, §33)
may apply with the Election Officer of his
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Inclusion and exclusion cases the ‘Citizenship Retention and

Reacquisition Act of 2003’;
INCLUSION CASES EXCLUSION CASES
(c) Those who have committed and are
May be filed any time, May be filed any time, convicted in a final judgment by a Philippine
except 105 days before except 100 days court or tribunal of an offense punishable by
regular elections or 75 before regular elections imprisonment of not less than one (1) year,
days before special or 65 days before such disability not having been removed by
elections special elections plenary pardon or amnesty: Provided,
Grounds: Grounds: however, That any person disqualified to
1. Application for Not qualified or vote under this subsection shall
registration has been possessing automatically acquire the right to vote upon
disapproved by the disqualification the expiration of five (5) years after service
board Flying voters of sentence; and
2. Name has been Ghost voters
stricken out (d) Any citizen of the Philippines abroad
Requires a sworn previously declared insane or incompetent
petition by competent authority in the Philippines or
abroad, as verified by the Philippine
4. LOCAL AND OVERSEAS embassies, consulates or foreign service
ABSENTEE VOTING establishments concerned, unless such
competent authority subsequently certifies
that such person is no longer insane or
Overseas Voter refers to a citizen of the Philippines
incompetent. (R.A. 9189, §5 (as amended
who is qualified to register and vote under this Act,
by RA 10590))
not otherwise disqualified by law, who is abroad on
FOR ONE ATENEO

the day of elections. (R.A. 9189, §3(j) - as amended
NOTE: Under RA 10590, an overseas voter is no
by RA 10590)
longer required to execute an affidavit of intent to
resume actual physical permanent residence in the
Overseas Voting refers to the process by which
Philippines that was previously required by RA
qualified citizens of the Philippines abroad exercise
9189.
their right to vote. (R.A. 9189, §3(k) - as amended
by RA 10590)
Act vs. Effect
Qualifications
All citizens of the Philippines abroad, who are not ACT EFFECT
otherwise disqualified by law, at least eighteen (18)
years of age on the day of elections, may vote for Failure to undertake Removal of name from
President, Vice-President, Senators and Party-List affidavit the list and permanent
Representatives, as well as in all national referenda disqualification
and plebiscites. (R.A. 9189, §4 (as amended by RA Failure to undertake Imprisonment of not less
10590)) affidavit yet voted than 1 year
Failure to resume Removal of name from list
Disqualifications residency
The following shall be disqualified from registering Failure to resume Imprisonment of not less
and voting under this Act: residency yet voted than 1 year
(a) Those who have lost their Filipino POLLING PLACE: WHERE TO VOTE
citizenship in accordance with Philippine
laws; GENERAL RULE: Voter must vote at the polling
place where registered.
(b) Those who have expressly renounced their
Philippine citizenship and who have EXCEPTIONS:
pledged allegiance to a foreign country, (1) Board of Election Inspectors. Members of the
except those who have reacquired or board of election inspectors and their
retained their Philippine citizenship under substitutes may vote in the polling place where
Republic Act No. 9225, otherwise known as they are assigned on election day: Provided,
That they are registered voters within the
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province, city or municipality where they are (a) COMELEC shall act on the application not
assigned: and Provided, finally, That their later than 150 days before election day.
voting in the polling places where they are not (b) In case of disapproval of the application,
registered voters be noted in the minutes of the the voter or his authorized representative
board of election inspectors. (OEC, §169) may file a motion for reconsideration
personally or by registered mail within 10
(2) Government Employees and Officials. Any days from receipt of notice.
person who by reason of public functions and (c) The decision of COMELEC is final. (R.A.
duties, is not in his/her place of registration on No. 9189, §12)
election day, may vote in the city/municipality
where he/she is assigned on election day: Is Voting by Mail allowed?
Provided, That he/she is a duly registered voter. Yes, but only for qualified overseas absentee
(EO 157 s.1987, §1) voters or voting in absentia.
(3) Members of the Media. The Commission on (1) For the May 2004 elections, the
Elections shall extend the right to vote under the Commission shall authorize voting by mail
local absentee voting system provided under in not more than three (3) countries, subject
existing laws and executive orders to members to the approval of the Congressional
of media, media practitioners, including the Oversight Committee. Voting by mail may
technical and support staff, who are duly be allowed in countries that satisfy the
registered voters and who, on election day, may following conditions:
not be able to vote due to the performance of (a) Where the mailing system is fairly well-
their functions in covering and reporting on the developed and secure to prevent
elections: Provided, That they shall be allowed occasion for fraud;
to vote only for the positions of President, Vice (b) Where there exists a technically
President, Senators and Party-List established identification system that
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Representative. (RA 10380, §2) would preclude multiple or proxy
voting; and,
(4) Overseas Voter. All citizens of the Philippines (c) Where the system of reception and
abroad, who are not otherwise disqualified by custody of mailed ballots in the
law, at least eighteen (18) years of age on the embassies, consulates and other
day of elections, may vote for President, Vice- foreign service establishments
President, Senators and Party-List concerned are adequate and well-
Representatives, as well as in all national secured.
referenda and plebiscites. (R.A. 9189, §4 (as
Thereafter, voting by mail in any country shall be
amended by R.A. 10590, §3))
allowed only upon review and approval of the Joint
Congressional Oversight Committee. (Sec. 17.1,
(5) Detainee Voter. Detainee voting (either
RA 9189)
through the special polling place inside jails or
escorted voting) may be availed of by any (2) The overseas absentee voter shall send
registered detainee whose registration record is his/her accomplished ballot to the
not transferred / deactivated / cancelled / corresponding embassy, consular or
deleted. foreign service establishment that has
jurisdiction over the country where he/she
Vote in Absentia temporarily resides. He/she shall be
Every qualified Filipino citizen abroad previously entitled to cast his/her ballot at any time
registered as a voter may file with an embassy, upon his/her receipt thereof, provided that
consulate or other foreign service establishment an the same is received before the close of
application to vote in absentia. (Sec. 11.1, R.A. No. voting on the day of elections. The
9189, §11.1) overseas absentee voter shall be instructed
that his/her ballot shall not be counted if not
The application may be filed personally or by mail transmitted in the special envelope
(R.A. No. 9189, §11.2) furnished him/her. (Sec. 17.2, RA 9189)
The application shall be transmitted to COMELEC (3) Only mailed ballots received by the
(R.A. No. 9189, §11.1) Philippine embassy, consulate and other
foreign service establishments before the
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close of voting on the day of elections shall Detainees who are already registered voters may
be counted in accordance with Section 18 apply for transfer of registration records as
hereof. All envelopes containing the ballots warranted by the circumstances.
received by the embassies, consulates and
other foreign service establishments after Detainee Voting for National Positions Only
the prescribed period shall not be opened, In the case of Aguinaldo v. New Bilibid Prison, G.R.
and shall be cancelled and disposed of No. 221201, April 19, 2016, the Supreme Court
appropriately, with a corresponding report issued a Temporary Restraining Order enjoining the
thereon submitted to the Commission not COMELEC from enforcing COMELEC Resolution
later than thirty (30) days from the day of No. 9371 on the local level. This means that
elections. (Sec. 17.3, RA 9189) detainee voters may only vote for the national
positions.
5. DETAINEE VOTING Pursuant to this, the COMELEC issued COMELEC
Resolution No. 10112, amending Resolution No.
Detainee 10057. This provides that:
A detainee is any person:
(1) Confined in jail, The Board of Election Inspector (BEI) shall
(a) formally charged for any crime/s and instruct the DV, in clear terms, that pursuant to
(b) awaiting/undergoing trial; or the TRO, he or she can only vote for national
(2) Serving a sentence of imprisonment for candidates namely, candidates for Pres., VP,
less than one (1) year; or Senators and Party-lists.
(3) Whose conviction of a crime involving
disloyalty to the duly constituted All ballots that contain votes for local positions shall
government such as rebellion, sedition, be separated and transmitted to COMELEC Manila
violation of the firearms laws or any crime
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in a sealed envelope. The votes appearing in said
against national security or for any other ballots for national positions, if any, shall be
crime is on appeal (Sec. 2(a), COMELEC counted.
Resolution No. 9371 s.2012, §2(a))
A Special Board of Election Inspectors for counting
Escorted Voting shall be established for the purpose.
This is a voting mechanism for:
(1) Detainee voters who are residents/ Election Automation Law
registered voters of municipalities/cities (R.A. No. 8436 as amended by R.A. No. 9369)
other than the town/city of incarceration;
and/or THE AUTOMATED ELECTION SYSTEM (AES)
(2) Detainee voters in jail facilities where no A system using appropriate technology which has
special polling places are established. been demonstrated in the voting, counting,
(COMELEC Resolution No. 9371 s.2012, consolidating, canvassing, and transmission of
§2(a)) election results, and other electoral processes. (R.A.
No. 9369, §2)
NOTE: The pertinent provisions of COMELEC
Resolution No. 9149, promulgated on February 22, The Automated Election System involves voting,
2011 and other Resolutions as far as the registration counting, consolidating, canvassing, and
period, qualifications and disqualifications of transmission but not proclamation. (R.A. No. 9369)
applicants for registration, the procedures for filing,
processing and hearing of applications, and notices
Electronic Transmission v. Electronic Returns
and publication requirements are adopted.
(COMELEC Resolution No. 9371) ELECTRONIC ELECTRONIC
TRANMISSION RETURNS
Reckoning Period of Age and Residence
Conveying data in A document in
Detainees. Those who shall be eighteen years of
electronic form from one electronic and printed
age on the day of election and/or are committed
location to another form directly produced
inside the detention centers for at least six (6)
by counting or voting
months immediately preceding the election day may
machine, showing the:
be registered as a voter. (COMELEC Resolution No.
9371) • Date of election
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• The province, Technology Foundation of the Philippines v.

municipality and COMELEC, G.R. No. 159139)
the precinct in
which it is held The Voter Verification Paper Audit Trail (VVPAT)
• Votes in figures functionality is in the form of a printed receipt and a
for each touch screen reflecting the votes in the vote-
candidate in a counting machine. (Bagumbayan-VNP Movement,
precinct where Inc. v. COMELEC, G.R. No. 222731)
AES is utilized
The VVPAT ensures that the candidates selected by
Paper-Based Election System v. Direct Record the voter in his or her ballot are the candidates voted
Election System upon and recorded by the vote-counting machine.
DIRECT RECORD (Bagumbayan-VNP Movement, Inc. v. COMELEC,
PAPER-BASED G.R. No. 222731)
ELECTRONIC
ELECTION SYSTEM
ELECTION SYSTEM
A type of automated A type of automated The voter himself or herself verifies the accuracy of
election system that uses election system that the vote. In instances of Random Manual Audit and
paper ballots, records uses electronic ballots election protests, the VVPAT becomes the best
and counts votes, records votes by means source of raw data for votes. (Bagumbayan-VNP
tabulates, consolidates/ of a ballot display Movement, Inc. v. COMELEC, G.R. No. 222731)
canvasses and transmits provided with
electronically the results mechanical or electro- COMELEC Supervision and Control over the
of the vote count. optical components that Conduct of Automated Elections
can be activated by the The power and duty of the COMELEC to administer
voter, processes data election laws and to have control and supervision
over the automated elections is not
FOR ONE ATENEO

by means of a computer
program, records voting incompatible with the decision to subcontract
data and ballot images, services that may be better performed by those
and transmits voting who are well-equipped to handle complex
results electronically technological matters with respect to the
implementation of the AES. The subcontractor
The Commission on Elections may use either a cannot act independently of the COMELEC. (Roque
paper-based or a direct recording electronic election v. COMELEC, GR No. 188456)
system as it may deem appropriate and practical for
the process of voting, counting of votes and
canvassing/consolidation and transmittal of results B. CANDIDACY
of electoral exercises. (R.A. No. 9369, §6)
1. QUALIFICATIONS AND
Source Code DISQUALIFICATIONS OF
Human readable instruction that defines what the CANDIDATES
computer equipment will do. (R.A. No. 9369, §2)
Qualifications
Random Manual Audit
IN GENERAL: The 1987 Philippine Constitution
Where the AES is used, there shall be a random
prescribes the qualifications (i.e., age, citizenship,
manual audit in one precinct per congressional
residency, voter registration and literacy) for the
district randomly chosen by the Commission in
following positions: President, Vice-President,
each province and city. (R.A. No. 9369, §24)
Senators and Representatives (District and Party -
List) while statutes set the qualifications of local
Any difference between the automated and manual
officials:
count will result in the determination of root cause
(1) Residence — to be understood as domicile that
and initiate a manual count for those precincts
is, the place where a party actually or
affected by the computer or procedural error. (R.A.
constructively has his permanent home, where
No. 9369, §29)
he/ she, no matter where he/she may be found
at any given time, eventually intends to return
The COMELEC may conduct automated election
and remain (Japson v. COMELEC, G.R. No.
even if there is no pilot testing. (Information
180088)
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(2) Registered Voter

(3) Citizenship Under Republic Act 11767, or the Foundling
• For national elective positions, the Recognition and Protection Act, an
candidate must be a natural – born abandoned child found in the Philippines or
citizen. For local elective positions, the in Philippine embassies, consulates and
candidate may be naturalized citizen. territories abroad are presumed natural-
born citizens of the Philippines and
• Natural – born citizens of the Philippines therefore, are accorded the same rights as
who have lost their Philippine citizenship Filipino citizens from the moment of their
by reason of their naturalization as citizens birth.
of a foreign country can seek elective
office provided they acquire Philippine NOTE: Congress may not add to the qualifications
citizenship by taking the oath of allegiance for elective officials provided in the Constitution.
to the Republic prescribed under the However, they may do so for elective officials not
Citizenship Retention and Re – acquisition provided in the Constitution. (Pimentel, Jr. v.
Act of 2003, and make a personal and COMELEC, G.R. No. 161658)
sworn renunciation of any and all foreign
citizenship before any public officer SPECIFICALLY:
authorized to administer an oath. (1) PRESIDENT & VICE PRESIDENT(Secs. 2 & 3,
Art. VII, 1987 Constitution)
Use of Foreign Passport: The use of a
foreign passport amounts to repudiation or No person may be elected President unless he is a
recantation of the oath of renunciation. natural-born citizen of the Philippines, a registered
Matters dealing with qualifications for public voter, able to read and write, at least forty years of
elective office must be strictly complied with. age on the day of the election, and a resident of the
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A candidate cannot simply be allowed to Philippines for at least ten years immediately
correct the deficiency in his qualification by preceding such election.
submitting another oath of renunciation.
(Arnado v. COMELEC, G.R. No. 210164) There shall be a Vice-President who shall have the
same qualifications and term of office and be
• Dual Citizens: Dual citizens are disqualified elected with and in the same manner as the
from running for any elective local position. President. He may be removed from office in the
They cannot successfully run and assume same manner as the President.
office because their ineligibility is inherent in
them, existing prior to the filing of their (2) SENATOR AND HOR MEMBER (Secs. 3 & 6,
certificates of candidacy. Their certificates of Art. VI, 1987 Constitution)
candidacy are void ab initio, and votes cast
for them will be disregarded. Consequently, No person shall be a Senator unless he is a natural-
whoever garners the next highest number of born citizen of the Philippines, and, on the day of
votes among the eligible candidates is the the election, is at least thirty-five years of age, able
person legally entitled to the position (Arlene to read and write, a registered voter, and a resident
Llena Empaynado v. COMELEC, G.R. No. of the Philippines for not less than two years
216607) immediately preceding the day of the election.
No person shall be a Member of the House of

• Foundlings: As a matter of law, foundlings
Representatives unless he is a natural-born citizen
are as a class, natural-born citizens (Poe-
of the Philippines and, on the day of the election, is
Llamanzares v. COMELEC, G.R. No.
at least twenty-five years of age, able to read and
221697). When the names of the parents of
write, and, except the party-list representatives, a
a foundling cannot be discovered despite a
registered voter in the district in which he shall be
diligent search, but sufficient evidence is
elected, and a resident thereof for a period of not
presented to sustain a reasonable inference
less than one year immediately preceding the day of
that satisfies the quantum of proof required
the election.
to conclude that at least one or both of his or
her parents is Filipino, then this should be
sufficient to establish that he or she is a (3) PARTY-LIST (Sec. 9, RA 7941)
natural-born citizen. (David v. Senate Qualification of Party-List Nominees. – No
Electoral Tribunal, G.R. No. 221538) person shall be nominated as party-list
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representative unless he is a natural born citizen age on election day (as amended by Sec.
of the Philippines, a registered voter, a resident 10, RA 10742). [Sec. 39, LGC]
of the Philippines for a period of not less than
one (1) year immediately preceding the day of Disqualifications
the election, able to read and write, bona fide Basis Disqualification
member of the party or organization which he Constitution Three - term limit for local elective
seeks to represent for at least ninety (90) days officials (PHIL CONST., art. X, §8)
preceding the day of the election, and is at least
twenty-five (25) years of age on the day of the The term limit rule is not a ground
election. for a petition for disqualification,
however, it is an ineligibility which
In case of a nominee of the youth sector, he must is a proper ground for a petition to
at least be twenty-five (25) but not more than deny due course to or to cancel a
thirty (30) years of age on the day of the election. Certificate of Candidacy under
Any youth sectoral representative who attains the Section 78 of the OEC. (Albania v.
age of thirty during his term shall be allowed to COMELEC, G.R. No. 226792)
continue until the expiration of his term."
Two conditions must concur for the
(4) LOCAL ELECTIVE OFFICALS application of the disqualification of
(a) An elective local official must be a a candidate based on violation of
citizen of the Philippines; a registered the three - term limit rule, which are:
voter in the barangay, municipality, city, (1) that the official concerned has
or province or, in the case of a member been elected for three consecutive
of the sangguniang panlalawigan, terms in the same local government
sangguniang panlungsod, or post, and (2) that he has fully served
sangguniang bayan, the district where three consecutive terms. (Albania v.
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he intends to be elected; a resident COMELEC, G.R. No. 226792)
therein for at least one (1) year immediately
preceding the day of the election; and able When it was only upon the
to read and write Filipino or any other local favorable decision on his petition
for correction of manifest error
language or dialect.
that a candidate was proclaimed
(b) Candidates for the position of governor, as the duly-elected official, he is
vice-governor, or member of the deemed not to have served office
sangguniang panlalawigan, or mayor, vice- for the full term of three years to
mayor or member of the sangguniang which he was supposedly entitled,
panlungsod of highly urbanized cities since he only assumed the post
must be at least twenty-three (23) years and served the unexpired term of
of age on election day. his opponent. (Albania v.
COMELEC, G.R. No. 226792)
(c) Candidates for the position of mayor or Omnibus Any person declared by
vice-mayor of independent component Election competent authority insane or
cities, component cities, or municipalities Code incompetent
must be at least twenty-one (21) years of Any person sentenced by final
age on election day. judgment for any of the following
(d) Candidates for the position of member of offenses:
the sangguniang panlungsod or • Insurrection, or rebellion
sangguniang bayan must be at least • Offense for which he was
eighteen (18) years of age on election sentenced to penalty of
day. more than 18 months
(e) Candidates for the position of punong • Crime involving moral
barangay or member of the sangguniang turpitude (OEC, §12.)
barangay must be at least eighteen (18) A permanent resident to or
years of age on election day. immigrant to foreign country
(f) Candidates for the sangguniang kabataan unless he waives such status.
must be at least eighteen (18) years of age (OEC, §68)
but not more than twenty-four (24) years of
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Those sentenced by final moral turpitude, shall be disqualified to be

judgment for an offense involving a candidate and to hold any office, unless
moral turpitude or an offense he has been given plenary pardon or
punishable by imprisonment for at granted amnesty.
least one year, within 2 years after
service of sentence. This disqualifications to be a candidate
Those removed from office as a herein provided shall be deemed removed
result of an administrative case. upon the declaration by competent
Those convicted by final judgment authority that said insanity or incompetence
for violating his oath of allegiance had been removed or after the expiration of
to the Republic. a period of five years from his service of
Those with dual citizenship. sentence, unless within the same period he
Fugitives from justice in criminal again becomes disqualified.
or non-political cases.
Permanent residents in foreign (b) Sec. 68. Disqualifications. — Any
country or those who have the candidate who, in an action or protest in
right to reside abroad and which he is a party is declared by final
continue to avail of it (Caasi v. decision of a competent court guilty of, or
Court of Appeals, G.R. No. found by the Commission of having (a)
88831) given money or other material
The insane or feeble - minded consideration to influence, induce or
(Local Government Code, §40) corrupt the voters or public officials
performing electoral functions; (b)
committed acts of terrorism to enhance his
Disqualifications
candidacy; (c) spent in his election
(1) Local Government Code (RA 7160)
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campaign an amount in excess of that
The following persons are disqualified from running
allowed by this Code (e.g. Ejercito v.
for any elective local position:
COMELEC); (d) solicited, received or made
(a) Those sentenced by final judgment for an
any contribution prohibited under Sections
offense involving moral turpitude or for an
89 (i.e. transportation, food, drinks), 95
offense punishable by one (1) year or more
(prohibited contributions), 96 (foreign
of imprisonment, within two (2) years after
sources), 97 (prohibited fund raising)
serving sentence
and 104 (prohibited donations); or (e)
(b) Those removed from office as a result of an
violated any of Sections 80 (outside
administrative case;
campaign period BUT not anymore
(c) Those convicted by final judgment for
because of RA 9369 and Penera), 83
violating the oath of allegiance to the
(destroying lawful election
Republic;
propaganda), 85 (prohibited election
(d) Those with dual citizenship;
propaganda subject to RA 9006), 86
(e) Fugitives from justice in criminal or non-
(mass media subject to RA 9006) and
political cases here or abroad;
261, paragraphs d (coercion of
(f) Permanent residents in a foreign country or
subordinates), e (terrorism, etc.), k
those who have acquired the right to reside
(unlawful electioneering), v (public
abroad and continue to avail of the same
funds), and cc, sub-paragraph 6 (unlawful
right after the effectivity of this Code; and
electioneering – candidacy and
(g) The insane or feeble-minded. [Sec. 40,
campaign), shall be disqualified from
LGC]
continuing as a candidate, or if he has been
elected, from holding the office. Any person
(2) Omnibus Election Code
who is a permanent resident of or an
immigrant to a foreign country shall not be
(a) Sec. 12. Disqualifications. - Any person
qualified to run for any elective office under
who has been declared by competent
this Code, unless said person has waived
authority insane or incompetent, or has
his status as permanent resident or
been sentenced by final judgment for
immigrant of a foreign country in
subversion, insurrection, rebellion or for
accordance with the residence requirement
any offense for which he has been
provided for in the election laws.
sentenced to a penalty of more than
eighteen months or for a crime involving
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(c) Sec. 69. Nuisance candidates. - The or produces any violence, injury,
Commission may motu proprio or upon a punishment, torture, damage, loss or
verified petition of an interested party, disadvantage to any person or persons
refuse to give due course to or cancel a aspiring to become a candidate or that
certificate of candidacy if it is shown that of the immediate member of his family,
said certificate has been filed to put the his honor or property that is meant to
election process in mockery or disrepute or eliminate all other potential candidate.
to cause confusion among the voters by the
similarity of the names of the registered NOTE: Per Sec. 5, RA 8295, this also constitutes as
candidates or by other circumstances or an election offense that shall be prosecuted and
acts which clearly demonstrate that the penalized under Sec. 264 of the OEC.) [Sec. 4, RA
candidate has no bona fide intention to run 8295]
for the office for which the certificate of
candidacy has been filed and thus prevent 2. FILING OF CERTIFICATES OF
a faithful determination of the true will of the CANDIDACY
electorate. NOTE: Not considered as a
candidate at all because of the COC Certificate of Candidacy
cancellation. A statement of a person seeking to run for a public
office certifying that he announces his candidacy for
(d) Sec. 78. Petition to deny due course to the office, the name of the political party to which he
or cancel a certificate of candidacy. - A belongs if he belongs to any, and his post office
verified petition seeking to deny due course address for all election purposes being stated.
or to cancel a certificate of candidacy may (Sinaca v. Mula, G.R. No. 135691)
be filed by the person exclusively on the
ground that any material representation No person shall be elected into public office unless
contained therein as required under
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he files his COC within the prescribed period. (OEC,
Section 74 (i.e. on eligibility and §68)
qualifications) hereof is false. The
petition may be filed at any time not later The COC shall be filed by the candidate personally
than twenty-five days from the time of the or by his duly authorized representative. No COC
filing of the certificate of candidacy and shall be accepted if filed by mail telegram or
shall be decided, after due notice and facsimile.
hearing, not later than fifteen days before
the election. NOTE: Not considered as a Upon filing, an individual becomes a candidate.
candidate at all because of the COC Thus, he is already covered by rules, restrictions
cancellation. and processes involving candidates.
(e) Disqualification in Special Elections The receiving officers shall have the ministerial duty
In addition to the disqualifications to receive and acknowledge receipt of the COC.
mentioned in Sections 12 and 68 of the
Omnibus Election Code and Section 40 of There is no law or case law stating that a COC will
Republic Act No. 7160, otherwise known as be cancelled even if it failed to specify the position
the Local Government Code, whenever the sought if the information omitted is supplied in the
evidence of guilt is strong, the following certificate of nomination and amended COC. Only
persons are disqualified to run in a those enumerated in Section 74 of the Omnibus
special election called to fill the vacancy Election Code such as material misrepresentation
in an elective office, to wit: can be a ground for cancellation. (Engle v.
Commission on Elections, G.R. No. 215995)
(i) Any elective official who has resigned
from his office by accepting an Prohibition against multiple candidacies
appointive office or for whatever No person shall be eligible for more than one office.
reason which he previously occupied If he files more than 1 position, he shall not be
but has caused to become vacant due eligible for all unless he cancels all and retains one.
to his resignation; and (OEC, §73)
(ii) Any person who, directly or indirectly,
coerces, bribes, threatens, harasses,
intimidates or actually causes, inflicts
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a. Effect of Filing acts done during the campaign period, not before.
The law is clear as daylight — any election offense
Effect of Filing COC that may be committed by a candidate under any
Any person who files his certificate of candidacy election law cannot be committed before the start of
within this period shall only be considered as a the campaign period. (Peñera vs. COMELEC, G.R.
candidate at the start of the campaign period for No. 181613)
which he filed his certificate of candidacy: Who is a candidate?
Provided, That, unlawful acts or omissions A “candidate” refers to any person aspiring for or
applicable to a candidate shall take effect only seeking an elective public office, who has filed a
upon the start of the aforesaid campaign period: certificate of candidacy by himself (herself) or
Provided, finally, That any person holding a public through an accredited political party, aggroupment,
appointive office or position, including active or coalition of parties. (OEC, §79(a))
members of the armed forces, and officers and
employees in government-owned or -controlled A candidate is “any person who files his certificate
corporations, shall be considered ipso facto of candidacy within this period shall only be
resigned from his/her office and must vacate the considered as a candidate at the start of the
same at the start of the day of the filing of his/her campaign period for which he filed his certificate of
certificate of candidacy. (R.A. 9369, §13, candidacy.” Thus, under the law, a person only
(amending R.A. 8436, §11) becomes a candidate when he/ she has filed a
certificate of candidacy and when the campaign
On Public APPOINTIVE Officials. Any person period has commenced. One is not a candidate,
holding a public appointive office or position, despite having filed a certificate of candidacy,
including active members of the armed forces, and before the start of the campaign period. The law
officers and employees in government-owned or - added, “unlawful acts or omissions applicable
controlled corporations are considered ipso facto to a candidate shall take effect only upon the
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resigned from his/her office and must vacate the start of the aforesaid campaign period.” (R.A.
same at the start of the day of the filing of his/her No. 9369, §15)
certificate of candidacy. Said appointed officials
would have unfair advantage over their rivals If the certificate of candidacy is void ab initio, the
because they might use their office resources for candidate is not considered a candidate from the
their campaign. (Quinto v. COMELEC, G.R. No. very beginning even if his certificate of candidacy
189698) was cancelled after the elections. (H. Sohria Pasagi
Diambrang v. COMELEC, G.R. No. 201809)
On Public ELECTIVE Officials. Elective officials
continue to hold office, whether they run for the Independent Candidates:
same or different position. (Fariñas v. Executive (1) Not a member of a registered political party.
Secretary, GR No. 147387) (2) Member of an unregistered political party.
(3) Member of a registered political party but
Unlawful Acts as Candidates Take Effect Only not officially nominated as candidate by
Upon Start of the Campaign Period. It is a basic said party.
principle of law that any act is lawful unless (4) Nominated by a person who is not the duly
expressly declared unlawful by law. This is authorized representative of a registered
especially true to expression or speech, which political party.
Congress cannot outlaw except on very narrow (5) Nominated by a registered political party
grounds involving clear, present and imminent but such was not submitted to the
danger to the State. The mere fact that the law does COMELEC or where such nomination was
not declare an act unlawful ipso facto means that the submitted after the last day of filing of the
act is lawful. Thus, there is no need for Congress to certificate of candidacy.
declare in Section 15 of RA 8436, as amended by (6) Nominated by a party that nominated in
RA 9369, that political partisan activities before the excess of the number of persons to be
start of the campaign period are lawful. It is sufficient voted for an election position.
for Congress to state that "any unlawful act or (7) Accepted nominations from more than one
omission applicable to a candidate shall take effect registered political party.
only upon the start of the campaign period." The
only inescapable and logical result is that the same
acts, if done before the start of the campaign period,
are lawful. In layman’s language, this means that a
candidate is liable for an election offense only for
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b. Substitution and Withdrawal of was a valid withdrawal of Kimberly’s COC after

Candidates the last day for the filing of COCs; second, Olivia
belongs to and is certified to by the same political
Grounds for Substitution of Candidates: (DWD) party to which Kimberly belongs; and third, Olivia
filed her COC not later than mid-day of election
(1) Death
day. In Luna v. Comelec, where the candidate,
(2) Withdrawal who was also under age, withdrew his COC
(3) Disqualification (OEC, §77) before election day and was substituted by a
qualified candidate, we declared that such
substitution was valid.
Substitution and COC Cancellation
(1) Talaga v. COMELEC (2012). COMELEC Substitution is not allowed when the original
cancelled COC because of 3-term limit.– candidate was disqualified based on:
substitution NOT allowed. Considering that a • Ground of material misrepresentation (Fermin
cancelled CoC does not give rise to a valid v. COMELEC G.R. No. 179695)
candidacy, there can be no valid substitution of
• When the certificate was cancelled because he
the candidate under Sec. 77 of the OEC. It should
be clear, too, that a candidate who does not file a
was running for the fourth consecutive term
valid CoC may not be validly substituted, because (Miranda v. Abaya, G.R. No. 136351)
a person without a valid CoC is not considered a • Failure to meet one-year residency requirement
candidate in much the same way as any person (Tagolino v. HRET, G.R. No. 202202)
who has not filed a CoC is not at all a candidate.
NOTE: In the case of Tagolino v. HRET (G.R. No.
(2) Tagolino v. HRET (2013). Cancellation of COC 202202), the COMELEC first ruled that substitution
for Ineligibility – No substitution. It carries with it is allowed because it held that a candidate’s failure
the denial of due course to and/or cancellation of to meet the qualifications is a ground for
[Richard Gomez’s] CoC pursuant to Section 78 disqualification. This was adopted by the HRET.
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(hence, Lucy Torres not allowed to substitute) However, the Supreme Court ruled that it is actually
because of ineligibility due to lack of residency. a cancellation of the certificate of candidacy. Thus,
no substitution is allowed.
(3) Cerafica v. COMELEC (2014). Valid withdrawal
even if ineligible because of lack of age – General Rule: No substitution is allowed for an
substitution allowed. REMEMBER: a) Ministerial
independent candidate. Only candidates who are
Receipt of COC. In Cipriano v. Comelec, we
members of and are nominated by a party can be
ruled that the Comelec has no discretion to
give or not to give due course to COCs
substituted.
(COMELEC cannot cancel on its own). We
emphasized that the duty of the Comelec to give Exception: A candidate for a barangay elective
due course to COCs filed in due form is ministerial office notwithstanding the policy that barangay
in character, and that while the Comelec may look elections are nonpartisan can be substituted by
into patent defects in the COCs, it may not go into his/her spouse. (Rulloda v. COMELEC, G.R. No.
matters not appearing on their face. The question 154198)
of eligibility or ineligibility of a candidate is thus
beyond the usual and proper cognizance of the Rules on Substitution:
Comelec. B) Valid Withdrawal if Within Allowed (1) Any candidate may withdraw his candidacy any
Period and No Cancellation. If the death, time before election day.
withdrawal or disqualification should occur (2) A person without a valid certificate of candidacy
between the day before the election and mid- cannot be considered a candidate and therefore
day of election day, said certificate may be cannot be substituted.
filed with any board of election inspectors in
(3) Substitute candidate may file his certificate of
the political subdivision where he is candidate
candidacy no later than mid-day of election day.
or, in case of candidates to be voted for by the
entire electorate of the country, with the (4) No person who has withdrawn his candidacy for
Commission. Under the express provision of a position shall be eligible as a substitute
Sec. 77 of B. P. Blg. 881, not just any person, but candidate for any other position.
only "an official candidate of a registered or (5) The substitute candidate must be qualified to
accredited political party" may be hold office and must be a member of and
substituted. In the case at bar, Kimberly was an nominated by the same political party.
official nominee of the Liberal Party; thus, she (6) A public office is personal to the public officer
can be validly substituted. xxx xxx First, there and not a property transmissible to the heirs
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upon death. The Court has allowed substitution Pamatong v. COMELEC (2014). COMELEC must
and intervention but only by a real party in DETERMINE through factual determination and
interest. The Protestant’s widow is not a real NOT JUST DECLARE a nuisance candidate. It
party in interest to the election protest. (Poe v. deserves not a cursory treatment but a hearing
Arroyo, PET Case No. 002, 2005) which conforms to the requirements of due process.
(7) The filing of the withdrawal shall not affect the
civil, criminal or administrative liabilities the Dela Cruz v. COMELEC (2012). Votes cast for a
substituted candidate may have already nuisance candidate declared as such by final
incurred. judgment before the elections should not be
(8) A candidate who is disqualified under Section considered as stray votes, but should be counted in
68 of the Omnibus Election Code can be validly favor of legitimate and bona fide candidate with the
substituted pursuant to Section 77 because he same surname.
remains a candidate until disqualified; but a
person whose certificate of candidacy has been NOTE: A petition to cancel or deny a COC under
denied due course to and/or cancelled under Section 69 of the OEC (for Nuisance Candidates)
Section 78 cannot be substituted because he is should be distinguished from a petition to disqualify
not considered a candidate. (Tagolino v. HRET, under Section 68 (DQ for election offenses). Hence,
G.R. No. 202202) the legal effect of such cancellation of a COC of a
nuisance candidate cannot be equated with a
Withdrawal of Candidates candidate disqualified on grounds provided in the
Nothing in Section 73 of B.P. No. 881 mandates that OEC and Local Government Code.
the affidavit of withdrawal must be filed with the
same office where the certificate of candidacy to be Marquez v. COMELEC (2019). The COMELEC
withdrawn was filed. Thus, it can be filed directly committed grave abuse of discretion in
with the main office of the COMELEC, the office of declaring Marquez a nuisance candidate on the
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the regional election director concerned, the office ground of failure to prove financial capacity to
of the provincial election supervisor of the province sustain the financial rigors of waging a nationwide
to which the municipality involved belongs, or the campaign. Additionally, the Court cited the following
office of the municipal election officer of the said reasons:
municipality (Go v. COMELEC, G.R. No. 147741)
(1) Already declared in Maquera v. Borra that
c. Nuisance Candidates the right to vote and to be voted for shall not
be made to depend upon the wealth of the
Factors to Consider: (CROP5-PIPES-IQ) candidate.
(1) Capability to wage nationwide campaign
(2) Running under a slate (2) A cursory examination of the text of Section
(3) Organization and machinery 69 and Section 1, Rule 24
(4) Performance in previous elections of COMELEC Resolution No. 9523 would,
(5) Platform of government however, show that both are silent as to the
requirement of proof of financial capacity
(6) Political party affiliation and support
before an aspirant may be allowed to run in
(7) Popularity
the national elections.
(8) Properties
(3) Section 13 of RA 7166 merely sets the
(9) Political exposure current allowable limit on expenses of
(10) Intention to run for office candidates and political parties for election
(11) Profession campaign. It does not (whether by intention
(12) Educational attainment or operation) require a financial
(13) Similarity in name causes confusion requirement for those seeking to run for
(14) Income public office, such that failure to prove
(15) Qualifications and disqualifications capacity to meet the allowable expense
limits would constitute ground to declare
COMELEC cannot motu proprio deny due course to one a nuisance candidate.
or cancel an alleged nuisance candidate’s certificate
of candidacy without providing the candidate his (4) A candidate's financial capacity to
opportunity to be heard. (Timbol vs. COMELEC, sustain the rigors of waging a
G.R. No. 206004) nationwide campaign does
not necessarily equate to a bona
fide intention to run for public office.
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The COMELEC's burden is thus to show a Financial contributions from foreign governments
reasonable correlation between proof of and their agencies to political parties, organizations,
a bona fide intention to run, on the one coalitions, or candidates related to elections
hand, and proof of financial capacity to constitute interference in national affairs, and, when
wage a nationwide campaign on the other. accepted, shall be an additional ground for the
This is the import of the U.S. Supreme cancellation of their registration with the
Court ruling in Bullock v. Carter. Commission, in addition to other penalties that may
be prescribed by law.
d. Duties of the COMELEC
(6) File, upon a verified complaint, or on its own
Powers and Functions initiative, petitions in court for inclusion or exclusion
The Commission on Elections shall exercise the of voters; investigate and, where appropriate,
following powers and functions: prosecute cases of violations of election laws,
including acts or omissions constituting election
(1) Enforce and administer all laws and regulations frauds, offenses, and malpractices.
relative to the conduct of an election, plebiscite,
initiative, referendum, and recall. (7) Recommend to the Congress effective measures
to minimize election spending, including limitation of
(2) Exercise exclusive original jurisdiction over all places where propaganda materials shall be posted,
contests relating to the elections, returns, and and to prevent and penalize all forms of election
qualifications of all elective regional, provincial, frauds, offenses, malpractices, and nuisance
and city officials, and appellate jurisdiction over all candidacies.
contests involving elective municipal officials
decided by trial courts of general jurisdiction, or (8) Recommend to the President the removal of any
involving elective barangay officials decided by trial officer or employee it has deputized, or the
courts of limited jurisdiction. imposition of any other disciplinary action, for
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violation or disregard of, or disobedience to its
Decisions, final orders, or rulings of the Commission directive, order, or decision.
on election contests involving elective municipal and
barangay offices shall be final, executory, and not (9) Submit to the President and the Congress a
appealable. comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or recall.
(3) Decide, except those involving the right to vote, (PHIL.CONST. art. IX-C, §2)
all questions affecting elections, including
determination of the number and location of polling Summary of COMELEC Powers and Functions
places, appointment of election officials and
inspectors, and registration of voters. GENERAL POWERS:
(1) Enforcement and administration of election
(4) Deputize, with the concurrence of the President, laws and regulations (PHIL.CONST. art. IX-
law enforcement agencies and instrumentalities of C, §2) for the purpose of ensuring free,
the Government, including the Armed Forces of the honest, orderly, credible, peaceful
Philippines, for the exclusive purpose of ensuring elections. (OEC, §52, Art. VII)
free, orderly, honest, peaceful, and credible (2) Promulgate rules and regulations
elections. implementing the Omnibus Election Code
and other laws which the COMELEC is
(5) Register, after sufficient publication, political required to enforce Rule-Making Power
parties, organizations, or coalitions which, in (Sec. 2, PHIL. CONST. art. IX-C, §2; OEC,
addition to other requirements, must present their §52, Art. VII)
platform or program of government; and accredit (3) Exclusive control and supervision over the
citizens’ arms of the Commission on Elections. Automated Election System (R.A. 8436)
Religious denominations and sects shall not be (4) Issue a subpoena in the exercise of quasi-
registered. Those which seek to achieve their goals judicial (OEC, §52(d)
through violence or unlawful means, or refuse to (5) Power to punish for contempt provided for
uphold and adhere to this Constitution, or which are in the Rules of Court. (OEC, §52(d))
supported by any foreign government shall likewise (6) Power to issue auxiliary writs and
be refused registration. processes (Soller v. COMELEC, G.R. No.
139853)
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(7) Power to decide election cases within its of application of registration of voters shall be
jurisdiction (i.e., regional, provincial, and conducted daily in the office of the Election Officer
city elective officials) in the exercise of its during regular office hours. No registration shall,
quasi-judicial functions (PHIL. CONST. art. however, be conducted during the period
IX-C) starting one hundred twenty (120) days before a
regular election and ninety (90) days before a
SPECIFIC POWERS: special election.”
(1) To declare a failure of elections and call for
the holding of the election not held or
suspended. (OEC, §4) Disposition of Election Cases
(2) To conduct special elections upon grant of The Commission on Elections may sit en banc or in
authority by Congress (Kida v. Senate, GR two divisions, and shall promulgate its rules of
No. 196271) procedure in order to expedite disposition of election
(3) To postpone elections for any serious cases, including pre-proclamation controversies. All
cause such as violence, terrorism, loss or such election cases shall be heard and decided
destruction of election paraphernalia, force in division, provided that motions for
majeure, and other analogous causes. reconsideration of decisions shall be decided by
(OEC, §5) the Commission en banc. (PHIL. CONST. art. IX-
(4) To correct manifest error in election C, §3)
documents (administrative function) (De
Leon v. Imperial, GR No. L-5758) NOTE: This is the legal basis why petitions to
(5) To order re-canvass of votes if its cancel/deny due course a COC and petitions for
suspension order is violated (Javier v. disqualification, as well as pre-proclamation
COMELEC, GR No. 22248) controversies, must be heard by the COMELEC
(6) To annul or suspend, partially or totally, division as a jurisdictional requirement.
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candidate proclamation (Salcedo v.
COMELEC, GR No. L-16835) Supervising/Regulating Franchises or Permits
(7) To annul an illegal canvass (Salcedo v. The Commission may, during the election period,
COMELEC, GR No. L-16835) supervise or regulate the enjoyment or utilization of
(8) Changing of the designation of polling all franchises or permits for the operation of
places (OEC, §153, art. XIII) transportation and other public utilities, media of
(9) To transfer venue of canvassing of votes communication or information, all grants, special
(COMELEC Resolution No. 9574) privileges, or concessions granted by the
(10) Examination of the book of voters, ballot Government or any subdivision, agency, or
boxes and their keys, ballots and other instrumentality thereof, including any government-
documents and the recounting of votes. owned or controlled corporation or its subsidiary.
(OEC, §255, Art. XXI)
(11) To conduct Initiative, Referendum, Recall, PURPOSE: Such supervision or regulation shall aim
Plebiscite (PHIL. CONST. Art. IX-C, §2) to ensure equal opportunity, time, and space, and
(12) To investigate and prosecute election the right to reply, including reasonable, equal rates
offenses (OEC, §265, Art. XXII) therefor, for public information campaigns and
(13) To deputize, with the concurrence of the forums among candidates in connection with the
President, law enforcement agencies and objective of holding free, orderly, honest, peaceful,
government instrumentalities. (PHIL. and credible elections. (PHIL. CONST. art. IX-C, §4)
CONST. Art. IX-C, §2)
Election Period
Standby Power of COMELEC Unless otherwise fixed by the Commission in special
If it shall no longer be reasonably possible to cases, the election period shall commence
observe the periods and dates prescribed by law for ninety days before the day of the election and
certain pre-election acts, the Commission shall fix shall end thirty days after. (PHIL. CONST. art. IX-
other periods and dates in order to ensure C, §9)
accomplishment of the activities so voters shall
not be deprived of their suffrage. (R.A. 8436, §28) Funding of Elections
Funds certified by the Commission as necessary to
However, this standby power relative to the defray the expenses for holding regular and special
fixing the date of registration of voters is subject elections, plebiscites, initiatives, referenda, and
to the system of continuing registration of recalls, shall be provided in the regular or special
voters under Sec. 8, RA 8189: “The personal filing appropriations and, once approved, shall be
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released automatically upon certification by the (3) Petitions to cancel certificate of candidacy.
Chairman of the Commission. (PHIL. CONST. art. (Bautista v. COMELEC, GR No. 154796)
IX-C, §11)
(4) All contests relating to the elections, returns, and
Exclusive Original Jurisdiction of COMELEC qualifications of all elective regional, provincial, and
(1) COMELEC DIVISION – shall have exclusive city officials (including pre-proclamation
jurisdiction in pre-proclamation controversies controversies). (PHIL. CONST. art. IX-C, §2 (2))
arising from national, regional or local elections.
(OEC, §242; COMELEC Resolution No. 8804 COMELEC EN BANC CASES
s.2010, § 2, Rule 3)
(1) MR of a decision rendered by a COMELEC
A pre-proclamation controversy refers to any Division. (PHIL. CONST. art. IX-C, §3)
question pertaining to or affecting the
proceedings of the board of canvassers which (2) Petition for correction of manifest errors from
may be raised by any candidate or by any registered erroneous copying of figures from the Election
political party or coalition of political parties before Return to the Statement of Votes by precinct.
the board or directly with the Commission (Jaramilla v. COMELEC, GR No. 155717)
(division only, not en banc), or any matter raised
under Sections 233, 234, 235, and 236 (election NOTE: Considered as an ADMINISTRATIVE
returns are delayed, lost, destroyed, falsified, function; hence, en banc.
tampered or have material defects or discrepancies)
in relation to the preparation, transmission, receipt, (3) Cases involving violation of election laws.
custody and appreciation of the election returns. (Baytan v. COMELEC, GR No. 153945)
NOTE: All pre-proclamation cases can only be (4) Where COMELEC exercises administrative and
heard by the COMELEC Division, not en banc; does not exercise adjudicatory/quasi-judicial
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otherwise, null and void. (Soller v. COMELEC, GR powers. (Baytan v. COMELEC, GR No. 153945)
No. 139853, citing Sarmiento v. COMELEC)
NOTE: The COMELEC’s administrative powers are
(2) COMELEC DIVISION – shall have exclusive found in Section 2 (1), (3), (4), (5), (6), (7), (8), and
original jurisdiction over all election protests (9) of Article IX-C. Thus, the only quasi-judicial
involving elective regional (the autonomous function of the COMELEC is Section 2(2) over all
regions), provincial, and city officials (NOTE: contests relating to the elections, returns, and
Municipal officials not included here; jurisdiction is qualifications of all elective regional, provincial,
with Regional Trial Courts). (COMELEC Resolution and city officials, and appellate jurisdiction over
No. 8804 s.2010, §1, Rule 6) all contests involving elective municipal
officials decided by trial courts of general
(3) COMELEC EN BANC - Enforcement of laws jurisdiction, or involving elective barangay
and rules in relation to the conduct of elections. officials decided by trial courts of limited
(Zaldivar v. Estenzo, GR No. L-26065) jurisdiction.
(4) COMELEC EN BANC - shall have the exclusive Legal Consequence of Failure to Obtain Majority
power to conduct preliminary investigation of all Four (4) Votes in an MR to COMELEC
election offenses punishable under the election (1) In Mendoza v. COMELEC, GR No. 191084,
laws and to prosecute the same, except as may 2010, the SC ruled that failure to obtain the
otherwise be provided by law. (COMELEC Rules of necessary majority vote of four (4) in an MR to the
Procedure, §1, Rule 34) COMELEC en banc would lead to the dismissal of
the election protest filed with the COMELEC division
COMELEC DIVISION CASES subject of the MR.
(1) Petitions for Certiorari from the decisions, orders,
resolution of the RTC and MTC in election protests. (2) However, the SC reversed the Mendoza
(Soller v. COMELEC, GR No. 139853) Doctrine in Legaspi v. COMELEC, GR No. 216572,
19 April 2016 as follows:
(2) Cases appealed from RTC and MTC. (Abad v.
COMELEC, GR No. 128877) “The Mendoza doctrine, as reiterated in the
September 1, 2015 Decision, deviated from
the 1987 Constitution. Not only does it circumvent
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the four-vote requirement under Sec. 7, Art. IX-A of party within thirty days from receipt of a copy
the Constitution, it likewise diminishes the thereof. (PHIL. CONST. art. IX, §7)
adjudicatory powers of the COMELEC Divisions
under Sec. 3, Article IX-C. Thus, a judgment or final order or resolution of the
Commission on Elections and the Commission on
Under Sec. 3, Article IX-C of the 1987 Audit may be brought by the aggrieved party to the
Constitution, the COMELEC Divisions are Supreme Court on certiorari under Rule 65, except
granted adjudicatory powers to decide election as hereinafter provided. (Rules of Court, §2, Rule
cases, provided that the COMELEC en banc shall 64)
resolve motions for reconsideration of the
division rulings. Further, under Sec. 7, Article IX- But for the SC to take cognizance of the case, it
A of the Constitution, four (4) votes are must be a decision by the COMELEC en banc
necessary for the COMELEC en banc to decide and not an interlocutory order by a COMELEC
a case. Naturally, the party moving for division (Cagas v. COMELEC, GR No. 194139)
reconsideration, as the party seeking affirmative
relief, carries the burden of proving that the COMELEC Supervision and Control over the
division committed reversible error. The movant Conduct of Automated Elections
then shoulders the obligation of convincing four The power and duty of the COMELEC to administer
(4) Commissioners to grant his or her plea. election laws and to have control and supervision
over the automated elections is not incompatible
This voting threshold, however, is easily rendered with the decision to subcontract services that may
illusory by the application of the Mendoza ruling, be better performed by those who are well-equipped
which virtually allows the grant of a motion for to handle complex technological matters with
reconsideration even though the movant fails to respect to the implementation of the AES. The
secure four votes in his or her favor, in blatant subcontractor cannot act independently of the
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violation of Sec. 7, Art. IX-A of the Constitution.” COMELEC. (Roque v. COMELEC, GR No. 188456)
(Legaspi v. Commission on Elections, G.R. No.
216572 (Resolution)) Ministerial duty of COMELEC to receive
Certificate of Candidacy
Intra-Political Party Disputes It is the ministerial duty of COMELEC and its officers
COMELEC may intervene in disputes internal to a to receive a certificate of candidacy. (Omnibus
political party only when necessary to the discharge Election Code, § 76.)
of its constitutional functions [Atienza v. COMELEC,
GR No. 188920, 16 February 2010], such as the While the COMELEC may look into patent defects
ascertainment of the identity of the political party in the Certificate of Candidacy, it may not go into
and its legitimate officers (LDP v. COMELEC, GR matters not appearing on their face. The question of
No. 161265) eligibility or ineligibility of a candidate is thus beyond
the usual and proper cognizance of the COMELEC
Cases Involving the Right of Suffrage (Cerafica v. COMELEC, G.R. No. 205136)
The jurisdiction to decide controversies on inclusion
or exclusion of voters belongs to the MTC and Duty of COMELEC to decide cases on
MeTC (OEC, §138, Art. XII) cancellation or denial of Certificate of Candidacy
Jurisdiction Over Election Contests Involving What to file:

Municipal and Barangay Elective Officials Petition to deny or cancel certificates of candidacy
COMELEC exercises appellate jurisdiction (not
original jurisdiction) over all contests involving Who can file: Any Party
elective municipal officials decided by trial courts of
general jurisdiction or involving elective barangay How:
officials decided by trial courts of limited jurisdiction. Petition to deny due course or Cancel certificate of
(PHIL. CONST. art. IX-C, §2 (2)) candidacy under oath
Judicial Review of COMELEC Decisions When:

Unless otherwise provided by this Constitution or by Any time not later than 25 days from filing of
law, any decision, order, or ruling of each certificate of candidacy
Commission [including COMELEC] may be brought
to the Supreme Court on certiorari by the aggrieved
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Where: being the case, the COMELEC did not err when it
COMELEC must decide the case not later than 15 inquired into the compliance by petitioner of
days before election (period is not mandatory Sections 3 and 5 of RA 9225 to determine if she
however) reacquired her status as a natural-born Filipino
citizen. It simply applied the constitutional provision
Exclusive Ground: material misrepresentation and nothing more. (Reyes v. COMELEC)
(FMD)
(1) Must be False. If a candidate cannot be disqualified without a prior
(2) Must be Material (goes into the qualifications). finding that she or he is suffering from a
(3) Must be Deliberate and there is an intention to disqualification “provided by law or the Constitution,”
defraud the electorate. neither can the certificate of candidacy be cancelled
The COMELEC must determine whether or not the or denied due course on grounds of false
candidate deliberately attempted to mislead, misrepresentation regarding his or her qualification,
misinform or hide a fact about his or her residency without a prior authoritative finding that he or she is
that would otherwise render him or her ineligible for not qualified. (Poe-Llamanzares v. COMELEC, G.R.
the position sought. The COMELEC gravely abused No. 221697)
its discretion in this case when, in considering the
residency issue, it based its decision solely on very The COMELEC cannot, in the same cancellation
personal and subjective assessment standards, case based on the ground of false material
such as the nature or design and furnishings of the representation, decide the qualification or lack
dwelling place in relation to the stature of the thereof of the candidate. (Poe-Llamanzares v.
candidate. (Mitra v. COMELEC, G.R. No. 191938, COMELEC, G.R. No. 221697)
Jul. 19, 2010)
A CoC may be cancelled on the ground that the
Misrepresentation of nickname is not a material “candidate” misrepresented his eligibility in his CoC
misrepresentation because the use of nickname because he knew that he had been convicted by
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is not a qualification of public office. Nickname final judgment for libel, a crime involving moral
does not affect eligibility; hence, not a material turpitude regardless of the fact that he was merely
representation. To be material, such must refer the publisher of the libelous articles, and that his
to an eligibility or qualification for the elective penalty was merely a fine. (Ty-Delgado v. HRET,
office the candidate seeks to hold. Here, G.R. No. 219603)
respondent’s nickname is not a qualification for a
public office which affects his eligibility. The proper If the certificate of candidacy is void ab initio, the
recourse is to file an election protest and pray that candidate is not considered a candidate from the
votes be declared as stray votes (Villafuerte v. very beginning even if his certificate of candidacy
COMELEC, G.R. No. 206698) was cancelled after the elections. (H. Sohria Pasagi
Diambrang vs. COMELEC, G.R. No. 201809)
Material representation contemplated by
Section 78 refers to qualifications for elective The summary nature of proceedings under Section
office, such as the requisite residency, age, 78 only allows it to rule on patent material
citizenship or any other legal qualification misrepresentations of facts, not to make
necessary to run for a local elective office as conclusions of law that are even contrary to
provided for in the Local Government Code. jurisprudence. (Dano vs. COMELEC, G.R. No.
Furthermore, aside from the requirement of 210200)
materiality, the misrepresentation must consist of a
deliberate attempt to mislead, misinform, or hide a False Material Misrepresentation:
fact, which would otherwise render a candidate When Applicable
ineligible (Caballero v. COMELEC, G.R. No. • When a candidate uses the name of her long-
209835) time live-in partner or states a false profession.
• When the candidate is actually qualified even if
Failure to comply with RA 9225 requirements the entries in the CoC as filled up by the
despite statement in COC is material candidate will show that he is not.
representation. Aside from the bare allegation that • When the candidate, supported by a
she is a natural-born citizen, however, petitioner preponderance of evidence, believed that he
submitted no proof to support such contention. was qualified since there was no intention to
Neither did she submit any proof as to the deceive the electorate as to one’s qualifications
inapplicability of R.A. No. 9225 to her. xxx xxx Such for public office.
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Effects of Disqualification is not a mode of condoning an administrative

Any candidate who has been declared by final offense, and there is simply no constitutional or
judgment to be disqualified shall not be voted for. statutory basis in our jurisdiction to support the
notion that an official elected for a different term is
One who is disqualified under Section 68 is still fully absolved of any administrative liability arising
technically considered to have been a candidate, from an offense done during a prior term. (Carpio-
albeit proscribed to continue as such only because Morales v. Binay, G.R. No. 217126-27)
of supervening infractions which do not, however,
deny his or her statutory eligibility (Tagolino v. NOTE: Abandonment of the Condonation Doctrine
HRET, G.R. No. 202202) was applied 12 April 2016 onwards when Capio-
Morales v. CA, Binay became final and executory.
When a person who is not qualified is voted for and (Crebello v. Ombudsman, G.R. No. 232325, 2019)
eventually garners the highest number of votes,
even the will of the electorate expressed through the The COMELEC may suspend the proclamation of a
ballot cannot cure the defect in the qualifications of candidate who gets the majority votes, if he has
the candidate. To rule otherwise is to trample upon been disqualified before the election but the
and rent asunder the very law that sets forth the decision has not yet become final. He will not be
qualifications and disqualifications of candidates. proclaimed except where the judgment of
When there are participants who turn out to be disqualification is finally reversed.
ineligible, their victory is voided and the laurel is
awarded to the next in rank who does not possess Exception to non-proclamation of candidate
any of the disqualifications nor lacks any of the with 2nd highest number of votes:
qualifications set in the rules to be eligible as (1) The one who obtained the highest number of
candidates. Knowledge by the electorate of a votes is disqualified; and
candidate’s disqualification is not necessary before (2) The electorate is fully aware in fact and in law
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a qualified candidate who placed second to a of a candidate’s disqualification so as to bring
disqualified one can be proclaimed as the winner such awareness within the realm of notoriety
(Maquiling v. Commission on Elections, G.R. No. but would nonetheless cast their votes in favor
195649) of the ineligible candidate (Grego v. COMELEC,
G.R. No. 125955)
A person whose COC was cancelled due to
ineligibility for failure to prove Filipino citizenship and Distinction between Disqualification and
the one-year residence requirement could not have Cancellation of COC:
been a valid candidate, and could not have been (a) A petition for cancellation of a certificate of
validly proclaimed. Thus, she could not have validly candidacy is not based on lack of qualification
assumed her position. (Velasco v. Belmonte, G.R. but on false representation, which may relate to
No. 211140) lack of qualification, such as residence. A
petition for disqualification refers to commission
The purpose of a disqualification proceeding is to of prohibited acts and possession of permanent
prevent the candidate from running or, if elected, resident status in a foreign country.
from serving, or to prosecute him for violation of the (b) A candidate whose certificate of candidacy was
election laws. A petition to disqualify a candidate cancelled is not treated as a candidate. A
may be filed pursuant to Section 68 of the Omnibus candidate who is disqualified cannot continue
Election Code. Offenses that are punished in laws as a candidate.
other than in the Omnibus Election Code cannot be (c) A candidate whose certificate of candidacy was
a ground for a Section 68 petition. (Ejercito v. cancelled could be substituted. A candidate
COMELEC, G.R. No. 212398) who is disqualified cannot be substituted.
(d) A petition to deny due course or to cancel a
Effect of Re-Election on Administrative Liability certificate of candidacy must be filed within 25
Abandonment of the Condonation Doctrine. The days from the time of filing of the COC, as
concept of public office is a public trust and the provided under Section 78 of the OEC (Albania
corollary requirement of accountability to the people v. COMELEC, G.R. No. 226792)
at all times, as mandated under the 1987 (e) A petition for disqualification of a nuisance
Constitution, is plainly inconsistent with the idea that candidate should be filed within 5 days from the
an elective local official’s administrative liability for a last day for filing certificate of candidacy
misconduct committed during a prior term can be (Fermin v. COMELEC, G.R. No. 179695)
wiped off by the fact that he was elected to a second
term of office, or even another elective post. Election
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Rules on Lone Candidate in a Special Election Rules on Retention and Reacquisition of
(1) PROCLAMATION OF LONE CANDIDATE. Philippine Citizenship and Running for Public
Upon the expiration of the deadline for the filing of Elective Office (R.A. 9225)
the certificates of candidacy in a special election Those who retain or re-acquire Philippine citizenship
called to fill a vacancy in an elective position other under this Act shall enjoy full civil and political rights
than for President and Vice President, when there is and be subject to all attendant liabilities and
only one (1) qualified candidate for such position, responsibilities under existing laws of the
the lone candidate shall be proclaimed elected to Philippines and the following conditions:
the position by proper proclaiming body of the
Commission on Elections without holding the (1) Those intending to exercise their right of
special election upon certification by the suffrage must meet the requirements under
Commission on Elections that he is the only Section 1, Article V of the Constitution,
candidate for the office and is thereby deemed Republic Act No. 9189, otherwise known as
elected. (R.A. 8295, §2) "The Overseas Absentee Voting Act of
2003" and other existing laws;
(2) ASSUMPTION OF OFFICE. In the absence of
any lawful ground to deny due course or cancel the (2) Those seeking elective public office in
certificate of candidacy in order to prevent such the Philippines shall meet the
proclamation, as provided for under Sections 69 and qualification for holding such public
78 of Batas Pambansa Bilang 881 also known as office as required by the Constitution
the Omnibus Election Code of the Philippines, the and existing laws and, at the time of the
candidate referred to in the preceding paragraph filing of the certificate of candidacy,
shall assume office not earlier than the scheduled make a personal and sworn
election day. Certificates of candidacy filed in renunciation of any and all foreign
violation hereof shall not be given due course. For citizenship before any public officer
this purpose, the Commission shall decide petitions authorized to administer an oath;
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for disqualifications not later than election day;
otherwise, such petitions shall be deemed NOTE: This is the legal basis that requires dual
dismissed. (R.A. 8295, §3) citizens to renounce their foreign citizenship through
an affidavit of renunciation if they are seeking
(3) DISQUALIFICATIONS. In addition to the elective office. Presently, this is now an eligibility
disqualifications mentioned in Sections 12 and 68 of declaration requirement in COCs that can be a
the Omnibus Election Code and Section 40 of ground for false material representation if the person
Republic Act No. 7160, otherwise known as the fails to renounce at the time of COC filing.
Local Government Code, whenever the evidence of
guilt is strong, the following persons are disqualified (3) Those appointed to any public office shall
to run in a special election called to fill the vacancy subscribe and swear to an oath of
in an elective office, to wit: allegiance to the Republic of the Philippines
and its duly constituted authorities prior to
(a) Any elective official who has resigned from their assumption of office: Provided, That
his office by accepting an appointive office they renounce their oath of allegiance to the
or for whatever reason which he previously country where they took that oath;
occupied but has caused to become vacant
due to his resignation; and (4) Those intending to practice their profession
(b) Any person who, directly or indirectly, in the Philippines shall apply with the proper
coerces, bribes, threatens, harasses, authority for a license or permit to engage
intimidates or actually causes, inflicts or in such practice; and
produces any violence, injury, punishment,
torture, damage, loss or disadvantage to (5) That right to vote or be elected or appointed
any person or persons aspiring to become to any public office in the Philippines cannot
a candidate or that of the immediate be exercised by, or extended to, those who:
member of his family, his honor or property
that is meant to eliminate all other potential (a) are candidates for or are occupying any
candidate. (NOTE: Per Sec. 5, RA 8295, public office in the country of which they
this also constitutes as an election offense are naturalized citizens; and/or
that shall be prosecuted and penalized (b) are in active service as commissioned
under OEC, §264.) (Sec. 4, R.A. 8295, §4) or non-commissioned officers in the
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armed forces of the country which they use of facilities voluntarily donated by other persons,
are naturalized citizens. (R.A. 9225, §5) the money value of which can be assessed based
on the rates prevailing in the area. (OEC, §94(a))
C. CAMPAIGN
Prohibited Contributions (POV of DONOR)
1. PREMATURE CAMPAIGNING No contribution for purposes of partisan political
activity shall be made directly or indirectly by any of
Premature Campaign the following:
It shall be unlawful for any person, whether or not a (a) Public or private financial institutions: Provided,
voter or candidate, or for any party, or association of however, That nothing herein shall prevent the
persons, to engage in an election campaign or making of any loan to a candidate or political
partisan political activity except during the campaign party by any such public or private financial
period: Provided, That political parties may hold institutions legally in the business of lending
political conventions or meetings to nominate their money, and that the loan is made in accordance
official candidates within thirty days before the with laws and regulations and in the ordinary
commencement of the campaign period and forty- course of business;
five days for Presidential and Vice-Presidential (b) Natural and juridical persons operating a public
election. (OEC, §80) utility or in possession of or exploiting any
natural resources of the nation;
General Rule: No person may engage in an (c) Natural and juridical persons who hold
election campaign or partisan political activity before contracts or sub-contracts to supply the
the campaign period. government or any of its divisions, subdivisions
or instrumentalities, with goods or services or to
Exception: Political parties may hold political perform construction or other works;
conventions or meetings to nominate their official (d) Natural and juridical persons who have been
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candidates within 30 days before campaign period granted franchises, incentives, exemptions,
and 45 days for Presidential and Vice-Presidential allocations or similar privileges or concessions
election. by the government or any of its divisions,
subdivisions or instrumentalities, including
government-owned or controlled corporations;
Only after said person officially becomes a
candidate, at the beginning of the campaign period, (e) Natural and juridical persons who, within one
can said acts be given effect as premature year prior to the date of the election, have been
campaigning under Section 80 of the Omnibus granted loans or other accommodations in
Election Code. Only after said person officially excess of P100,000 by the government or any
becomes a candidate, at the start of the campaign of its divisions, subdivisions or instrumentalities
period, can his/her disqualification be sought for including government-owned or controlled
acts constituting premature campaigning. corporations;
(Rosalinda Penera v. COMELEC, GR No. 205728) (f) Educational institutions which have received
grants of public funds amounting to no less than
NOTE: The deadline for the filing of certificate of P100,000.00;
candidacy/petition for registration/manifestation to (g) Officials or employees in the Civil Service, or
participate in the election shall not be later than one members of the Armed Forces of the
hundred twenty (120) days before the elections Philippines; and
(R.A. 8436, §11) (h) Foreigners and foreign corporations.
It shall be unlawful for any person to solicit or receive

2. PROHIBITED CONTRIBUTIONS
any contribution from any of the persons or entities
enumerated herein. (OEC, §95)
Electoral Contributions
The term "contribution" includes a gift, donation, NOTE: Under the old Corporation Code, domestic
subscription, loan, advance or deposit of money or and foreign corporations are prohibited from making
anything of value, or a contract, promise or electoral contributions. Under the Revised
agreement to contribute, whether or not legally Corporation Code, only foreign corporations are
enforceable, made for the purpose of influencing the prohibited. Thus, domestic corporations can
results of the elections but shall not include services now make reasonable contributions. (R.A.
rendered without compensation by individuals 11232, §35 in relation to §95)
volunteering a portion or all of their time in behalf of
a candidate or political party. It shall also include the
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Summary of Prohibited Contributions: (UF2 (3) Lotteries
PLAC2E) (4) Boxing bouts
(1) Public Utilities or those exploiting natural (5) Bingo
resources of the nation (6) Beauty contests
(2) Public or private Financial institutions, except (7) Entertainment and games
loans to a candidate or political party (8) Dances (OEC, §97)
(3) Foreigners and foreign corporations
(4) Grantees of franchises, incentives, exemptions, Electoral Contribution Not Subject to Gift Tax.
allocations or similar Privileges or concessions Any contribution in cash or in kind to any candidate
by the government or political party or coalition of parties for campaign
(5) Persons who, within 1 year prior to the date of purposes, duly reported to the Commission, shall
the election, have been granted Loans or other not be subject to the payment of any gift tax. (R.A.
accommodations in excess of P100,000 by the 7166, §13)
government
(6) Members of the Armed forces of the Philippines Unspent Contribution Subject to Income Tax.
(7) Officials or employees in the Civil service Any unexpended balance from any contribution to
(8) Persons with Contracts to supply the candidate or party shall be subject to income tax.
government with goods or services or to (COMELEC Resolution No. 9476 s.2012 citing BIR
perform construction or other works Revenue Regulation No. 7-2011)
(9) Educational institutions which have received
grants of public funds not less than p100,000 by General Rule: It shall be unlawful for any person or
the government organization to solicit and/ or accept any gift,
contribution, food, transportation or donation in cash
Prohibited Contributions (Receipt and or in kind from the commencement of the election
Solicitation) period up to and including election day.
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It shall be unlawful for any person, including a
political party or public or private entity to solicit or Exception: Normal and customary religious
receive, directly or indirectly, any aid or contribution stipends, tithes or collections.
of whatever form or nature from any foreign national,
government or entity for the purposes of influencing Prohibited Donations
the results of the election. (OEC, §96) It is prohibited for any candidate, his spouse, relative
within second degree of consanguinity or affinity, a
Prohibited Ways of Raising Electoral Campaign representative to make any contribution for any
Funds. It shall be unlawful for any person to hold structure for public use or for use of any religious or
dances, lotteries, cockfights, games, boxing bouts, civic organization, except the normal religious dues
bingo, beauty contests, entertainments, or and payments for scholarships established and
cinematographic, theatrical or other performances school contributions habitually made before the
for the purpose of raising funds for an election campaign period. (OEC, §104)
campaign or for the support of any candidate from
the commencement of the election period up to and 3. LAWFUL AND PROHIBITED
including election day; or for any person or ELECTION PROPAGANDA
organization, whether civic or religious, directly or
indirectly, to solicit and/or accept from any candidate Election Propaganda
for public office, or from his campaign manager, Election propaganda whether on television, cable
agent or representative, or any person acting in their television, radio, newspapers or any other medium
behalf, any gift, food, transportation, contribution or is hereby allowed for all registered political parties,
donation in cash or in kind from the commencement national, regional, sectoral parties or organizations
of the election period up to and including election participating under the party-list elections and for all
day; Provided, That normal and customary religious bona fide candidates seeking national and local
stipends, tithes, or collections on Sundays and/or elective positions subject to the limitation on
other designated collection days, are excluded from authorized expenses of candidates and political
this prohibition. (OEC, §96) parties, observance of truth in advertising and
to the supervision and regulation by the
Prohibited Means of Raising Funds: (C2L-B3ED) COMELEC.
(1) Cinematographic, theatrical or other
performances
(2) Cockfights
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Lawful election propaganda shall include: retained in any capacity by any candidate or
(1) Pamphlets, leaflets, cards, decals, stickers or political party shall be deemed resigned, if so
other written or printed materials the size of required by their employer, or shall take a LOA
which does not exceed 8.5 inches in width from his work as such during the campaign
and14 inches in length (8.5 in. x 14 in.); period.
(2) Handwritten or printed letters urging voters to
vote for or against any particular political party Rules on Published or Printed and Broadcast
or candidate for public office; Election Propaganda (Paid Advertisements)
(3) Cloth, paper or cardboard posters whether (1) PRINT
framed, or posted, with an area not exceeding • ¼ page in broadsheet, 3x a week
two (2) feet by three (3) feet, except that, at the • ½ page in tabloid, 3x a week
site and on the occasion of a public meeting or (2) RADIO (per STATION)
rally, or in announcing the holding of said • 180 mins. for National candidates
meeting or rally, streamers not exceeding three • 90 mins. for Local candidates
(3) feet by eight (8) feet in size, shall be allowed: (3) TV (per STATION)
Provided, That said streamers may be
• 120 mins. for National candidates
displayed five (5) days before the date of the
meeting or rally and shall be removed within • 60 mins. for Local candidates
twenty-four (24) hours after said meeting or
rally; The Fair Election Act does not justify a conclusion
(4) Paid advertisements in print or broadcast that the maximum allowable airtime should be
media: Provided, That the advertisements shall based on the totality of possible broadcast in all
follow the requirements set forth in Section 4 of television or 35 radio stations, and the COMELEC
this Act (R.A. 9006); (R.A. 9006, §3) and has no authority to provide for rules beyond what
(5) All other forms of election propaganda not was contemplated by the law it is supposed to
implement. (GMA Network, Inc. v. COMELEC, G.R.
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prohibited by this Code as the Commission may
authorize after due notice to all interested No. 205357)
parties and hearing where all the interested
parties were given an equal opportunity to be NOTE: As it stands now, the limits of 120 minutes
heard: Provided, That the Commission's for TV and 180 minutes for radio is PER STATION
authorization shall be published in two – not aggregate or not per network. Thus, there are
newspapers of general circulation throughout separate airtime limits for the regional tv and radio
the nation for at least twice within one week stations of networks.
after the authorization has been granted. (OEC,
§82(d)). Any newspaper, newsletter, newsweekly, gazette or
magazine advertising, posters, pamphlets, comic
Summary Rules on Election Propaganda: books, circulars, handbills, bumper stickers,
• All registered parties and bona fide candidates streamers, sample list of candidates or any
published or printed political matter and any
shall have the right to reply to charges
broadcast of election propaganda by television or
published against them.
radio for or against a candidate or group of
• No movie, cinematograph, documentary
candidates to any public office shall bear and be
portraying the life or biography of a candidate
identified by the reasonably legible or audible words
shall be publicly exhibited in a theatre, TV
"political advertisement paid for," followed by the
station, or any public forum during the campaign
true and correct name and address of the candidate
period.
or party for whose benefit the election propaganda
• No movie, cinematograph, documentary
was printed or aired.
portrayed by an actor or media personality who
is himself a candidate shall be publicly exhibited
If the broadcast is given free of charge by the radio
in a theatre, TV station or any public form during
or television station, it shall be identified by the
the campaign period.
words "airtime for this broadcast was provided free
• All mass media entities shall furnish the of charge by" followed by the true and correct name
COMELEC with copies of all contracts for and address of the broadcast entity.
advertising, promoting, or opposing any political
party or the candidacy of any person for public Print, broadcast or outdoor advertisements donated
office within 5 days after its signing. to the candidate or political party shall not be
• Any media personality who is a candidate or is printed, published, broadcast, or exhibited without
a campaign volunteer for or employed or the written acceptance by the said candidate or
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political party. Such written acceptance shall be
attached to the advertising contract and shall be The COMELEC shall procure shall in at least one (1)
submitted to the COMELEC as provided in newspaper of general circulation and air time in at
Subsection 6.3. hereof. (R.A. 9006, §4) least one (1) major broadcasting station or entity in
every province or city: Provided, however, That in
Public Rallies: the absence of said newspaper, publication shall be
(1) The candidate or party must notify election done in any other magazine or periodical in said
registrar that they intend to organize and hold province or city, which shall be known as
within the city/municipality "COMELEC Space": Provided, further, That in the
(2) Submit to election registrar a statement of absence of said broadcasting station or entity,
expenses in connection therewith. (OEC, §88) broadcasting shall be done in any radio or television
station in said province or city, which shall be known
COMELEC Space and Airtime as "COMELEC Time". Said time shall be allocated
Pursuant to Sections 90 and 92 of the Omnibus to the COMELEC free of charge, while said space
Election Code (Batas Pambansa Bldg. 881), the shall be allocated to the COMELEC upon payment
COMELEC shall procure the print space upon of just compensation. The COMELEC time and
payment of just compensation from at least three (3) space shall be utilized exclusively by the COMELEC
national newspapers of general circulation wherein for public information dissemination on election-
candidates for national office can announce their related concerns. (R.A. 9006, §8)
candidacies. Such space shall be allocated free of
charge equally and impartially among all the Thus:
candidates for national office on three (3) different (1) SPACE (PUBLISHED OR PRINTED)
calendar days: the first day within the first week of (a) 3 National newspapers - National
the campaign period; the second day within the fifth candidates
week of the campaign period; and the third day (b) 1 National newspaper - Local
within the tenth week of the campaign period. candidates
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(2) AIRTIME (BROADCAST)
The COMELEC shall also procure free airtime (a) 3 National TV and Radio Networks -
from at least three (3) national television National candidates
networks and three(3) national radio networks, (b) 1 Major Broadcasting station - Local
which shall also be allocated free of charge candidates
equally and impartially among all candidates for
national office. Such free time shall be allocated on There shall be equal allocation for all candidates for
three (3) different calendar days; the first day within 3 calendar days.
the first week of the campaign period; the second
day within the fifth week of the campaign period; and COMELEC does not have the authority to
the third day within the tenth weeks of the campaign regulate the enjoyment of the preferred right to
period. freedom of expression exercised by a non-
candidate. Regulation of speech in the context of
The COMELEC may require national television electoral campaigns made by persons who are not
and radio networks to sponsor at least three (3) candidates or who do not speak as members of a
national debates among presidential candidates political party which are, taken as a whole,
and at least one (1) national debate among vice principally advocacies of a social issue that the
presidential candidates. The debates among public must consider during elections is
presidential candidates shall be scheduled on three unconstitutional. Such regulation is inconsistent with
(3) different calendar days; the first debate shall be the guarantee of according the fullest possible range
scheduled within the first and second week of the of opinions coming from the electorate including
campaign period; the second debate within the fifth those that can catalyze candid, uninhibited, and
and sixth week of the campaign period; and the third robust debate in the criteria for the choice of a
debate shall be scheduled within the tenth and candidate. (Diocese of Bacolod v. COMELEC, G.R.
eleventh week of the campaign period. No. 205728)
The sponsoring television or radio network may sell However, regulation of election paraphernalia will
air-time for commercials and advertisements to still be constitutionally valid if it reaches into speech
interested advertisers and sponsors. The of persons who are not candidates or who do not
COMELEC shall promulgate rules and regulations speak as members of a political party if they are not
for the holding of such debates. (R.A. 9006, §7) candidates, only if what is regulated is declarative
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speech that, taken as a whole, has for its principal Nothing in this provision prohibits a media outlet
object the endorsement of a candidate only. The from giving higher discounts: Provided, That the
regulation (a) should be provided by law, (b) discount it gives one candidate shall be the same
reasonable, (c) narrowly tailored to meet the discount it gives to other candidates for the same
objective of enhancing the opportunity of all position.
candidates to be heard and considering the primacy
of the guarantee of free expression, and (d) In no case shall rates charged to registered political
demonstrably the least restrictive means to achieve parties and bona fide candidates be higher than
that object. The regulation must only be with respect rates charged to non-political advertisers. (R.A.
to the time, place, and manner of the rendition of the 9006, §10 (as amended by R.A. 11207))
message. In no situation may the speech be
prohibited or censored on the basis of its content. Election Surveys
For this purpose, it will not matter whether the Election surveys refer to the measurement of
speech is made with or on private property. opinions and perceptions of the voters as
(Diocese of Bacolod v. COMELEC, G.R. No. regards a candidate's popularity, qualifications,
205728, obiter dictum) platforms or a matter of public discussion in relation
to the election, including voters' preference for
Posting of Campaign Materials candidates or publicly discussed issues during
The COMELEC may authorize political parties and the campaign period. (R.A. 9006, §5.1)
party-list groups to erect common poster areas for The prohibition (on election surveys) may be for a
their candidates in not more than ten (1) public limited time, but the curtailment of the right of
places such as plazas, markets, barangay centers expression is direct, absolute, and substantial. It
and the like, wherein candidates can post, display or constitutes a total suppression of a category of
exhibit election propaganda: Provided, That the size speech and is not made less so because it is only
of the poster areas shall not exceed twelve (12) by for a period of fifteen (15) days immediately before
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sixteen (16) feet or its equivalent. a national election and seven (7) days immediately
before a local election. Sec. 5.4 (of RA 9006)
Independent candidates with no political parties (which sought to prohibit publication of election
may likewise be authorized to erect common poster surveys 15 days before a national election and 7
areas in not more than ten (10) public places, the days before a local election) is invalid because
size of which shall not exceed four (4) by six (6) feet (1) it imposes a prior restraint on the freedom of
or its equivalent. expression, (2) it is a direct and total
suppression of a category of expression even
Candidates may post any lawful propaganda though such suppression is only for a limited
material in private places with the consent of the period, and (3) the governmental interest sought
owner thereof, and in public places or property to be promoted can be achieved by means other
which shall be allocated equitably and impartially than suppression of freedom of expression.
among the candidates. (R.A. 9006, §9) (SWS v. COMELEC, GR No. 147571)
Right to Reply The names of those who commission or pay for

All registered parties and bona fide candidates shall election surveys, including subscribers of survey
be have the right to reply to charges published firms, must be disclosed pursuant to Section 5.2(a)
against them. The reply shall be given publicity of the Fair Election Act. This requirement is a valid
by the newspaper, television and/or radio station regulation in the exercise of police power and effects
which first printed or aired the charges with the the constitutional policy of “guaranteeing equal
same prominence or in the same page or section access to opportunities for public service.”, and
or in the same time slot as the first statement. neither curtails petitioners’ free speech rights nor
[Sec. 10, RA 9006] violates the constitutional proscription against the
impairment of contracts. (Social Weather Stations,
Prescribed Rates for Political Propaganda Inc. et al v. COMELEC, G.R. No. 208062)
During the election period, media outlets shall give
registered political parties and bona fide candidates When published, the tendency of election surveys to
a discount of fifty percent (50%) for television, forty shape voter preferences comes into play. In this
percent (40%) for radio and ten percent (10%) for respect, published election surveys partake of the
print, from the average of the published rates nature of election propaganda. It is then declarative
charged in the last three calendar years prior to the speech in the context of an electoral campaign
election. properly subject to regulation. (Social Weather
Stations, Inc. et al v. COMELEC, G.R. No. 208062)
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currently registered in the constituency where he
While Resolution No. 9674 does regulate filed his certificate of candidacy: Provided, That a
expression (i.e., petitioners’ publication of election candidate without any political party and without
surveys), it does not go so far as to suppress desired support from any political party may be allowed to
expression. There is neither prohibition nor spend Five Pesos (P5.00) for every such voter; and
censorship specifically aimed at election surveys.
The freedom to publish election surveys remains. All NOTE: The law is clear — the candidate must both
Resolution No. 9674 does is articulate a regulation be without a political party and without support from
as regards the manner of publication, that is, that the any political party for the P5.00 cap to apply. In the
disclosure of those who commissioned and/or paid absence of one, the exception does not apply
for, including those subscribed to, published (hence, the P3.00 cap will apply). (Salvador v.
election surveys must be made. (Social Weather COMELEC, GR No. 204357)
Stations, Inc. et al v. COMELEC, G.R. No. 208062)
(b) For political parties. - Five pesos (P5.00) for
Exit Polls every voter currently registered in the constituency
Exit polls may only be taken subject to the following or constituencies where it has official candidates.
requirements: Any provision of law to the contrary notwithstanding
(a) Pollsters shall not conduct their surveys within any contribution in cash or in kind to any candidate
fifty (50) meters from the polling place, whether or political party or coalition of parties for campaign
said survey is taken in a home, dwelling place purposes, duly reported to the Commission shall not
and other places; be subject to the payment of any gift tax. (R.A. 7166,
(b) Pollsters shall wear distinctive clothing; §13 (amending Secs. 100-101, OEC))
(c) Pollsters shall inform the voters that they may
refuse to answer; and 3rd Party Donations Included in the Allowable
(d) The result of the exit polls may be announced Expenditure Limit
after the closing of the polls on election day, and In tracing the legislative history of Sections 100,
FOR ONE ATENEO

must clearly identify the total number of 101, and 103 of the OEC, it can be said, therefore,
respondents, and the places where they were that the intent of our lawmakers has been consistent
taken. Said announcement shall state that the through the years: to regulate not just the election
same is unofficial and does not represent a expenses of the candidate but also of his or her
trend. (R.A. 9006, §5.5) contributor/supporter/donor as well as by including
in the aggregate limit of the former’s election
The holding of exit polls and the dissemination of expenses those incurred by the latter. The phrase
their results through mass media constitute an "those incurred or caused to be incurred by the
essential part of the freedoms of speech and of the candidate” is sufficiently adequate to cover those
press. Hence, the COMELEC cannot ban them expenses which are contributed or donated in the
totally in the guise of promoting clean, honest, candidate’s behalf. By virtue of the legal
orderly and credible elections. Quite the contrary, requirement that a contribution or donation should
exit polls — properly conducted and publicized — bear the written conformity of the candidate, a
can be vital tools in eliminating the evils of election- contributor/supporter/donor certainly qualifies as
fixing and fraud. Narrowly tailored countermeasures "any person authorized by such candidate or
may be prescribed by the Comelec so as to treasurer." Ubi lex non distinguit, nec nos
minimize or suppress the incidental problems in the distinguere debemus. (Where the law does not
conduct of exit polls, without transgressing in any distinguish, neither should We.) There should be no
manner the fundamental rights of our people. (ABS- distinction in the application of a law where none is
CBN v. COMELEC, GR No. 133486) indicated. (Ejercito v. COMELEC, GR No. 212398)
4. LIMITATIONS ON EXPENSES Summary of Rules on Authorized Expenses

Multiplied by the total number of registered voters:
Authorized Expenses (1) P10 - President and Vice President
The agreement amount that a candidate or (2) P3 - Other candidates (with political party
registered political party may spend for election OR with political support)
campaign shall be as follows: (3) P5 - Independent candidates (without
political party AND without political
(a) For candidates. - Ten pesos (P10.00) for support)
President and Vice-President; and for other (4) P5 - Political parties
candidates Three Pesos (P3.00) for every voter
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Lawful Expenditures (4) Stationary, printing and distribution of printed

No candidate or treasurer of a party shall, directly or matters relative to candidacy
indirectly, make any expenditure except for the (5) Employment of watchers at the polls
following purposes: (6) Rent, maintenance and furnishing of campaign
(a) For traveling expenses of the candidates and HQ, office, or place of meetings
campaign personnel in the course of the (7) Political meetings and rallies
campaign and for personal expenses incident (8) Advertisements
thereto; (9) Employment of counsel
(b) For compensation of campaigners, clerks, (10) Printing sample ballots
stenographers, messengers, and other persons (11) Copying and classifying list of voters,
actually employed in the campaign; investigating and challenging the right to vote of
(c) For telegraph and telephone tolls, internet persons registered in the lists
access, postages, freight and express delivery
charges; NOTE: The expenses for (9), (10), (11) are not
(d) For stationery, printing and distribution of charged against the allowable expenditure limits.
printed materials relative to the candidacy;
(e) For employment of watchers at the polls; The phrase “those incurred or caused to be
(f) For rent, maintenance and furnishing of incurred by the candidate” is sufficiently adequate
campaign headquarters, office or place of to cover those expenses which are contributed or
meetings; donated in the candidate’s behalf. By virtue of the
(g) For political meetings and rallies and the use of legal requirement that a contribution or donation
sound systems, lights and decorations during should bear the written conformity of the candidate,
said meetings and rallies; a contributor/ supporter/ donor certainly qualifies as
(h) For newspaper, radio, television and other any person authorized by such candidate or
advertisements for purposes of promoting the treasurer. (Ejercito v. COMELEC, G.R. No. 212398)
FOR ONE ATENEO

candidacy, including website or internet ad
placements, subject to existing rules and 5. STATEMENT OF CONTRIBUTIONS
regulations on the broadcast advertising. AND EXPENSES
(i) For employment of counsel;
(j) For copying and classifying lists of voters,
Reporting of Contributions and Expenditures
investigating and challenging the right to vote of
persons registered in the lists; and Statement of Contributions and Expenditures
(k) For printing sample ballots in such color, size (SOCE). Not later than thirty (30) days after the day
and maximum number as may be authorized by of election, every candidate shall file in triplicate with
the Commission. the offices of the Commission where he filed his
certificate of candidacy except for national positions
The expenditures for items (i – i.e. employment which should be filed with the Campaign Finance
of counsel), (j – i.e. copying and classifying lists Unit, a full, true and itemized statement of all
of voters), and (k – i.e. printing sample ballots), contributions and expenditures in connection with
shall not be taken into account in determining the elections. (Also R.A. 7166, §14)
whether the expenditure limit has been
breached by the candidate or party in the conduct Within the same period, the treasurer of every
of campaign activities. (OEC, §102) party that participated in the elections shall file
with the Campaign Finance Unit of the
Failure to comply with this Section constitutes an COMELEC the party's statement of election
election offense under Section 102 in relation to contributions and expenditures. If the statement
Section 262 of the Omnibus Election Code. is sent by mail, it shall be by registered mail, and the
(COMELEC Resolution No. 9476 s.2012, §3 Rule 4, date on which it was registered with the post office
citing OEC, §102) may be considered as the filing date thereof if
confirmed on the same date by telegram or
Summary of Rules on Lawful Expenditures radiogram addressed to the office or official with
(1) Traveling expenses whom the statement should be filed, which telegram
(2) Compensation of campaigners, clerks, or radiogram shall indicate the registry receipt
stenographers, messengers and other persons number of such registered mail.
actually employed in the campaign
(3) Telegraph and telephone tolls, postage, freight The Regional Election Director of the National
and express delivery charges Capital Region, Provincial Election Supervisors and
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Election Officers concerned shall, not later than (P2,000.00) to Sixty thousand pesos
fifteen (15) days after the last day for the filing of the (P60,000.00), in the discretion of the
Statements of Contributions and Expenditures, Commission. In addition, the offender shall be
send to the Campaign Finance Unit, Commission on subject to perpetual disqualification to hold
Elections, Manila, duplicate copies of all statements public office. (R.A. 7166, §14)
filed with them. (COMELEC Resolution No. 9476
s.2012 , §2 Rule 8, citing OEC, §108) Moreover, that Congress has deemed fit to impose
the penalty of perpetual disqualification on
Obligation to file SOCE. Section 14 of R.A. No. candidates who repeatedly failed to file their SOCEs
7166 states that "every candidate" has the cannot be the subject of judicial inquiry. Congress
obligation to file his statement of contributions and has the absolute discretion to penalize by law with
expenditures. The law makes no distinction or perpetual disqualification from holding public office
qualification as to whether the candidate pursued in addition to administrative fines the seekers of
his candidacy or withdrew the same, the term "every public office who fail more than once to file their
candidate" must be deemed to refer not only to a SOCEs. Such penalty is intended to underscore the
candidate who pursued his campaign, but also to need to file the SOCE as another means of ensuring
one who withdrew his candidacy. (Pilar v. the sanctity of the electoral process. (Maturan v.
COMELEC, GR No. 115245) COMELEC, GR No. 227155)
Consequences for the Non-Filing of SOCE. No D. REMEDIES AND JURISDICTION

person elected to any public offices shall enter upon
the duties of his office until he has filed the 1. PETITION NOT TO GIVE DUE
statement of contributions and expenditures herein
COURSE OR CANCEL A
required.
CERTIFICATE OF CANDIDACY
The same prohibition shall apply if the political party
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which nominated the winning candidate fails to file (1) For False Material Representation. A verified
the statement required herein within the period petition seeking to deny due course or to cancel a
prescribed by this Act. certificate of candidacy may be filed by the person
exclusively on the ground that any material
representation contained therein as required
Except candidates for elective barangay office,
failure to file the statements or reports in under Section 74 hereof is false. The petition may
connection with electoral contributions and be filed at any time not later than twenty-five days
expenditures are required herein shall from the time of the filing of the certificate of
constitute an administrative offense for which candidacy and shall be decided, after due notice
the offenders shall be liable to pay an and hearing, not later than fifteen days before the
administrative fine ranging from One thousand election. (OEC, §78)
pesos (P1,000.00) to Thirty thousand pesos
(P30,000.00), in the discretion of the A petition to deny due course to or cancel a CoC can
Commission. only be grounded on a statement of a material
representation in the said certificate that is false.
The fine shall be paid within thirty (30) days from (Talaga v. COMELEC, GR No. 196804)
receipt of notice of such failure; otherwise, it shall be
enforceable by a writ of execution issued by the The person whose certificate is cancelled or denied
Commission against the properties of the offender. due course under Sec. 78 is not treated as a
candidate at all, as if he/she never filed a CoC.
It shall be the duty of every city or municipal election (Talaga v. COMELEC, GR No. 196804)
registrar to advise in writing, by personal delivery or
registered mail, within five (5) days from the date of It is underscored, however, that a Section 78 petition
election all candidates residing in his jurisdiction to should not be interchanged or confused with a
comply with their obligation to file their statements Section 68 petition. The remedies under the two
of contributions and expenditures. (Resolution No. sections are different, for they are based on different
9476 s.2012, §1, Rule 8) grounds, and can result in different eventualities. A
person who is disqualified under Section 68 is
For the commission of a second or subsequent prohibited to continue as a candidate, but a
offense under this section, the administrative person whose CoC is cancelled or denied due
fine shall be from Two thousand pesos course under Section 78 is not considered as a
candidate at all because his status is that of a
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person who has not filed a CoC. Miranda v. of imprisonment, within two (2) years after
Abaya has clarified that a candidate who is serving sentence
disqualified under Section 68 can be validly (b) Those removed from office as a result of an
substituted pursuant to Section 77 because he administrative case;
remains a candidate until disqualified; but a (c) Those convicted by final judgment for
person whose CoC has been denied due course violating the oath of allegiance to the
or cancelled under Section 78 cannot be Republic;
substituted because he is not considered a (d) Those with dual citizenship;
candidate. (Talaga v. COMELEC, GR No. 196804) (e) Fugitives from justice in criminal or non-
political cases here or abroad;
Denial or cancellation of Certificate of Candidacy (f) Permanent residents in a foreign country or
proceedings involves the issue of whether there is a those who have acquired the right to reside
false representation of a material fact. The false abroad and continue to avail of the same
representation must necessarily pertain not to a right after the effectivity of this Code; and
mere innocuous mistake but to a material fact or (g) The insane or feeble-minded. [Sec. 40,
those that refers to a candidate’s qualification for LGC]
elective office. (Panlaqui v. COMELEC, G.R. No.
188671) Disqualifications under the LGC: (MAO-PDF)
(1) Sentenced by final judgment for an offense
(2) For Being a Nuisance. The Commission may involving Moral turpitude or for an offense
motu proprio or upon a verified petition of an punishable by 1 year or more of imprisonment
interested party, refuse to give due course to or within 2 years after serving sentence.
cancel a certificate of candidacy if it is shown that (2) Removed from office as a result of an
said certificate has been filed to put the election Administrative case.
process in mockery or disrepute or to cause (3) Convicted by final judgment for violating the
FOR ONE ATENEO

confusion among the voters by the similarity of Oath of allegiance to the Republic.
the names of the registered candidates or by (4) Fugitives from justice in criminal or non-political
other circumstances or acts which clearly cases here or abroad.
demonstrate that the candidate has no bona fide (5) Dual allegiance.
intention to run for the office for which the (6) Permanent residents in a foreign country or
certificate of candidacy has been filed and thus those who have acquired the right to reside
prevent a faithful determination of the true will of the abroad and continue to avail of the same right.
electorate. (OEC, §69)
A candidate is ineligible if he is disqualified to be
THUS: COMELEC may motu proprio or upon elected to office, and he is disqualified if he lacks
verified petition of any interested party refuse to give any of the qualifications for elective office. Even if
due course or cancel a COC when: the COMELEC made no finding that the petitioner
(1) The COC has been filed to put the election had deliberately attempted to mislead or to
process in mockery or disrepute misinform as to warrant the cancellation of his CoC,
(2) Causes confusion among the voters by the the COMELEC could still declare him disqualified for
similarity of the names of the registered not meeting the requisite eligibility under the Local
candidates Government Code. (Agustin v. COMELEC, G.R. No.
(3) Other circumstances which clearly 207105)
demonstrate that the candidate has no
bona fide intention to run for the office. (2) Omnibus Election Code
2. PETITION FOR DISQUALIFICATION (a) Sec. 12. Disqualifications. - Any person who has
been declared by competent authority insane or
Disqualification Petitions incompetent, or has been sentenced by final
NOTE: Reproducing here for easy reference the judgment for subversion, insurrection, rebellion or
section on Disqualifications discussed previously. for any offense for which he has been sentenced to
a penalty of more than eighteen months or for a
(1) Local Government Code (RA 7160) crime involving moral turpitude, shall be disqualified
The following persons are disqualified from running to be a candidate and to hold any office, unless he
for any elective local position: has been given plenary pardon or granted amnesty.
(a) Those sentenced by final judgment for an
offense involving moral turpitude or for an This disqualifications to be a candidate herein
offense punishable by one (1) year or more provided shall be deemed removed upon the
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declaration by competent authority that said insanity The use of a foreign passport amounts to
or incompetence had been removed or after the repudiation or recantation of the oath of
expiration of a period of five years from his service renunciation. Matters dealing with qualifications for
of sentence, unless within the same period he again public elective office must be strictly complied with.
becomes disqualified. A candidate cannot simply be allowed to correct the
deficiency in his qualification by submitting another
(b) Sec. 68. Disqualifications. — Any candidate oath of renunciation. (Arnado v. COMELEC, G.R.
who, in an action or protest in which he is a party is No. 210164)
declared by final decision of a competent court guilty
of, or found by the Commission of having (a) given The petitioner's continued exercise of his rights as a
money or other material consideration to influence, citizen of the USA through using his USA passport
induce or corrupt the voters or public officials after the renunciation of his USA citizenship
performing electoral functions; (b) committed acts of reverted him to his earlier status as a dual citizen.
terrorism to enhance his candidacy; (c) spent in his Such reversion disqualified him from being elected
election campaign an amount in excess of that to public office. (Agustin v. COMELEC, G.R. No.
allowed by this Code (e.g. Ejercito v. COMELEC); 207105)
(d) solicited, received or made any contribution
prohibited under Sections 89 (i.e. transportation, Aspects of Disqualification Cases
food, drinks), 95 (prohibited contributions), 96
(foreign sources), 97 (prohibited fund raising) Electoral Aspect
and 104 (prohibited donations); or (e) violated any Primary issue in the electoral aspect is whether or
of Sections 80 (outside campaign period BUT not not the offender should be disqualified from being a
anymore because of RA 9369 and Penera), 83 candidate or from holding office. Neither a prior
(destroying lawful election propaganda), 85 conviction nor even a determination of probable
(prohibited election propaganda subject to RA cause is then a requirement before a Petition for
9006), 86 (mass media subject to RA 9006) and Disqualification can be lodged. (Francisco v.
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261, paragraphs d (coercion of subordinates), e COMELEC).
(terrorism, etc.), k (unlawful electioneering), v
(public funds), and cc, sub-paragraph 6 (unlawful ”The electoral aspect of a disqualification case
electioneering – candidacy and campaign), shall determines whether the offender should be
be disqualified from continuing as a candidate, or if disqualified from being a candidate or from holding
he has been elected, from holding the office. Any office. Proceedings are summary in character
person who is a permanent resident of or an and require only clear preponderance of
immigrant to a foreign country shall not be qualified evidence. An erring candidate may be
to run for any elective office under this Code, unless disqualified even without prior determination of
said person has waived his status as permanent probable cause in a preliminary
resident or immigrant of a foreign country in investigation. The electoral aspect may proceed
accordance with the residence requirement independently of the criminal aspect, and vice-
provided for in the election laws. versa.” (Francisco v. COMELEC citing Lanot v.
COMELEC).
Grounds for Disqualification: (LF2-SEND2)
(1) Lacking qualifications. Criminal Aspect
(2) Filing a CoC for more than 1 office Whether or not there is probable cause to
(3) False and material representation in the CoC. charge a candidate for an election offense:
(4) Disqualifications under the LGC. The prosecutor is the COMELEC, through its Law
(5) Nuisance candidate. Department, which determines whether or not
(6) Election offenses enumerated under Section 68 probable cause exists.
of the Omnibus Election Code
(7) Declared insane or incompetent by competent If there is probable cause:
authority. The COMELEC’s Law Department files the criminal
(8) Sentenced by final judgment for subversion, information before the proper court.
insurrection, rebellion or an offense which he
has been sentenced to a penalty of more than Proceedings before the proper court demand a full
18 months, or a crime involving moral turpitude, blown hearing and require proof beyond reasonable
unless given plenary pardon/ amnesty. doubt to convict.
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A criminal conviction shall result in the to be disqualified and he is voted for and receives
disqualification of the offender, which may even the winning number of votes in such election, the
include disqualification from holding a future public Court or Commission shall continue with the trial
office. and hearing of the action, inquiry, or protest and,
upon motion of the complainant or any intervenor,
Petition for Disqualification vs. Petition to Deny may during the pendency thereof order the
Due Course/Cancel CoC suspension of the proclamation of such candidate
PETITION TO DENY whenever the evidence of his guilt is strong.”
PETITION FOR
DUE COURSE/ Section 6 of the Electoral Reforms Law of 1987
DISQUALIFICATION
CANCEL CoC (SEC. covers two situations. The first is when the
(SEC. 68)
78) disqualification becomes final before the elections,
Premised on Section 12 Grounded on a which is the situation covered in the first sentence of
or 68 of the Omnibus statement of a material Section 6. The second is when the disqualification
Election Code, or representation in the becomes final after the elections, which is the
Section 40 of the Local said certificate that is situation covered in the second sentence of Section
Government Code false. 6. (Talaga v. COMELEC, GR No. 196804)
A person who is The person whose
disqualified under certificate is cancelled NOTE: Thus, in Talaga v. COMELEC, IT DEPENDS
Section 68 is merely or denied due course on when the disqualification became final:
prohibited to continue as under Section 78 is not
a candidate. treated as a candidate (1) If NOT FINAL BEFORE election = hence,
at all, as if he/she never still a candidate = second-placer is not the
filed a CoC. winner (Doctrine of Rejection of Second-
Thus, a candidate who is A person whose CoC Placer); succession rules will apply;
disqualified under has been denied due (2) If FINAL BEFORE election = hence, not a
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Section 68 can validly be course or cancelled candidate = second-placer wins because
substituted under under Section 78 he/she gets next highest votes among the
Section 77 of the OEC cannot be substituted qualified candidates.
because he/she remains because he/she is (3) However, the SC in Maquiling v.
a candidate until never considered a COMELEC (2013) declared the second-
disqualified. candidate. (Tagolino v. placer as winner even if the disqualified
HRET, G.R. No. candidate continued to be a candidate (no
NOTE: However, if the 202202, Mar. 19, 2013) final disqualification) and was even
candidate is disqualified proclaimed as the winner, to wit: the votes
after assumption of NOTE: If the CoC of the cast in favor of the ineligible candidate are
office, he shall vacate the candidate was denied not considered at all in determining the
position and succession or cancelled in due winner of an election. Even when the votes
under LGC shall apply as course after he has for the ineligible candidate are disregarded,
ruled. assumed office, he the will of the electorate is still respected,
shall vacate the position and even more so. The votes cast in favor
and the second placer of an ineligible candidate do not constitute
will be declared as the sole and total expression of the
winner. sovereign voice. The votes cast in favor of
eligible and legitimate candidates form part
The Declared Winner When Winning Candidate of that voice and must also be respected.
is Disqualified or Fails to Qualify As in any contest, elections are governed
The law expressly declares that a candidate by rules that determine the qualifications
disqualified by final judgment before an election and disqualifications of those who are
cannot be voted for, and votes cast for him shall not allowed to participate as players. When
be counted. This is a mandatory provision of law. there are participants who turn out to be
Section 6 of Republic Act No. 6646, The Electoral ineligible, their victory is voided and the
Reforms Law of 1987, states: Sec. 6. Effect of laurel is awarded to the next in rank who
Disqualification Case.— “Any candidate who has does not possess any of the
been declared by final judgment to be disqualified disqualifications nor lacks any of the
shall not be voted for, and the votes cast for him qualifications set in the rules to be eligible
shall not be counted. If for any reason a candidate as candidates.
is not declared by final judgment before an election (4) In Halili v. COMELEC (2019), the SC ruled
that in case of vacancies caused by
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those with void ab initio COCs, the the COMELEC, limits such power to a final decision
person legally entitled to the vacant or resolution of the COMELEC en banc, and does
position would be the candidate who not extend to an interlocutory order issued by a
garnered the next highest number of Division of the COMELEC. Otherwise stated, the
votes among those eligible. Citing Court has no power to review on certiorari an
Jalosjos, Jr. v. Commission on Elections interlocutory order or even a final resolution
(2012), the SC explained: “Decisions of this issued by a Division of the COMELEC. Where the
Court holding that the second-placer Commission in division committed grave abuse of
cannot be proclaimed winner if the first- discretion or acted without or in excess of
placer is disqualified or declared ineligible jurisdiction in issuing interlocutory orders relative to
should be limited to situations where the an action pending before it and the controversy did
certificate of candidacy of the first-placer not fall under any of the instances mentioned in
was valid at the time of filing but Section 2, Rule 3 of the COMELEC Rules of
subsequently had to be cancelled because Procedure, the remedy of the aggrieved party is not
of a violation of law that took place, or a to refer the controversy to the Commission en banc
legal impediment that took effect, after the as this is not permissible under its present rules but
filing of the certificate of candidacy. If the to elevate it to this Court via a petition for certiorari
certificate of candidacy is void ab under Rule 65 of the Rules of Court. (Cagas v.
initio, then legally the person who filed such COMELEC, G.R. No. 194139)
void certificate of candidacy was never a
candidate in the elections at any time. All Removal of Disqualification Plenary Pardon
votes for such non-candidate are stray The phrase in the presidential pardon which
votes and should not be counted. Thus, declares that the person "is hereby restored to
such non-candidate can never be a first- his civil and political rights" substantially
placer in the elections. If a certificate of complies with the requirement of express
candidacy void ab initio is cancelled on restoration of his right to hold public office, or
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the day, or before the day, of the the right of suffrage. Articles 36 and 41 of the
election, prevailing jurisprudence holds Revised Penal Code should be construed in a way
that all votes for that candidate are stray that will give full effect to the executive clemency
votes. If a certificate of candidacy granted by the President, instead of indulging in an
void ab initio is cancelled one day or overly strict interpretation that may serve to impair
more after the elections, all votes for or diminish the import of the pardon which emanated
such candidate should also be stray from the Office of the President and duly signed by
votes because the certificate of the Chief Executive himself/herself. The said codal
candidacy is void from the very provisions must be construed to harmonize the
beginning. This is the more equitable and power of Congress to define crimes and prescribe
logical approach on the effect of the the penalties for such crimes and the power of the
cancellation of a certificate of candidacy President to grant executive clemency. All that the
that is void ab initio.” said provisions impart is that the pardon of the
principal penalty does not carry with it the remission
A COMELEC resolution declaring a candidate of the accessory penalties unless the President
disqualified for the said position is not yet final expressly includes said accessory penalties in the
if a motion for reconsideration has been timely pardon. It still recognizes the Presidential
filed. At that point, he still remains qualified and prerogative to grant executive clemency and,
his proclamation thereafter is valid. As a result, specifically, to decide to pardon the principal penalty
COMELEC's jurisdiction to contest his citizenship while excluding its accessory penalties or to pardon
ends, and the HRET's own jurisdiction begins. both. Thus, Articles 36 and 41 only clarify the effect
(Gonzales v. COMELEC, G.R. No. 192856) of the pardon so decided upon by the President on
the penalties imposed in accordance with law.
A party aggrieved by an interlocutory order (Risos-Vidal v. COMELEC, G.R. No. 206666)
issued by a Division of the COMELEC in an
election protest may not directly assail the order A whereas clause in a pardon which states that
in this Court through a special civil action for the person “publicly committed to no longer
certiorari. The remedy is to seek the review of the seek any elective position or office” does not
interlocutory order during the appeal of the decision make the pardon conditional. Whereas clauses
of the Division in due course. The court may have do not form part of a statute because, strictly
the power to review any decision, order or ruling of speaking, they are not part of the operative
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language of the statute. The whereas clause is not subdivision, the Commission, motu proprio or upon
an integral part of the decree of the pardon, and a verified petition by any interested party, and after
therefore, does not by itself alone operate to make due notice and hearing, whereby all interested
the pardon conditional or to make its effectivity parties are afforded equal opportunity to be heard,
contingent upon the fulfillment of the shall postpone the election therein to a date which
aforementioned commitment nor to limit the scope should be reasonably close to the date of the
of the pardon. (Risos-Vidal v. COMELEC, G.R. No. election not held, suspended or which resulted in a
206666) failure to elect but not later than thirty days after the
cessation of the cause for such postponement or
Former President Estrada was granted an suspension of the election or failure to elect. (OEC,
absolute pardon that fully restored all his civil §5)
and political rights, which naturally includes the
right to seek public elective office. The wording 3. FAILURE OF ELECTION
of the pardon extended to him is complete,
unambiguous, and unqualified. The fact that the When COMELEC Can Declare a Failure of
pardon did not specify the specific rights restored Election. If, on account of force majeure,
does not mean that GMA did not intend to restore violence, terrorism, fraud, or other analogous
his right to suffrage. (Risos-Vidal v. COMELEC, causes the election in any polling place has not
G.R. No. 206666) been held on the date fixed, or had been
suspended before the hour fixed by law for the
The disqualification from running for public office closing of the voting, or after the voting and during
due to libel shall be removed after service of the five- the preparation and the transmission of the election
year sentence, which is counted from the date the returns or in the custody or canvass thereof, such
fine is paid. (Ty-Delgado v. HRET, G.R. No. 219603) election results in a failure to elect, and in any of
such cases the failure or suspension of election
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To resolve the tie, there shall be drawing of lots. would affect the result of the election, the
Whenever it shall appear from the canvass that two Commission shall, on the basis of a verified petition
or more candidates have received an equal and by any interested party and after due notice and
highest number of votes, or in cases where two or hearing, call for the holding or continuation of the
more candidates are to be elected for the same election not held, suspended or which resulted in a
position and two or more candidates received the failure to elect on a date reasonably close to the
same number of votes for the last place in the date of the election not held, suspended or which
number to be elected, the board of canvassers, after resulted in a failure to elect but not later than thirty
recording this fact in its minutes, shall by resolution, days after the cessation of the cause of such
upon five days’ notice to all the tied candidates, hold postponement or suspension of the election or
a special public meeting at which the board of failure to elect. (OEC, §6)
canvassers shall proceed to the drawing of lots of
the candidates who have tied and shall proclaim as Thus: There is a failure to elect when nobody can be
elected the candidates who may favored by luck, declared as a winner because the will of the majority
and the candidates so proclaimed shall have the has been defiled and cannot be ascertained.
right to assume office in the same manner as if he
had been elected by plurality of votes. The board of When Failure of Elections (In Any Polling Place)
canvassers shall forthwith make a certificate stating May Be Declared: (SNR)
the name of the candidate who had been favored by (1) Election was Suspended before the hour fixed
luck and his proclamation on the basis thereof. by law for the closing of the voting
Nothing in this section shall be construed as (2) Election in any polling place was Not held on the
depriving a candidate of his right to contest the date fixed
election. (OEC, §240.; Tugade v. COMELEC, G.R. (3) Elections Results in a failure to elect (after the
No. 171063) voting and during the preparation and
transmission of the election returns or in the
POSTPONEMENT OF ELECTION custody or canvass thereof). (Carlos v.
When COMELEC Can Postpone an Election. Angeles, G.R. No. 142907)
When for any serious cause such as violence,
terrorism, loss or destruction of election Grounds: (V-F2AT)
paraphernalia or records, force majeure, and (a) Force majeure
other analogous causes of such a nature that (b) Fraud
the holding of a free, orderly and honest election (c) Violence
should become impossible in any political
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(d) Terrorism the Election Returns), 235 (Election Returns
(e) Analogous circumstances appear to be falsified or tampered) and 236
(Carlos v. Angeles, G.R. No. 142907) (Discrepancies in Election Returns) in
relation to the preparation, transmission,
CALL FOR SPECIAL ELECTION receipt, custody and appreciation of the election
returns. (OEC, §241)
Under Section 6 of the OEC, the two (2)
requirements for the holding of a special election (2) Under Republic Act No. 7166, providing for
are: synchronized national and local elections, pre-
(1) That there is a failure of elections and proclamation controversies refer to matters
(2) That such failure would affect the results of the relating to the preparation, transmission,
election. receipt, custody and appearance of election
returns and certificates of canvass.
This “result of the election” means the net result of
the election in the rest of the precincts in a given (3) Any question pertaining to or affecting the
constituency, such that if the margin of a leading proceedings of the Board of Canvassers which
candidate over that of his/her closest rival in the may be raised by any candidate or registered
latter precincts is less that the total number of votes political party, or coalition. (Macabago v.
in the precinct where there was a failure of election, COMELEC, G.R. No. 152163)
then such failure would certainly affect “the result of
the election.” (Lucero v. COMELEC and Ong, G.R. Pre-Proclamation Issues
No. 113107) The following shall be proper issues that may be
raised in a pre-proclamation controversy:
Fixing the date for Special Election:
(a) it should not be later than 30 days after the (1) Illegal composition or proceedings of the
board of canvassers;
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cessation of the cause of the postponement or
suspension of the election or the failure to elect;
and Illegal Composition of the Board of
(b) it should be reasonably close to the date of the Canvassers. — There is illegal composition of
election not held, suspended or which resulted in the the BOC when, among other similar
failure to elect. circumstances, any of the members do not
possess legal qualifications and appointments.
The first involves a question of fact. The second The information technology capable person
must be determined in the light of the peculiar required to assist the BOC by R.A 9369 shall be
circumstances of a case. (Pangandaman v. included as among those whose lack of
COMELEC, G.R. No. 134340, 1999) qualifications may be questioned. (COMELEC
Resolution No. 8804, March 22, 2010, §1)
Thus: the holding of elections within the next few
months from the cessation of the cause of the Illegal Proceedings of the Board of
postponement, suspension or failure to elect may Canvassers. — There is illegal proceedings of
still be considered "reasonably close to the date of the BOC when the canvassing is a sham or
the election not held." mere ceremony, the results of which are pre-
determined and manipulated as when any of the
following circumstances are present:
4. PRE-PROCLAMATION
a) precipitate canvassing; b) terrorism; c) lack
CONTROVERSY of sufficient notice to the members of the
BOC's; d) Improper venue. (COMELEC
Definition of a Pre-Proclamation Controversy Resolution No. 8804, March 22, 2010, §2)
(1) A pre-proclamation controversy refers to any
question pertaining to or affecting the (2) The canvassed election returns are incomplete,
proceedings of the board of canvassers contain material defects, appear to be tampered
which may be raised by any candidate or by any with or falsified, or contain discrepancies in the
registered political party or coalition of political same returns or in other authentic copies
parties before the board or directly with the thereof as mentioned in Sections 233 (Election
Commission, or any matter raised under Returns are delayed, lost, and
Sections 233 (Election Returns are delayed, destroyed), 234 (Material Defects in the
lost, and destroyed), 234 (Material Defects in Election Returns), 235 (Election Returns
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appear to be falsified or tampered) and 236

(Discrepancies in Election Returns) of this NOTE: This is another report generated at the
Code; canvassing stage containing the votes breakdown
(3) The election returns were prepared under per precinct for national (e.g. party-list) and local
duress, threats, coercion, or intimidation, or (e.g. mayor) races. It supports the Certificate of
they are obviously manufactured or not Canvass that serves as the basis for proclamation.
authentic; and
(4) When substitute or fraudulent returns in Although not specifically included in OEC, §243 the
controverted polling places were canvassed, SC in Ramirez v. COMELEC, GR No. 122013, 26
the results of which materially affected the March 1997 recognized that petition for the
standing of the aggrieved candidate or correction of entries in a Statement of Votes is a pre-
candidates. (OEC, §243) proclamation controversy and can be filed directly
with the COMELEC en banc, to wit: "By now it is
COMELEC Action settled that election cases which include pre-
COMELEC may motu proprio or upon written proclamation controversies must first be heard and
petition, and after due notice and hearing, order the decided by a division of the Commission — and a
partial or total suspension of the proclamation of any petition for correction of manifest error in the
candidate-elect or annul partially or totally any Statement of Votes, like SPC No. 95-198 is a pre-
proclamation, if one has been made. (OEC, §242) proclamation controversy — in none of the cases
cited to support this proposition was the issue the
All pre-proclamation controversies shall be heard correction of a manifest error in the Statement of
summarily by the Commission after due notice and Votes under 231 of the Omnibus Election Code
hearing, and its decisions shall be executory after (B.P. Blg. 881) or §15 of R.A. No. 7166. On the other
the lapse of five days from receipt by the losing party hand, Rule 27, §5 of the 1993 Rules of the
of the decision of the Commission, unless restrained COMELEC expressly provides that pre-
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by the Supreme Court. (OEC, §246) proclamation controversies involving, inter alia,
manifest errors in the tabulation or tallying of the
Election Return results may be filed directly with the COMELEC en
A document in electronic and printed form directly banc.”
produced by the counting or voting machine,
showing the date of the election, the province, Grounds for Pre-Proclamation Controversies:
municipality and the precinct in which it is held and (1) Illegal composition or proceedings of the
the votes in figures for each candidate in a precinct board of canvassers
in areas where AES is utilized. (R.A. 8436, § 2(4), (a) Filed with the BOC or with
(as amended by R.A. 9369)) COMELEC
(b) Within 3 days from a ruling (if
NOTE: This is the report on the votes PER based on illegal proceedings), or
PRECINCT that is transmitted to the board of as soon as the Board begins to
canvassers for tabulation. act.
Certificate of Canvass (2) Irregularities in relation to the preparation,

A document in electronic and printed form transmission, receipt, custody, and
containing the total votes in figures obtained by each appreciation of election returns and
candidate in a city / municipality / district / province certificates of canvass:
as the case may be. The electronic certificates of (a) ERs are delayed, lost or
canvass shall be the official canvass results in the destroyed
aforementioned jurisdictions. (R.A. 8436, §2(6), (as (b) Material defects in the ERs
amended by R.A. 9369) (c) ERs appear to be tampered with
or falsified
NOTE: This is the report on the votes per city / (d) Discrepancies in the ERs
municipality / district / province based on the
Election Returns that is canvassed or tabulated at (3) Canvassed returns are incomplete, contain
the local and national level. material defects
(a) ERs are delayed, lost, destroyed
Statement of Votes (i) In this case, the Board can
A document containing the votes obtained by use any of the authentic
candidates in each precinct in a city/municipality. copies
(R.A. 8436, §2(5), (as amended by R.A. 9369))
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(ii) Or terminate canvass if the (2) Omission of votes for candidates
missing returns will not
affect the results anyway Material Defect v. Falsified/Tampered
ERs HAVE BEEN
MATERIAL DEFECT IN
(b) Missing requisites FALSIFIED/
THE ERs
(i) Board calls for members of TAMPERED
the BEI to complete or BOC needs authority BOC needs no prior
correct the return. DO NOT from COMELEC to get permission from the
EXCLUDE, if correctable copies of the other ERs COMELEC to get
copies of the other ERs
(c) ERs are tampered, falsified,
altered after these left the hands Jurisdiction:
of BEI, not authentic, prepared (1) Contested composition or proceedings
under duress, force, intimidation, of the board - May be initiated in the Board
etc. of canvassers or COMELEC.
(i) Resort to other ERs (2) Contested ERs - Should be brought in the
(ii) If all are tampered, can 1st instance before the board of
have ballot boxes reopened canvassers only.
and counted
General Rule: When the Electoral Tribunal obtains
(d) Discrepancies in other authentic jurisdiction, it precludes the COMELEC from
copies of the returns or exercising powers over pre-proclamation
discrepancies in the votes of any controversies.
candidate in words/figures – and
these would affect results of the Exceptions: (PAPI-Q)
election (1) BOC was Improperly constituted
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(i) Order opening of ballot
boxes for recount
(4) ERs prepared under duress, threats,

(2) Proclamation was null and void
(3) Quo warranto is not the proper remedy
(4) What was filed was a Petition to annul a
proclamation, and not quo warranto or
coercion, intimidation, obviously election protest.
manufactured (5) Election contest expressly made without
(a) “Obviously manufactured” - prejudice to PPC or it was made Ad
According to the Court, when it cautelam (cautionary).
follows the doctrine of statistical
improbabilities or “Statistically In exercising its powers and jurisdiction, as defined
improbable data”. by its mandate to protect the integrity of elections,
(5) Substitute or fraudulent returns in the COMELEC “must not be straight-jacketed by
controverted polling places are canvassed, procedural rules in resolving election disputes.”
and the results materially affect the (Violago v. COMELEC, G.R. No. 194143)
standing of candidates. (OEC, §243)
Two Objection Rule - Submit oral objection and
NOTE: Grounds for pre-proclamation controversies written objection simultaneously to BOC
are exclusive. chairperson before ERs have been canvassed.
There is substantial compliance even if the oral
General Rule: COMELEC cannot go behind the objection is filed first, then the written objection with
face of an election return. It is beyond the jurisdiction evidence is submitted within 24 hours.
of COMELEC to go beyond the face of the returns
or investigate election irregularities. However, in Marabur vs. COMELEC, the Court held
that there is substantial compliance if despite the
Exception: When there is prima facie showing that absence of a written objection, an offer of evidence
the ER is not genuine (e.g., as when several entries is made within the 24-hour period. (Marabur vs.
have been omitted). (Lee vs. COMELEC, G.R. No. COMELEC, G.R. No. 169513)
157004)
Summary Nature:
Grounds For Material Defects: • Pre-proclamation controversies shall be heard
(1) Omission of name of candidates summarily by the COMELEC.
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• Its decision shall be executory after 5 days from In regular election contests, the general averment of
receipt by the losing party of the decision, fraud or irregularities in the counting of votes
unless restrained by the SC. (OEC, §246) justifies the examination of the ballots and
recounting of votes. This process of examination is
General Rule: Pre-proclamation cases are deemed the revision of the ballots pursuant to Section 6,
terminated: Rule 20 of the 1993 COMELEC Rules of Procedure.
(1) At the beginning of the term of the office The protests involved herein assailed the
involved and the rulings of the BOC authenticity of the election returns and the veracity
concerned deemed affirmed. of the counting of the ballots. In that regard, the
(2) This is without prejudice to the filing of a ballots themselves are the best evidence. The only
regular election protest by the aggrieved means to overcome the presumption of legitimacy
party. (Sarmiento v. COMELEC, G.R. No. of the election returns is to examine and determine
105628) first whether the ballot boxes have been
substantially preserved in the manner mandated by
Exceptions: Proceedings may continue if: law. Hence, the necessity to issue the order of
(1) COMELEC determines that the petition is revision.
meritorious and issues an order for the
proceedings to continue. NOTE: The COMELEC did not commit grave abuse
(2) The SC issues an order for the proceedings of discretion when it ordered the revision of 44
to continue in a petition for certiorari. ballots with the Senate Electoral Tribunal without
(Sarmiento v. COMELEC, G.R. No. first resolving whether 16 of those 44 ballots should
105628) be included in the revision. (Tolentino v. COMELEC,
G.R. No. 187958)
Where a proclamation is null and void, the
proclamation is no proclamation at all and the Statistically Improbable Data
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proclaimed candidate’s assumption of office cannot (1) Uniformity of tally in favor of candidates
deprive the COMELEC of the power to declare such belonging to 1 party.
nullity and annul the proclamation. (Federico v. (2) Systematic blanking out of candidates
COMELEC, G.R. No. 199612) belonging to another party.
But the remedy of filing a pre-proclamation case is Pre-Proclamation Controversies for National
still available after proclamation if the proclamation Elective Offices. As a general rule, there are no
should have been suspended because of contested pre-proclamation issues for national elective offices,
election returns. (Jainal vs. COMELEC, G.R. No. BUT there are now recognized exceptions under RA
174551) 9369 amending RA 7166 as applied and ruled by the
Supreme Court in Pimentel III v. COMELEC (GR
Grounds for Recount: No. 178413, 13 March 2008), to wit:
(1) Material defects in the ERs (OEC, §234)
(2) ERs are tampered or falsified (OEC, §235) “Indeed, this Court recognizes that by virtue of the
(3) Discrepancies in the ERs (OEC, §236) amendments introduced by Republic Act No. 9369
to Sections 15 and 30 of Republic Act No. 7166, pre-
When Recount is Possible: proclamation cases involving the authenticity and
(1) COMELEC order BEI to conduct recount due execution of certificates of canvass are now
(2) Integrity and identity of ballot box is not allowed in elections for President, Vice-President,
violated and Senators. The intention of Congress to treat a
(3) BEI ascertains that integrity of ballots in box case falling under Section 30 of Republic Act No.
preserved 7166, as amended by Republic Act No. 9369, as a
(4) BEI recounts and complete/correct returns pre-proclamation case is apparent in the fourth
paragraph of the said provision which adopts and
NOTE: While these provisions are still in the applies to such a case the same procedure provided
Omnibus Election Code, they are deemed to have under Sections 17, 18, 19 and 20 of Republic Act
been superseded already by the Automated No. 7166 on pre-proclamation controversies. In
Election Law since any recount is no longer possible sum, in elections for President, Vice-President,
with the electronic transmission, counting, and Senators and Members of the House of
consolidation of votes. The better answer is to file Representatives, the general rule still is that pre-
this as an Election Protest before the proper court or proclamation cases on matters relating to the
body. (ET Kaw) preparation, transmission, receipt, custody and
appreciation of election returns or certificates of
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canvass are still prohibited. As with other general adequate remedy in the ordinary course of law.
rules, there are recognized exceptions to the (Bulilis v. Nuez, G.R. No. 195953)
prohibition, namely: (1) correction of manifest
errors; (2) questions affecting the composition COMELEC Partial Proclamation
or proceedings of the board of canvassers; and Notwithstanding the pendency of any pre-
(3) determination of the authenticity and due proclamation controversy, the Commission may,
execution of certificates of canvass as provided motu proprio or upon the filing of a verified
in Section 30 of Republic Act No. 7166, as amended petition and after due notice and hearing, order
by Republic Act No. 9369.” the proclamation of other winning candidates
whose election will not be affected by the
“Manifest Errors” — Matters regarding the outcome of the controversy. (OEC, §247)
preparation, transmission, receipt, custody, and
appreciation election returns shall be brought, in the 5. ELECTION PROTEST
first instance, before the boards of canvassers, not
the COMELEC. (Fernandez vs. COMELEC, G.R. Election Contests
No. 171821) Election Contests refer to Election Protests or
Petitions for Quo Warranto. [Sec. 3(c), AM. No. 07-
Thus, to summarize: 4-15-SC]
General Rule: Pre-proclamation cases are NOT
allowed in elections for the President, Vice Kinds Of Election Contests:
President, Senator and members of the House of (1) Election Protest
Representatives. (2) Quo Warranto
Exceptions: Withdrawal of nomination and substitution by

(1) Manifest Errors in the ERs or COCs may be another nominee is neither an election protest nor
corrected motu proprio or upon written an action for quo warranto. Petitioner correctly
FOR ONE ATENEO

complaint of any interested person. brought before the Supreme Court this special civil
(2) Questions affecting the composition or action for certiorari under Section 7 of Article IX-A of
proceedings of the board of canvassers the 1987 Constitution, notwithstanding the
may be initiated in the board or directly with proclamation of, and assumption of office by, the
the Commission in accordance with §19. substitute nominee. (Lokin, Jr. v. COMELEC G.R.
(R.A. No. 7166) No. 179431-32/180443)
Manifest Errors: Election Protests

(1) Mistake in adding (1) For provincial, regional, and city
(2) Mistake in copying of figures from ER or elective officials. A petition contesting
Statement of Votes the elections or returns of an elective
(3) ERs from non-existent precinct canvassed regional, provincial, or city official shall be
(4) Copy of ER tabulated more than twice filed with the Commission by any
(5) 2 or more copies of ER and COC in 1 candidate who was voted for in the same
precinct counted separately office and who received the second of third
highest number of votes or, in a multi-slot
The grounds for manifest errors are inclusive. The position, was among the next four
allowable margin of error is 60%. It suspends the candidates following the last ranked winner
running of the period within which to file an election duly proclaimed, as reflected in the official
protest or quo warranto proceeding. results of the election contained in the
Statement of Votes. The party filing the
Notwithstanding the pendency of any pre- protest shall be designated as the
proclamation controversy, the Commission may protestant; the adverse party shall be
summarily order the proclamation of other winning known as the protestee. (COMELEC
candidates whose election will not be affected by the Resolution N0. 8804, §1, Rule 6)
outcome of the controversy. (2) For municipal elective officials.
An aggrieved party may file a petition for certiorari Election protest refers to an election contest
with the COMELEC whenever a judge hearing an involving the election and returns of
election case has acted without or in excess of his municipal elective officials, grounded on
jurisdiction or with grave abuse of discretion and fraud or irregularities committed in the
there is no appeal, nor any plain, speedy, and conduct of the elections, i.e., in the casting
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and the counting of the ballots, in the Jurisdiction Over Election Contests
consolidation of votes and in the (1) PRESIDENTIAL ELECTORAL TRIBUNAL
canvassing of returns, not otherwise For President, Vice President. The Supreme
classified as a pre-proclamation controversy Court, sitting en banc, shall be the sole judge of
cognizable by the COMELEC. The issue is all contests relating to the election, returns, and
who obtained the plurality of valid votes qualifications of the President or Vice-
cast. (2010 Rules of Procedure in Election President, and may promulgate its rules for the
Contests Before the Courts Involving Elective purpose. (PHIL. CONSTI. §4, art. VII)
Municipal Officials, A.M. No. 10-4-1-SC, April
27, 2010, §3 (u), Rule 1) (2) SENATE ELECTORAL TRIBUNAL (SET) and
HOUSE OF REPRESENTATIVES
A petition contesting the election or returns ELECTORAL TRIBUNAL (HRET)
for an elective municipal office shall be filed For Senators and Members of the HoR. The
with the proper Regional Trial Court by an Senate and the House of Representatives shall
candidate who was voted for the same office each have an Electoral Tribunal which shall be
and who received the second or third-highest the sole judge of all contests relating to the
number of votes or, in a multi-slot position, was election, returns, and qualifications of their
among the next four candidates following the respective Members. Each Electoral Tribunal
last-ranked winner duly proclaimed, as reflected shall be composed of nine Members, three of
in the official results of the election contained in whom shall be Justices of the Supreme Court to
the Statement of Votes by Precinct. The party be designated by the Chief Justice, and the
filing the protest shall be designated as the remaining six shall be Members of the Senate
protestant; the adverse party shall be known as or the House of Representatives, as the case
the protestee. (2010 Rules of Procedure in may be, who shall be chosen on the basis of
Election Contests Before the Courts Involving proportional representation from the political
FOR ONE ATENEO

Elective Municipal Officials, A.M. No. 10-4-1- parties and the parties or organizations
SC, April 27, 2010, §4, Rule 1) registered under the party-list system
represented therein. The senior Justice in the
(3) For barangay elective officials. Election Electoral Tribunal shall be its Chairman. (PHIL.
Protest refers to an election contest relating CONSTI. §17, art. VI)
to the election and returns of elective
officials, grounded on frauds or (3) COMMISSION ON ELECTIONS (COMELEC)
irregularities in the conduct of the elections, ORIGINAL EXCLUSIVE: For Provincial and
the casting and counting of the ballots and City Elective Officials; APPELLATE: For
the preparation and canvassing of returns. Municipal and Barangay Elective Officials.
The issue is who obtained the plurality of COMELEC shall exercise exclusive original
valid votes cast. (AM. No. 07-4-15-SC jurisdiction over all contests relating to the
§3(d)) elections, returns, and qualifications of all
elective regional, provincial, and city officials,
NOTE: The failure or omission of protestant to raise and appellate jurisdiction over all contests
the question of identical handwriting or of impugning involving elective municipal officials decided by
the validity of the ballots on that ground, resulting in trial courts of general jurisdiction, or involving
the invalidation of 466 ballots for petitioner, does not elective barangay officials decided by trial
preclude respondent COMELEC from rejecting courts of limited jurisdiction. Decisions, final
them on that ground. Unlike an ordinary suit, an orders, or rulings of the Commission on election
election protest is of utmost public concern. The contests involving elective municipal and
rights of the contending parties in the position barangay offices shall be final, executory, and
aspired for must yield to the far greater interest of not appealable. (PHIL. CONST. §2(2), art. IX-
the citizens in the sanctity of the electoral process. C; OEC, §249)
This being the case, the choice of the people to
represent them may not be bargained away by the COMELEC Jurisdiction Over Election
sheer negligence of a party, nor defeated by Contests:
technical rules of procedure. Thus, COMELEC (1) Original Jurisdiction over contests relating
cannot just close its eyes to the illegality of the to elections, returns, and qualifications of
ballots brought before it, where the ground for the all elective:
invalidation was omitted by the protestant. (Arao v. (a) Regional
COMELEC, GR No. 103877) (b) Provincial
(c) City officials
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(2) Appellate Jurisdiction over contests NOTE: Special rule for PET: Only the 2nd or 3rd
involving: placer may file the protest
(a) Elective Municipal officials decided by
trial courts of general jurisdiction Requisites for an Election Protest
(b) Elective Barangay officials decided by (1) Filed by candidate who has filed a COC and has
trial courts of limited jurisdiction been voted upon for the same office.
(c) COMELEC may issue extraordinary (2) Filed within 10 days from proclamation of
writs of certiorari, prohibition and results
mandamus (a) Period to file EP is suspended during
pendency of PPC
(4) REGIONAL TRIAL COURTS (RTC) (b) A counter-protest must also comply with
For Municipal Elective Officials. RTC shall the reglementary period
have exclusive original jurisdiction over all (OEC, §254)
election contests involving elective municipal (3) On grounds of:
officials. (AM. No. 07-4-15-SC, §1, Rule 2) (a) election fraud/terrorism, and
(b) irregularities or illegal acts before, during,
(5) METROPOLITAN TRIAL COURTS or after casting and counting of votes
(MeTC)/MUNICIPAL TRIAL COURTS (MTC). (Espaldon v. COMELEC, G.R. No. L-
For Barangay Elective Officials (Including 78987)
SK as held in Fernandez v. COMELEC, GR No.
176296, 30 June 2008). MeTC/MTC shall have Additional Requirements:
exclusive original jurisdiction over all election (1) Payment of docket fee
contests involving elective barangay officials. (2) Certificate of Non-Forum Shopping
(AM. No. 07-4-15-SC, §2, Rule 2)
NOTE: Failure to pay is ground to dismiss the case.
A petition for mandamus will lie against the Speaker (Banaga Jr. v. Commission on Elections, G.R. No.
FOR ONE ATENEO

of the House and the House Secretary General for 134696, Jul. 31, 2000)
not performing their ministerial duties to administer
the oath of the second placer and enter his name in House of Representatives Electoral Tribunal
the Roll of Members of the House of Jurisdiction Over Election Contests. The House
Representatives, when the winner’s COC had been of Representatives has the jurisdiction to question
cancelled due to ineligibility. (Velasco v. Belmonte, the qualification of the nominees of party-list
G.R. 211140) organizations. Although party list organizations are
voted for in the elections, still it is not the
Pre-proclamation Controversy v. Election organizations which sit and become members of the
Contest House of Representatives but their nominees.
PRE-PROCLAMATION Subsequently, Section 17, Article VI of the
ELECTION CONTEST Constitution provides that the HRET shall be the
CONTROVERSY
sole judge of all contests relating, among others, to
Before proclamation of After proclamation of the qualifications of the members of the House.
candidate candidate Thus, since party list nominees are considered as
Jurisdiction of Jurisdiction of “elected members” of the House, the HRET has
COMELEC is COMELEC is quasi- jurisdiction to hear and pass upon their
administrative or quasi- judicial qualifications. (Abayon v. HRET, G.R. No. 189466)
judicial
General Rule: Ballots are the best and most
• Only real parties in interest can file and pursue conclusive evidence in an election contest where
election protests (e.g. candidate of the same the correctness of the number of votes of each
position). candidate is involved. (Delos Reyes v. COMELEC,
• Even if it was the 2nd placer who filed the G.R. No. 170070)
election protest, the 3rd placer may still
possibly win. NOTE: The case of presidential Exception: Election returns are the best evidence
protest cases, only two persons, the 2nd and when the ballots are lost, destroyed, tampered or
3rd placers, may contest the election. (Poe vs. fake.
Macapagal-Arroyo, PET Case No. 003) Execution Pending Appeal:
(1) Public interest is involved or will of the
electorate
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(2) Length of time that the election contest has under duress; and/or contain discrepancies in the
been pending votes credited to any candidate, which would affect
(3) Shortness of the remaining portion of the the result of the election, a petition cannot be
term of the contested office. (Pecson v. properly considered as a pre-proclamation
COMELEC, G.R. No. 182865) controversy. If the petition does not qualify as a
pre-proclamation controversy, it could not have
NOTE: A combination of 2 or more will suffice to suspended the ten-day statutory period for the filing
allow execution pending appeal, but shortness of of an election protest. (Abayon v. COMELEC)
the remaining period alone is not a ground for
execution pending appeal. (Laubati v. Commission Disposition of Election Protests
on Elections, G.R. No. 128473) (1) Allegations in election protests must be
specific. The results of an election may be
General Rule: The COMELEC cannot proclaim as challenged through different legal vehicles: first,
winner the candidate who obtains the 2nd highest failure of election cases; second, pre-proclamation
number of votes in case the winning candidate is petitions; and third, election contests. These have
ineligible or disqualified. When a winner is declared substantive and procedural differences, with varying
ineligible, the candidate who finished 2nd cannot remedies, but what remains consistent across all
assume the position. (Quizon v. COMELEC, G.R. modalities is the requirement of specificity.
No. 177927) Particularity on one’s allegations, grounds, and
bases cuts across all mechanisms for challenging
Exception: election outcomes and must be present in all
(1) The one who obtained the highest number actions, regardless of the mode.
of votes is disqualified, and
(2) The electorate is fully aware in fact and in The Court stressed in Corvera v.Savillo that a
law of a candidate’s disqualification so as protest lacking in detail as to the “acts or omissions
FOR ONE ATENEO

to bring such awareness within the realm of complained of showing the electoral frauds,
notoriety but would nonetheless cast their anomalies, or irregularities” should be struck down
votes in favor of the ineligible candidate. for being insufficient in form and substance. Bare
(Pundaodaya v. COMELEC, G.R. No. claims of “glitches,” strange voting patterns, and
179313) discrepancies in the audit, without more, were found
A candidate who was elected but was later
disqualified for failing to meet the residency
requirement was never a valid candidate from
to be hollow accusations by a losing candidate
unable to come to terms with defeat. In so ruling, the
Court affirmed the need for strict compliance with
the specificity requirement.
the very beginning, and was merely a de facto Corvera follows a line of jurisprudence affirming that
officer. The eligible candidate who garnered the general and sweeping allegations of election fraud
highest number of votes must assume the office. and irregularities warrant a protest's dismissal: Peña
The rule on succession in the Local Government v. House of Representatives Electoral Tribunal,
Code does not apply. (Jalosjos v. COMELEC, G.R. Aguillo v. Commission on Elections, and Lloren v.
No. 193314; Ty-Delgado v. HRET, G.R. No. Commission on Elections.
219603)
(2) In election protests before this Tribunal (i.e.
Abandonment — A protestant who runs for another PET), the mandatory ceiling in designating pilot
office is deemed to have abandoned his protest. provinces is three. Failure to show substantial
This is especially true in a case where the protestant recovery of votes in these pilot provinces entails the
pending the election protest, ran, won, assumed the protest's dismissal. To stress, this Tribunal's Rules
post and discharged the duties as such. (Idulza v. directs the forthwith dismissal of an election protest
COMELEC, G.R. No. 160130) if, upon examining the ballots and proof in the three
provinces exemplifying the alleged fraud or
Mere filing and allegations of a pre-proclamation irregularity, this "Tribunal is convinced that . . . the
controversy will not suffice. The grounds that protestant or counter-protestant will most probably
must support a pre-proclamation controversy fail to make out [their] case, without further
are limited by the Omnibus Election Code (under consideration of the other provinces mentioned in
Sec. 243). The enumeration is restrictive and the protest." This is clear and is not susceptible to
exclusive. Thus, in the absence of any clear any other interpretation.
showing or proof that the election returns canvassed
are incomplete or contain material defects; appear
to have been tampered with, falsified or prepared
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(3) PET applied the requisites in Abayon. Per (a) A person who usurps, intrudes into, or
Abayon, the threshold of evidence to prove unlawfully holds or exercises a public
annulment of elections consists of a showing that: office, position or franchise;
(a) The illegality of the ballots must affect more (b) A public officer who does or suffers an act
than fifty percent (50%) of the votes cast on which, by the provision of law, constitutes a
the specific precinct or precincts sought to ground for the forfeiture of his office; o
be annulled, or in case of the entire (c) An association which acts as a corporation
municipality, more than fifty percent (50%) within the Philippines without being legally
of its total precincts and the votes cast incorporated or without lawful authority so
therein; to act.”
(b) It is impossible to distinguish with
reasonable certainty between the lawful Requisites of Quo Warranto (VID 10):
and unlawful ballots; and (1) Filed by any registered Voter in the
(c) There must be clear, convincing, and constituency; Grounds:
strong evidence showing that the protestee (a) Ineligibility
is the one responsible for the unlawful acts (b) Disloyalty to the Republic of the
complained of. Philippines (i.e. having a green card)
To reiterate, "the power to annul an election (2) Within 10 days from proclamation of results
should be exercised with the greatest care (OEC, §253)
as it involves the free and fair expression of
the popular will. It is only in extreme cases General Rule: When proclaimed officer was
of fraud and under circumstances which disqualified by quo warranto, 2nd placer cannot be
demonstrate to the fullest degree a proclaimed winner.
fundamental and wanton disregard of the
law that elections are annulled, and then Exception: When the one who got the highest votes
FOR ONE ATENEO

only when it becomes impossible to take has been disqualified and the electorate is fully
any other step." aware of this fact – but they still voted for him.
What this Tribunal faces today is not an extreme Execution pending appeal is allowed but must be for
case of fraud that deserves further consideration. urgent reasons.
Protestant failed to make out his case. There is no
substantial recovery of votes in the pilot provinces Allowable Reasons for Execution Pending
that he himself had designated. To entertain the Appeal:
third cause of action is to risk frustrating the valid (1) Public interest involved
exercise of the nation’s democratic will and subject (2) Shortness of remaining term
it to the endless whims of a defeated candidate. (3) Length of time that the contest is pending
(Marcos v. Robredo, PET Case No. 005)
Petition to Deny Due Course/ Cancel CoC
6. QUO WARRANTO (Before Elections) v. Quo Warranto (After
Election Results)
Quo Warranto PETITION TO DENY
PETITION FOR QUO
Quo Warranto under the Omnibus Election Code DUE COURSE/
WARRANTO
refers to an election contest relating to the CANCEL CoC
(AFTER
qualifications of an elective official on the ground (BEFORE
PROCLAMATION)
of ineligibility or disloyalty to the Republic of the ELECTIONS)
Philippines. The issue is whether respondent
1. The qualifications for 1. May be brought on
possesses all the qualifications and none of the
elective office are the basis of two
disqualifications prescribed by law. (AM. No. 07-4-
misrepresented in the grounds
15-SC, §3(e))
certificate of a. ineligibility or
candidacy b. disloyalty to the
NOTE: This is different from Quo Warranto under
Republic of the
Rule 66: “Section 1. Action by Government against 2. The proceedings
Philippines
individuals. — An action for the usurpation of a must be initiated
2. must be initiated
public office, position or franchise may be before the elections.
within ten days
commenced by a verified petition brought in the
after the
name of the Republic of the Philippines against:
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proclamation of the Philippines, shall be filed by any registered voter within

election results. fifteen (15) days after assumption of office of the
3. A candidate is respondent. (Rule 18, paragraph 1, 2020 Rules of the
ineligible if he is Senate Electoral Tribunal)
disqualified to be
elected to office, NOTE: A petition for quo warranto on the ground of
and he is ineligibility based on citizenship may be filed at any
disqualified if he time during the respondent's tenure. A petition for quo
lacks any of the warranto may also be filed at any time for grounds that
qualifications for occur during the respondent's tenure. (Rule 18,
elective office. paragraph 1, 2020 Rules of the Senate Electoral
Tribunal)
Quo Warranto v. Election Protest
c. House of Representatives
QUO WARRANTO ELECTION PROTEST Electoral Tribunal (HRET)
Strictly speaking, it is not It is a contest between When to file a quo warranto case before HRET?
a contest. It is a the A verified petition for quo warranto on the ground of
proceeding to unseat an winning candidate and ineligibility may be filed by any registered voter of
ineligible person from the the congressional district concerned, or any
office. defeated candidate registered voter in the case of party-list
Any voter Only by a candidate representatives, within fifteen (15) days from June
who has duly filed a 30 of the election year. (As amended per HRET
COC to the same office Resolution No. 16, Series of 2018 approved on
and has been voted for September 20, 2018)
FOR ONE ATENEO

GROUNDS: GROUNDS:
Disloyalty Election fraud NOTE: A petition for quo warranto may be filed by
Ineligibility Irregularities in the any registered voter of the district concerned against
casting and counting of a Member of the House of Representatives, on the
votes or in the
ground of citizenship, at any time during said
preparation of the ER Member's tenure. A petition for quo warranto may
The respondent may be The protestee may be also be filed at any time for grounds that occur
unseated, but the unseated and the during the term of office of the winning candidate.
petitioner may or may not protestant may be (Rule 18, 2015 Rules of House of Representatives
be installed into the office installed into the office Electoral Tribunal)
vacated. vacated.
HRET may only assume jurisdiction after the
a. COMELEC winning candidate shall have been duly
proclaimed, has taken his oath of office and has
When to file a quo warranto case before assumed the functions of the office. Thus, once
COMELEC? these processes have taken place and the assumed
Any voter contesting the election of any regional, officed as a Member of the House of
provincial or city official on the ground of ineligibility Representative, the COMELEC’s jurisdiction over
or of disloyalty to the Republic of the Philippines the election contest relating to his election, returns
may file a petition for quo warranto with the Electoral and qualifications ends, and the HRET’s own
Contests Adjudication Department. The code also jurisdiction begins. (Vinzons-Chato v. COMELEC,
provides that a petition for quo warranto may be filed G.R. No. 172131)
within ten (10) days from the date the respondent is
proclaimed. (Sections 1 and 2, Rule 21 of 7. RECALL
COMELEC Rules of Procedure)
Recall is a mode of removal of a public officer by
b. Senate Electoral Tribunal (SET) the people before the end of his term of office.
The people's prerogative to remove a public officer
When to file a quo warranto case before SET? is an incident of their sovereign power and in the
A verified petition for quo warranto contesting the absence of constitutional restraint, the power is
election of a Member of the Senate on the ground of implied in all governmental operations. Such power
ineligibility, or disloyalty to the Republic of the has been held to be indispensable for the proper
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administration of public affairs. (Garcia v. reveals the clear intention to place in the
COMELEC, G.R. No. 111511) COMELEC exclusive jurisdiction to investigate
and prosecute election offenses committed by
Requisites of Recall any person, whether private individual or public
(1) The power of recall shall be exercised by officer or employee, and in the latter instance,
the registered voters of the unit to which the irrespective of whether the offense is committed
local elective official subject to such recall in relation to his official duties or not. In other
belongs. words, it is the nature of the offense and not the
(2) Recall shall be validly initiated only upon personality of the offender that matters. As long as
petition of at least twenty-five percent the offense is an election offense jurisdiction over
(25%) of the total number of registered the same rests exclusively with the COMELEC, in
voters in the local government unit view of its all-embracing power over the conduct of
concerned based on the election in which elections. (Corpuz v. Tanodbayan, G.R. No. L-
the local official sought to be recalled was 62075)
elected. (Section 54, Chapter 3, The Local
Government Code of 1983) The power to prosecute necessarily involves the
power to determine who shall be prosecuted,
and the corollary right to decide whom not to
E. PROSECUTION FOR ELECTION prosecute. Evidently, this power also includes the
right to determine under which laws prosecution will
OFFENSES [Exclude: Penal be pursued. (Romualdez v. COMELEC, G.R. No.
Provisions] 167011)
Aspects of an election offense It is clear that aside from the adjudicatory or
Criminal aspect: which involves the ascertainment quasi-judicial power of the COMELEC to decide
of the guilt or innocence of the accused candidate. election contests and administrative questions,
FOR ONE ATENEO

It entails a full-blown hearing and the quantum of it is also vested the power of a public prosecutor
proof required to secure a conviction beyond with the exclusive authority to conduct the
reasonable doubt. preliminary investigation and the prosecution of
election offenses punishable under the Code
Electoral aspect: determination of whether the before the competent court. Thus, when the
offender should be disqualified from office. This is COMELEC, through its duly authorized law officer,
done through an administrative proceeding which is conducts the preliminary investigation of an election
summary in character and requires only offense and upon a prima facie finding of a probable
preponderance of evidence. cause, files the information in the proper court, said
court thereby acquires jurisdiction over the case.
CONSTITUTIONAL RULE. COMELEC has the (People v. Delgado, G.R. Nos. 93419-32)
power to investigate and, where appropriate,
prosecute cases of violations of election laws, CONCURRENT WITH THE DOJ/PROSECUTING
including acts or omissions constituting ARMS OF THE GOVERNMENT. Section 265 of the
election frauds, offenses, and malpractices. Omnibus Election Code was amended by Section
(Sec. 2(6), Art. IX-C, 1987 Constitution) 43 of R.A. No. 9369, which provides: The
Commission shall, through its duly authorized legal
The grant to COMELEC of the power, among officers, have the power, concurrent with the other
others, to enforce and administer all laws prosecuting arms of the government, to conduct
relative to the conduct of election and the preliminary investigation of all election offenses
concomitant authority to investigate and punishable under this Code, and to prosecute the
prosecute election offenses is not without same.”
compelling reason. This is to insure the free,
orderly, honest conduct of elections, failure of which The Commission shall have the exclusive power to
would result in the frustration of the true will of the conduct preliminary investigation of all election
people and make a mere idle ceremony of the offenses punishable under the election laws and
sacred right and duty of every qualified citizen to to prosecute the same, except as may otherwise
vote. (De Jesus v. People, G.R. No. L-61998) be provided by law. [Sec. 1, Rule 34, COMELEC
Rules of Procedure]
An examination of the provisions of the
Constitution and the Election Code of 1978
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HOWEVER, the Chief State Prosecutor, all (2) No EPC Violation. Unlike the matter addressed
Provincial and City Fiscals, and/or their by the Court's ruling in Biraogo v. Philippine Truth
respective assistants are given continuing Commission of 2010, Joint Order No. 001-2011
authority, as deputies of the Commission, to cannot be nullified on the ground that it singles out
conduct preliminary investigation of complaints the officials of the Arroyo Administration and,
involving election offenses under the election therefore, it infringes the equal protection clause.
laws which may be filed directly with them, or The Philippine Truth Commission of 2010 was
which may be indorsed to them by the expressly created for the purpose of investigating
Commission or its duly authorized alleged graft and corruption during
representatives and to prosecute the same. Such the Arroyo Administration since Executive Order
authority may be revoked or withdrawn any time No. 1 77 specifically referred to the "previous
by the Commission whenever in its judgment such administration"; while the Joint Committee was
revocation or withdrawal is necessary to protect the created for the purpose of conducting
integrity of the Commission, promote the common preliminary investigation of election offenses
good, or when it believes that successful during the 2004 and 2007 elections.
prosecution of the case can be done by the
Commission. [Sec. 2, Rule 34, COMELEC Rules of (3) No Abdication by COMELEC of
Procedure] Constitutional Mandate to Prosecute Election
Offenses. While the composition of the Joint
Initiation of complaint for election offenses may be Committee and Fact-Finding Team is dominated by
done motu proprio by the Commission, or upon DOJ officials, it does not necessarily follow that the
written complaint by any citizen of the Comelec is inferior. Under the Joint Order,
Philippines, candidate, registered political party, resolutions of the Joint Committee finding
coalition of political parties or organizations probable cause for election offenses shall still
under the partylist system or any accredited be approved by the Comelec in accordance with
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citizens arms of the Commission. [Sec. 3, Rule the Comelec Rules of Procedure. This shows
34, COMELEC Rules of Procedure] that the Comelec, though it acts jointly with the
DOJ, remains in control of the proceedings. In
If the complaint is initiated motu proprio by the no way can we say that the Comelec has thereby
Commission, or is filed with the Commission by any abdicated its independence to the
aggrieved party, it shall be referred to the Law executive department. The text and intent of the
Department for investigation. Upon direction of constitutional provision granting the Comelec the
the Chairman of the Commission, the preliminary authority to investigate and prosecute election
investigation may be delegated to any lawyer of offenses is to give the Comelec all the necessary
said Department, or to any of the Regional Election and incidental powers for it to achieve the
Directors or Provincial Election Supervisors, or any objective of holding free, orderly, honest,
lawyer of the Commission. [Sec. 5, Rule 34, peaceful, and credible elections. The Comelec
COMELEC Rules of Procedure] should be allowed considerable latitude in devising
means and methods that will insure the
Thus, the Supreme Court in Arroyo v. DOJ laid down accomplishment of the great objective for which it
the following rules: was created. We may not agree fully with its
choice of means, but unless these are clearly illegal
(1) No Legal Impediment in the creation of a or constitute gross abuse of discretion, this Court
COMELEC-DOJ Joint Committee and Fact- should not interfere. Thus, Comelec Resolution
Finding Team. It is, therefore, not only the power No. 9266, approving the creation of the Joint
but the duty of both the Comelec and the DOJ to Committee and Fact-Finding Team, should be
perform any act necessary to ensure the prompt and viewed not as an abdication of the
fair investigation and prosecution of election constitutional body's independence but as a
offenses. Pursuant to the above constitutional and means to fulfill its duty of ensuring the prompt
statutory provisions, and as will be explained further investigation and prosecution of election
below, we find no impediment for the Comelec and offenses as an adjunct of its
the DOJ to create the Joint Committee and Fact- mandate of ensuring a free, orderly, honest,
Finding Team for the purpose of conducting a peaceful and credible elections. (Arroyo v.
thorough investigation of the alleged massive Department of Justice, G.R. Nos. 199082, 199085
electoral fraud and the manipulation of election & 199118, [September 18, 2012], 695 PHIL 302-
results in the 2004 and 2007 national elections 429)
relating in particular to the presidential and
senatorial elections. ————- end of topic ————
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IV. LOCAL GOVERNMENT A. PUBLIC CORPORATIONS

Public Corporations
TOPIC OUTLINE UNDER THE SYLLABUS Public Corporations are “other corporations,
institutions and entities for public interest or
A. PUBLIC CORPORATIONS purpose, created by law; their personality begins as
1. Concept; Distinguished from Government- soon as they have been constituted according to
Owned or Controlled Corporations law.” (Article 44, Civil Code)
2. Classifications
a. Quasi-corporations Such corporations are governed by the laws
b. Municipal Corporations creating or recognizing them. (Art. 45, Civil Code;
Boy Scouts of the Philippines v. Commission on
B. PRINCPLES OF LOCAL AUTONOMY Audit, G.R. No. 177131, 2011)
C. AUTONOMOUS REGIONS AND THEIR These [public] corporations are treated by law as
RELATION TO THE NATIONAL agencies or instrumentalities of the government
GOVERNMENT which are not subject to the tests of ownership or
control and economic viability but to different criteria
D. LOCAL GOVERNMENT UNIT (LGU) relating to their public purposes/interests or
1. Powers constitutional policies and objectives and their
2. Liability of LGUs administrative relationship to the government or any
3. Settlement of Boundary Disputes of its Departments or Offices. (Boy Scouts of the
4. Vacancies and Succession of Local Philippines v. Commission on Audit, GR No.
Officials 177131, 7 June 2011)
5. Recall
6. Term Limits
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1. CONCEPT; DISTINGUISHED FROM
GOCCS
Definition of a GOCC
Government-Owned or -Controlled Corporation
(GOCC) - refers to any agency organized as a stock
or nonstock corporation, vested with functions
relating to public needs whether governmental or
proprietary in nature, and owned by the Government
of the Republic of the Philippines directly or through
its instrumentalities either wholly or, where
applicable as in the case of stock corporations, to
the extent of at least a majority of its outstanding
capital stock: Provided, however, That for purposes
of this Act, the term "GOCC" shall include
GICP/GCE and GFI as defined herein. (GOCC
Governance Act of 2011, Republic Act No. 10149,
[June 6, 2011])
Chartered GOCC refers to a GOCC, including

Government Financial Institutions, created and
vested with functions by a special law. [Section 3(f),
Republic Act No. 10149, GOCC Governance Act of
2011]
Non-chartered GOCC refers to a GOCC organized

and operating under Batas Pambansa Bilang 68, or
"The Corporation Code of the Philippines." (Section
3(p), Republic Act No. 10149, GOCC Governance
Act of 2011)
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Attributes of a GOCC
Three attributes make an entity a GOCC: b. Municipal Corporations
(1) organization must be stock or non-stock;
(2) its function must be public in character; A municipal government or municipal corporation is
and a government entity recognized, supported, and
(3) the corporation must be owned by the utilized by the National Government as a part of its
government. Possession of all three government machinery and functions. It actually
attributes is necessary to deem an entity a functions as an extension of the national
GOCC. (Funa vs. MECO, G.R. No. government. (Surigao Electric Co, Inc. v.
193462, 2014) Municipality of Surigao, G.R. No. L-22766)
Stock Corporations
1) Elements
Two requisites must concur before one may be
classified as a stock corporation:
(1) that it has capital stock divided into shares; (1) legal creation;
and (2) corporate name;
(2) that it is authorized to distribute dividends (3) inhabitants; and
and allotments of surplus and profits to its (4) place or territory (Public Corporations,
stockholders. Ruperto G. Martin, 1985).
Both requisites must be present. Non-stock 2) Nature and Functions

corporations. No distribution of any part of their
income to the corporation’s members. (Philippine Dual Nature of Municipal Corporations
Fisheries Development Authority v. Central Board,
G.R. No. 178030, 2010) (1) Governmental: A governmental
subdivision that exercises by delegation a
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Public Corporations vs. GOCCs part of the sovereignty of the State.
Corporations which are not considered (2) Quasi-Private: Stands for the community
Government-owned and controlled are not ipso in the administration of local affairs wholly
facto private corporations. Public corporations are beyond the sphere of public purposes for
treated by law as agencies or instrumentalities of the which its governmental powers are
government which are not subject to the tests of conferred.
ownership or control and economic viability but to
different criteria relating to their public De Facto Municipal Corporations
purposes/interests or constitutional policies and Municipal corporations may exist by prescription
objectives and their administrative relationship to where it is shown that the community has claimed
the government or any of its departments or offices. and exercised corporate powers, with the
knowledge and acquiescence of the legislature, and
2. CLASSIFICATIONS without interruption or objection for a period long
enough to afford title by prescription. (Camid v.
Office of President, G.R. No. 161414, 2005).
a. Quasi-Public Corporations
Municipal Corporation Proper
Quasi-public corporations are private An LGU is a public office, a public corporation, and
corporations that render public service, supply is classified as a municipal corporation proper.
public wants, or pursue other eleemosynary (Public Corporations, Ruperto G. Martin, 1985).
objectives. It must be stressed that a quasi-public Municipal Corporation Proper or Local Government
corporation is a species of private corporations, but may only be created by law, through a legislative
the qualifying factor is the type of service the former act. The President or the Executive Branch of
renders to the public: if it performs a public Government has no power to create local
service, then it becomes a quasi-public governments. (Camid vs. Office of the President,
corporation. (Philippine Society for the Prevention G.R. No. 161414, 2005)
of Cruelty to Animals v. Commission on Audit, GR
No. 169752, 25 September 2007 citing Ruperto G.
Martin, Public Corporations 1-3 (1983))
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3) Requisites for Creation, Environment and Natural Resources (DENR). [Sec.

Conversion, Division, 7, LGC]
Merger or Dissolution
Division and Merger of LGUs
Constitutional Rule and Requirements Division and merger of existing local government
No province, city, municipality, or barangay may be units shall comply with the same requirements
created, divided, merged, abolished, or its boundary herein prescribed for their creation: Provided,
substantially altered, except in accordance with the however, That such division shall not reduce the
criteria established in the Local Government Code income, population, or land area of the local
and subject to approval by a majority of the government unit or units concerned to less than
votes cast in a plebiscite in the political units the minimum requirements prescribed in this
directly affected. [Sec. 10, Art. X] Code: Provided, further, That the income
classification of the original local government
How are LGUs created, divided, merged, unit or units shall not fall below its current
abolished? classification prior to such division.
A local government unit may be created, divided,
merged, abolished, or its boundaries substantially The income classification of local government units
altered either by law enacted by Congress in the shall be updated within six (6) months from the
case of a province, city, municipality, or any other effectivity of this Code to reflect the changes in their
political subdivision, or by ordinance passed by the financial position resulting from the increased
sangguniang panlalawigan or sangguniang revenues as provided herein. [Sec. 8, LGC]
panlungsod concerned in the case of a barangay
located within its territorial jurisdiction, subject to Abolition of LGUs
such limitations and requirements prescribed in this A local government unit may be abolished when its
Code. [Sec. 6, LGC] income, population, or land area has been
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irreversibly reduced to less than the minimum
standards prescribed for its creation under Book III
Creation and Conversion of LGUs
of this Code, as certified by the national agencies
The creation of a local government unit or its
mentioned in Section 7 hereof to Congress or to the
conversion from one level to another level shall be
sangguniang concerned, as the case may be.
based on verifiable indicators of viability and
projected capacity to provide services, to wit:
The law or ordinance abolishing a local
government unit shall specify the province, city,
(a) Income. - It must be sufficient, based on
municipality, or barangay with which the local
acceptable standards, to provide for all essential
government unit sought to be abolished will be
government facilities and services and special
incorporated or merged. [Sec. 9, LGC]
functions commensurate with the size of its
population, as expected of the local government unit
concerned; Plebiscite Requirement
No creation, division, merger, abolition, or
(b) Population. - It shall be determined as the total substantial alteration of boundaries of local
number of inhabitants within the territorial government units shall take effect unless approved
jurisdiction of the local government unit concerned; by a majority of the votes cast in a plebiscite called
and for the purpose in the political unit or units directly
affected. Said plebiscite shall be conducted by the
(c) Land Area. - It must be contiguous, unless it Commission on Elections (COMELEC) within one
comprises two or more islands or is separated by a hundred twenty (120) days from the date of
local government unit independent of the others; effectivity of the law or ordinance effecting such
properly identified by metes and bounds with action, unless said law or ordinance fixes another
technical descriptions; and sufficient to provide for date. [Sec. 10, LGC]
such basic services and facilities to meet the
requirements of its populace. NOTE: This is a constitutional requirement as well.
Compliance with the foregoing indicators shall be The Three-Factor Test. The Court has
attested to by the Department of Finance (DOF), considered three key factors in determining
the National Statistics Office (NSO), and the Lands whether an LGU is a "political unit directly
Management Bureau (LMB) of the Department of affected" by an LGU change or conversion:
territorial alteration, political effects, and
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economic effects. (Del Rosario v. Commission on 2011 Decision
Elections, G.R. No. 247610, [March 10, 2020]) • No reason not to include province in the
exception; IRR meant to correct oversight.
Creation of Province • Congress breathed life into exemption by
(1) By an Act of Congress (By law) enacting RA 9355.
(2) Approval by a majority of the votes cast in • Primordial criterion is economic viability -- AAI
a plebiscite: of PhP82.7 M is 4X more than required.
REMEMBER: ALSO: The creation thereof shall not reduce the

(a) In the LGU unit or units directly land area, population and income of the original unit
affected. or units at the time of said creation to less than the
(b) Shall be held within 120 days from its minimum requirements prescribed herein. [Sec.
effectivity. 461, LGC]
(3) Has average annual income, as certified Creation of City

by the Department of Finance, of not less (1) By an Act of Congress (By law)
than Php20 Million based on 1991 (2) Approval by a majority of the votes cast in
constant prices. a plebiscite:
NOTE: The average annual income shall REMEMBER:

include the income accruing to the general (a) In the LGU unit or units directly
fund, exclusive of special funds, trust funds, affected.
transfers, and non-recurring income. (b) Shall be held within 120 days from its
effectivity.
(4) Has either of the following requisites:
(a) [Land Area] A contiguous territory of (3) Has a municipality or a cluster of
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at least 2,000 square kilometers, as barangays that may be converted.
certified by the Land Management (4) Has a locally generated average annual
Bureau; OR income, as certified by the Department of
Finance, of at least PhP100 Million for
REMEMBER: The territory need not be the last two (2) consecutive years based
contiguous if it comprises two (2) or on 2000 constant prices; (RA 9009)
more islands or is separated by a
chartered city or cities which do not NOTE:
contribute to the income of the • The average annual income shall
province. include the income accruing to the
general fund, exclusive of special
NOTE: There is no provision on the funds, transfers, and non-recurring
exception to the land area requirement income.
(i.e. The land area requirement shall • IRA included in the computation as per
not apply where the proposed province Alvarez v. Guingona.
is composed of one (1) or more
islands) similar to creations of (5) Has either of the following requisites:
municipality and component city. (a) [Land Area] A contiguous territory of
However, Navarro v. Ermita provided a at least 100 square kilometers, as
jurisprudential exception. certified by the Land Management
Bureau; OR
(b) [People] A population of not less than
250,000 inhabitants, as certified by REMEMBER:
the National Statistics Office. • The requirement on land area
shall not apply where the city
Navarro v. Ermita: proposed to be created is
2010 Decision composed of one (1) or more
• Exemption to the land requirement found in the islands.
IRR not in the law; hence, void. • The territory need not be
• Population must be certified by the NSO (in this contiguous if it comprises two
case it wasn’t). (2) or more islands.
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(b) [People] A population of not less than (3) Has an average annual income, as
150,000 inhabitants, as certified by certified by the Provincial Treasurer, of at
the National Statistics Office. least PhP2.5 Million for the last two (2)
consecutive years based on 1991
NOTE: Thus, a component city can be either of constant prices;
the following:
• PhP100M income + 100 square kilometers NOTE:
land area; OR • The average annual income shall
• PhP100M income + 150K inhabitants; OR include the income accruing to the
• PhP100M income + 100 square kilometers general fund of the municipality
land area + 150K inhabitants concerned, exclusive of special
funds, transfers and non-recurring
ALSO: The creation thereof shall not reduce the income.
land area, population and income of the original • IRA included in the computation as per
unit or units at the time of said creation to less than Alvarez v. Guingona.
the minimum requirements prescribed herein.
[Republic Act No. 9009, amending Section 450 of (4) A population of not less than 25,000
the Local Government Code of 1991] inhabitants, as certified by the National
Statistics Office (= at least 25,000
Creation of Highly Urbanized City inhabitants); AND
(1) By Presidential declaration (5) A contiguous territory of at least 50
square kilometers, as certified by the
REMEMBER: Land Management Bureau;
(a) Within thirty (30) days after city shall
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have met the minimum requirements; REMEMBER:
(b) Upon proper application; and • The requirement on land area shall
(c) Ratification in a plebiscite by the not apply where the municipality
qualified voters therein. proposed to be created is composed
of one (1) or more islands.
(2) Any component city • The territory need not be contiguous
(3) Minimum population of 200,000 if it comprises two (2) or more
inhabitants, as certified by the National islands. [Section 442 of the Local
Statistics Office. Government Code of 1991]
NOTE: ALSO: The creation thereof shall not

• By requiring 200K inhabitants, law has reduce the land area, population or
effectively selected/chosen population income of the original municipality or
over land area requirement; thus, okay municipalities at the time of said creation
even if land area less than 100 square to less than the minimum requirements
km. prescribed herein.
(4) Latest annual income of at least PhP50 Creation of Barangay

Million based on 1991 constant prices, (1) By law or by an ordinance
as certified by the city treasurer. [Section Ordinance:
452 of the Local Government Code of 1991] (i) Sangguniang Panglungsod;
or
Creation of Municipality (ii) Sangguniang Panlalawigan
(1) By an Act of Congress (By law) with recommendation of
(2) Approval by a majority of the votes cast in Sangguniang Bayan
a plebiscite:
(2) Population of at least 2,000 inhabitants as
REMEMBER: certified by the National Statistics Office.
• In the LGU unit or units directly
affected. NOTE: At least 5,000 inhabitants
• Shall be held within 120 days from its requirement for: (i) cities and municipalities
effectivity. within Metro Manila; (ii) other metropolitan
political subdivisions; or (iii) HUC.
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revenues and to levy taxes, fees, and
That the creation thereof shall not reduce charges subject to such guidelines and
the population of the original Barangay or limitations as the Congress may provide,
Barangays to less than the minimum consistent with the basic policy of local
requirement prescribed herein. autonomy. Such taxes, fees, and charges
shall accrue exclusively to the local
(3) Contiguous territory only governments. (Section 5, Article X, 1987
Constitution)
NOTE: The territory need not be (f) Local government units shall have a just
contiguous if it comprises two (2) or more share, as determined by law, in the national
islands. [Section 386 of the Local taxes which shall be automatically released
Government Code of 1991] to them. (Section 6, Article X, 1987
Constitution)
(4) Majority of the votes cast in a plebiscite in
the political units directly affected. (Section (g) Local governments shall be entitled to an
10, Article X, 1987 Constitution) equitable share in the proceeds of the
utilization and development of the national
NOTE: Barangay creation has no income wealth within their respective areas, in the
requirement and no land area requirement. manner provided by law, including sharing
the same with the inhabitants by way of
direct benefits. (Section 7, Article X, 1987
B. PRINCIPLES OF LOCAL Constitution)
AUTONOMY
2. DECLARATION OF POLICIES
1. CONSTITUTIONAL RULES AND
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PRINCIPLES The territorial and political subdivisions of the State
shall enjoy genuine and meaningful local autonomy
(a) The State shall ensure the autonomy of to enable them to attain their fullest development as
local governments. (Section 25, Article II, self-reliant communities and make them more
effective partners in the attainment of national goals.
1987 Constitution)
The State shall provide for a more responsive and
(b) The territorial and political subdivisions
accountable local government structure instituted
shall enjoy local autonomy. (Section 2,
through a system of decentralization whereby local
Article X, 1987 Constitution)
government units shall be given more powers,
authority, responsibilities, and resources.
Section 2, Art. X of the Constitution
provides that LGUS “shall enjoy local
The State shall ensure the accountability of local
autonomy.” This is decentralization of
government units through the institution of effective
administration and not decentralization of
mechanisms of recall, initiative and referendum.
power. (Limbona v. Conte Mangelin, G.R.
No. 80391, 1989)
All national agencies and offices are required to
conduct periodic consultations with the appropriate
(c) The Congress shall enact a local LGUs, NGOs, people’s organizations and other
government code which shall provide for a concerned sectors of the community before any
more responsive and accountable local project or program is implemented in their
government structure instituted through a respective jurisdictions. (Sec. 2, 1991 LGC)
system of decentralization. (Section 3,
Article X, 1987 Constitution) Unitary Form of Government
Ours is still a unitary form of government, not a
(d) The President of the Philippines shall federal state. Being so, any form of autonomy
exercise general supervision over local granted to local governments will necessarily be
governments. (Section 4, Article X, 1987 limited and confined within the extent allowed
Constitution) by the central authority. Besides, the principle of
local autonomy under the 1987 Constitution simply
(e) Each local government unit shall have the means “decentralization.” (Lina, Jr. v. Paño, G.R.
power to create its own sources of
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No. 129093, 2001, citing Basco v. PAGCOR, G.R. (League of Provinces of the Philippines vs. DENR,
No. 91649, 1991) G.R. No. 175368, 2013)
Thus, the principle of local autonomy under the c. Political Autonomy

Constitution simply means ‘decentralization’. It does
not make the local government sovereign within a In Cordillera Broad Coalition v. Commission on
State or an imperium in imperio. (Basco v. Audit, the Court, with the same composition, ruled
PAGCOR, G.R. No. 91649, 1991) without any dissent that the creation of
autonomous regions contemplates the grant of
3. THREE FACETS OF LOCAL political autonomy — an autonomy which is
AUTONOMY greater than the administrative autonomy
granted to local government units. It held that
Local autonomy means a more responsive and "the constitutional guarantee of local autonomy in
accountable local government structure the Constitution (Art. X, Sec. 2) refers to
instituted through a system of decentralization. administrative autonomy of local government units
(Villafuerte, Jr. v. Robredo, G.R. No. 195390, 2014 or, cast in more technical language, the
citing Ganzon v. Court of Appeals, G.R. No. 93252, decentralization of government authority. . . . On the
1991) other hand, the creation of autonomous regions in
a. Fiscal Autonomy Muslim Mindanao and the Cordilleras, which is
peculiar to the 1987 Constitution, contemplates the
Fiscal autonomy means that local governments grant of political autonomy and not just
have the power to create their own sources of administrative autonomy to these regions."
revenue in addition to their equitable share in (Disomangcop v. Datumanong, G.R. No. 149848,
the national taxes released by the National 2004, citing Cordillera Broad Coalition v. COA, G.R.
Government, as well as the power to allocate No. 79956, 1990)
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their resources in accordance with their own
priorities. Such autonomy is as indispensable to Self-Reliant Communities
the viability of the policy of decentralization as the The commitment of the Constitution to the policy of
other. (Mandanas v. Ochoa, Jr., G.R. Nos. 199802 local autonomy which is intended to provide the
& 208488, 2018 citing Pimentel v. Aguirre, G.R. No. needed impetus and encouragement to the
132988, 2000) development of our local political subdivisions as
"self-reliant communities." In the words of Jefferson,
It extends to the preparation of their budgets, and "Municipal corporations are the small republics from
local officials in turn have to work within the which the great one derives its strength." (Philippine
constraints thereof. (Villafuerte, Jr. v. Robredo, G.R. Gamefowl Commission v. Intermediate Appellate
No. 195390, 2014 citing Pimentel v. Aguirre, G.R. Court, G.R. Nos. 72969-70, 1986)
No. 132988, 2000)
Interdependence with the National Government
b. Administrative Autonomy Autonomy is not meant to end the relation of
partnership and interdependence between the
central administration and LGUs, or otherwise, to
The constitutional guarantee of local autonomy
usher in a regime of federalism. (Ganzon vs. Court
in the Constitution Art. X, Sec. 2 refers to the
of Appeals, G.R. No. 93252,1991)
administrative autonomy of local government
units or, cast in more technical language, the
National Government Intervention Consistent
decentralization of government authority. It
with National Goals
does not make local governments sovereign
Local autonomy does not rule out any manner of
within the State. Administrative autonomy may
national government intervention by way of
involve devolution of powers, but subject to
supervision, in order to ensure that local programs,
limitations like following national policies or
fiscal and otherwise, are consistent with national
standards, and those provided by the Local
goals. (Villafuerte, Jr. v. Robredo, G.R. No. 195390,
Government Code, as the structuring of local
December 10, 2014 citing Pimentel v. Aguirre, G.R.
governments and the allocation of powers,
No. 132988, 2000)
responsibilities, and resources among the different
local government units and local officials have been
placed by the Constitution in the hands of Congress
under Section 3, Article X of the Constitution.
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No Undue Interference by the National
Government NOTE: Applies also to the BARMM.
The objective of "self-reliant communities” through
local autonomy could be blunted by undue Favoring Local Autonomy
interference by the national government in purely Where a law is capable of two interpretations, one
local affairs which are best resolved by the officials in favor of centralized power and the other beneficial
and inhabitants of such political units. (Belgica v. to local autonomy, the scales must be weighed in
Ochoa, G.R. No. 208566, 2013 citing Philippine favor of autonomy. (San Juan vs. Civil Service
Gamefowl Commission v. IAC, G.R. No. 72969-70, Commission, G.R. No. 92299, 1991)
1986)
Liberal Construction
NOTE: Thus, the 2013 PDAF Article, as well as all
other similar forms of Congressional Pork Barrel, is General Welfare Clause. Every local government
deemed unconstitutional insofar as individual unit shall exercise the powers expressly granted,
legislators (as national officials) are authorized to those necessarily implied therefrom, as well as
intervene (by overriding or duplicating local powers necessary, appropriate, or incidental for its
programs, policies, and resolutions) in purely local efficient and effective governance, and those which
matters and thereby subvert genuine local are essential to the promotion of the general
autonomy. (Belgica, et..al., v. Ochoa, et. al., G.R. welfare. Within their respective territorial
No. 208566, 2013) jurisdictions, local government units shall ensure
and support, among other things, the preservation
Power to Streamline and Organize and enrichment of culture, promote health and
Local autonomy also grants local governments the safety, enhance the right of the people to a balanced
power to streamline and reorganize. This power is ecology, encourage and support the development of
inferred from Section 76 of the Local Government appropriate and self-reliant scientific and
Code on organizational structure and staffing technological capabilities, improve public morals,
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pattern, and Section 16 otherwise known as the enhance economic prosperity and social justice,
general welfare clause. (City of General Santos vs. promote full employment among their residents,
COA, G.R. No. 199439, 2014) maintain peace and order, and preserve the comfort
and convenience of their inhabitants. (Section 16,
NOTE: There shall be a continuing mechanism to Local Government Code of 1991, Republic Act No.
enhance local autonomy not only by legislative 7160, [October 10, 1991])
enabling acts but also by administrative and
organizational reforms. (Section 3(h), 1991 LGC) The general welfare provisions in this Code shall
be liberally interpreted to give more powers to
Statutory Right of LGUs local government units in accelerating economic
Executive agencies like the DBM cannot disregard development and upgrading the quality of life for the
statutory right of LGUs to nominate local officials for people in the community. (Section 5c, Local
appointment. (San Juan vs. Civil Service Government Code of 1991, Republic Act No. 7160,
Commission, G.R. No. 92299, 1991) [October 10, 1991])
National Priority Programs. The Mandanas Interpretation of the Modified

Under Sec. 17 of the LGC is that, unless an LGU is Dillon's Rule . [A] municipal corporation possesses
particularly designated as the implementing agency, and can exercise the following powers and no
it has no power over a program for which funding others: First, those granted in express words;
has been provided by the national government second, those necessarily or fairly implied in or
under the annual general appropriations act, even if incident to the powers expressly granted; third,
the program involves the delivery of basic services those essential to the declared objects and
within the jurisdiction of the LGU. A complete purposes of the corporation-not simply convenient
relinquishment of central government powers on the but indispensable; fourth, Any fair and reasonable
matter of providing basic facilities and services doubt as to the existence of the power shall be
cannot be implied as the Local Government Code interpreted in favor of the local government unit
itself weighs against it. xxx Local autonomy is not concerned; [Mandanas v. Ochoa, Jr., G.R. Nos.
absolute. The national government still has the say 199802 & 208488, July 3, 2018]
when it comes to national priority programs which
the local government is called upon to implement. Thus, consistent with the declared policy to provide
(Imbong v. Ochoa, G.R. No. 204819, 2014) local government units genuine and meaningful
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local autonomy, contiguity and minimum land area burden of managing

requirements for prospective local government units local affairs so that it
should be liberally construed in order to achieve the can concentrate on
desired results. (Navarro vs. Ermita, G.R. No. national concerns.
180050, 2011) (Mandanas v. Ochoa,
Jr., G.R. Nos. 199802
Residual Power & 208488, 2018)
A local government unit may exercise its residual
power to tax when there is neither a grant nor a Decentralization through 2 LGU Groups:
prohibition by statute. (Alta Vista Golf and Country (1) The decentralization of power has been given to
Club vs. City of Cebu, G.R. No. 180235, 2016) the regional units (namely, the Autonomous Region
for Muslim Mindanao (ARMM) and the
4. DECENTRALIZATION constitutionally-mandated Cordillera Autonomous
Region (CAR).
a. Power vs. Administration
The regional autonomy of the ARMM and the CAR
The constitutional mandate to ensure local aims to permit determinate groups with common
autonomy refers to decentralization. In its broad or traditions and shared social-cultural characteristics
general sense, decentralization has two forms in the to freely develop their ways of life and heritage, to
Philippine setting, namely: the decentralization of exercise their rights, and to be in charge of their own
power and the decentralization of administration. affairs through the establishment of a special
governance regime for certain member
communities who choose their own authorities from
Decentralization of Power vs. Decentralization
within themselves, and exercise the jurisdictional
of Administration
authority legally accorded to them to decide their
DECENTRLIZATION DECENTRALIZATION
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internal community affairs.
OF POWER OF
ADMINISTRATION
DEFINITION It is to be underscored, however, that the
decentralization of power in favor of the regional
The decentralization On the other hand, the
units is not unlimited but involves only the powers
of power involves decentralization of
enumerated by Section 20, Article X of the 1987
the abdication of administration
Constitution and by the acts of Congress. For, with
political power in occurs when the
various powers being devolved to the regional units,
favor of the central government
the grant and exercise of such powers should
autonomous LGUs delegates
always be consistent with and limited by the 1987
as to grant them the administrative
Constitution and the national laws. In other words,
freedom to chart powers to the LGUs
the powers are guardedly, not absolutely, abdicated
their own destinies as the means of
by the National Government.
and to shape their broadening the base
futures with of governmental
NOTE: Sec. 20, Art. X of the 1987 Constitution
minimum powers and of
provides: Within its territorial jurisdiction and subject
intervention from making the LGUs
to the provisions of this Constitution and national
the central more responsive and
laws, the organic act of autonomous regions shall
government. This accountable in the
provide for legislative powers over:
amounts to self- process, and thereby
(1) Administrative organization;
immolation because ensure their fullest
(2) Creation of sources of revenues;
the autonomous development as self-
(3) Ancestral domain and natural resources;
LGUs thereby reliant communities
(4) Personal, family, and property relations;
become accountable and more effective
(5) Regional urban and rural planning
not to the central partners in the
development;
authorities but to their pursuit of the goals
(6) Economic, social, and tourism
constituencies. of national
development;
development and
(7) Educational policies;
social progress. This
(8) Preservation and development of the
form of
cultural heritage; and
decentralization further
relieves the central
government of the
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(9) Such other matters as may be authorized government to the LGUs for the performance of
by law for the promotion of the general certain functions. It is a more liberal form of
welfare of the people of the region. decentralization because there is an actual
transfer of powers and responsibilities. It aims
Illustrative of the limitation is Sema v. Commission to grant greater autonomy to the LGUs in
on Elections, where the Court struck down Section cognizance of their right to self-government, to
19, Article VI of R.A. No. 9054 (An Act to Strengthen make them self-reliant, and to improve their
and Expand the Organic Act for the Autonomous administrative and technical capabilities.
Region in Muslim Mindanao, Amending for the
Purpose Republic Act No. 6734, entitled "An Act NOTE: Do not confuse with Decentralization of
Providing for the Autonomous Region in Muslim Power.
Mindanao," as Amended) insofar as the provision
granted to the ARMM the power to create provinces As used in the Local Government Code, the
and cities, and consequently declared as void term "devolution" refers to the act by which
Muslim Mindanao Autonomy Act No. 201 creating the national government confers power and
the Province of Shariff Kabunsuan for being contrary authority upon the various local government
to Section 5, Article VI and Section 20, Article X of units to perform specific functions and
the 1987 Constitution, as well as Section 3 of the responsibilities. (Sec. 17(e), 1991 LGC)
Ordinance appended to the 1987 Constitution. The
Court clarified therein that only Congress could The devolution contemplated in the Local
create provinces and cities. This was because the Government Code shall include the transfer
creation of provinces and cities necessarily entailed to local government units of the records,
the creation of legislative districts, a power that only equipment, and other assets and personnel
Congress could exercise pursuant to Section 5, of national agencies and offices
Article VI of the 1987 Constitution and Section 3 of corresponding to the devolved powers,
the Ordinance appended to the Constitution; as functions, and responsibilities. (Sec. 17(i),
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such, the ARMM would be thereby usurping the 1991 LGC)
power of Congress to create legislative districts and
national offices. (Mandanas v. Ochoa, Jr., G.R. Nos. Decentralization of Power vs. Devolution
199802 & 208488, 2018) (Political Decentralization)
GENERAL CONTROL
(2) The other group of LGUs (i.e., provinces, cities, SUPERVISION
municipalities and barangays) enjoy the DEFINITION
decentralization of administration. The decentralization When there is a
of power involves transfer of powers,
The provinces, cities, municipalities and barangays the abdication of responsibilities, and
are given decentralized administration to make political power in resources from the
governance at the local levels more directly favor of the central government
responsive and effective. In turn, the economic, autonomous LGUs to the LGUs for the
political and social developments of the smaller as to grant them the performance of
political units are expected to propel social and freedom to chart their certain functions.
economic growth and development. (Mandanas v. own destinies and to
Ochoa, Jr., G.R. Nos. 199802 & 208488, 2018) shape their futures Thus:
with minimum (1)Transfer is
d. Four Categories of intervention from the SPECIFIC to certain
Decentralization central government. functions, powers,
responsibilities, and
As a system of transferring authority and power from NOTE: Not absolute; resources. (e.g. a
the National Government to the LGUs, subject to public hospital
decentralization in the Philippines may be Constitution. devolved from NG to
categorized into four, namely: LGU);
Thus:
(1) Political Decentralization or Devolution (1) Abdication of (2) Applied to all
political power LGUs except regional
Political decentralization or devolution occurs autonomies (since
when there is a transfer of powers, they have political
responsibilities, and resources from the central power already
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(2) Limited to through to 'ensure that local affairs are administered

autonomous regions Decentralization of according to law.' He has no control over their acts
(i.e. BARMM) Power that includes in the sense that he can substitute their judgments
devolution). with his own." Thus, Section 4, Article X of
the Constitution, states: “Section 4. The President
of the Philippines shall exercise general supervision
(2) Administrative Decentralization or over local governments. Provinces with respect to
Deconcentration component cities and municipalities, and cities and
municipalities with respect to component
Administrative decentralization or barangays, shall ensure that the acts of their
deconcentration involves the transfer of component units are within the scope of their
functions or the delegation of authority prescribed powers and functions.” (Villafuerte, Jr. v.
and responsibility from the national Robredo, G.R. No. 195390, 2014 citing Limbona v.
office to the regional and local Mangelin, G.R. No. 80391, 1989)
offices. Consistent with this concept, the
LGC has created the Local School Power of General Supervision vs. Power of
Boards, the Local Health Boards and Control
the Local Development Councils, and GENERAL CONTROL
has transferred some of the authority from SUPERVISION
the agencies of the National Government, DEFINITION
like the Department of Education and the The President's power of The President shall
Department of Health, to such bodies to general supervision exercise general
better cope up with the needs of particular means the power of a supervision over the
localities. superior officer to see to Bangsamoro
it that subordinates Government to ensure
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(3) Fiscal Decentralization perform their functions that laws are faithfully
according to law. executed. (Sec. 1, Art.
Fiscal decentralization means that the VI, R.A. No. 11054)
LGUs have the power to create their own
sources of revenue in addition to their This is distinguished
just share in the national taxes released
by the National Government. It includes
the power to allocate their resources in
accordance with their own priorities. It thus
from the President's
power of control
which is the power to
alter or modify or set
extends to the preparation of their budgets, aside what a
so that the local officials have to work within subordinate officer
the constraints of their budgets. had done in the
performance of his
(4) Policy or Decision-making duties and to
Decentralization substitute the
judgment of the
Lastly, policy or decision-making President over that of
decentralization exists if at least one sub- the subordinate
national tier of government has officer. The power of
exclusive authority to make decisions control gives the
on at least one policy issue (ex. Regional President the power to
Development Councils). (Mandanas v. revise or reverse the
Ochoa, Jr., G.R. Nos. 199802 & 208488, acts or decisions of a
2018) subordinate officer
involving the exercise of
e. President’s Power of General discretion. (Villafuerte,
Supervision Jr. v. Robredo, G.R. No.
195390, 2014 citing
To safeguard the state policy on local autonomy, Province of Negros
the Constitution confines the power of the President Occidental v.
over LGUs to mere supervision. "The President Commissioners,
exercises 'general supervision' over them, but only
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Commission on Audit, (1) Allocate among the different local

G.R. No. 182574, 2010) government units their powers,
responsibilities, and resources, and
provide for the qualifications, election,
Power to Investigate and Discipline appointment and removal, term,
LGUs are still under the supervision of the salaries, powers and functions and
President and maybe held accountable for duties of local officials, and all other
malfeasance or violations of existing laws. matters relating to the organization and
“Supervision is not incompatible with discipline. operation of the local units, (Section 3,
And the power to discipline and ensure that the laws Article X, 1987 Constitution)
be faithfully executed must be construed to
authorize the President to order an investigation of (2) Prescribe guidelines and limitations on
the act or conduct of local officials when in his sources of local government revenues
opinion the good of the public service so and local power to levy taxes, fees, and
requires.” Clearly then, the President’s power of charges provided these are consistent with
supervision is not antithetical to investigation and the basic policy of local autonomy. (Section
imposition of sanctions. (Villafuerte, Jr. v. Robredo, 5, Article X, 1987 Constitution) Each local
G.R. No. 195390, 2014 citing Hon. Joson v. Exec. government unit shall have the power to
Sec. Torres, G.R. No. 131255, 1998) create its own sources of revenues and to
levy taxes, fees, and charges subject to
Power to Review such guidelines and limitations as the
Supervision involves the power to review the Congress may provide, consistent with the
executive orders and ordinances, i.e., declare them basic policy of local autonomy. Such taxes,
ultra vires or illegal. (Sections 30, 56 and 57, 1991 fees, and charges shall accrue exclusively
LGC). to the local governments.
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NOTE: This is still consistent with the purpose of (3) Determine the just share in the national
supervision, i.e. making sure that LGU actions are taxes of local governments. (Section 6,
in accordance with law. Article X, 1987 Constitution) Local
government units shall have a just share,
Non-interference as determined by law, in the national taxes
The President has only the power of supervision which shall be automatically released to
over LGUs. He cannot interfere with the local them.
governments as long as they act within the (4) Provide the manner by which local
scope of their authority. (Pimentel v. Aguirre, governments receive their equitable
G.R. No. 132988, 2000) share in the proceeds of the utilization
and development of the national wealth
f. Power of Congress over LGUs within their respective areas. (Section 7,
Article X, 1987 Constitution) Local
Congress exercises power over local government governments shall be entitled to an
units through its constitutional power of equitable share in the proceeds of the
legislation, but not in the form of administrative utilization and development of the national
supervision or control. Congress retains “control” of wealth within their respective areas, in the
the LGUs although in a significantly reduced degree manner provided by law, including sharing
now than under previous Constitutions. The power the same with the inhabitants by way of
to create still includes the power to destroy. The direct benefits.
power to grant still includes the power to
withhold or recall. The National Legislature is still (5) Set the term limits of barangay officials.
the principal of the LGUs, which cannot defy its will, (Section 8, Article X, 1987 Constitution)
or modify or violate its laws. (Magtajas vs. Pryce Under R.A. No. 9164, the current term of
Properties and Philippine Amusements and Gaming office of elective barangay officials is three
Corporation, G.R. No. 111097, 1994) years. The term of office of elective local
officials, except barangay officials, which
Thus, under the 1987 Constitution, Congress has shall be determined by law, shall be three
the power of the following LGU matters and affairs: years and no such official shall serve for
more than three consecutive terms.
Voluntary renunciation of the office for any
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interruption in the continuity of his service However, the Court further clarified that it
for the full term for which he was elected. is inaccurate to declare that a local
government unit's territory, and by
(6) Prescribe the manner by which sectoral extension, its territorial jurisdiction, can
representatives shall be installed in only be over land that is contiguous.
local legislative bodies (Section 9, Article When the territory consists of one (1) or
X, 1987 Constitution). Legislative bodies of more islands, territorial jurisdiction can also
local governments shall have sectoral be exercised over all waters found inland,
representation as may be prescribed by or in any area that is part of its seabed,
law. subsoil, or continental margin, "in the
manner provided by law(.)" (Republic v.
(7) Define the criteria for the creation, Provincial Government of Palawan, G.R.
division, merger, abolition and Nos. 170867 & 185941 (Resolution),
substantial alteration of boundaries of January 21, 2020)
local governments. (Section 10, Article X,
1987 Constitution) Unfortunately for the Province of Palawan,
it was still not entitled to the equitable
(8) Establish special metropolitan political share. The Court resolved that none of
subdivisions. (Section 11, Article X, 1987 the parties have presented maps or
Constitution) The Congress may, by law, statutes that conclusively prove that the
create special metropolitan political Camago-Malampaya reservoirs are
subdivisions, subject to a plebiscite as set within the Province of Palawan. Thus,
forth in Section 10 hereof. The component the Court was constrained to uphold the
cities and municipalities shall retain their ruling that the area remains under the
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basic autonomy and shall be entitled to territorial jurisdiction of the Republic,
their own local executives and legislative unless otherwise provided by law.
assemblies. The jurisdiction of the (Republic v. Provincial Government of
metropolitan authority that will hereby be Palawan, G.R. Nos. 170867 & 185941
created shall be limited to basic services (Resolution), 2020)
requiring coordination.
(2) The Court reaffirmed the established
(9) Pass the organic act of the autonomous general rule that "regardless of the
regions. (Section 18, Article X, 1987 source or classification of land in the
Constitution) possession of a
(10) Provide for exemption to devolution municipality, excepting those acquired
such as nationally-funded projects, with its own funds in its private or
facilities, programs and services since the corporate capacity, such property is
power of Congress to legislate on all held in trust for the State for the benefit
matters of common interest is plenary. of its inhabitants, whether it be for
(Imbong v. Ochoa, G.R. No. 204819, 2014) governmental or proprietary purposes.
It holds such lands subject to
Congress Control over LGU Properties the paramount power of the legislature to
LGUs are still very much subject to the laws passed dispose of the same, for after all it owes
by Congress, including the public properties within its creation to it as an agent for the
their territorial jurisdiction save for those which were performance of a part of its public work, the
acquired in their private or corporate capacity. municipality being but a subdivision or
instrumentality thereof for purposes of local
Thus: administration. (Sangguniang
Panlalawigan of Bataan v. Garcia, Jr., G.R.
(1) The territorial jurisdiction of LGUs are No. 174964, 2016)
limited to the land area and physical metes
and bounds as defined in their charters and (3) Article 424 of the Civil Code lays down the
does not extend to the continental shelf for basic principles that properties of the
purposes of determining the equitable public dominion devoted to public use
share. (Republic v. Provincial Government and made available to the public in
of Palawan, G.R. Nos. 170867 & 185941, general are outside the commerce of men
2018) (persons) and cannot be disposed of or
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leased by the LGU to private persons. C. AUTONOMOUS REGIONS AND
(Macasiano vs. Diokno, G.R. no. 97764, THEIR RELATION TO THE
August 10, 1992)
NATIONAL GOVERNMENT
(4) Pursuant to the Regalian doctrine, any land
that has never been acquired through 1. 1987 CONSTITUTION
purchase, grant or any other mode of
acquisition remains part of the public a. The Autonomous Regions
domain and is owned by the State. LGUs
cannot appropriate to themselves public The autonomous regions provided by the
lands without prior grant from the Constitution are:
government (Rural Bank of Anda vs. (a) Autonomous regions in Muslim Mindanao
Roman Catholic Archbishop of Lingayen- (b) Autonomous regions in the Cordilleras.
Dagupan, G.R. No. 155051, May 21, 2007) (Section 15, Article X, 1987 Constitution)
(5) A lot comprising the public plaza is b. Composition

property of public dominion; hence, not
susceptible to private ownership by the Autonomous regions consist of provinces,
church or by the municipality. (Roman cities, municipalities, and geographical areas
Catholic Bishop of Kalibo, Aklan vs. sharing common and distinctive historical and
Municipality of Buruanga, Aklan, G.R. No. cultural heritage, economic and social
149145, 2006) structures, and other relevant characteristics
within the framework of this Constitution and
(6) The conversion of the public plaza into a the national sovereignty as well as territorial
commercial center is beyond the integrity of the Republic of the Philippines. (Sec.
municipality’s jurisdiction considering the
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15, Art. X, 1987 Constitution)
property’s nature as one for public use and
thereby, forming part of the public In Province of North Cotabato v. GRP, the
dominion. Accordingly, it cannot be the Bangsamoro Juridical Entity (BJE) was struck down
object of appropriation either by the State as being unconstitutional for being outside the
or by private persons. Nor can it be the framework of the Constitution, which contemplates
subject of lease or any other contractual only of one Philippine State. No province, city, or
undertaking. (Land Bank of the Philippines municipality, not even the ARMM, is recognized
v. Cacayuran, G.R. No. 191667, 2013; In under our laws as having
an Amended Decision dated April 22, 2015, an "associative" relationship with the national
the Second Division set aside the decision government. Indeed, the concept implies powers
and remanded the case) that go beyond anything ever granted by the
Constitution to any local or regional government. It
(7) A city can validly reconvey a portion of its also implies the recognition of the associated
street that has been closed or entity as a state. The Constitution, however, does
withdrawn from public use where not contemplate any state in this jurisdiction
Congress has specifically delegated to other than the Philippine State, much less does
such political subdivision, through its it provide for a transitory status that aims to
charter, the authority to regulate its prepare any part of Philippine territory for
streets. Such property withdrawn from independence. (Province of North Cotabato v.
public servitude to be used or conveyed for Government of the Republic of the Philippines
any purpose for which other property Peace Panel on Ancestral Domain, G.R. Nos.
belonging to the city may be lawfully used 183591, 183752, 183893, 183951 & 183962, 2008)
or conveyed. (Figuracion vs. Libi, G.R. No.
155688, 2007)
c. General Supervision
The President shall exercise general supervision

over autonomous regions to ensure that laws are
faithfully executed. (Section 16, Article X, 1987
Constitution)
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d. National Government (9) Such other matters as may be authorized

by law for the promotion of the general
All powers, functions, and responsibilities not welfare of the people of the region. (Sec.
granted by this Constitution or by law to the 20, Art. X, 1987 Constitution)
autonomous regions shall be vested in the
National Government. (Sec. 17, Art. X, 1987 Thus, the autonomous regions do not have
Constitution) treaty-making powers since it’s not among the
enumeration under Sec. 20, Art. X. Again on the
e. Organic Act premise that the BJE may be regarded as an
autonomous region, the MOA-AD would require an
The Congress shall enact an organic act for each amendment that would expand the above-quoted
autonomous region with the assistance and provision. The mere passage of new legislation
participation of the regional consultative pursuant to sub-paragraph No. 9 of said
commission composed of representatives constitutional provision would not suffice, since any
appointed by the President from a list of new law that might vest in the BJE the powers found
nominees from multisectoral bodies. The organic in the MOA-AD must, itself, comply with other
act shall define the basic structure of government provisions of the Constitution. It would not do, for
for the region consisting of the executive instance, to merely pass legislation vesting the
department and legislative assembly, both of BJE with treaty-making power in order to
which shall be elective and representative of the accommodate paragraph 4 of the strand on
constituent political units. The organic acts shall RESOURCES which states: "The BJE is free to
likewise provide for special courts with personal, enter into any economic cooperation and trade
family, and property law jurisdiction consistent relations with foreign countries: provided, however,
with the provisions of this Constitution and national that such relationships and understandings do not
laws. (Sec. 18, Art. X, 1987 Constitution) include aggression against the Government of the
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Republic of the Philippines . . . ." Under our
constitutional system, it is only the President
f. Effectivity
who has that power. (Province of North Cotabato
v. Government of the Republic of the Philippines
The creation of the autonomous region shall Peace Panel on Ancestral Domain, G.R. Nos.
be effective when approved by majority of 183591, 183752, 183893, 183951 & 183962,
the votes cast by the constituent units in a October 14, 2008)
plebiscite called for the purpose, provided
that only provinces, cities, and geographic h. Peace and Order
areas voting favorably in such plebiscite
shall be included in the autonomous region. The preservation of peace and order within the
(Sec. 18, Art. X, 1987 Constitution) regions shall be the responsibility of the local
police agencies which shall be organized,
g. Legislative Powers of the maintained, supervised, and utilized in accordance
autonomous Regions with applicable laws. (Sec. 21, Art. X, 1987
Constitution)
Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the i. Defense and Security
organic act of autonomous regions shall provide
for legislative powers over: The defense and security of the regions shall be the
(1) Administrative organization; responsibility of the National Government. (Sec.
(2) Creation of sources of revenues; 21, Art. X, 1987 Constitution
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations; j. Requirements for the Creation
(5) Regional urban and rural planning of an Autonomous Region
development;
(6) Economic, social, and tourism (1) Either Muslim Mindanao or Cordilleras.
development; (2) By an Organic Act from Congress (by law).
(7) Educational policies; (3) With the assistance and participation of
(8) Preservation and development of the the regional consultative commission
cultural heritage; and composed of representatives appointed by
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the President from a list of nominees from individual constituent units and not a double majority
multisectoral bodies. of the votes in all constituent units put together, as
(4) The organic act shall define the basic well as in the individual constituent units. (Abbas v.
structure of government for the region Commission on Elections, G.R. Nos. 89651 &
consisting of the executive department 89965, 1989)
and legislative assembly, both of which
shall be elective and representative of The sole province of Ifugao cannot validly
the constituent political units. constitute the Cordillera Autonomous Region.
(5) The organic acts shall likewise provide It is explicit in Article X, Section 15 of the 1987
for special courts with personal, family, Constitution that: "Section 15. There shall be
and property law jurisdiction consistent created autonomous regions in Muslim Mindanao
with the provisions of this Constitution and and in the Cordillera consisting of provinces,
national laws. cities, municipalities and geographical
(6) The creation of the autonomous region areas sharing common and distinctive historical and
shall be effective when approved by cultural heritage, economic and social structures,
majority of the votes cast by the and other relevant characteristics within the
constituent units in a plebiscite called framework of this Constitution and the national
for the purpose, provided that only sovereignty as well as territorial integrity of the
provinces, cities, and geographic areas Republic of the Philippines." The keywords —
voting favorably in such plebiscite shall provinces, cities, municipalities and
be included in the autonomous region. geographical areas connote that "region" is to
(Sec. 18, Art. X, 1987 Constitution) be made up of more than one constituent unit.
The term "region" used in its ordinary sense
Cordillera Administrative Region is means two or more provinces. This is supported
Constitutional by the fact that the thirteen (13) regions into which
A reading of E.O. No. 220 will easily reveal that what the Philippines is divided for administrative
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it actually envisions is the consolidation and purposes are groupings of contiguous provinces.
coordination of the delivery of services of line (Integrated Reorganization Plan (1972), which was
departments and agencies of the National made as part of the law of the land by P.D. No.
Government in the areas covered by the 1; P.D. No. 742) Ifugao is a province by itself. To
administrative region as a step preparatory to the become part of a region, it must join other
grant of autonomy to the Cordilleras. It does not provinces, cities, municipalities, and
create the autonomous region contemplated in the geographical areas. It joins other units because of
Constitution. It merely provides for transitory their common and distinctive historical and cultural
measures in anticipation of the enactment of an heritage, economic and social structures and other
organic act and the creation of an autonomous relevant characteristics. The Constitutional
region. (Cordillera Broad Coalition v. Commission requirements are not present in this case. (Ordillo v.
on Audit, G.R. No. 79956, 82217, 1990) Commission on Elections, G.R. No. 93054, 1990)
Majority Vote in Each Constituent Units 2. RA 11054: ORGANIC LAW FOR THE
Comparing Article XVIII, Section 27 of the
BANGSAMORO AUTONOMOUS
Constitution with the provision on the creation of the
autonomous region under Art. X, Sec. 18. par. 2, it REGION IN MUSLIM MINDANAO
will readily be seen that the creation of the
autonomous region made to depend, not on the NOTE: As per the Bar Syllabus, included are the
total majority vote in the plebiscite, but on the will of salient points that highlight the intergovernmental
the majority in each of the constituent units and the relations between the National Government and
proviso underscores this. For if the intention of the BARMM.
framers of the Constitution was to get the majority of
the totality of the votes cast, they could have simply a. Purpose
adopted the same phraseology as that used for the
ratification of the Constitution, i.e. "the creation of The purpose of this Organic Law is to establish a
the autonomous region shall be effective when political entity, provide for its basic structure of
approved by a majority of the votes cast in a government in recognition of the justness and
plebiscite called for the purpose." It is thus clear that legitimacy of the cause of the Bangsamoro people
what is required by the Constitution is a simple and the aspirations of Muslim Filipinos and all
majority of votes approving the Organic Act in indigenous cultural communities in the
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Bangsamoro Autonomous Region in Muslim

Mindanao to secure their identity and posterity, g. General Welfare Clause
allowing for meaningful self-governance within the
framework of the Constitution and the national The Bangsamoro Government shall exercise the
sovereignty as well as territorial integrity of the powers expressly granted, those necessarily
Republic of the Philippines. (Sec. 3, Art. I, RA implied therefrom, as well as powers necessary,
11054) appropriate, or incidental for its efficient and
effective governance and those which are essential
b. Bangsamoro People to the promotion of general welfare. Within its
territorial jurisdiction, the Bangsamoro Government
Those who, at the advent of the Spanish shall ensure and support, among other things, the
colonization, were considered natives or preservation and enrichment of culture, promote
original inhabitants of Mindanao and the Sulu health and safety, enhance the right of the people to
archipelago and its adjacent islands, whether of a balanced ecology, encourage and support the
mixed or of full blood, shall have the right to development of appropriate and self-reliant
identify themselves, their spouses and scientific and technological capabilities, improve
descendants, as Bangsamoro. (Sec. 1, Art. II, RA public morals, enhance economic prosperity and
11054) social justice, promote full employment among its
residents, maintain peace and order, and preserve
c. Territorial Jurisdiction the comfort and convenience of its inhabitants. (Sec.
3, Art. V, RA 11054)
Territorial jurisdiction is the land mass as well as the
waters over which the Bangsamoro Autonomous h. General Supervision
Region has jurisdiction, which shall always be an
integral, indivisible, and inseparable part of the The President shall exercise general supervision
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national territory of the Republic of the Philippines over the Bangsamoro Government to ensure that
as defined by the Constitution and existing laws. laws are faithfully executed. The President may
(Sec. 1, Art. III, RA 11054) suspend the Chief Minister for a period not
exceeding six (6) months for willful violation of
d. Territorial Integrity and the Constitution, national laws, or this Organic
Allegiance Law. (Sec. 1, Art. VI, RA 11054)
The Bangsamoro Autonomous Region is an NOTE: The President’s power to discipline via
integral, indivisible, and inseparable part of the suspension is consistent with the power of general
territory of the Republic of the Philippines. The supervision as it’s intended to ensure faithful
Bangsamoro people shall uphold compliance with the Constitution and laws (including
the Constitution as the fundamental law of the the BARMM Organic Act). Dismissal is not included
land and unequivocally owe allegiance and in the power.
fidelity to the Republic of the Philippines. (Sec.
1, Art. IV, RA 11054) i. Intergovernmental Relations
Body
e. International Treaties and
Agreements There is hereby created a National Government-
Bangsamoro Government Intergovernmental
The Bangsamoro Government shall respect and Relations Body, hereinafter referred to
adhere to all international treaties and as "Intergovernmental Relations Body," to
agreements binding upon the National coordinate and resolve issues on
Government. (Sec. 8, Art. IV, RA 11054) intergovernmental relations through regular
consultation and continuing negotiation in a non-
adversarial manner.
f. Powers of the National
Government The Intergovernmental Relations Body shall
exhaust all means to resolve issues brought
All powers, functions, and responsibilities not before it. Unresolved issues shall be elevated to
granted by the Constitution or by national law to the the President, through the Chief Minister.
Bangsamoro Government shall be vested in the
National Government. (Sec. 1, Art. V, RA 11054)
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The National Government and the Bangsamoro inclusion in the General Appropriations Act.
Government shall each appoint representatives to Funding for national roads, bridges, and
the Intergovernmental Relations Body. The irrigation systems shall be regularly released to the
Intergovernmental Relations Body shall be relevant departments of the National Government.
supportive by a joint secretariat. (Sec. 2, Art. VI, (Sec. 37, Art. XIII, RA 11054)
RA 11054)
(3) Intergovernmental Energy Board
j. Philippine Congress – It shall resolve all matters specified in
Bangsamoro Parliament Forum Section 36, Article XIII of this Organic Law
(i.e. power generation including
There shall be created a Philippine Congress- investments, distribution utilities, Agus
Bangsamoro Parliament Forum for purposes of Hydropower Complex) and other energy
cooperation and coordination of legislative issues. (Sec. 7, Art. VI, RA 11054)
initiatives. (Sec. 3, Art. VI, RA 11054)
(4) Bangsamoro Sustainable Development
Board
k. Intergovernmental Bords &
It shall ensure the integration and
Joint Body harmonization of economic, social, and
environmental considerations as vital
(1) Intergovernmental Fiscal Policy Board dimensions of sustainable development
It shall address revenue imbalances and policy and practice in the Bangsamoro
fluctuations in regional financial needs Autonomous Region. (Sec. 8, Art. VI, RA
and revenue-raising capacity of the 11054)
Bangsamoro Government. (Sec. 4, Art. VI,
RA 11054) (5) Joint Body for the Zones of Joint
Cooperation
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(2) Intergovernmental Infrastructure It shall be responsible for formulating
Development Board policies relating to the Zones of Joint
It shall be responsible for coordinating and Cooperation in the Sulu Sea and Moro
synchronizing national and Bangsamoro Gulf. (Sec. 5, Art. VI, RA 11054)
infrastructure development plans. (Sec.
6, Art. VI, RA 11054)
l. Bangsamoro Government and
its Constituent LGU
NOTE: The National Government shall fund and
implement the construction and maintenance of
national roads, bridges, water supply and The authority of the Bangsamoro Government to
services, and flood control and irrigation regulate the affairs of its constituent local
systems and for the maintenance of existing government units shall be guaranteed in
airports, seaports, and wharves in the accordance with this Organic Law and a
Bangsamoro Autonomous Region: Provided, Bangsamoro local government code to be
That with regard to water supply and services, flood enacted by the Parliament. The privileges already
control, and irrigation systems that connect to or enjoyed by local government units under Republic
from facilities outside the Bangsamoro Autonomous Act No. 7160, otherwise known as the "Local
Region, there shall be cooperation and coordination Government Code of 1991," as amended, and other
between the Bangsamoro Government and the existing laws shall not be diminished.
appropriate national or local government bodies. All
national roads and bridges in the Bangsamoro The Parliament may create, divide, merge, abolish,
Autonomous Region shall be included in the or substantially alter boundaries of municipalities or
National Road Network Information System. barangays in accordance with a law enacted by the
Nationally-funded infrastructure projects shall be Parliament. The municipalities or barangays
implemented by the National Government. created, divided, merged, or whose boundaries are
substantially altered, shall be entitled to their
The Bangsamoro Government shall submit appropriate share in the national taxes or Internal
proposals to the appropriate national government Revenue Allotment: Provided, That the criteria laid
agency for the inclusion of the cost of such down in Republic Act No. 7160, as amended, and
maintenance in the latter's budget that shall be other national laws shall be satisfied: Provided,
submitted to the Congress of the Philippines for further, That it shall be approved by a majority of the
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votes cast in a plebiscite in the political units directly The power to impose any tax under this Organic
affected. Law shall be exercised by the Parliament, through
an appropriate legislation, which shall not be
When such acts require the creation of a enacted without any prior public hearing conducted
legislative district, the Bangsamoro for the purpose. The Bangsamoro Government shall
Government shall cooperate and coordinate evolve a progressive, responsive, and culture
with the National Government through the sensitive system of taxation which shall, among
Philippine Congress-Bangsamoro Parliament other things, provide for incentives for the prompt
Forum to prioritize the deliberations on the payment of taxes and penalize tax evasion and
creation of a legislative district. delinquency.
Nothing in this Organic Law shall be construed Nothing in this provision shall preclude any
to allow the Bangsamoro Government to create future legislation on national taxes nor allow
legislative districts. (Sec. 10, Art. VI, RA 11054) both National Government and Bangsamoro
Government to impose similar taxes on the
m. Bangsamoro Participation in same entity. (Sec. 7, Art. XII, RA 11054)
National Government
p. Limitations on Bangsamoro
As far as practicable, the Bangsamoro Government Taxation
shall be represented in the departments, offices,
commissions, agencies and bureaus of the National Unless otherwise provided herein, the taxing
Government that implement and enforce policies, power of the Bangsamoro Government shall not
programs, and projects of the National Government extend to the following:
in the Bangsamoro Autonomous Region. (Sec. 11,
Art. VI, RA 11054) (a) Income tax, except when levied on banks
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and other financial institutions;
n. National Programs and
Projects (b) Customs duties, registration fees of vessels
and wharfage on wharves, tonnage dues,
and all other kinds of customs fees,
National programs and projects such as
charges, and dues except vessels which
the Pantawid Pamilyang Pilipino Program, Health
are registered by their owners with the
Facility Enhancement Program, School Building
Bangsamoro Government and wharfage on
Program, retained hospitals of the Department of
wharves constructed and maintained by the
Health, PhilHealth, social pension for senior
Bangsamoro Government or its constituent
citizens, and the Task Force Bangon Marawi shall
local government units;
continue to be funded by the National
Government, without prejudice to the power of
(c) Taxes, fees, or charges and other
the Bangsamoro Government to provide for
impositions upon goods carried into or out
supplemental funding for such programs and
of, or passing through the territorial
projects. (Sec. 13, Art. VI, RA 11054)
jurisdictions of the provinces, cities,
municipalities, or barangays in the
o. Uniform and Equitable Bangsamoro Autonomous Region in the
Taxation guise of charges for wharfage, tolls for
bridges or otherwise, or other taxes, fees,
The Parliament shall exercise, subject to the or charges in any form whatsoever upon
provisions of the Constitution, the power to levy such goods or merchandise, except tolls on
taxes, fees, and charges, which shall inure solely to bridges or roads constructed and
the benefit of the Bangsamoro Autonomous maintained by the Bangsamoro
Region: Provided, That the principles of uniformity Government or its constituent provinces,
and equity in taxation shall be observed: Provided, cities, municipalities, or barangays
further, That such shall not be unjust, excessive, concerned;
oppressive, confiscatory, or contrary to public
policy: Provided, furthermore, That their collection (d) Taxes, fees, or charges on agricultural and
shall not be delegated to any private person. aquatic products when sold by marginal
farmers or fisherfolk;
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(e) Taxes on business enterprises certified by (1) Capital Gains Tax. — Tax imposed on the
the Board of Investments or by the gains presumed to have been realized by
Parliament as pioneer or non-pioneer for a the seller from the sale, exchange, or other
period of six (6) and four (4) years, disposition of real properties, classified as
respectively, from the date of registration; capital assets, including pacto de
retro sales and other forms of conditional
(f) Excise taxes on articles enumerated under sale;
the National Internal Revenue Code of
1997, as amended, and taxes, fees, or (2) Documentary Stamp Tax. — Tax on
charges on petroleum products; documents, instruments, loan agreements,
and papers evidencing the acceptance,
(g) Percentage or value-added tax on sales, assignment, sale, or transfer of the
barters, or exchanges or similar obligation, right or property incident thereto;
transactions on goods or services except
as otherwise provided by national law; (3) Donor's Tax. — Tax on a donation or gift
that is imposed on the gratuitous transfer of
(h) Taxes on the gross receipts of property between two (2) or more persons
transportation contractors and persons who are living at the time of the transfer. It
engaged in the transportation of shall apply whether the transfer is in trust or
passengers or freight by hire and common otherwise, whether the gift is direct or
carriers by air, land, or water except as indirect, and whether the property is real or
provided in this Organic Law; personal, tangible or intangible; and
(i) Taxes on premiums paid by way of (4) Estate Tax. — Tax on the right of the
reinsurance or retrocession; deceased person to transmit to the lawful
heirs and beneficiaries of the deceased
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(j) Taxes, fees, or other charges on Philippine person at the time of death and on certain
products actually exported, except as transfers, which are made by law as
otherwise provided by law enacted by the equivalent to testamentary disposition.
Congress of the Philippines;
In case the Parliament does not impose the
(k) Taxes, fees, or charges on countryside and abovementioned taxes, the Bureau of Internal
barangay business enterprises and Revenue of the National Government shall
cooperatives duly registered continue to levy and collect said taxes: Provided,
under Republic Act No. 6810, otherwise That if the Bangsamoro Government shall impose
known as the "Magna Carta for them, the tax rates shall be pursuant to the National
Countryside and Barangay Business Internal Revenue Code of 1997, as
Enterprises," and Republic Act No. 6938, amended: Provided, further, That in no case shall
otherwise known as the "Cooperative Code the abovementioned taxes be imposed and
of the Philippines," as amended; and collected by both the Bureau of Internal Revenue
and the Bangsamoro Government.
(l) Taxes, fees, or charges of any kind on the
National Government, its agencies and The Intergovernmental Fiscal Policy Board shall
instrumentalities, and local government promulgate rules on the determination of
units except on government-owned or taxable elements in relation to taxes (1) to (4)
controlled corporations or entities that are above, and the sharing of revenues from the
primarily organized to do business. (Sec. 9, collection of such taxes where the taxable
Art. XII, RA 11054) elements are both situated within and outside of
the Bangsamoro territorial jurisdiction. Any
q. Allowable Bangsamoro dispute between the National Government and the
Taxation Bangsamoro Government arising from the
imposition of the above taxes shall be resolved by
Bangsamoro territorial jurisdiction, the Parliament the Intergovernmental Fiscal Policy Board. (Sec. 9,
may impose the following taxes to the exclusion Art. XII, RA 11054)
of the Bureau of Internal Revenue of the National
Government:
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r. Sharing of Taxes Collected by (3) Those applicable to all municipal

the National Government corporations or to the class to which it
National Government taxes, fees, and charges belongs;
collected in the Bangsamoro Autonomous Region, (4) Special acts of the legislature; and
other than tariff and customs duties, shall be shared (5) Charter.
as follows:
Four Categories of Powers Exercised by LGUs
(a) Twenty-five percent (25%) to the National (1) Powers expressly granted
Government: Provided, That for the first ten (2) Powers necessarily implied therefrom
(10) years following the effectivity of this (3) Powers necessary, appropriate, or
Organic Law, this share shall accrue to the incidental for efficient and effective
Bangsamoro Government: Provided, governance
further, That after this first ten (10)-year (4) Powers essential to the promotion of the
period, upon petition of the Bangsamoro general welfare. (Sec. 16, 1991 LGC)
Government, the National Government
may extend the period as it shall deem REMEMBER: Any provision on a power of a local
necessary; and government unit shall be liberally interpreted in its
favor, and in case of doubt, any question thereon
(b) Seventy-five percent (75%) to the shall be resolved in favor of devolution of powers
Bangsamoro Government, inclusive of the and of the lower local government unit. Any fair and
shares of the constituent local government reasonable doubt as to the existence of the power
units. shall be interpreted in favor of the local government
unit concerned. (Sec. 5(a), 1991 LGC)
The shares in taxes, fees, and charges provided
under this section shall be separate and distinct Within their respective territorial jurisdictions,
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from the annual block grant appropriated to the LGUs shall ensure and support:
Bangsamoro Government under Section 15 of this (a) Preservation and enrichment of culture
Article. (Sec. 10, Art. XII, RA 11054) (b) Promotion of health and safety
(c) Enhancement of the right of the people to a
balanced ecology
s. Annual Block Grant
(d) Development of self-reliant scientific and
The National Government shall provide an annual technological capabilities
block grant which shall be the share of the (e) Improvement of public morals
Bangsamoro Government in the national internal (f) Enhancement of economic prosperity and
revenue tax collections of the Bureau of Internal social justice
Revenue and collections of the Bureau of Customs. (g) Promotion of full employment among
The amount shall be sufficient for the exercise of the residents
powers and functions of the Bangsamoro (h) Maintenance of peace and order
Government under this Organic Law and in no case (i) Preservation of the comfort and
shall be less than the last budget received by the convenience of its inhabitants.
Autonomous Region in Muslim Mindanao (Sec. 16, 1991 LGC)
immediately before the establishment of the
Bangsamoro Autonomous Region. (Sec. 15, Art. XII, a. Police Power (General Welfare
RA 11054) Clause)
D. LOCAL GOVERNMENT UNIT Police Power, Definition

(LGU) The police power is a governmental function, an
inherent attribute of sovereignty, which was born
with civilized government. It is founded largely on
1. POWERS OF LOCAL
the maxims, “Sic utere tuo et alienum non laedas”
GOVERNMENT UNITS, IN GENERAL and “Salus populi est suprema lex.” Its fundamental
purpose is securing the general welfare, comfort
Sources of the powers of LGUs and convenience of the people. Police power is the
(1) Constitution; power to prescribe regulations to promote the
(2) Statute; health, morals, peace, education, good order or
safety and general welfare of the people. It is the
most essential, insistent, and illimitable of powers.
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In a sense it is the greatest and most powerful ecology, encourage and support the development of
attribute of the government. It is elastic and must be appropriate and self-reliant scientific and
responsive to various social conditions. (Sangalang, technological capabilities, improve public morals,
et al. vs. IAC, 176 SCRA 719). On it depends the enhance economic prosperity and social justice,
security of social order, the life and health of the promote full employment among their residents,
citizen, the comfort of an existence in a thickly maintain peace and order, and preserve the comfort
populated community, the enjoyment of private and and convenience of their inhabitants.”
social life, and the beneficial use of property, and it
has been said to be the very foundation on which Two Branches of the General Welfare Clause
our social system rests. (16 C.J.S., p. 896)
However, it is not confined within narrow (1) General legislative power
circumstances of precedents resting on past Authorizes municipal councils to enact ordinances
conditions; it must follow the legal progress of a and make regulations not repugnant to law and may
democratic way of life. (Sangalang, et al. vs. be necessary to carry into effect and discharge the
LAC, supra). (Binay v. Domingo, G.R. No. 92389, powers and duties conferred upon the municipal
1991) council by law. (Fernando v. St. Scholastica’s
College, G.R. No. 161107, 2013 citing Rural Bank
Negatively put, police power is "that inherent of Makati v. Municipality of Makati, G.R. No. 150763,
and plenary power in the State which enables it 2004)
to prohibit all that is hurtful to the comfort,
safety, and welfare of society." (Ermita-Malate Examples of General Legislative Power:
Hotel and Motel Operators Association, Inc. v. City (a) The ordinances imposing licenses and
Mayor of Manila, G.R. No. L-24693, 1967) requiring permits for any business
establishment, for purposes of regulation
Police power is inherent in the state but not in enacted by the municipal council, fall within
municipal corporations (Balacuit v. CFI of Agusan the purview of the first branch of the general
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del Norte, 163 SCRA 182). Before a municipal welfare clause. Moreover, the ordinance of
corporation may exercise such power, there the municipality imposing the annual
must be a valid delegation of such power by the business tax is part of the power of taxation
legislature which is the repository of the vested upon local governments. Hence,
inherent powers of the State. A valid delegation the closure of a business establishment for
of police power may arise from express delegation, non-payment of local business taxes is a
or be inferred from the mere fact of the creation of valid exercise of police power. (Rural Bank
the municipal corporation; and as a general rule, of Makati v. Municipality of Makati, G.R. No.
municipal corporations may exercise police powers 150763, 2004)
within the fair intent and purpose of their creation
which are reasonably proper to give effect to the (b) LGU may properly order the removal and
powers expressly granted, and statutes conferring closure (including demolition) of illegally
powers on public corporations have been construed constructed establishments for failure to
as empowering them to do the things essential to secure the necessary permits. This is
the enjoyment of life and desirable for the safety of because, in the exercise of police power
the people. (Binay v. Domingo, G.R. No. 92389, and the general welfare clause, property
1991) rights of individuals may be subjected to
restraints and burdens in order to fulfil the
Thus, that valid statutory delegation of police power objectives of the government. (Aquino v.
is now the General Welfare Clause in Sec. 16 of the Municipality of Malay, G.R. No. 211356,
Local Government Code: “Every local government 2014)
unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as (c) In ordering the closure of bingo operations,
powers necessary, appropriate, or incidental for its LGU was exercising their duty to implement
efficient and effective governance, and those which laws and ordinances which include the
are essential to the promotion of the general local government's authority to issue
welfare. Within their respective territorial licenses and permits for business
jurisdictions, local government units shall ensure operations in the city. This authority is
and support, among other things, the preservation granted to them as a delegated exercise of
and enrichment of culture, promote health and the police power of the State. (City of
safety, enhance the right of the people to a balanced
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Bacolod v. Phuture Visions, G.R. No. A person is the real party-in-interest to assail the
190289, 2018) constitutionality and legality of the ordinances
because he is a registered co-owner of a residential
(2) Police Power Proper property in the city and that he paid property tax
Authorizes the municipality to enact ordinances as which already included the SHT and the garbage
may be proper and necessary for the health and fee. He has substantial right to seek a refund of the
safety, prosperity, morals, peace, good order, payments he made and to stop future imposition.
comfort and convenience of the municipality and its While he is a lone petitioner, his cause of action to
inhabitant, and for the protection of their property. declare the validity of the subject ordinances is
(Fernando v. St. Scholastica’s College, G.R. No. substantial and of paramount interest to similarly
161107, 2013 citing Rural Bank of Makati v. situated property owners in the city. (Ferrer v.
Municipality of Makati, G.R. No. 150763, 2004) Bautista, G.R. No. 210551, 2015)
Examples of Police Power: Requisites for Valid Exercise of Police Power

(a) Ordinance regulating operation of massage As with the State, the local government may be
clinics, but not to regulate the practice of considered as having properly exercised its police
massage, to prevent the commission of power only if the following requisites are met:
immorality and the practice of
prostitution. (Physical Therapy v. (1) The interests of the public generally, as
Municipal Board of the City of Manila, G.R. distinguished from those of a particular
No. L-10448, 1957) class, require the interference of the State
(LAWFUL SUBJECT); and
(b) Ordinance requiring registration before (2) The means employed are reasonably
entry to motels to safeguard public morals. necessary for the attainment of the object
(Ermita-Malate Hotel v. City Mayor of sought to be accomplished and not unduly
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Manila, G.R. No. L-24693, 1976) oppressive upon individuals (LAWFUL
METHOD).
NOTE: Ordinance also prohibited renting
rooms more than twice every 24 hours, Otherwise stated, there must be a concurrence
which was previously held to be valid in of a lawful subject and lawful method. (Lucena
Ermita-Malate Hotel, BUT which has been Grand Central Terminal Inc. v. JAC Liner Inc., G.R.
rendered unconstitutional in White Light No. 148339, 2005; also SJS v. Lim, G.R. No.
Corporation v. City of Manila, G.R. No. 187836, 2014 and Fernando v. St. Scholastica’s
122846, 2009. College, G.R. No. 161107, 2013)
(c) Ordinance reclassifying land from industrial Two-Pronged Test to Consider an Ordinance as
to commercial that consequently prohibited a Valid Police Power Measure
the operation of an oil depot to safeguard To be considered as a valid police power measure,
the rights to life, security, and safety of the an ordinance must pass a two-pronged test:
inhabitants of Manila. (SJS v. Atienza, GR
No. 156052, 2008; SJS v. Lim, G.R. No. (1) FORMAL (i.e. whether the ordinance is
187836, 2014) enacted within the corporate powers of the
LGU, and whether it is passed in
(d) An ordinance extending burial assistance accordance with the procedure prescribed
of P500 to a bereaved family whose gross by law); and
income does not exceed P2,000 a month, (2) SUBSTANTIVE (i.e., involving inherent
has been upheld by the as a valid exercise merit, like the conformity of the ordinance
of police power. (Binay v. Domingo, G.R. with the limitations under the Constitution
No. 92389, 1991) and the statutes, as well as with the
requirements of fairness and reason, and
(e) Ordinances regulating waste removal carry its consistency with public policy).
a strong presumption of validity. (Mosqueda v. Pilipino Growers, G.R. No.
Necessarily, LGUs are statutorily 189185, 2016)
sanctioned to impose and collect such
reasonable fees and charges for services For an ordinance to be valid, it must not only be
rendered. (Ferrer v. Bautista, G.R. No. within the corporate powers of the LGU to enact and
210551, 2015) be passed according to the procedure prescribed by
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law, it must also conform to the following substantive rights, including the basic liberties guaranteed under
requirements: the Constitution, or (ii) burdens suspect
(1) must not contravene the Constitution or any classes. XXX Thus, the government has the burden
statute; of proving that the classification is: (i) Necessary to
(2) must not be unfair or oppressive; achieve a compelling State interest, and (ii) The
(3) must not be partial or discriminatory; least restrictive means to protect such interest or the
(4) must not prohibit but may regulate trade; means chosen is narrowly tailored (or narrowly
(5) must be general and consistent with public drawn) to accomplish the interest. (SPARK v.
policy and Quezon City, G.R. No. 225442, 2017 citing Disini v.
(6) must not be unreasonable. (SJS v. Atienza, Secretary of Justice, G.R. No. 203335, 2014)
G.R. No. 156052, 2008)
Thus, in the curfew ordinances imposed by the City
Tests to Determine Constitutionality of an of Manila, Navotas City, and Quezon City on minors,
Ordinance there is compelling state interest in attempting to
To successfully invoke the exercise of police power substantiate legitimate concerns on public welfare,
as the rationale for the enactment of an ordinance especially with respect to minors. As compared to
and to free it from the imputation of constitutional the Manila and Navotas ordinances, the list of
infirmity, two tests have been used by the Court — exceptions under the Quezon City Ordinance is
the rational relationship test and the strict scrutiny more narrowly drawn to sufficiently protect the
test (and also the intermediate scrutiny test): minors’ rights of association, free exercise of
religion, travel, to peaceably assemble, and of
(1) Rational Basis or Relationship Test free expression. (SPARK v. Quezon City, G.R. No.
225442, 2017
Often applied mainly in analysis of equal protection
challenges. Using the rational basis examination, (3) Intermediate Scrutiny Test
laws or ordinances are upheld if they rationally
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further a legitimate governmental interest. Under
intermediate review, governmental interest is
extensively examined and the availability of less
restrictive measures is considered.
There is also the intermediate scrutiny test when a
classification does not involve suspect classes or
fundamental rights, but requires heightened
scrutiny, such as in classifications based on gender
and legitimacy. (SPARK v. Quezon City, G.R. No.
Under the rational relationship test, an ordinance 225442, 2017)
must pass the following requisites as discussed
in Social Justice Society (SJS) v. Atienza, Jr.: As This test has also been applied to regulations or
with the State, local governments may be restrictions affecting the freedom of speech and
considered as having properly exercised their expression in relation to determining if it is a content-
police power only if the following requisites are neutral regulation. Being a content-neutral
met: (1) the interests of the public generally, as regulation, the same is measured against the
distinguished from those of a particular class, intermediate test, viz.: (1) the regulation is within the
require its exercise and (2) the means employed constitutional power of the government; (2) it
are reasonably necessary for the furthers an important or substantial governmental
accomplishment of the purpose and not unduly interest; (3) such governmental interest is unrelated
oppressive upon individuals. In short, there must to the suppression of the free expression; and (4)
be a concurrence of a lawful subject and lawful the incidental restriction on the alleged freedom of
method. (Fernando v. St. Scholastica's College, expression is no greater than what is essential to the
G.R. No. 161107, 2013) furtherance of the governmental interest. (Nicolas-
Lewis v. Commission on Elections, G.R. No.
(2) Strict Scrutiny Test 223705, 2019)
Applying strict scrutiny, the focus is on the presence Barangay Police Power
of compelling, rather than substantial, governmental
interest and on the absence of less restrictive (1) The punong barangay, as the chief
means for achieving that interest. (Fernando v. St. executive of the barangay government,
Scholastica’s College, G.R. No. 161107, 2013) shall exercise such powers and perform
such duties and functions for efficient,
The strict scrutiny test applies when a classification effective and economical governance, the
either (i) interferes with the exercise of fundamental purpose of which is the general welfare of
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the barangay and its inhabitants pursuant lays down the parameters for its exercise. (Masikip
to Section 16 of the LGC. (Sec. 389, 1991 v. City of Pasig, G.R. No. 136349, 2006)
LGC)
Thus, strictly speaking, the power of eminent
(2) The Barangay Assembly cannot exercise domain delegated to an LGU is in reality not eminent
any police power. Under Section 398 of the but "inferior" since it must conform to the limits
LGC, it can only recommend to the imposed by the delegation and thus partakes only of
Sangguniang Barangay the adoption of a share in eminent domain. The national legislature
measures for the welfare of the barangay is still the principal of the LGUs and the latter cannot
and decide on the adoption of an initiative. go against the principal's will or modify the same.
(Sec. 398, 1991 LGC) (Beluso v. Municipality of Panay, G.R. No. 153974,
2006)
(3) Also, the Liga ng mga Barangay cannot
exercise legislative powers. It is not a local Requisites of Eminent Domain
government unit and its primary purpose is (1) Expropriation should be for a Public use or
to determine representation of the liga in purpose or for the welfare of the poor or
the sanggunians, to ventilate, articulate and landless.
crystallize issues affecting barangay (2) Ordinance authorizing the local chief
government administration, and to secure executive to subject a certain property to
solutions for them through proper and legal expropriation
means. (Onon v. Fernandez, G.R. No. (3) Payment of Just compensation
139813, 2001) (4) Valid and definite Offer previously made to
owner which was not accepted.
b. Eminent Domain (5) Exercised by the LGU through its Chief
executive. (Sec. 19, 1991 LGC)
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Eminent Domain, Definition
The power of eminent domain has been defined as Jurisdiction
the right of a government to take and appropriate An expropriation suit falls under the jurisdiction of
private property to public use, whenever the public the RTCs. The subject of an expropriation suit is the
exigency requires it, which can be done only on government’s exercise of eminent domain, a matter
condition of providing a reasonable compensation
therefor. It has also been described as the power of
the State or its instrumentalities to take private
property for public use and is inseparable from
that is incapable of pecuniary estimation. (Barangay
San Roque v. Heirs of Pastor, G.R. No. 138896,
2000)
sovereignty and inherent in government. (Masikip v. Due Process Requirements

City of Pasig, G.R. No. 136349, 2006) The property owner must be afforded a reasonable
opportunity to be heard on the issues of public use
REMEMBER: Private property shall not be taken for and just compensation and to present objections to
public use without just compensation. (Sec. 9, Art. and claims on them.
III, 1987 Constitution) Otherwise stated, private
property can be taken provided: It is settled that taking of property for a private use
(1) For public use; or without just compensation is a deprivation of
(2) With just compensation. property without due process of law. Moreover, it
has to be emphasized that taking of private property
Nature of Power of LGU without filing any complaint before a court of law
The power of eminent domain is lodged in the under Rule 67 of the Rules of Court or existing laws
legislative branch of the government. It delegates is patently felonious, confiscatory, and
the exercise thereof to local government units, other unconstitutional.
public entities and public utility corporations, subject
only to Constitutional limitations. As such, local Judicial notice can be taken of some instances
governments have no inherent power of eminent wherein some government agencies or corporations
domain and may exercise it only when expressly peremptorily took possession of private properties
authorized by statute. Section 19 of the Local and usurped the owner's real rights for their
Government Code of 1991 (Republic Act No. 7160) immediate use without first instituting the required
prescribes the delegation by Congress of the power court action. Running roughshod over the property
of eminent domain to local government units and rights of individuals is a clear and gross breach of
the constitutional guarantee of due process, which
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should not be countenanced in a society where the Constitution on all matters relating to pleadings,
rule of law holds sway. (Barangay Sindalan v. CA, practice, and procedure.
GR No. 150640, 2007)
Requisites for the Immediate Possession by
Judicial Review LGU
Judicial review of the exercise of eminent domain is The LGU may immediately take possession of the
limited to the following areas of concern: property:
(a) the adequacy of the compensation, (1) Upon the filing of the expropriation
(b) the necessity of the taking, and proceedings; and
(c) the public use character of the purpose of (2) Upon making a deposit with the proper
the taking. (Masikip v. City of Pasig, GR No. court of at least fifteen percent (15%) of the
136349, 2006) fair market value of the property based on
the current tax declaration of the property
Just Compensation to be expropriated. (Sec. 19, 1991 LGC)
(1) The determination of “just compensation” in
eminent domain cases is a judicial function. Upon compliance with these requirements, the
Hence, a statutory provision on a fixed issuance by the RTC of a writ of possession
formula in the computation of just becomes ministerial. (Iloilo City v. Legaspi, G.R. No.
compensation in cases of acquisition of 154614, 2004)
easements of right of way is not binding
upon the Court. (National Power Corp. v. Genuine Necessity of the Taking
Ileto, G.R. No. 169957, 2012) The right to take private property for public purposes
necessarily originates from "the necessity" and the
(2) The determination of just compensation is taking must be limited to such necessity.
a judicial function and any valuation for just
compensation laid down in the statutes In City of Manila v. Chinese Community of Manila,
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may serve only as a guiding principle. It the Court held that the very foundation of the right to
may not substitute the court’s own exercise eminent domain is genuine necessity and
judgment as to what amount should be that necessity must be of a public character.
awarded and how to arrive at such amount. Moreover, the ascertainment of the necessity must
(Vergara v. Grecia, G.R. 185638, 2016) precede or accompany and not follow, the taking of
the land. In City of Manila v. Arellano Law College,
(3) The amount to be paid for the expropriated the SC ruled that "necessity within the rule that the
property (i.e. just compensation) shall be particular property to be expropriated must be
determined by the proper court, based on necessary, does not mean an absolute but only a
the fair market value at the time of the reasonable or practical necessity, such as
taking of the property. (Sec. 19, 1991 LGC) would combine the greatest benefit to the public
with the least inconvenience and expense to the
(4) Under the Rules of Court, however, the condemning party and the property owner
court may issue an order of expropriation consistent with such benefit." (Masikip v. City of
declaring that the plaintiff has a lawful right Pasig, G.R. No. 136349, 2006)
to take the property sought to be
expropriated, for the public use or purpose Examples of No Genuine Necessity (Hence,
described in the complaint, upon the Constitutes as Unlawful Taking):
payment of just compensation to be
determined as of the date of the taking of (1) Taking of portions of a Chinese cemetery
the property or the filing of the complaint, for a public improvement since its already
whichever came first. (Sec. 4, Rule 67, for public use and there are adjoining and
ROC) adjacent lands offered free of charge. (City
of Manila v. Chinese Community, G.R. No.
NOTE: Which should prevail? 1) Sec. 19, LGC is L-14355, 1919)
substantive law; 2) Sec. 4, Rule 67, ROC is (2) Taking of a land currently used by Arellano
procedural law. Given that the determination of just Law College for homesite purposes since
compensation is a judicial function, it is submitted only few families will benefit, which is
that the ROC should prevail in view of the rule- insignificant compared to preparing young
making authority of the Supreme Court under the men and women for useful citizenship and
service to the government and community.
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(City of Manila v. Arellano Law Colleges, (2) Prioritize Other Modes of Acquisition
G.R. No. L-2929, 1950) The modes of acquiring lands for purposes
(3) Taking of a private property for sports of this Act shall include, among others,
development and recreational activities of a community mortgage, land swapping, land
neighborhood association since it’s not assembly or consolidation, land banking,
categorically for public purpose and there is donation to the Government, joint venture
an alternative facility in the area. (Masikip agreement, negotiated purchase, and
v. City of Pasig, G.R. No. 136349, 2006) expropriation: Provided, however, That
expropriation shall be resorted to only when
Example: Establishment of a pilot development other modes of acquisition have been
center that would inure to the direct benefit and exhausted. (Sec. 10, RA 7279)
advantage of the people of the Province of
Camarines Sur. Once operational, the center would Section 10 of R.A. 7279 also prefers the
make available to the community invaluable acquisition of private property by
information and technology on agriculture, fishery "negotiated sale" over the filing of an
and the cottage industry. Ultimately, the livelihood of expropriation suit. It provides that such suit
the farmers, fishermen and craftsmen would be may be resorted to only when the other
enhanced. (Camarines Sur v. CA, G.R. No. 103125, modes of acquisitions have been
1993) exhausted. Indeed, the Court has held that
when the property owner rejects the offer
Rules on Urban Land Reform and Socialized but hints for a better price, the government
Housing should renegotiate by calling the property
If the expropriation is pursuant to an urban land owner to a conference. The government
reform and housing program, LGUs are also must exhaust all reasonable efforts to
mandated to follow the conditions and standards obtain by agreement the land it desires. Its
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prescribed by RA 7279 (Urban Development and failure to comply will warrant the dismissal
Housing Act of 1992), the law governing the of the complaint. (City of Manila v. Alegar,
expropriation of property for urban land reform and G.R. No. 187604, 2012)
housing, as follows:
Failure to prove strict compliance with the
(1) Prioritize Other Lands requirements of Sections 9 and 10 of RA
Lands for socialized housing shall be 7279 is a fatal infirmity in the LGU’s
acquired in the following order: exercise of the power of eminent domain.
(a) Those owned by the Government or any of Hence, its complaint for expropriation must
its subdivisions, instrumentalities, or necessarily fail. (Estate of JBL Reyes v.
agencies, including government-owned or - City of Manila, G.R. No. 132431, 2004)
controlled corporations and their
subsidiaries; (3) Small Property Owners are Exempted
(b) Alienable lands of the public domain; Where expropriation is resorted to, parcels
(c) Unregistered or abandoned and idle lands; of land owned by small property owners
(d) Those within the declared Areas of Priority shall be exempted for purposes of this Act.
Development, Zonal Improvement sites, (Sec. 10, RA 7279) “Small- property
and Slum Improvement and Resettlement owners” are defined by two elements: (a)
Program sites which have not yet been They are owners of real property which
acquired; consists of residential lands with an area of
(e) Bagong Lipunan Improvement sites and not more than 300 sq. meters in highly
Services or BLISS sites which have not yet urbanized cities, and 800 sq. meters in
been acquired; and other urban cities; and (b) They do not own
(f) Privately-owned lands. real property other than the same. (Sec.
3(q), RA 7279)
Where on-site development is found more
practicable and advantageous to the beneficiaries, Public Use/Public Purpose/Public Character
the priorities mentioned in this section shall not
apply (thus, privately-owned lands may be acquired (1) Use by the Public or Public Employment
first). The local government units shall give There is no precise meaning of "public use"
budgetary priority to on-site development of and the term is susceptible of myriad
government lands. (Sec. 9, RA 7279) meanings depending on diverse situations.
The limited meaning attached to "public
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use" is "use by the public" or "public tends to contribute to the general welfare
employment," that "a duty must devolve on and the prosperity of the whole community,
the person or corporation holding property like a resort complex for tourists or housing
appropriated by right of eminent domain to project. (Camarines Sur v. CA, G.R. No.
furnish the public with the use intended, 103125, May 17, 1993 citing Heirs of
and that there must be a right on the part of Juancho Ardano v. Reyes, 125 SCRA 220
the public, or some portion of it, or some (1983); Sumulong v. Guerrero, 154 SCRA
public or quasi-public agency on behalf of 461 (1987))
the public, to use the property after it is
condemned." The more generally accepted Returning the Property
view sees "public use" as "public When private land is expropriated for a particular
advantage, convenience, or benefit, and public use and that purpose is abandoned, there is
that anything which tends to enlarge the no “implied contract” that the properties will be used
resources, increase the industrial energies, only for the public purpose for which they were
and promote the productive power of any acquired. Property is to be returned only when it is
considerable number of the inhabitants of a expropriated with the condition that when said
section of the state, or which leads to the purpose is ended or abandoned, the former owner
growth of towns and the creation of new reacquires the property so expropriated, and not
resources for the employment of capital when the expropriation decree gives to the entity a
and labor, (which) contributes to the fee simple which makes the land the expropriator
general welfare and the prosperity of the the absolute owner of the property. (Air
whole community." In this jurisdiction, Transportation Office v. Gopuco, G.R. No. 158563,
"public use" is defined as "whatever is 2005)
beneficially employed for the community."
(Barangay Sindalan v. Court of Appeals, Role of Supervising LGU
G.R. No. 150640, 2007) The only ground upon which a provincial board may
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declare any municipal resolution, ordinance, or
(2) Cannot Depend on Numerical Count order invalid is when such resolution, ordinance, or
It is settled that the public nature of the order is beyond the powers of the LGU. Absolutely
prospective exercise of expropriation no other ground is recognized by the law. Hence, it
cannot depend on the "numerical count of cannot declare the (expropriation) ordinance
those to be served or the smallness or invalid on the ground that the expropriation is
largeness of the community to be unnecessary. (Moday v. CA, G.R. No. 107916,
benefited." The number of people is not 1997)
determinative of whether or not it
constitutes public use, provided the use is DAR Clearance Not Required: Eminent Domain
exercisable in common and is not limited to is Superior
particular individuals. Thus, the first While such delegated power may be a limited
essential requirement for a valid exercise of authority, it is complete within its limits. Moreover,
eminent domain is for the expropriator to the limitations on the exercise of the delegated
prove that the expropriation is for a public power must be clearly expressed, either in the law
use. (Barangay Sindalan v. Court of conferring the power or in other legislations.
Appeals, G.R. No. 150640, 2007)
The rules on conversion of agricultural lands (found
(3) Contributes to the General Welfare in Section 4 (k) and 5 (1) of Executive Order No.
Modernly, there has been a shift from the 129 – A, Series of 1987, cannot be the source of the
literal to a broader interpretation of "public authority of the Department of Agrarian Reform to
purpose" or "public use" for which the determine the suitability of a parcel of agricultural
power of eminent domain may be land for the purpose to which it would be devoted by
exercised. The old concept was that the the expropriating authority. While those rules vest
condemned property must actually be used on the Department of Agrarian Reform the
by the general public (e.g. roads, bridges, exclusive authority to approve or disapprove
public plazas, etc.) before the taking conversions of agricultural lands for residential,
thereof could satisfy the constitutional commercial or industrial uses, such authority is
requirement of "public use." Under the new limited to the applications for reclassification
concept, "public use" means public submitted by the land owners or tenant
advantage, convenience or benefit, which beneficiaries.
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consistent with the basic policy of local

Statutes conferring the power of eminent autonomy. Such taxes, fees, and charges
domain to political subdivisions cannot be shall accrue exclusively to the local
broadened or constricted by implication governments. (Sec. 5, Article X, 1987
(Schulman v. People, 10 N.Y. 2d. 249, 176 N.E. 2d. Constitution)
817, 219 NYS 2d. 241) (2) Local government units shall have a just
share, as determined by law, in the national
To sustain the Court of Appeals would mean that taxes which shall be automatically released
the local government units can no longer to them. (Sec. 6, Article X, 1987
expropriate agricultural lands needed for the Constitution)
construction of roads, bridges, schools, (3) Local governments shall be entitled to an
hospitals, etc., without first applying for equitable share in the proceeds of the
conversion of the use of the lands with the utilization and development of the national
Department of Agrarian Reform, because all of wealth within their respective areas, in the
these projects would naturally involve a change manner provided by law, including sharing
in the land use. In effect, it would then be the the same with the inhabitants by way of
Department of Agrarian Reform to scrutinize direct benefits. (Sec. 7, Article X, 1987
whether the expropriation is for a public purpose or Constitution)
public use. (Province of Camarines Sur v. Court of
Appeals, G.R. No. 103125, 1993) Power of Taxation is Not Inherent in LGUs
The power to tax "is an attribute of sovereignty," and
NOTE: Being complete within the limitations as such, inheres in the State. Such, however, is not
provided by law, the delegated power of eminent true for provinces, cities, municipalities and
domain does not require prior approval of the barangays as they are not the sovereign; rather,
National Government to be a valid LGU exercise. they are mere "territorial and political subdivisions of
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the Republic of the Philippines."
Procedure for Expropriation: LGU vs. National
Government The rule governing the taxing power of provinces,
LGU NATIONAL cities, municipalities and barangays is summarized
GOVERNMENT in Icard v. City Council of Baguio: It is settled that a
1. The filing of a 1. The filing of a municipal corporation unlike a sovereign state is
complaint for complaint for clothed with no inherent power of taxation. The
expropriation expropriation charter or statute must plainly show an intent to
sufficient in form and sufficient in form and confer that power or the municipality, cannot
substance; and substance; and assume it. And the power when granted is to be
2. The deposit of the 2. The making of a construed in strictissimi juris. Any doubt or ambiguity
amount equivalent to deposit equivalent to arising out of the term used in granting that power
15% of the fair market the assessed value of must be resolved against the municipality.
value of the property the property subject to
to be expropriated expropriation. Inferences, implications, deductions — all these —
based on its current have no place in the interpretation of the taxing
tax declaration (Iloilo See: Rules of Court, power of a municipal corporation.
v. Legaspi, G.R. No. Rule 67 and Robern
154614, 2004). Development Therefore, the power of a province to tax is limited
Corporation v. to the extent that such power is delegated to it either
See: Local Quitain, G.R. No. by the Constitution or by statute.
Government Code, 135042, 1999
Sec. 19 Per Section 5, Article X of the 1987 Constitution,
"the power to tax is no longer vested exclusively on
c. Taxing Power Congress; local legislative bodies are now given
direct authority to levy taxes, fees and other
charges." Nevertheless, such authority is "subject to
Constitutional Rules
such guidelines and limitations as the Congress
(1) Each local government unit shall have the
may provide.” (Pelizloy Realty v. Benguet, G.R. No.
power to create its own sources of
183137, 2013)
revenues and to levy taxes, fees, and
charges subject to such guidelines and
limitations as the Congress may provide,
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Nature of LGUs Power to Tax constitute a mandatory or binding order that
LGUs have no inherent power to tax except to the interferes with local autonomy. The language used,
extent that such power might be delegated to them while authoritative, does not amount to a command
either by the basic law or by the statute. Under the that emanates from a boss to a subaltern. Rather,
1987 Constitution, where there is neither a grant nor the provision is merely an advisory to prevail upon
a prohibition by statute, the tax power must be local executives to recognize the need for fiscal
deemed to exist although Congress may provide restraint in a period of economic difficulty. Indeed,
statutory limitations and guidelines. The basic all concerned would do well to heed the President's
rationale for the current rule is to safeguard the call to unity, solidarity and teamwork to help alleviate
viability and self-sufficiency of local government the crisis. It is understood, however, that no legal
units by directly granting them general and broad tax sanction may be imposed upon LGUs and their
powers. Nevertheless, the fundamental law did not officials who do not follow such advice. (Pimentel v.
intend the delegation to be absolute and Aguirre, G.R. No. 132988, 2015)
unconditional; the constitutional objective obviously
is to ensure that, while the local government units Tax Ordinance Strictly Construed Against LGU
are being strengthened and made more In case of doubt, any tax ordinance or revenue
autonomous, the legislature must still see to it that measure shall be construed strictly against the
(a) the taxpayer will not be over-burdened or local government unit enacting it, and liberally
saddled with multiple and unreasonable in favor of the taxpayer. Any tax exemption,
impositions; (b) each local government unit will have incentive or relief granted by any local government
its fair share of available resources; (c) the unit pursuant to the provisions of this Code shall be
resources of the national government will not be construed strictly against the person claiming
unduly disturbed; and (d) local taxation will be fair, it. (Sec. 5(b), 1991 LGC)
uniform, and just. (Ferrer v. Bautista, G.R. No.
210551, 2015) Scope of Power to Generate and Apply
Resources
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Fiscal Autonomy Local government units shall have the power and
Fiscal autonomy means that local governments authority to:
have the power to create their own sources of (1) Establish an organization that shall be
revenue in addition to their equitable share in the responsible for the efficient and effective
national taxes released by the national government, implementation of their development plans,
as well as the power to allocate their resources in program objectives and priorities;
accordance with their own priorities. (2) Create their own sources of revenues and
to levy taxes, fees, and charges which shall
Local fiscal autonomy does not, however, rule out accrue exclusively for their use and
any manner of national government intervention by disposition and which shall be retained by
way of supervision, in order to ensure that local them;
programs, fiscal and otherwise, are consistent with (3) Have a just share in national taxes which
national goals. Significantly, the President, by shall be automatically and directly released
constitutional fiat, is the head of the economic and to them without need of any further action;
planning agency of the government, primarily (4) Have an equitable share in the proceeds
responsible for formulating and implementing from the utilization and development of the
continuing, coordinated and integrated social and national wealth and resources within their
economic policies, plans and programs for the entire respective territorial jurisdictions including
country. However, under the Constitution, the sharing the same with the inhabitants by
formulation and the implementation of such policies way of direct benefits;
and programs are subject to "consultations with the (5) Acquire, develop, lease, encumber,
appropriate public agencies, various private sectors, alienate, or otherwise dispose of real or
and local government units." The President cannot personal property held by them in their
do so unilaterally. (Pimentel v. Aguirre, G.R. No. proprietary capacity and to apply their
132988, 2015) resources and assets for productive,
developmental, or welfare purposes, in the
Thus, the directive to "identify and implement exercise or furtherance of their
measures…that will reduce total expenditures…by governmental or proprietary powers and
at least 25% of authorized regular appropriation" functions and thereby ensure their
does not violate local or fiscal autonomy as it is development into self-reliant communities
merely advisory in character, and does not
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and active participants in the attainment of (c) Taxes on estates, inheritance, gifts,
national goals. (Sec. 18, 1991 LGC) legacies and other acquisitions mortis
causa, except as otherwise provided
Fundamental principles of Local Taxation herein;
The following fundamental principles shall govern (d) Customs duties, registration fees of vessel
the exercise of the taxing and other revenue-raising and wharfage on wharves, tonnage dues,
powers of local government units: and all other kinds of customs fees,
(1) Taxation shall be uniform in each local charges and dues except wharfage on
government unit; wharves constructed and maintained by the
(2) Taxes, fees, charges and other impositions local government unit concerned;
shall: (e) Taxes, fees, and charges and other
impositions upon goods carried into or out
(a) be equitable and based as far as of, or passing through, the territorial
practicable on the taxpayer's jurisdictions of local government units in the
ability to pay; guise of charges for wharfage, tolls for
(b) be levied and collected only for bridges or otherwise, or other taxes, fees,
public purposes; or charges in any form whatsoever upon
(c) not be unjust, excessive, such goods or merchandise;
oppressive, or confiscatory; (f) Taxes, fees or charges on agricultural and
(d) not be contrary to law, public aquatic products when sold by marginal
policy, national economic policy, or farmers or fishermen;
in the restraint of trade; (g) Taxes on business enterprises certified to
by the Board of Investments as pioneer or
(3) The collection of local taxes, fees, charges non-pioneer for a period of six (6) and four
and other impositions shall in no case be let (4) years, respectively from the date of
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to any private person; registration;
(4) The revenue collected pursuant to the (h) Excise taxes on articles enumerated under
provisions of this Code shall inure solely to the national Internal Revenue Code, as
the benefit of, and be subject to the amended, and taxes, fees or charges on
disposition by, the local government unit petroleum products;
levying the tax, fee, charge or other (i) Percentage or value-added tax (VAT) on
imposition unless otherwise specifically sales, barters or exchanges or similar
provided herein; and transactions on goods or services except
(5) Each local government unit shall, as far as as otherwise provided herein;
practicable, evolve a progressive system (j) Taxes on the gross receipts of
of taxation. (Sec. 130, 1991 LGC) transportation contractors and persons
engaged in the transportation of
Sources of LGU Funds passengers or freight by hire and common
(1) Taxes, fees, and charges which accrue carriers by air, land or water, except as
exclusively for their use and disposition provided in this Code;
(2) Just share in national taxes which shall be (k) Taxes on premiums paid by way or
automatically and directly released to them reinsurance or retrocession;
(3) Equitable share in the proceeds from (l) Taxes, fees or charges for the registration
utilization and development of national of motor vehicles and for the issuance of all
wealth and resources within their territorial kinds of licenses or permits for the driving
jurisdiction (Sec. 18, 1991 LGC) thereof, except tricycles;
(m) Taxes, fees, or other charges on Philippine
Common Limitations to Taxing Power of LGUs products actually exported, except as
Unless otherwise provided herein, the exercise of otherwise provided herein;
the taxing powers of provinces, cities, (n) Taxes, fees, or charges, on Countryside
municipalities, and barangays shall NOT extend and Barangay Business Enterprises and
to the levy of the following: cooperatives duly registered under R.A.
No. 6810 and R.A. No. 6938 (Cooperative
(a) Income tax, except when levied on banks Code, now RA 9520) respectively; and
and other financial institutions; (o) Taxes, fees or charges of any kind on the
(b) Documentary stamp tax; National Government, its agencies and
instrumentalities, and local government
units. (Sec. 133, 1991 LGC)
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where the principal office is located;
Requisites of a Tax Ordinance and
(1) Notice (b) Seventy percent (70%) of all sales
(2) Actual conduct of public hearing recorded in the principal office shall be
(3) Posting taxable by the city or municipality
(4) Publication (if with penal sanctions) where the factory, project office, plant,
or plantation is located. (Sec. 150(b),
Constitutionality or Legality of Tax Ordinances 1991 LGC)
Any question on the constitutionality or legality of tax
ordinances or revenue measures may be raised on (4) In case of a plantation located at a place
appeal within thirty (30) days from the effectivity other than the place where the factory is
thereof to the Secretary of Justice who shall render located, said seventy percent (70%)
a decision within sixty (60) days from the date of mentioned above shall be divided as
receipt of the appeal: Provided, however, That such follows:
appeal shall not have the effect of suspending the
effectivity of the ordinance and the accrual and (a) Sixty percent (60%) to the city or
payment of the tax, fee, or charge levied therein: municipality where the factory is
Provided, finally, That within thirty (30) days after located; and
receipt of the decision or the lapse of the sixty-day (b) Forty percent (40%) to the city or
period without the Secretary of Justice acting upon municipality where the plantation is
the appeal, the aggrieved party may file appropriate located. (Sec. 150(c), 1991 LGC)
proceedings with a court of competent jurisdiction.
(Sec. 189, 1991 LGC) (5) In cases where a manufacturer, assembler,
producer, exporter or contractor has two (2)
Rules on LGU Business Taxes or more factories, project offices, plants, or
(1) Manufacturers, assemblers, repackers, plantations located in different localities,
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brewers, distillers, rectifiers and the seventy percent (70%) sales allocation
compounders of liquor, distilled spirits and mentioned above shall be prorated among
wines, millers, producers, exporters, the localities where the factories, project
wholesalers, distributors, dealers, offices, plants, and plantations are located
contractors, banks and other financial in proportion to their respective volumes of
institutions, and other businesses, production during the period for which the
maintaining or operating branch or sales tax is due. (Sec. 150(d), 1991 LGC)
outlet elsewhere shall record the sale in the
branch or sales outlet making the sale or Withdrawal of Local Tax Exemption Privileges
transaction, and the tax thereon shall Unless otherwise provided in the LGC, tax
accrue and shall be paid to the municipality exemptions or incentives granted to, or enjoyed by
where such branch or sales outlet is all persons, whether natural or juridical, including
located. (Sec. 150(a), 1991 LGC) government-owned or - controlled corporations
were withdrawn upon the effectivity of the LGC.
(2) In cases where there is no such branch or (Sec. 193, 1991 LGC)
sales outlet in the city or municipality where
the sale or transaction is made, the sale Privileges Retained
shall be duly recorded in the principal office Tax exemption privileges of the following were not
and the taxes due shall accrue and shall be withdrawn by the LGC from the following:
paid to such city or municipality. (Sec. (1) Local water districts;
150(a), 1991 LGC) (2) Cooperatives duly registered under R.A.
No. 6938; and
(3) The following sales allocation shall apply to (3) Non-stock and non-profit hospitals and
manufacturers, assemblers, contractors, educational institutions (Sec. 193,
producers, and exporters with factories, LGC; Sec. 234, 1991 LGC)
project offices, plants, and plantations in
the pursuit of their business: Real Property Taxation
Annual ad valorem tax on real property may be
(a) Thirty percent (30%) of all sales levied by:
recorded in the principal office shall be (1) Province; or
taxable by the city or municipality (2) City; or
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(3) Municipality within Metropolitan Manila

Area (i.e. Pateros is the only NCR (1) Philippine Amusement and Gaming
municipality) (Sec. 232, 1991 LGC) Corporation (Basco v. PAGCOR, G.R. No.
91649, 1991)
Exemptions from Real Property Tax (2) Manila International Airport Authority and
The following are exempted from payment of the Mactan Cebu International Airport Authority
real property tax: are instrumentalities of the government, not
a GOCC; thus, its properties actually, solely
(a) Real property owned by the Republic of the and exclusively used for public purposes,
Philippines or any of its political consisting of the airport terminal building,
subdivisions except when the beneficial airfield, runway, taxiway and the lots on
use thereof has been granted, for which they are situated, are not subject to
consideration or otherwise, to a taxable real property tax and the city is not justified
person; in collecting taxes from petitioner over said
(b) Charitable institutions, churches, properties. (MIAA v. Court of Appeals, G.R.
parsonages or convents appurtenant No. 155650, July 20, 2006; MIAA v. City of
thereto, mosques, non-profit or religious Pasay, G.R. No. 163072, April 2, 2009) and
cemeteries and all lands, buildings, and Mactan-Cebu International Airport
improvements actually, directly, and Authority (MCIAA v. City of Lapu-Lapu,
exclusively used for religious, charitable or G.R. No. 181756, 2015)
educational purposes;
(c) All machineries and equipment that are NOTE: SC used definition of Instrumentality under
actually, directly and exclusively used by the Administrative Code of 1987.
local water districts and government owned
or controlled corporations engaged in the (3) Light Rail Transit Authority (LRTA v.
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supply and distribution of water and/or Quezon City, G.R. No. 221626, 2019)
generation and transmission of electric (4) Philippine Heart Center (Phil. Heart Center
power; v. QC, G.R. No. 225409, 2020)
(d) All real property owned by duly registered
cooperatives as provided for under R.A. NOTE: In the LRTA and Philippine Heart Center
No. 6938; and
(e) Machinery and equipment used for
pollution control and environmental
protection. (Sec. 234, 1991 LGC)
Cases, the SC used the GICP/GCE definition under
RA 10149.
REMEMBER: Government Instrumentalities with

Corporate Powers (GICP)/Government Corporate
EXCEPTION TO THE EXEMPTION: Except as Entities (GCE) - refer to instrumentalities or
provided herein, any exemption from payment of agencies of the government, which are neither
real property tax previously granted to, or corporations nor agencies integrated within the
presently enjoyed by, all persons, whether departmental framework, but vested by law with
natural or juridical, including all government- special functions or jurisdiction, endowed with some
owned or controlled corporations are hereby if not all corporate powers, administering special
withdrawn upon the effectivity of this Code. funds, and enjoying operational autonomy usually
(Sec. 234, 1991 LGC) through a charter including, but not limited to, the
following: the Manila International Airport Authority
NOTE: Withdrawal of exemption from RPT does not (MIAA), the Philippine Ports Authority (PPA), the
apply to GICPs/GCEs/Instrumentalities of the Philippine Deposit Insurance Corporation (PDIC),
National Government; hence, they are not subject to the Metropolitan Waterworks and Sewerage System
real property tax as instrumentalities of the National (MWSS), the Laguna Lake Development Authority
Government or State are exempt from local taxation (LLDA), the Philippine Fisheries Development
under Sec. 133(o) of the LGC. Authority (PFDA), the Bases Conversion and
Development Authority (BCDA), the Cebu Port
Being instrumentalities of the government, Authority (CPA), the Cagayan de Oro Port Authority,
GICPs/GCEs are not subject to real property tax the San Fernando Port Authority, the Local Water
imposed by the LGUs except when beneficial use Utilities Administration (LWUA) and the Asian
of the real property is granted to a taxable entity, Productivity Organization (APO). (Section 3(n),
which shall be liable for the same. Thus, the GOCC Governance Act of 2011, Republic Act No.
following have been held by the SC as being exempt 10149)
from real property tax/local taxation:
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He did not say that in his judgment it was a
Other limitations on taxing powers of LGUs bad law. What he found only was that it was
illegal. All he did in reviewing the said
Taxes already imposed by National measure was determine if the petitioners
Government: Generally, LGUs cannot impose were performing their functions is
taxes that are already imposed by the National accordance with law, that is, with the
Government (e.g. income tax, documentary stamps, prescribed procedure for the enactment of
estate taxes, customs duties, excise taxes under the tax ordinances and the grant of powers to
NIRC, VAT) (See generally, Sec. 133, 1991 LGC) the city government under the Local
Government Code. As we see it, that was
Persons exempted: LGUs cannot impose taxes, an act not of control but of mere
fees, and charges on (a) countryside and barangay supervision. (Drilon v. Lim, G.R. No.
business enterprises; (b) cooperatives duly 112497, 1994)
registered under the Cooperative Code; and
National Government, its agencies and The evaluation involves an exercise of
instrumentalities, and local government units. (Sec. quasi-judicial power by the Secretary of
133(n)-(o), LGC) Justice. In deciding the same, the
• Hence, the MIAA, MCIAA, LRTA, PAGCOR, Secretary of Justice must ascertain the
and Philippine Heart Center, and other existence of factual circumstances
GICPs/GCEs being such an instrumentalities of specifically, whether the tax ordinance was
the National Government, are exempt from passed in accordance with the procedure
local taxation. and the limitations set forth by the LGC.
• However, all other GOCCs (which are neither And from there make a conclusion as to the
GICPs nor GCEs) are not exempt from local validity and applicability of the same to the
taxation. (MIAA v. CA, 2006) taxable persons. Thus, the Court of
Appeals is the court vested with exclusive
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Doctrines: original jurisdiction to entertain a petition
(1) Local Taxpayer’s Remedy. The law for certiorari under Rule 65 questioning the
requires that a dissatisfied taxpayer who acts of quasi-judicial agencies. (De Lima v.
questions the validity or legality of a tax City of Manila, G.R. No. 22286, 2018)
ordinance must file its appeal to the
Secretary of Justice within 30 days from (3) Mayor Cannot Grant Local Tax
effectivity thereof. In case the Secretary Exemption. A municipal mayor who is an
decides the appeal, a period of 30 days is executive officer may not unilaterally
allowed for an aggrieved party to go to withdraw such an expression of a policy
Court. But if the Secretary does not act after thru the enactment of a tax." The waiver
the lapse of 30 days, a party could already partakes of the nature of an exemption. It is
proceed to seek relief in Court. (Reyes et al an ancient rule that exemptions from
v. CA, G.R. No. 118233, 1999; Sec. 187, taxation are construed in strictissimi
1991 LGC) juris against the taxpayer and liberally in
favor of the taxing authority. (Esso
(2) Power of Secretary of Justice to Review Standard Eastern, Inc. v. Acting
Tax Ordinance. Section 187 authorizes Commissioner of Customs, 18 SCRA 488
the Secretary of Justice to review only the (1966)). Tax exemptions are looked upon
constitutionality or legality of the tax with disfavor (Western Minolco Corp. v.
ordinance and, if warranted, to revoke it on Commissioner of Internal Revenue, 124
either or both of these grounds. When he SCRA 121 (1983)). Thus, in the absence of
alters or modifies or sets aside a tax a clear and express exemption from the
ordinance, he is not also permitted to payment of said fees, the waiver cannot be
substitute his own judgment for the recognized. As already stated, it is the law-
judgment of the local government that making body, and not an executive like the
enacted the measure. Secretary Drilon did mayor, who can make an exemption.
set aside the Manila Revenue Code, but he (Philippine Petroleum Corp. v. Municipality
did not replace it with his own version of of Pililla G.R. No. 90776, 1991)
what the Code should be. He did not
pronounce the ordinance unwise or Local government units may, through
unreasonable as a basis for its annulment. ordinances duly approved, grant tax
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exemptions, incentives or reliefs under petition questioning its rulings (Veloso v.

such terms and conditions as they may COA, G.R. No. 193677, 2011)
deem necessary. (Sec. 192, 1991 LGC)
(7) One Year Redemption Period Counted
(4) Administrative Regulations or Executive From Date of Sale. Forfeiture of tax
Issuances Cannot Limit LGU’s Power of delinquent properties transpires no later
Taxation. The exercise by local than the purchase made by the city due to
governments of the power to tax is ordained lack of a bidder from the public. This
by the present Constitution. To allow the happens on the date of the sale (auction
continuous effectivity of the prohibition set happened earlier in time), and not upon the
administrative regulation (by the DOF) issuance of the declaration of forfeiture
would be tantamount to restricting the (annotation on the titles happened later in
LGU’s power to tax by mere administrative time). (City of Davao v. Intestate Estate of
issuances. Under Section 5, Article X of the Amado S. Dalisay, G.R. No. 207791, 2015)
1987 Constitution, only guidelines and
limitations that may be established by (8) Ministerial Duty of the Mayor. The mayor
Congress can define and limit such power has the ministerial duty to ensure that all
of local governments. (Philippine taxes and other revenues of the city are
Petroleum Corp. v. Municipality of Pililla collected, and that city funds are applied to
G.R. No. 90776, 1991) the payment of expenses and settlement of
obligations of the city, in accordance with
(5) The BIR has no authority to determine law or ordinance. On the other hand, under
the applicability of local ordinances. the LGC, all local taxes, fees, and charges
Besides, even the Bureau itself states that shall be collected by the provincial, city,
the exemption shall not apply if the sand municipal, or barangay treasurer, or their
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and gravel were to be disposed of duly-authorized deputies, while the
commercially. An exemption from the assessor shall take charge, among others,
requirements of the provincial government of ensuring that all laws and policies
should have a clear basis, whether in law, governing the appraisal and assessment of
ordinance, or even from the contract itself. real properties for taxation purposes are
(Lepanto Consolidated Mining Company v. properly executed. Thus, a writ of
Ambanloc, G.R. 180639, 2010) prohibition may be issued against them to
desist from further proceeding in the action
(6) COA Jurisdiction Despite Local Fiscal or matter specified in the petition. (Ferrer v.
Autonomy. The COA is endowed with Bautista, G.R. No. 210551, 2015)
enough latitude to determine, prevent, and
disallow irregular, unnecessary, excessive, (9) Regulatory Fee vs. Cost of Regulation.
extravagant, or unconscionable To pass judicial scrutiny, a regulatory fee
expenditures of government funds. The must not produce revenue in excess of the
Court had therefore previously upheld the cost of the regulation because such fee will
authority of COA to disapprove payments be construed as an illegal tax when the
which it finds excessive and revenue generated by the regulation
disadvantageous to the government; to exceeds the cost of the regulation. (Ferrer
determine the meaning of “public bidding;” v. Bautista, G.R. No. 210551, 2015)
and when there is failure in the bidding, to
disallow expenditures which it finds (10) No Levy of Local Taxes on Petroleum
unnecessary according to its rules even if Products. While local government units
disallowance will mean discontinuance of are authorized to burden all such other
foreign aid; to disallow a contract even after class of goods with “taxes, fees and
it has been executed and goods have been charges,” excepting excise taxes, a specific
delivered. Thus, LGUs, though granted prohibition is imposed barring the levying of
local fiscal autonomy, are still within the any other type of taxes with respect to
audit jurisdiction of the COA. It is only when petroleum products. (Petron Corporation v.
the COA has acted without or in excess of Tiangco, G.R. No. 158881, 2008; Batangas
jurisdiction, or with grave abuse of City v. Pilipinas Shell Petroleum Corp.,
discretion amounting to lack or excess of G.R. No. 187631, 2015)
jurisdiction, that this Court entertains a
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(11) Fiscal Flexibility of LGU in Fixing apportion their resources in line with their
Additional Levy. Setting the rate of the priorities. (Film Development Council of the
additional levy for the special education Philippines v. City of Cebu et al, G.R. No
fund at less than 1% is within the taxing 204418, 2015)
power of local government units. It is
consistent with the guiding constitutional (14) A certiorari petition questioning an
principle of local autonomy. The option interlocutory order issued in a local tax case
given to a local government unit extends falls under the jurisdiction of the CTA. (CE
not only to the matter of whether to collect Casecnan Water and Energy Company,
but also to the rate at which collection is to Inc. v. The Province of Nueva Ecija, G.R.
be made. The limits on the level of No. 196278, 2015)
additional levy for the special education
fund under Section 235 of the Local (15) The socialized housing tax charged by the
Government Code should be read as city is a tax which is within its power to
granting fiscal flexibility to local government impose. Aside from the specific authority
units. (Demaala v. COA, G.R. No. 199752, vested by Section 43 of the UDHA, cities
2015) are allowed to exercise such other powers
and discharge such other functions and
(12) Amusement Taxes. By operation of Sec. responsibilities as are necessary,
151 of the LGC extending to cities the appropriate, or incidental to efficient and
authority of provinces and municipalities to effective provision of the basic services and
levy certain taxes, fees, and charges, cities facilities which include, among others,
may therefore validly levy amusement programs and projects for low-cost housing
taxes on cinemas subject to the parameters and other mass dwellings. The collections
set forth under the law. (Film Development made accrue to its socialized housing
Council of the Philippines v. City of Cebu et programs and projects. The tax is not a
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al, G.R. No. 204418, 2015) pure exercise of taxing power or merely to
raise revenue; it is levied with a regulatory
However, resorts, swimming pools, bath purpose. The levy is primarily in the
houses, hot springs and tourist spots are exercise of the police power for the general
not proper subjects of amusement taxes as welfare of the entire city. It is greatly imbued
they do not belong to the same category or with public interest. (Ferrer v. Bautista,
class as theaters, cinemas, concert halls, G.R. No. 210551, 2015)
circuses, and boxing stadia. Amusement
Places include theaters, cinemas, concert (16) Regulation of Activity and Tax. The
halls, circuses and other places of garbage fee is a charge fixed for the
amusement where one seeks admission to regulation of an activity. It is not a tax and
entertain oneself by seeing or viewing the cannot violate the rule on double taxation.
show or performances. Accordingly, 'other (Ferrer v. Bautista, G.R. No. 210551, 2015)
places of amusement' must be interpreted
in light of the typifying characteristic of Just Share in the National Taxes (formerly
being venues "where one seeks admission Internal Revenue Allotment (IRA) share of LGUs)
to entertain oneself by seeing or viewing
the show or performances" or being venues General Rule: The current sharing is 40% local,
primarily used to stage spectacles or hold 60% national. LGUs shall have a 40% share in the
public shows, exhibitions, performances, national taxes based on the collection of the third
and other events meant to be viewed by an fiscal year preceding the current fiscal year. (Sec.
audience. (Pelizloy Realty v. Benguet, G.R, 284(c), 1991 LGC)
No. 183137, 2013)
Exception:
(13) Taxes levied by LGUs shall accrue That in the event that the national government
exclusively to the LGU and to earmark, if incurs an unmanageable public sector deficit, the
not altogether confiscate, the income to be President of the Philippines is hereby authorized,
received by the LGU from the taxpayers in upon the recommendation of Secretary of Finance,
favor of and for transmittal to the Film Secretary of Interior and Local Government and
Development Council of the Philippines, is Secretary of Budget and Management, and subject
repugnant to the power of LGUs to to consultation with the presiding officers of both
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Houses of Congress and the presidents of the "liga," also be imprudent for the Court to compel
to make the necessary adjustments in the allotment the Executive to start from scratch and
of local government units but in no case shall the jettison all existing plans and allotments to
allotment be less than thirty percent (30%) of the the detriment of the 2020 and 2021 GAA.”
collection of national taxes of the third fiscal year (Mandanas v. Ochoa, G.R. Nos. 199802 &
preceding the current fiscal year. (Sec. 284, par. 2, 208488 (Notice), October 8, 2019)
1991 LGC).
Requisites for Exception: Automatic Release of Just Share

(1) Unmanageable public sector deficit; (1) Section 6, Article X the 1987 Constitution
(2) Recommendation of the Secretaries of (a) textually commands the automatic release
Finance, (b) Internal and Local Gov’t, and of the just share in the national taxes, viz.:
(c) Budget and Management; and Section 6. Local government units shall
(3) Consultation with (a) heads of both houses have a just share, as determined by law, in
of Congress, and (b) presidents of the liga. the national taxes which shall be
(4) Allotment shall not be lower than 30% of automatically released to them.
the national taxes collection. (Sec. 284, (2) The LGC implements this by providing that
par. 2, 1991 LGC) the share of each LGU shall be released,
without need of any further action, directly
NOTE: to the respective treasurer on a quarterly
(1) The SC in Mandanas v. Ochoa deleted all basis within five (5) days after the end of
the phrase “internal revenue” in the LGC for each quarter, and which shall not be
being unconstitutional when referring to the subject to any lien or holdback that may be
just share of LGUs, particularly in Secs. imposed by the national government for
284, 285, 287, and 290. Thus, any mention whatever purpose. (Sec. 286(a), 1991
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of "Internal Revenue Allotment" or "IRA" in LGC)
Republic Act No. 7160 (Local Government
Code) and its Implementing Rules and Section 6 does not mention of appropriation as a
Regulations shall be understood as condition for the automatic release of the just share
pertaining to the allotment of the Local to the LGUs. This is because Congress not only
Government Units derived from the already determined the just share through the
national taxes. (Mandanas v. Ochoa, Jr., LGC's fixing the percentage of the collections of the
G.R. Nos. 199802 & 208488, July 3, 2018) NIRTs to constitute such fair share subject to the
(2) The Mandanas ruling will only apply power of the President to adjust the same in order
starting with the 2022 budget cycle to manage public sector deficits subject to
since the 03 July 2018 decision became limitations on the adjustments, but also explicitly
final and executory on 10 June 2019. authorized such just share to be "automatically
Inevitably, the 2019 Budget can no longer released" to the LGUs in the proportions and
include the changes brought about by Our regularity set under Section 285 of the LGC without
July 3, 2018 decision. The SC said: “While need of annual appropriation. To operationalize the
the amounts and the national taxes during automatic release without need of appropriation,
the third fiscal year preceding or in 2016 Section 286 of the LGC clearly provides that the
can already be determined as of this time, automatic release of the just share directly to the
it would be too late to include the same in provincial, city, municipal or barangay treasurer, as
the 2019 budget since Congress had the case may be, shall be "without need of any
already approved the 2019 General further action." (Mandanas v. Ochoa, Jr., G.R. Nos.
Appropriations Act (GAA), and we are 199802 & 208488, July 3, 2018)
already in the last quarter of the year.
Neither can the same amounts be Withholding 10 percent of the LGUs' IRA
considered in drawing up the 2020 and "pending the assessment and evaluation by the
2021 budget because their budget cycles Development Budget Coordinating Committee
have already commenced. Notable that for of the emerging fiscal situation" in the country
the 2020 budget, Congress is already in the is unconstitutional and invalid. Such withholding
process of conducting budget hearings to clearly contravenes the Constitution and the law.
finalize the GAA. Adding the amounts Although temporary, it is equivalent to a holdbacks
based on our ruling in the 2020 budget which means "something held back or withheld,
would only disrupt the proceedings and often temporarily." Hence, the "temporary" nature
impede the passing of the GAA. It would of the retention by the national government does
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not matter. Any retention is prohibited. (Pimentel IRA/National Taxes Sharing Formula
v. Aguirre, G.R. No. 132988, 2015) (1) The share of each province, city, and
municipality shall be determined on the
The National Taxes Included in Mandanas v. basis of the following formula:
Ochoa (a) Population - Fifty percent (50%);
The national taxes to be included in the base for (b) Land Area - Twenty-five percent
computing the just share the LGUs shall henceforth (25%); and
be, but shall not be limited to, the following: (c) Equal sharing - Twenty-five percent
(1) The NIRTs enumerated in Section 21 of the (25%). (Sec. 285, 1991 LGC)
NIRC, as amended, to be inclusive of the
VATs, excise taxes, and DSTs collected by (2) The share of each barangay with a
the BIR and the BOC, and their deputized population of not less than one hundred
agents; (100) inhabitants shall not be less than
(2) Tariff and customs duties collected by the Eighty thousand (P80,000.00) per annum
BOC; chargeable against the twenty percent
(3) 50% of the VATs collected in the ARMM, (20%) share of the barangay from the
and 30% of all other national taxes allotment, and the balance to be allocated
collected in the ARMM; the remaining 50% on the basis of the following formula:
of the VATs and 70% of the collections of (a) Population - Sixty percent (60%); and
the other national taxes in the ARMM shall (b) Equal sharing - Forty percent (40%).
be the exclusive share of the ARMM (Sec. 285, 1991 LGC)
pursuant to Sections 9 and 15 of R.A. No.
9054; 20% of National Allotment for Development
(4) 60% of the national taxes collected from the Projects
exploitation and development of the Each local government unit shall appropriate in its
national wealth; the remaining 40% will annual budget no less than twenty percent (20%) of
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exclusively accrue to the host LGUs its annual (internal revenue/national taxes)
pursuant to Section 290 of the LGC; allotment for development projects. Copies of the
(5) 85% of the excise taxes collected from development plans of local government units shall
locally manufactured Virginia and other be furnished the Department of Interior and Local
tobacco products; the remaining 15% shall Government. (Sec. 287, 1991 LGC)
accrue to the special purpose funds
pursuant created in R.A. No. 7171 and R.A. Equitable Share of LGUs in the Utilization and
No. 7227; Development of National Wealth
(6) The entire 50% of the national taxes (1) Local government units shall have an
collected under Section 106 (VAT on equitable share in the proceeds derived
goods/properties), Section 108 (VAT on from the utilization and development of the
services/lease) and Section 116 (Tax on national wealth within their respective
VAT exempt persons) of the NIRC in areas, including sharing the same with the
excess of the increase in collections for the inhabitants by way of direct benefits. (Sec.
immediately preceding year; and 289, 1991 LGC)
(7) 5% of the franchise taxes in favor of the (2) Local government units shall, in addition to
national government paid by franchise the allotment, have a share of forty percent
holders in accordance with Section 6 of (40%) of the gross collection derived by the
R.A. No. 6631 and Section 8 of R.A. No. national government from the preceding
6632. (Mandanas v. Ochoa, Jr., G.R. Nos. fiscal year from mining taxes, royalties,
199802 & 208488, July 3, 2018) forestry and fishery charges, and such
other taxes, fees, or charges, including
IRA/National Taxes Allotment related surcharges, interests, or fines, and
The share of local government units in the allotment from its share in any co-production, joint
shall be collected in the following manner: venture or production sharing agreement in
(a) Provinces - Twenty-three percent (23%); the utilization and development of the
(b) Cities - Twenty-three percent (23%); national wealth within their territorial
(c) Municipalities - Thirty-four percent (34%); jurisdiction. (Sec. 290, 1991 LGC)
and (3) Local government units shall have a share
(d) Barangays - Twenty percent (20%). (Sec. based on the preceding fiscal year from the
285, 1991 LGC) proceeds derived by any government
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agency or government-owned or controlled this Section (i.e. Sec. 292). (Sec. 292, 1991
corporation engaged in the utilization and LGC)
development of the national wealth based
on the following formula whichever will (5) The share of local government units
produce a higher share for the local from the utilization and development of
government unit: national wealth shall be remitted in
(a) One percent (1%) of the gross accordance with Section 286 of this
sales or receipts of the preceding Code (i.e. automatic release similar to
calendar year; or national taxes allotment): Provided,
(b) Forty percent (40%) of the mining however, That in the case of any
taxes, royalties, forestry and government agency or government-owned
fishery charges and such other or controlled corporation engaged in the
taxes, fees or charges, including utilization and development of the national
related surcharges, interests, or wealth, such share shall be directly
fines the government agency or remitted to the provincial, city, municipal or
government owned or controlled barangay treasurer concerned within five
corporation would have paid if it (5) days after the end of each quarter. (Sec.
were not otherwise exempt. (Sec. 293, 1991 LGC)
291, 1991 LGC) (6) The proceeds from the share of local
government units pursuant to this chapter
(4) The share in the preceding Section (i.e. shall be appropriated by their respective
Sec. 291) shall be distributed in the sanggunian to finance local government
following manner: and livelihood projects: Provided, however,
That at least eighty percent (80%) of the
(a) Where the natural resources are located in proceeds derived from the development
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the province: and utilization of hydrothermal, geothermal,
(i) Province - Twenty percent and other sources of energy shall be
(20%); applied solely to lower the cost of electricity
(ii) Component in the local government unit where such a
City/Municipality - Forty-five source of energy is located. (Sec. 294,
percent (45%); and 1991 LGC)
(iii) Barangay - Thirty-five percent
(35%) d. Closure and Opening of Roads
Provided, however, That where the natural Power to Open or Close Roads
resources are located in two (2) or more (1) A local government unit may, pursuant to
provinces, or in two (2) or more component an ordinance, permanently or temporarily
cities or municipalities or in two (2) or more close or open any local road, alley, park, or
barangays, their respective shares shall be square falling within its jurisdiction. (Sec.
computed on the basis of: 21(a), 1991 LGC)
(i) Population - Seventy percent (2) In addition, any city, municipality, or
(70%); and barangay may, by a duly enacted
(ii) Land area - Thirty percent ordinance, temporarily close and regulate
(30%) the use of any local street, road,
thoroughfare, or any other public place
(b) Where the natural resources are located in where shopping malls, Sunday, flea or
a highly urbanized or independent night markets, or shopping areas may be
component city: established and where goods,
(i) City - Sixty-five percent merchandise, foodstuffs, commodities, or
(65%); and articles of commerce may be sold and
(ii) Barangay - Thirty-five percent dispensed to the general public. (Sec.
(35%) 21(d), 1991 LGC)
Provided, however, That where the natural
resources are located in such two (2) or
more cities, the allocation of shares shall be
based on the formula on population and
land area as specified in paragraph (a) of
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Requirements and Conditions for Permanent Permanent Closure vs. Temporary Closure
Closure PERMANENT TEMPORARY
(1) Ordinance Approved by 2/3 of CLOSURE CLOSURE
Sanggunian Members. Such ordinance REQUISITES
must be approved by at least two-thirds 1. Ordinance 1. Should be a
(2/3) of all the members of the sanggunian. must be National or local
(Sec. 21(a), 1991 LGC) approved by road, alley, park, or
(2) Adequate Substitute. When necessary, at least two- square
an adequate substitute for the public facility thirds (2/3) of 2. Temporarily closure
that is subject to closure is provided. (Sec. all the during an
21(a), 1991 LGC) members of actual emergency,
(3) Provisions for the Maintenance of the or fiesta
Public Safety. No such way or place or any Sanggunian celebrations, public
part thereof shall be permanently closed 2. When rallies, agricultural
without making provisions for the necessary, or industrial fairs, or
maintenance of public safety therein. (Sec. an adequate an undertaking of
21(b), 1991 LGC) substitute for public works and
(4) For Other Lawful Use or Conveyance. A the public highways,
property thus permanently withdrawn from facility that is telecommunications,
public use may be used or conveyed for subject to and waterworks
any purpose for which other real property closure is projects.
belonging to the local government unit provided. 3. The duration of
concerned may be lawfully used or 3. Provisions which shall be
conveyed: Provided, however, That no for the specified by the
freedom park shall be closed permanently maintenance local chief executive
without provision for its transfer or of public concerned in a
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relocation to a new site. (Sec. 21(b), 1991 safety shall written order.
LGC) be made.
Requirements and Conditions for Temporary National vs. Local (vis-à-vis Road, Alley, Park
Closure or Square)
(1) Any national or local road, alley, park, or NATIONAL LOCAL
square may be temporarily closed during APPLIES TO ROAD, ALLEY, PARK OR
an actual emergency, or fiesta SQUARE
celebrations, public rallies, agricultural or Temporary closure 1. Temporary
industrial fairs, or an undertaking of public only. 2. Permanent
works and highways, telecommunications, closure
and waterworks projects. (Sec. 21(c), 1991
LGC) The passage of an ordinance by an LGU to effect
(2) The duration of which shall be specified by the opening of a local road can have no applicability
the local chief executive concerned in a if the subdivision road lots sought to be opened to
written order. (Sec. 21(c), 1991 LGC) decongest traffic in the area have already been
(3) That no national or local road, alley, park, donated to, and the titles thereto already issued in
or square shall be temporarily closed for the name of the City Government. Having been
athletic, cultural, or civic activities not already donated or turned over to the City
officially sponsored, recognized, or Government, the road lots in question have since
approved by the local government unit then taken the nature of public roads which are
concerned. (Sec. 21(c), 1991 LGC) Thus, withdrawn from the commerce of man and hence,
temporary closure for athletic, cultural, or placed beyond the private rights or claims of the
civic activities must be officially sponsored, homeowner’s association. Accordingly,
recognized, or approved by the LGU homeowner’s association was not in the lawful
concerned. exercise of its predicated rights when it built
obstructing structures closing the road lots in
NOTE: Temporary closure must be pursuant to an question to vehicular traffic for the use of the general
ordinance as per Sec. 21(a) of the LGC. public. Consequently, barangay’s act of passing the
disputed barangay resolution, the implementation of
which is sought to be restrained by homeowner’s
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association, had for its purpose not the opening of a (4) Mandatory Disclosures: Sanggunian
private road but may be considered merely as a members are required to do mandatory
directive or reminder to the Appellant to cause the disclosures that may result in any conflict of
opening of a public road which should rightfully be interest (financial, business, professional).
open for use to the general public. (New Sun Valley (Sec. 51, 1991 LGC)
v. Sangguniang Barangay, G.R. 156686, 2011)
(5) Regular session: Fixed on the first day of
e. Legislative Power session, 1x a week. (Sec. 52(a), 1991
LGC)
(a) Requisites of Valid
(6) Special Session: When public interest so
Ordinance
demands, special sessions may be called
by the local chief executive or by a majority
(1) Must not Contravene the Constitution or
of the members of the sanggunian. (Sec.
any statute
52(b), 1991 LGC)
(2) Must not be Unfair or oppressive
(3) Must not be Partial or discriminatory
(7) Quorum: A majority of all the members of
(4) Must not Prohibit, but may regulate trade
the sanggunian who have been elected and
(5) Must not be Unreasonable
qualified shall constitute a quorum to
(6) Must be General and consistent with public
transact official business. (Sec. 53(a), 1991
policy
LGC) If there is no quorum, presiding officer
may declare a recess until quorum is
NOTE: To measure if an ordinance is valid, see and
constituted or majority of members present
remember the previous discussions on the Two-
may adjourn from day to day and may
Pronged Test (Mosqueda v. Pilipino Growers) and
compel immediate attendance. (Sec. 53(b),
the Substantive Requirements (SJS v. Atienza).
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1991 LGC) If there is still no quorum
despite the enforcement of the immediately
Local Legislative Body
preceding subsection, no business shall be
(1) Exercised by the Sanggunian
transacted. (Sec. 53(c), 1991 LGC)
(Panlalawigan, Panglungson, Bayan,
Barangay) (Secs. 476, 458, 414, 391, 1991
Approval/Disapproval of Ordinances
LGC)
(1) Every ordinance enacted by the
(2) Presiding Officer:
sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan shall
PRESIDING be presented to the provincial governor or
LEGISLATIVE BODY
OFFICER city or municipal mayor, as the case may
Sangguniang be.
Panlalawigan Vice-Governor (2) If the local chief executive concerned
Sangguniang APPROVES the same, he shall affix his
Panglungsod Vice-Mayor signature on each and every page thereof;
Sangguniang Bayan Vice-Mayor (3) If the local chief executive concerned
DISAPPROVES the same, he shall VETO
Sangguniang Barangay Punong Barangay it and return the same with his objections to
the sanggunian, which may proceed to
reconsider the same.
The presiding officer shall vote only to break a (4) The veto shall be communicated by the
tie. local chief executive concerned to the
sanggunian within fifteen (15) days in the
In the event of the inability of the regular presiding case of a province, and ten (10) days in the
officer to preside at a sanggunian session, the case of a city or a municipality; otherwise
members present and constituting a quorum shall (i.e. if the veto is not communicated to the
elect from among themselves a temporary presiding sanggunian concerned within the
officer. (Sec. 49, 1991 LGC) prescribed period), the ordinance shall be
deemed approved as if he had signed it.
(3) Rules of Procedure: Sangguanian (5) The sanggunian concerned may override
concerned shall adopt its own rules of the veto of the local chief executive by two-
procedure. (Sec. 50, 1991 LGC) thirds (2/3) vote of all its members, thereby
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making the ordinance or resolution Has general application;
effective for all legal intents and purposes. more or less permanent Temporary in nature
(6) Ordinances enacted by the sangguniang in character.
barangay shall, upon approval by the
majority of all its members, be signed by the Third reading is required Third reading not
punong barangay. (Sec. 54, LGC) required
Usually used in the Usually used in the
NOTE: No such veto for the Punong Barangay since exercise of the LGU’s LGU’s exercise of
already a member of the Sangguniang Barangay. governmental functions proprietary functions
Any attempt to enforce any ordinance or any Subject to veto Only some may be
resolution approving the local development plan and subject to veto and
public investment program, after the disapproval review
thereof, shall be sufficient ground for the
suspension or dismissal of the official or Presumptions regarding local legislation (CRV)
employee concerned. (Sec. 58, 1991 LGC) (1) Constitutionality
(2) Regularity
Grounds and Limitation on the Veto Power of the (3) Validity
Local Chief Executive
(1) The local chief executive may veto any Requirement After Approval of the Ordinance
ordinance of the sanggunian panlalawigan, (1) For Component City and Municipality
sangguniang panlungsod, or sanggunian Ordinances
bayan on the ground that it is ultra vires or
prejudicial to the public welfare, stating his PROCESS:
reasons therefor in writing. (a) Within three (3) days after approval, the
(2) The local chief executive, except the secretary to the sanggunian panlungsod or
FOR ONE ATENEO

punong barangay, shall have the power to sangguniang bayan shall forward to the
veto any particular item or items of an sangguniang panlalawigan for review,
appropriations ordinance, an ordinance or copies of approved ordinances and the
resolution adopting a local development resolutions approving the local
plan and public investment program, or an development plans and public investment
ordinance directing the payment of money programs formulated by the local
or creating liability. In such a case, the veto development councils. (Sec. 56(a, 1991
shall not affect the item or items which are LGC)
not objected to. (b) Within thirty (30) days after the receipt of
(3) The vetoed item or items shall not take copies of such ordinances and resolutions,
effect unless the sanggunian overrides the the sangguniang panlalawigan shall
veto in the manner herein provided; examine the documents or transmit them to
otherwise, the item or items in the the provincial attorney, or if there be none,
appropriations ordinance of the previous to the provincial prosecutor for prompt
year corresponding to those vetoed, if any, examination. The provincial attorney or
shall be deemed reenacted. provincial prosecutor shall, within a period
(4) The local chief executive may veto an of ten (10) days from receipt of the
ordinance or resolution only once. The documents, inform the sangguniang
sanggunian may override the veto of the panlalawigan in writing of his comments or
local chief executive concerned by two- recommendations, which may be
thirds (2/3) vote of all its members, thereby considered by the sangguniang
making the ordinance effective even panlalawigan in making its decision. (Sec.
without the approval of the local chief 56(b), 1991 LGC)
executive concerned. (Sec. 55, 1991 LGC)
ACTION:
Ordinance vs. Resolution (c) If the sangguniang panlalawigan finds that
ORDINANCE RESOLUTION such an ordinance or resolution is beyond
Has the force and effect Mere opinion the power conferred upon the sangguniang
of law panlungsod or sangguniang bayan
concerned, it shall declare such ordinance
or resolution invalid in whole or in part. The
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sangguniang panlalawigan shall enter its development plan and public investment
action in the minutes and shall advise the program, the same shall take effect after
corresponding city or municipal authorities ten (10) days from the date a copy thereof
of the action it has taken. (Sec. 56(c), 1991 is posted in a bulletin board at the entrance
LGC) of the provincial capitol or city, municipal, or
(d) If no action has been taken by the barangay hall, as the case may be, and in
sangguniang panlalawigan within thirty (30) at least two (2) other conspicuous places in
days after submission of such an ordinance the local government unit concerned. (Sec.
or resolution, the same shall be presumed 59(a), 1991 LGC)
consistent with law and therefore valid.
(Sec. 56 (d), 1991 LGC) (b) The secretary to the sanggunian concerned
shall cause the posting of an ordinance or
(2) For Barangay Ordinances resolution in the bulletin board at the
Approved ordinances shall be forwarded to entrance of the provincial capitol and the
the sangguniang concerned for review if city, municipal, or barangay hall in at least
consistent with law or city or municipal two (2) conspicuous places in the local
ordinances. government unit concerned not later than
five (5) days after approval thereof. The text
PROCESS: of the ordinance or resolution shall be
(a) Within ten (10) days after its enactment, the disseminated and posted in Filipino or
sangguniang barangay shall furnish copies English and in the language understood by
of all barangay ordinances to the the majority of the people in the local
sangguniang panlungsod or sangguniang government unit concerned, and the
bayan concerned for review as to whether secretary to the sanggunian shall record
the ordinance is consistent with law and city such fact in a book kept for the purpose,
FOR ONE ATENEO

or municipal ordinances. (Sec. 57(a), 1991 stating the dates of approval and posting.
LGC) (Sec. 59(b), 1991 LGC)
(b) If the sangguniang panlungsod or
sangguniang bayan, as the case may be, With Penal Sanctions
fails to take action on barangay ordinances (a) The gist of all ordinances with penal
within thirty (30) days from receipt thereof, sanctions shall be published in a
the same shall be deemed approved. (Sec. newspaper of general circulation within the
57(b), 1991 LGC) province where the local legislative body
concerned belongs. In the absence of any
ACTION: newspaper of general circulation within the
(c) If the sangguniang panlungsod or province, posting of such ordinances shall
sangguniang bayan, as the case may be, be made in all municipalities and cities of
finds the barangay ordinances inconsistent the province where the sanggunian of
with law or city or municipal ordinances, the origin is situated. (Sec. 59(c), 1991 LGC)
sanggunian concerned shall, within thirty (b) Ordinances with penal sanctions shall be
(30) days from receipt thereof, return the posted at prominent places in the provincial
same with its comments and capitol, city, municipal or Barangay hall, as
recommendations to the sangguniang the case may be, for a minimum period of
barangay concerned for adjustment, three (3) consecutive weeks. Such
amendment, or modification; in which case, ordinances shall also be published in a
the effectivity of the barangay ordinance is newspaper of general circulation, where
suspended until such time as the revision available, within the territorial jurisdiction of
called for is effected. (Sec. 57(c), 1991 the local government unit concerned,
LGC) except in the case of Barangay ordinances.
Unless otherwise provided therein, said
Effectivity of Ordinances ordinances shall take effect on the day
following its publication, or at the end of the
(1) For Provinces, Component Cities, and period of posting, whichever occurs later.
Municipalities (Sec. 511(a), 1991 LGC) NOTE: This
should also apply to HUCs and ICCs.
Without Penal Sanctions
(a) Unless otherwise stated in the ordinance or
the resolution approving the local
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(2) For Highly Urbanized Cities and (4) Unreasonable ordinance is invalid. An
Independent Component Cities ordinance penalizing any person or entity
engaged in the business of selling tickets to
In the case of highly urbanized and independent movies or other public exhibitions, games
component cities, the main features of the ordinance or performances which would charge
or resolution duly enacted or adopted shall, in children between 7 and 12 years of the full
addition to being posted, be published once in a price of tickets instead of only one-half the
local newspaper of general circulation within the amount is void because it is unreasonable.
city: Provided, That in the absence thereof the It deprives sellers of the tickets of their
ordinance or resolution shall be published in any property without due process. A ticket is a
newspaper of general circulation. (Sec. 59(d), 1991 property right and may be sold for such
LGC) price as the owner of it can obtain. There is
nothing malicious in charging children the
NOTE: This should apply to all ordinances of HUCs same price as adults. (Balacuit v. CFI of
and ICCs, with or without penal sanctions. Agusan del Norte, G.R. No. L-38429, 1988)
Doctrines: (5) Liga ng Mga Barangay has no legislative

(1) Notice and hearing not required for powers. The Liga ng mga Barangay cannot
typographical error. A municipal exercise legislative powers because it is
resolution correcting an alleged not a local government unit and its primary
typographical error in a zoning ordinance purpose is to determine representation of
does not have to comply with the the liga in the sanggunians to ventilate,
requirements of notice and hearing, which articulate and crystallize issues affecting
are required for the validity and barangay government administration, and
effectiveness of zoning ordinances. (The to secure solutions for them through proper
Learning Child, Inc. v. Ayala Alabang and legal means. IOnon v. Fernandez, G.R.
FOR ONE ATENEO

Village Association, G.R. Nos. No. 139813, 2001)
134269/134440/144518, 2010)
(b) Local Initiative and
(2) An act which is outside of the municipality’s Referendum
jurisdiction is considered as a void ultra
vires act, while an act attended only by an Local Initiative - The legal process whereby the
irregularity but remains within the registered voters of a LGU may directly propose,
municipality’s power is considered as an enact, or amend any ordinance. It may be exercised
ultra vires act subject to ratification and/or by all registered voters of the provinces, cities,
validation. Case law states that public municipalities, and barangays. (Secs. 120 and 121,
officials can be held personally accountable 1991 LGC)
for acts claimed to have been performed in
connection with official duties where they Initiative on local legislation which refers to a petition
have acted ultra vires. (Land Bank of the proposing to enact a regional, provincial, city,
Philippines v. Cacayuran, G.R. No. 17165, municipal, or barangay law, resolution or ordinance.
2013) (Sec. 3(a1), RA 6735)
(3) Power of Sangguniang Panlalawigan to Thus, a resolution can also be the proper subject of
declare an ordinance invalid. An a local initiative. (SBMA v. COMELEC, G.R. No.
ordinance authorizing the expropriation of 25416, 1996)
parcels of land for the creation of a freedom
park cannot be struck down for the reason Local Referendum - The legal process whereby the
that the municipality has an existing registered voters of the local government units may
freedom park still suitable for the purpose approve, amend or reject any ordinance enacted by
because under Section 56 (c) of the LGC, the sanggunian.
the Sangguniang Panlalawigan can declare
the ordinance invalid only if it is beyond the The local referendum shall be held under the control
power of the Sangguniang Bayan. (Moday and direction of the COMELEC within sixty (60) days
v. CA, G.R. No. 107916, 1997) in case of provinces and cities, forty-five (45) days
in case of municipalities and thirty (30) days in case
of barangays.
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The COMELEC shall certify and proclaim the results

of the said referendum. (Sec. 126, 1991 LGC) Limitations on the Sanggunian
(1) The Sanggunian CANNOT repeal, modify
Procedure for Local Initiative or amend any proposition or ordinance
(1) Number of voters who should file approved through system of
petition with Sanggunian concerned: initiative/referendum within 6 months from
the date of approval thereof.
i. Provinces and cities - at (2) The Sanggunian can amend, modify or
least 1000 registered voters repeal the proposition/ordinance within 3
ii. Municipality - at least 100 years thereafter by a vote of ¾ of all its
registered voters members.
iii. Barangay - at least 50 (3) For barangays, the applicable period is 18
registered voters months. (Sec. 125, 1991 LGC)
(2) Sanggunian concerned has 30 days to Grounds for Null and Void Proposition
act on the petition. If the Sanggunian The proper courts can still declare void any
does not take any favorable action, the proposition adopted pursuant to an initiative or
proponents may invoke the power of referendum on the following grounds:
initiative, giving notice to Sanggunian. (1) Violation of the Constitution
(3) Proponents will have the following (2) Want of capacity of the Sanggunian
number of days to collect required concerned to enact the measure (Sec. 127,
number of signatures 1991 LGC)
i. Provinces and cities - 90 f. Corporate Powers

days
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ii. Municipalities - 60 days Corporate Powers:
iii. Barangays -30 days (1) To have continuous succession in its
corporate name. [Sec. 22, LGC
(2) To sue and be sued. [Sec. 22, LGC]
(4) Signing of petition
(3) To have and use a corporate seal. [Sec. 22,
(5) Date for initiative set by COMELEC if LGC]
required number of signatures has (4) To acquire and convey real or personal
been obtained. (Sec. 122, 1991 LGC) property. [Sec. 22, LGC]
(5) To enter into contracts. [Sec. 22, LGC]
Limitations on Local Initiative (6) To negotiate and secure financial grants.
(a) The power of local initiative shall not be [Sec. 23, LGC]
exercised more than once a year. (7) To establish a responsible organization.
(b) Initiative shall extend only to subjects or Local government units shall have the
matters which are within the legal powers power and authority to establish an
of the sanggunian to enact. organization that shall be responsible for
(c) If at any time before the initiative is held, the the efficient and effective implementation of
sanggunian concerned adopts in toto the their development plans, program
proposition presented and the local chief objectives and priorities. [Sec. 18, LGC]
executive approves the same, the initiative (8) To enter into cooperative undertakings with
shall be cancelled. However, those against other LGUs. [Sec. 33, LGC]
such action may, if they so desire, apply for (9) To enter into joint ventures and such other
initiative in the manner herein provided. cooperative arrangements with people's
(Sec. 124, 1991 LGC) and non-governmental organizations. [Sec.
35, LGC]
Effectivity of Proposition (10) To create indebtedness and to enter into
(a) If proposition is approved by a majority of credit and other financial transactions.
the votes cast, it will take effect 15 days [Secs. 295-303, LGC]
after certification by the COMELEC as if the (11) To issue bonds and other long-term
Sanggunian and the local chief executive securities. [Sec. 299, LGC]
had taken affirmative action. (12) To extend loans, grants, or subsidies to
(b) If it fails to obtain required number of votes, other local government units. [Sec. 300,
it is considered defeated. (Sec. 123, 1991 LGC]
LGC)
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(13) To enter into infrastructure contracts. [Sec. Presbitero, G.R. No. 174201,
303, LGC] 2015)
(14) To exercise such other powers as are
granted to corporations, subject to A municipality is a real party-in-interest and an
limitations imposed by the LGC and special indispensable party that stands to be directly
laws. [Sec. 22, LGC] affected by any judicial resolution on the case
assailing the validity of the loan, considering that: (a)
Requisites of valid municipal contracts: (FOLS- the contracting parties to the loans are the bank and
ID “false ID”) the municipality; and (b) the municipality owns the
(1) It must comply with Formal requirements public plaza as well as the improvements
(2) In case entered into by Local chief constructed thereon, and must therefore be
executive on behalf of LGU, prior impleaded in the case. (Land Bank v. Cacayuran,
authorization by Sanggunian concerned is G.R. No. 191667, 2015)
needed.
(3) It must comply with Substantive Liabilities arising from construction contracts of
requirements. LGUs do not partake of loans or forbearance of
(4) LGU has express, implied, or Inherent money but are in the nature of contracts of service.
power to enter into a particular contract. Hence, the rate of legal interest imposable on the
(5) It must be entered into by the proper liability to pay for the service is 6% per annum. (WT
Department, board, committee, or agent. Construction, Inc. v. The Province of Cebu, G.R. No.
208984, 2015)
The doctrine of separate personality of a corporation
finds no application in the Cooperative Development To Sue and Be Sued
Authority which was created by virtue of RA 6939, LGUs have the power to sue and be sued. (Local
since it is not a private entity but a government Government Code, Sec. 22(a)(2). Because of the
agency. (Verzosa v. Carague, G.R. No. 157838, statutory waiver, LGUs are not immune from suit.
FOR ONE ATENEO

2011).
The OSG may not be compelled to represent local
For local government infrastructure projects, government units. The LGC vests exclusive
Regional Trial Courts may issue provisional authority upon the LGU’s legal officers to be
injunctive reliefs against government infrastructure counsels of local government units. Even the
projects only when: employment of a special legal officer is expressly
(1) there are compelling and substantial allowed by the law only upon a strict condition that
constitutional violations; the action or proceeding which involves the
(2) there clearly exists a right in esse; component city or municipality is adverse to the
(3) there is a need to prevent grave and provincial government or to another component city
irreparable injuries; or municipalit. (OSG v. CA and Municipal
(4) there is a demonstrable urgency to the Government of Suguiran, G.R. No. 199027, 2014)
issuance of the injunctive relief; and
(5) when there are public interest at stake in A municipality can be sued for damages arising from
restraining or enjoining the project while the injuries sustained by a pedestrian who was hit by a
action is pending that far outweighs glass pane that fell from a dilapidated window frame
(a) the inconvenience or costs to the of the municipal hall. Under Section 24 of the LGC
party to whom the project is and Article 2189 of the Civil Code, the municipality
awarded and is liable for damages arising from injuries to persons
(b) the public benefits that will result by reason of negligence of local government units
from the completion of the project. on the defective condition of the municipal hall,
The time periods for the validity of which is under their control and supervision.
temporary restraining orders
issued by trial courts should be To Acquire and Sell Property
strictly followed. No preliminary Properties of the public dominion devoted to public
injunction should issue unless the use and made available to the public in general are
evidence to support the injunctive outside the commerce of persons and cannot be
relief is clear and convincing. disposed of or leased by the LGU to private persons.
(Dynamic Builders and (Macasiano v. Diokno, G.R. No. 97764, 1992)
Construction Co., Inc. v.
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Pursuant to the regalian doctrine, any land that center; and (b) do not written contract e.g.,
has never been acquired through purchase, comply with the the Statute of Frauds.
grant or any other mode of acquisition remains substantive
part of the public domain and is owned by the requirements of law,
State. LGUs cannot appropriate to themselves e.g., when expenditure
public lands without prior grant from the of public funds is to be
government. (Rural Bank of Anda v. Roman made, there must be an
Catholic Archbishop of Lingayen-Dagupan, G.R. actual appropriation
No. 155051, 2007) and certificate of
availability of funds.
To Enter Into Contracts (LBP v. Cacayuran, G.R. No. 191667, 2013)
Unless otherwise provided in the LGC, no contract
may be entered into by the local chief executive in 2. LIABILITY OF LOCAL
behalf of the LGU without prior authorization by the GOVERNMENT UNITS
Sanggunian concerned. A legible copy of such
contract shall be posted at a conspicuous place in
the provincial capitol or the city, municipal or a. Suitability of LGUs
barangay hall (Local Government Code, Sec. 22(c)).
Without the council authorization/ ratification, the The general rule spelled out in Section 3, Article XVI
contract is unenforceable. of the Constitution is that the state and its political
subdivisions may not be sued without their consent.
While the authorization of local chief executive need Otherwise put, they are open to suit but only when
not be in the form of an ordinance, the obligation (i.e. they consent to it. Consent is implied when the
incurring a loan) which the said local executive is government enters into a business contract, as it
authorized to enter into must be made pursuant to a then descends to the level of the other contracting
party; or it may be embodied in a general or special
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law or ordinance. (LBP v. Cacayuran, G.R. No.
191667, 2013) law such as that found in Book I, Title I, Chapter 2,
Section 22 of the Local Government Code of 1991,
The prior authorization may be in the form of an which vests local government units with certain
appropriation ordinance passed for the year which corporate powers — one of them is the power to sue
specifically covers the project, cost or contract to be and be sued. (Municipality of Hagonoy v. Dumdum,
entered into by the LGU. (Quisumbing v. Garcia, G.R. No. 168289, 2010)
G.R. No. 175527, 2008)
Suability vs. Liability
Those beyond the powers of the LGU may be A distinction should first be made between suability
subject to veto of the local executive or review of the and liability. Suability depends on the consent of the
local legislative for being ultra vires. state to be sued, liability on the applicable law and
the established facts. The circumstance that a
g. Ultra Vires Acts state is suable does not necessarily mean that it
is liable; on the other hand, it can never be held
liable if it does not first consent to be sued.
Generally, an ultra vires act is one committed Liability is not conceded by the mere fact that the
outside the object for which a corporation is created state has allowed itself to be sued. When the state
as defined by the law of its organization and does waive its sovereign immunity, it is only giving
therefore beyond the powers conferred upon it by the plaintiff the chance to prove, if it can, that the
law. There are two (2) types of ultra vires acts. defendant is liable. (Municipality of San Fernando v.
Firme, G.R. No. 52179, 8 April 1991 citing United
2 Types of Ultra Vires Acts: Void Ultra Vires vs. States of America v. Guinto, supra, p. 659-660)
Irregular Ultra Vires
VOID IRREGULAR Additionally, as held in City of Caloocan v. Allarde,
ULTRA VIRES ULTRA VIRES where the suability of the state is conceded and by
Those which (a) are Those which (a) are which liability is ascertained judicially, the state is at
entered into beyond the entered into by the liberty to determine for itself whether to satisfy the
express, implied or improper department, judgment or not. Execution may not issue upon
inherent powers of the board, officer of agent; such judgment, because statutes waiving non-
local government unit, and (b) do not comply suability do not authorize the seizure of property
e.g. converting a public with the formal to satisfy judgments recovered from the action.
plaza into a commercial requirements of a These statutes only convey an implication that the
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legislature will recognize such judgment as final and
make provisions for its full satisfaction. Thus, where Proprietary Functions
consent to be sued is given by general or special (a) With respect to proprietary functions, the
law, the implication thereof is limited only to the settled rule is that a municipal corporation
resultant verdict on the action before execution of can be held liable to third persons ex
the judgment. (Municipality of Hagonoy v. Dumdum, contractu or ex delicto. (Torio v. Fontanilla,
G.R. No. 168289, 22 March 2010 citing City of G.R. No. L-29993, L-30183, 1978)
Caloocan v. Allarde, 457 Phil. 543, 553 (2003)) (b) The celebration of a town fiesta by a
municipality is not a governmental
Death or Injury to Persons or Damage to function. The legal consequence is that
Property the municipality stands on the same footing
Local government units and their officials are not as an ordinary private corporation with the
exempt from liability for death or injury to persons or municipal council acting as its board of
damage to property. (Sec. 24, 1991 LGC) directors. It is an elementary principle that
a corporation has a personality separate
NOTE: and distinct from its officers, directors, or
(1) It is not yet well-settled if Sec. 24 of the persons composing it and the latter are not
LGC extends to both governmental duties as a rule co-responsible in an action for
and proprietary functions. damages for tort or negligence (culpa
(2) Two schools of thought: a) Sec. 24 of the acquiliana) committed by the corporation's
LGC applies to both governmental and employees or agents unless there is a
proprietary functions; b) Sec. 24 of the LGC showing of bad faith or gross or wanton
applies to proprietary functions only and not negligence on their (i.e. the councilors who
to governmental or sovereign functions or authorized the town fiesta) part. (Torio v.
duties. Fontanilla, G.R. No. L-29993, L-30183,
(3) It is submitted that Sec. 24 of the LGC 1978)
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applies only to proprietary functions and will (c) Leasing of a municipal ferry to the
make the LGU and its officials liable for highest bidder for a specified period of
governmental functions if the acts are not in time is not a governmental but
good faith, dishonest, malicious, whimsical, corporate function. Such a lease, when
capricious, or arbitrary, which must be validly entered into, constitutes a contract
proven in court. with the lessee which the municipality is
bound to respect. Thus, municipal council
b. Governmental Functions vs. liable for damages for revocation of the
Proprietary Functions fishing without a valid reason. (Mendoza v.
De Leon, G.R. No. 9596, 1916)
(a) If the injury is caused in the course of the
performance of a governmental function or Civil liability of public officials for public acts
duty no recovery, as a rule, can be had from General Rule: A public officer is not liable for
the municipality unless there is an existing damages which a person may suffer arising from the
statute on the matter. just performance of his official duties and within the
(b) No recovery can be had also from scope of his assigned tasks.
municipal officials so long as they
performed their duties honestly and in good Exception: When the governmental acts are done
faith or that they did not act wantonly and in bad faith, being outside the scope of authority,
maliciously. (Torio v. Fontanilla, G.R. No. L- such public officer is liable for damages in his/her
29993, L-30183, 1978) personal capacity. (Vinzons-Chatto v. Fortune
Tobacco Corporation, G.R. No. 141309, 2007)
Thus, the municipality cannot be held liable for the
torts committed by its regular employee, who was c. Liability on Contracts
then engaged in the discharge of governmental
functions. Hence, the death of the passenger — Doctrine of Implied Municipal Liability
tragic and deplorable though it may be imposed on A municipality may become obligated upon an
the municipality no duty to pay monetary implied contract to pay the reasonable value of
compensation. (Municipality of San Fernando v. the benefits accepted or appropriated by it as to
Firme, G.R. No. 52179, 1991 citing Palafox v. Ilocos which it has the general power to contract. The
Norte, G.R. No. L-10659, 1958) doctrine applies to all cases where money or other
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property of a party is received under such Performance of an Unenforceable Contract

circumstances that the general law, independent of Since there exists an indication by way of allegation
an express contract, implies an obligation to do that there has been performance of the obligation on
justice with respect to the same. Thus, the LGU was the part of respondent, the case is excluded from the
made to pay fees of private lawyer, who was allowed coverage of the rule on dismissals based on
to continue as counsel that led him to believe that his unenforceability under the statute of frauds, and
services were still necessary. (Province of Cebu v. either party may then enforce its claims against the
IAC, G.R. No. 72841, 1987) other. Thus, the SC reversed the dismissal of a claim
against an LGU for the purchase of motor vehicles
Doctrine of Estoppel Not Applicable to Void notwithstanding that it’s not in writing given that there
Contracts has been delivery performance already to the LGU.
The doctrine of estoppel cannot be applied as against (Municipality of Hagonoy v. Dumdum, G.R. No.
a municipal corporation to validate a contract which it 168289, 2010)
has no power to make, or which it is authorized to
make only under prescribed conditions, within d. Liability for Torts
prescribed limitations, or in a prescribed mode or
manner, although the corporation has accepted the Art. 2180 in relation to Art. 2176 of the Civil
benefits thereof and the other party has fully Code
performed his part of the agreement, or has (a) Art. 2176. Whoever by act or omission
expanded large sums in preparation for performance. causes damage to another, there being
A reason frequently assigned for this rule is that to fault or negligence, is obliged to pay for the
apply the doctrine of estoppel against a municipality damage done. Such fault or negligence, if
in such case would be to enable it to do indirectly there is no pre-existing contractual relation
what it cannot do directly. Also, where a contract is between the parties, is called a quasi-delict
violative of public policy, the municipality executing it and is governed by the provisions of this
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cannot be estopped to assert the invalidity on this Chapter.
ground; nor can it be estopped to assert the invalidity (b) Art. 2180. xxx (Par. 6) The State is
of a contract which has ceded away, controlled, or responsible in like manner when it acts
embarrassed its legislative or government powers. through a special agent (i.e. for official
Thus, the municipality is not estopped from revoking
governmental acts); but not when the
a contract that was extended without the requirement damage has been caused by the official to
of public bidding and hence, void for being contrary whom the task done properly pertains, in
to law and public policy. (San Diego v. Municipality of which case what is provided in Article 2176
Naujan, G.R. No. L-9920, 1960) shall be applicable (i.e. when attended by
fault or gross negligence). xxx
Government Justified to Decline Payment for a
Supply Contract in Violation of Laws Thus, LGU could not be liable for the acts of an
The government is justified to decline payment of the ambulance driver under Art. 2180 for not being a
purchase price of illegally cut lumber delivered by a special agent contemplated by law. And a special
contractor who won a public bidding for the agent, in the sense in which these words are
construction of the Navotas Bridge. All contracts, employed, is one who receives a definite and fixed
including government contracts, are subject to the order or commission, foreign to the exercise of the
police power of the State. Being an inherent duties of his office if he is a special offfcial) so that
attribute of sovereignty, such power is deemed in representation of the state and being bound to act
incorporated into the laws of the land, which are part as an agent thereof he executed the trust confided
of all contracts, thereby qualifying the obligations to him. This concept does not apply to any executive
arising therefrom. Thus, it is an implied condition in agent who is an employee of the active
the subject contract for the procurement of materials administration and who in his own responsibility
needed in the repair and construction of the Navotas performs the functions which are inherent in and
Bridge that petitioner as private contractor would naturally pertain to his office and which are
comply with pertinent forestry laws and regulations regulated by law and the regulations." (Merritt v.
on the cutting and gathering of the lumber she Government of the Philippine Islands, G.R. No.
undertook to supply the provincial government. 11154, 1916 citing the Supreme Court of Spain, May
(Guadines v. Sandiganbayan, G.R. No. 164891, 18, 1904; 98 Jur. Civ., 389, 390)
2011)
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Art. 2189 of the Civil Code When a writ was directed at the mayor not in his
Provinces, cities and municipalities shall be liable for personal capacity, but in his capacity as municipal
damages for the death of, or injuries suffered by, mayor, it is not irregular whether it was served upon
any person by reason of the defective condition of him during his earlier term or in his subsequent one.
roads, streets, bridges, public buildings, and other (Vargas v. Cajucom, G.R. No. 171095, 2015)
public works under their control or supervision.
e. Rules on Enforcing Money
Thus, an LGU is liable for injuries suffered because Claims vs. LGU
of defective roads and manholes. For liability to
arise under Article 2189 of the Civil Code, ownership GENERAL RULE: Government properties are not
of the roads, streets, bridges, public buildings and subject to levy and execution to satisfy a money
other public works is not a controlling factor, it being judgment. However, the SC laid down the following
sufficient that a province, city or municipality has rules and guidelines:
control or supervision thereof. (City of Manila v.
Teotico, G.R. No. L-23052, 1968; Municipality of (1) It is settled jurisprudence that upon
San Juan v. CA, G.R. No. 121920, 2005; Guilatco determination of State liability, the
vs. Dagupan, G.R. No. 61516, 1989) prosecution, enforcement or satisfaction
thereof must still be pursued in accordance
Art. 34 of the Civil Code with the rules and procedures laid down
When a member of a city or municipal police force in PD 1445 otherwise known as
refuses or fails to render aid or protection to any the Government Auditing Code of the
person in case of danger to life or property, such Philippines. (Department of Agriculture v.
peace officer shall be primarily liable for damages, NLRC, 227 CRA 693, 701-02 (1993) citing
and the city or municipality shall be subsidiarily Republic v. Villasor, 54 SCRA 84 (1973))
responsible therefor. The civil action herein (2) All money claims against the Government
recognized shall be independent of any criminal
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must first be filed with the Commission on
proceedings, and a preponderance of evidence Audit which must act upon it within sixty
shall suffice to support such action. days. Rejection of the claim will authorize
the claimant to elevate the matter to the
Art. 2208 of the Civil Code Supreme Court on certiorari and, in effect,
In the absence of stipulation, attorney's fees and sue the State thereby. (PD 1445 Sec. 49-
expenses of litigation, other than judicial costs, 50)
cannot be recovered, except:
XXX (2) When the defendant's act or omission has NOTE: COA has PRIMARY
compelled the plaintiff to litigate with third persons JURISDICTION over money claims
or to incur expenses to protect his interest; XXX against the State (including LGUs). (Star
(5) Where the defendant acted in gross and evident Special Corporate Security v. COA, G.R.
bad faith in refusing to satisfy the plaintiff's plainly No. 225366, September 1, 2020)
valid, just and demandable claim.
(3) However, notwithstanding the rule that
Thus, a mayor was held personally liable for government properties are not subject to
damages and attorney’s fees for vetoing without levy and execution unless otherwise
reason the sanggunian resolution appropriating the provided for by statute (Republic v. Palacio,
unpaid salaries of a vice mayor, who was forced to 23 SCRA 899 (1968); Commissioner of
litigate in order to claim his lawful salary which was Public Highways v. San Diego, supra) or
unduly denied him for 3 years and that the mayor municipal ordinance (Municipality of Makati
acted in gross and evident bad faith in refusing to v. Court of Appeals, 190 SCRA 206
satisfy the plainly valid, just and demandable claim. (1990)), the Court has, in various
(Pilar v. Sangguniang Bayan of Dasol, G.R. No. instances, distinguished between
63216, 1984) government funds and properties for public
use and those not held for public use.
However, a mayor cannot be held personally liable
if his actions were done pursuant to an ordinance (4) Thus, in Viuda de Tan Toco v. Municipal
which, at the time of the collection, was yet to be Council of Iloilo (49 Phil. 52 (1926)), the
invalidated. (Demaala v. COA, G.R. No. 199752, Court ruled that "(w)here property of a
2015) municipal or other public corporation is
sought to be subjected to execution to
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satisfy judgments recovered against such (b) If no authority or beyond authority, with
corporation, the question as to whether bad faith, or with gross negligence, with
such property is leviable or not is to be malice – LIABLE
determined by the usage and purposes for
which it is held." 3. SETTLEMENT OF BOUNDARY
DISPUTES
(5) The following can be culled from Viuda de
Tan Toco v. Municipal Council of Iloilo:
Situation vs. Where to Settle
SITUATION WHERE TO SETTLE
(a) Properties held for public uses — and
generally everything held for Boundary disputes The sangguniang
governmental purposes — are not involving 2 or more panlungsod or
subject to levy and sale under barangays in the same Sangguniang bayan
execution against such corporation. city or municipality. concerned.
The same rule applies to funds in the Boundary disputes The Sangguniang
hands of a public officer and taxes due involving 2 or more panlalawigan
to a municipal corporation. municipalities within the concerned
(b) Where a municipal corporation owns in same province
its proprietary capacity, as Boundary disputes Jointly referred for
distinguished from its public or involving municipalities settlement to the
governmental capacity, property not or component cities of Sanggunians of the
used or used for a public purpose but different provinces province concerned
for quasi-private purposes, it is the Boundary disputes Jointly referred for
general rule that such property may be involving a component settlement to the
seized and sold under execution city or municipality on respective
the one hand and a Sanggunians of the
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against the corporation.
(c) Property held for public purposes is highly urbanized city on parties
not subject to execution merely the other, or two (2) or
because it is temporarily used for more highly urbanized
private purposes. If the public use is cities.
wholly abandoned, such property (Sec. 118, 1991 LGC)
becomes subject to execution. (Star
Special Watchman & Detective NOTE: The following dispute situations are not
Agency, Inc. v. Puerto Princesa City, included in Sec. 118 of the LGC:
G.R. No. 181792, 2014 citing Sc • Component City vs. Component City within
Administrative Circular No. 10-00 the same province
dated October 25, 2000) • Municipality vs. Component City within the
(d) COA has no jurisdiction to reverse and same province
set aside (or even modify) a finally • Municipality in NCR vs. Municipality in NCR
adjudicated claim against an LGU (or (see Taguig v. Makati)
the government for that matter) per the • Municipality in NCR vs. HUC in NCR
Doctrine of Immutability of • Municipality in one province vs.
Judgment. (Star Special Corporate Municipality in NCR (see Sta. Lucia Realty
Security v. COA, G.R. No. 225366, 01 v. City of Pasig, G.R. No. 166838, 2011)
September 2020) • Any LGU (Province, Municipality, CC,
HUC, ICC) vs. INDEPENDENT Component
f. Summary Rules on Liability for City
Damages
Hence, RTC has jurisdiction applying Kananga v.
(1) If in the exercise of governmental functions, Madrona.
with or without negligence - NOT LIABLE
(2) If in the exercise of corporate or proprietary a. Procedure After Failure of
functions: Amicable Settlement
(a) If with authority and within scope of
authority, or without bad faith, or without (1) In the event the Sanggunian fails to effect
negligence – NOT LIABLE an amicable settlement within 60 days from
the date the dispute was referred thereto, it
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shall issue a certification to that effect. incapacitated to discharge the functions of his office.
(Sec. 118, 1991 LGC) (Sec. 44, 1991 LGC)
(2) Thereafter, the dispute shall be formally
tried by the Sanggunian concerned which a. Grounds for Permanent
shall decide the issue within 60 days from Vacancy (F2VR2-DP)
the date of the certification. (Sec. 118, 1991
LGC) (1) Elective local official Fills a higher vacant
(3) Within the time and manner prescribed by office
the Rules of Court, any party may elevate (2) Refuses to assume office
the decision of the sanggunian concerned (3) Fails to qualify
to the proper Regional Trial Court having (4) Dies
jurisdiction over the area in dispute. The (5) Removed from office
Regional Trial Court shall decide the (6) Voluntarily resigns
appeal within one (1) year from the filing (7) Permanently incapacitated to discharge the
thereof. Pending final resolution of the functions of his office
disputed area prior to the dispute shall be
maintained and continued for all legal
purposes. (Sec. 119, 1991 LGC) b. Filling of Vacancy
(1) Automatic succession
Doctrines: (2) Appointment
(1) According to Section 118 of the Local
Government Code, boundary disputes c. Permanent Vacancies
between and among municipalities
should be referred for settlement to the Permanent Vacancies in the offices of the
sangguniang panlalawigan and not with Governor, Vice Governor, Mayor, Vice Mayor
the Regional Trial Court. (Municipality of (1) If a permanent vacancy occurs in the office
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Sta. Fe v. Municpality of Artao, G.R. No. of the governor or mayor, the vice-governor
140474, 2007) or vice-mayor concerned shall become the
(2) However, there is no law providing for governor or mayor.
the jurisdiction of any court or quasi- (2) If a permanent vacancy occurs in the
judicial body over the settlement of a offices of the governor, vice-governor,
boundary dispute between a mayor, or vice-mayor, the highest ranking
municipality and an independent sanggunian member or, in case of his
component city, thus, the Regional Trial permanent inability, the second highest
Court has jurisdiction to adjudicate it. ranking sanggunian member, shall become
Under Section 19 (6) of the Judiciary the governor, vice-governor, mayor or vice-
Reorganization Act, the RTC has mayor, as the case may be.
exclusive original jurisdiction in all cases (3) Subsequent vacancies in the said office
not within the exclusive jurisdiction of any shall be filled automatically by the other
court or quasi-judicial agency. (Municipality sanggunian members according to their
of Kananga v. Madrona, G.R. No. 141375, ranking as defined herein. (Sec. 44(a),
2003) 1991 LGC)
(3) The technical description, containing the
metes and bounds of the municipality’s Permanent Vacancy in the Punong Barangay: If
territory as stated in an executive order a permanent vacancy occurs in the office of the
creating the said municipality, is binding. punong barangay, the highest ranking sanggunian
(Municipality of Jimenez v. Baz, Jr., G.R. barangay member or, in case of his permanent
No. 105746, December 2, 1996) inability, the second highest ranking sanggunian
member, shall become the punong barangay. (Sec.
4. VACANCIES AND SUCCESSION OF 44(b), 1991 LGC)
LOCAL OFFICIALS
In Case of Tie Between Highest Ranking
Sanggunian: A tie between or among the highest
When Permanent Vacancy Occurs/Arises ranking sanggunian members shall be resolved by
A permanent vacancy arises when an elective local the drawing of lots. (Sec. 44(c), 1991 LGC)
official fills a higher vacant office, refuses to assume
office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently
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How Long Successors Will Serve: The the Sanggunian member whose position has
successors as defined herein shall serve only the become vacant.
unexpired terms of their predecessors. (Sec. 44(d),
1991 LGC) Exception: In case of vacancy in the
Sangguniang barangay.
Determining Sanggunian Ranking: Ranking in the
sanggunian shall be determined on the basis of the REMEMBER: The appointee must be a party
proportion of votes obtained by each winning member nominated with a certificate of
candidate to the total number of registered voters in membership from the highest party official (e.g.
each district in the immediately preceding local party chairman and not just a provincial chair).
election. (Sec. 44, 1991 LGC) (Damasen v. Tumamao, G.R. No. 173165,
2010)
Permanent Vacancies in the Sanggunian
(a) Permanent vacancies in the sanggunian NOTE: The "last vacancy" in the
where automatic succession (provided in Sanggunian refers to that created by the
Sec. 44) do not apply shall be filled by elevation of the member formerly occupying
appointment in the following manner: the next higher in rank which in turn also
had become vacant by any of the causes
(1) The President, through the Executive already enumerated. The term "last vacancy"
Secretary, in the case of the is thus used in Sec. 45 (b) to differentiate it from
sangguniang panlalawigan and the the other vacancy previously created. The term
sangguniang panlungsod of highly by no means refers to the vacancy in the No. 8
urbanized cities and independent position which occurred with the election of
component cities; Rolando Lalas to the seventh position in the
(2) The governor, in the case of the Sanggunian. Such construction will result in
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sangguniang panlungsod of absurdity. (Navarro v. CA, G.R. No. 141307,
component cities and the sangguniang 2001)
bayan;
(3) The city or municipal mayor, in the (c) In case or permanent vacancy is caused by
case of sangguniang barangay, upon a sanggunian member who does not
recommendation of the sangguniang belong to any political party, the local chief
barangay concerned. executive shall, upon recommendation of
the sanggunian concerned, appoint a
(b) Except for the sangguniang barangay, only qualified person to fill the vacancy.
the nominee of the political party under
which the sanggunian member concerned (d) In case of vacancy in the representation of
had been elected and whose elevation to the youth and the barangay in the
the position next higher in rank created the sanggunian, said vacancy shall be filled
last vacancy in the sanggunian shall be automatically by the official next in rank of
appointed in the manner hereinabove the organization concerned. (Sec. 45, 1991
provided. The appointee shall come from LGC)
the same political party as that of the
sanggunian member who caused the Vacancy and Successor
vacancy and shall serve the unexpired term VACANCY SUCCESSOR
of the vacant office. In the appointment Governor, Mayor Vice-Governor, Vice-
herein mentioned, a nomination and a Mayor
certificate of membership of the
appointee from the highest official of the Governor, Vice- Highest ranking
political party concerned are conditions governor, Mayor or Sanggunian member
sine qua non, and any appointment Vice-mayor
without such nomination and certification Highest ranking
shall be null and void ab initio and shall be Sanggunian member Second highest
a ground for administrative action against (who was supposed to ranking Sanggunian
the official responsible therefore. fill the vacant position member
of governor, etc.)
General Rule: The successor (by appointment) Highest ranking
should come from the same political party as In the office of the Sangguniang
Punong Barangay Barangay member
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OR the 2nd highest that the legal causes no longer exist. (Sec.
ranking Sanggunian 46, 1991 LGC)
member
Appointment of Officer-in-Charge
Temporary Incapacity (1) When the incumbent local chief executive
When the governor, city or municipal mayor, or is traveling within the country but outside
punong barangay is temporarily incapacitated to his territorial jurisdiction for a period not
perform his duties for physical or legal reasons such exceeding three (3) consecutive days, he
as, but not limited to, leave of absence, travel may designate in writing the officer-in-
abroad, and suspension from office, the vice- charge of the said office. Such
governor, city or municipal vice-mayor, or the authorization shall specify the powers and
highest ranking sangguniang barangay member functions that the local official concerned
shall automatically exercise the powers and perform shall exercise in the absence of the local
the duties and functions of the local chief executive chief executive except the power to
concerned, except the power to appoint, suspend, appoint, suspend, or dismiss employees.
or dismiss employees which can only be exercised (Sec. 46(c), 1991 LGC)
if the period of temporary incapacity exceeds thirty (2) Except as provided above, the local chief
(30) working days. executive shall in no case authorize any
local official to assume the powers, duties,
Said temporary incapacity shall terminate upon and functions of the office, other than the
submission to the appropriate sanggunian of a vice-governor, the city or municipal vice-
written declaration by the local chief executive mayor, or the highest ranking sangguniang
concerned that he has reported back to office. In barangay member, as the case may be.
cases where the temporary incapacity is due to legal (Sec. 46(e), 1991 LGC)
causes, the local chief executive concerned shall
also submit necessary documents showing that said THUS: 1) For Absence not exceeding 3 days –
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legal causes no longer exist. (Sec. 46(a)(b), 1991 local chief executive can name ANY official; 2) For
LGC) Absence exceeding 3 days – the local chief
executive is limited to designating the vice-governor,
Non-exclusive grounds for temporary vacancy the city or municipal vice-mayor, or the highest
(1) Leave of absence ranking sangguniang barangay member, as the
(2) Travel abroad case may be.
(3) Suspension from office
In the event, however, that the local chief executive
General Rule: If the position of governor, mayor, or concerned fails or refuses to issue such
punong barangay becomes temporarily vacant, the authorization, the vice-governor, the city or
vice- governor, vice-mayor or highest-ranking municipal vice-mayor, or the highest ranking
Sanggunian member will automatically exercise sangguniang barangay member, as the case may
the powers and perform the duties and functions be, shall have the right to assume the powers,
of the local chief executive concerned. duties, and functions of the said office on the fourth
(4th) day of absence of the said local chief executive,
Exception: He cannot exercise the power to subject to the limitations provided in subsection (c)
appoint, suspend or dismiss employees. hereof. (Sec. 46(d), 1991 LGC)
Exception to the Exception: If the period of Permanent Vacancies in the Sangguniang

temporary incapacity exceeds 30 working days. Kabataan
(Sec. 46, 1991 LGC) (a) In case a Sangguniang Kabataan
chairperson refuses to assume office, fails
Termination of Temporary Incapacity to qualify, voluntarily resigns, dies, is
(1) Upon submission to the appropriate permanently incapacitated, is removed
Sanggunian of a written declaration by the from office, the Sangguniang Kabataan
local chief that he has reported back to member who obtained the highest number
office. of votes in the election immediately
(2) If the temporary incapacity was due to legal preceding shall assume the office of the
reason, the local chief executive should chairperson for the unexpired portion of his
also submit necessary documents showing or her term. In case said member refuses
to assume the position or fails to qualify, the
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Sangguniang Kabataan member obtaining a. Who May Exercise

the next highest number of votes shall
assume the position of the chairperson for The power of recall for loss of confidence shall be
the unexpired portion of the term. exercised by the registered voters of a local
(b) After the vacancy shall have been filled, the government unit to which the local elective official
Sangguniang Kabataan chairperson shall, subject to such recall belongs. (Sec. 69, 1991 LGC)
within thirty (30) days, call for a special
Katipunan ng Kabataan assembly to elect b. How Recall is Initiated
a Sangguniang Kabataan member to
complete the membership of said
The Recall of any elective provincial, city, municipal
sanggunian: Provided, That, such special
or barangay official shall be commenced by a
assembly is coordinated with the Office of
petition of a registered voter in the local government
the Local Government Operations Officer
unit concerned and supported by the registered
and the COMELEC of the municipality or
voters in the local government unit concerned during
city where the concerned barangay
the election in which the local official sought to be
belongs Such Sangguniang Kabataan
recalled was elected subject to the following
member shall hold office for the unexpired
percentage requirements:
portion of the term of the vacant seat. For
(1) At least twenty-five percent (25%) in the
this purpose, any citizen of the Philippines
case of local government units with a voting
residing in the said barangay for at least six
population of not more than twenty
(6) months who attains the age of fifteen
thousand (20,000);
(15) years old at the time of the special
(2) At least twenty percent (20%) in the case of
election and who registers as member of
local government units with a voting
the Katipunan ng Kabataan before the
population of at least twenty
Sangguniang Kabataan secretary shall be
thousand (20,000) but not more
FOR ONE ATENEO

entitled to vote in the said special election.
than seventy-five thousand (75,000):
(c) All other vacancies in the office of the
Provided, That in no case shall the required
Sangguniang Kabataan shall be filled in
petitioners be less than five thousand
accordance with the immediately preceding
(5,000);
provision.
(3) At least fifteen percent (15%) in the case of
(d) In case of suspension of the Sangguniang
Kabataan chairperson, the successor, as
population of at least seventy-five thousand
determined in subsection (a) of this section,
(75,000) but not more than three hundred
shall assume the position during the period
thousand (300,000): Provided, however,
of such suspension. (Sec. 19, RA 10742)
That in no case shall the required number
of petitioners be less than fifteen thousand
NOTE: Republic Act No. 10742, otherwise known as
(15,000); and
the “Sanggunian Kabataan Reform Act of 2015,”
(4) At least ten percent (10%) in the case of
has repealed and/or modified accordingly Sections
329, 423-439 of the RA 7160, LGC.
population of over three hundred thousand
(300,000): Provided, however, That in no
5. RECALL case shall the required petitioners be less
than forty-five thousand (45,000). (Sec.
Recall is a mode of removal of a public officer by the 70(a), LGC as amended by RA 9244)
people before the end of his term of office. The
people's prerogative to remove a public officer is an NOTE: Under RA 9244, there is no more Recall
incident of their sovereign power and in the absence via the Preparatory Recall Assembly.
of constitutional restraint, the power is implied in all
governmental operations. Such power has been
c. Recall Process/Procedure
held to be indispensable for the proper
administration of public affairs. Not undeservedly, it
is frequently described as a fundamental right of the The process of recall shall be effected in
people in a representative democracy. (Garcia v. accordance with the following procedure:
COMELEC, G.R. No. 111511, 1993)
(1) WRITTEN PETITION.
A written petition for recall duly signed by the
representatives of the petitioners before the election
registrar or his representative, shall be filed with the
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Comelec through its office in the local government (6) CANDIDATES.
unit concerned. Upon the lapse of the aforesaid period, the Comelec
or its duly authorized representative shall announce
(2) CONTENTS OF THE PETITION. the acceptance of candidates to the position and
The petition to recall shall contain the following: thereafter prepare the list of candidates which shall
(a) The names and addresses of the include the name of the official sought to be
petitioners written in legible form and their recalled.” (Sec. 70(b), LGC as amended by RA
signatures; 9244)
(b) The barangay, city or municipality, local
legislative district and the province to which The authentication of signatures in a recall petition
the petitioners belong; is done during the determination of the names,
(c) The name of the official sought to be signatures and thumbmarks of petitioners, not
recalled; and during the determination of the sufficiency of the
(d) A brief narration of the reasons and form and substance of the petition. (Sy-Alvarado v.
justifications therefor. Comelec, G.R. No. 216457, 2015)
(3) COMELEC CERTIFICATION. d. Conduct of Recall Election

The Comelec shall, within fifteen (15) days from the
filing of the petition, certify to the sufficiency of the (1) Upon the filing of a valid petition for recall
required number of signatures. Failure to obtain the with the appropriate local office of the
required number of signatures automatically nullifies Comelec, the Comelec or its duly
the petition; authorized representative shall set the date
of the election or recall, which shall not be
(4) NOTICE AND PUBLICATION. later than thirty (30) days upon the
If the petition is found to be sufficient in form, the completion of the procedure outlined in the
Comelec or its duly authorized representative shall, preceding article, in the case of the
FOR ONE ATENEO

within three (3) days from the issuance of the barangay, city or municipal officials, and
certification, provide the official sought to be recalled forty-five (45) days in the case of provincial
a copy of the petition, cause its publication in a officials.
national newspaper of general circulation and a (2) The officials sought to be recalled shall
newspaper of general circulation in the locality, once automatically be considered as duly
a week for three (3) consecutive weeks at the registered candidate or candidates to the
expense of the petitioners and at the same time post pertinent positions and, like other
copies thereof in public and conspicuous places for candidates, shall be entitled to be voted
a period of not less than ten (10) days nor more than upon. (Sec. 71, LGC as amended by RA
twenty (20) days, for the purpose of allowing 9244)
interested parties to examine and verify the validity (3) The elective local official sought to be
of the petition and the authenticity of the signatures recalled shall not be allowed to resign while
contained therein. the recall process is in progress. (Sec. 73,
1991 LGC)
(5) VERIFICATION AND AUTHENTICATION.
The Comelec or its duly authorized representatives Effectivity of Recall
shall, upon issuance of certification, proceed (1) The recall of an elective local official shall
independently with the verification and be effective only upon the election and
authentication of the signatures of the petitioners proclamation of a successor in the person
and registered voters contained therein. of the candidate receiving the highest
Representatives of the petitioners and the official number of votes cast during the election on
sought to be recalled shall be duly notified and shall recall.
have the right to participate therein as mere (2) Should the official sought to be recalled
observers. The filing of any challenge or protest receive the highest number of votes,
shall be allowed within the period provided in the confidence in him is thereby affirmed, and
immediately preceding paragraph and shall be ruled he shall continue in office. (Sec. 72, 1991
upon with finality within fifteen (15) days from the LGC)
date of filing of such protest or challenge;
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Limitations on Recall won as municipal councilor and served the

(1) Any elective local official may be the full term. Considered as voluntary
subject of a recall election only once during renunciation. (Bolos v. COMELEC, G.R.
his term of office for loss of confidence. No. 184082, 2009)
(2) No recall shall take place within one (1)
year from the date of the official’s (2) CIRCUMVENTION. After serving 3 terms
assumption to office or one (1) year as Punong Barangay, got elected as
immediately preceding a regular local barangay kagawad with sister elected as
election. (Sec. 74, 1991 LGC) Punong Barangay, who resigned the
following day after oath of office to allow
Funding. All expenses incident to recall elections succession. Considered as a conspiracy
shall be borne by the COMELEC. For this purpose, and hence, a circumvention of the 3-term
there shall be included in the annual General limit. (Aguilar v. Benlot, G.R. No. 232806,
Appropriations Act a contingency fund at the 2019)
disposal of the COMELEC for the conduct of recall (3) CONVERSION. Conversion of a
elections. (Sec. 75, 1991LGC) NOTE: Hence, municipality to a city with no break in the
COMELEC cannot suspend recall because of service as a local chief executive. (Latasa
supposed lack of funding. (Goh v. Bayron, G.R. No. v. COMELEC, GR No. 154829, 2003; Halili
212584, 2014) v. COMELEC, G.R. No. 231643, 2019)
6. TERM LIMITS (4) REAPPORTIONMENT OF DISTRICT.

Served for 2 terms (2004, 2007) as
a. Constitutional Rule Provincial Board Member (BM) in the Cam.
Sur 2nd dist. Cam. Sur was reapportioned
The term of office of elective local officials, by RA9716. In 2010 and 2013 he ran and
FOR ONE ATENEO

except barangay officials, which shall be won as BM in the 3rd dist (which is
determined by law, shall be three years and no such essentially the same as the old 2nd dist).
official shall serve for more than three consecutive (Naval v. COMELEC, G.R. No. 207851,
terms. Voluntary renunciation of the office for any 2014)
interruption in the continuity of his service for the full (5) MERGER. Municipalities were merged and
term for which he was elected. (Sec. 8, Art. X, 1987 converted into a city, but the Punong
Constitution; also Sec. 43(b), RA 7160) Barangay from the former municipality is
the same as that in the city as the new
Term of office: 3 years. political unit with the same territory and
inhabitants (hence, same group of voters).
General Rule: No local elective official shall serve (Laceda v. Limena, G.R. No. 182867,
for more than 3 consecutive terms in the same 2008)
position.
(6) PREVENTIVE SUSPENSION. Preventive
Exception: The term of barangay officials and suspension is not an interruption. Just a
members of the Sanggunian Kabataan shall be for temporary inability; not unseated and
3 years. (RA 9146) continued to hold office; just temporarily
barred to exercise functions. (Aldovino v.
For the 3-term rule to apply, the local official COMELEC, G.R. No. 184836, 2009)
must have:
(1) Fully served the term (7) ELECTION PROTEST BUT SERVED 3
(2) Elected through a regular election FULL TERMS. Election protest, but able to
serve 3 full terms, including the 2nd term
(fully served) where the proclamation was
b. Not an Interruption to the Full
voided. (Ong v. COMELEC, G.R. N0.
Term (3-Term Limit Applies – 163295, 2006; Rivera v. COMELEC, G.R.
Hence, Barred): No. 167591, 2007)
(1) RUNNING, WINNING, AND SERVING A
DIFFERENT ELECTIVE POSITION IS
VOLUNTARY RENUNCIATION. Punong
barangay, while serving 3rd term, ran and
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c. Not an Interruption to the Full (4) ELECTION PROTEST.

Term (a) Unseated during 3rd term as mayor
because of an election protest; not
(1) SUCCESSION. Assumption by succession barred as not deemed to have been
is by operation of law. To count as a term, elected for that term – merely assumed
one must have been elected and fully office as a presumptive winner.
served. Law allows the severance to (Lonzanida v. COMELEC, G.R. No.
effectuate succession. (Borja v. 135150, 1999)
COMELEC, G.R. No. 133495, 1998; (b) Served as mayor in 2001, 2004, and
Montebon v. COMELEC, G.R. No. 180444, 2007, but the 2004 (2nd term) was by
2008) virtue of an election protest and served
(a) Vice Mayor to Mayor on 3rd term as only the remainder of the 2nd term; not
Vice Mayor then served 2 more terms barred to run in 2010. (Abundo v.
as mayor; not barred to run for another COMELEC, G.R. No. 201716, 2013)
term as mayor. (Borja v. COMELEC, (c) Unseated for running and winning a 4th
G.R. No. 133495, 1998) term (NOTE: 4th term was invalidated
(b) Councilor served 3 consecutive terms, by the SC in Rivera v. COMELEC),
but during 2nd term succeeded as Vice then relinquished office; not barred to
Mayor; not barred to run again as run in the subsequent election. (Dizon
councilor. (Montebon v. COMELEC, v. COMELEC, G.R. No. 182088, 2009)
G.R. No. 180444, 2008)
(2) RECALL ELECTION. Previously served ————- end of topic ————

for 3 full terms as mayor, then participated
in a recall election; not barred. The
prohibited election refers to the next regular
FOR ONE ATENEO

election for the same office following the
end of the third consecutive term.
Any subsequent election, like a recall
election, is no longer covered by the
prohibition for two reasons. First, a
subsequent election like a recall election is
no longer an immediate reelection after
three consecutive terms. Second, the
intervening period constitutes an
involuntary interruption in the continuity of
service. (Socrates v. COMELEC, GR No.
154512, 2002) Previously served for 2 full
terms as mayor (1992-1998), ran for a 3rd
term (1998-2001) but lost, then
subsequently participated in a recall
election (2000), which he won served the
unexpired term; not barred to run again for
another term – not elected for 3
consecutive terms, continuity as mayor was
disrupted with the defeat, and was a private
citizen for 2 years prior to the recall
election. (Adormeo v. COMELEC, G.R.
No. 147927, 2002)
(3) DISMISSAL AS PENALTY. Dismissals

(as penalties) were involuntary
interruptions; not considered to have fully
served a 3rd successive term of office.
(Tallado v. COMELEC, G.R. No. 246679,
2019)
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FOR ONE ATENEO

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UN General Assembly resolutions and declarations
PRELIMINARIES
like the Universal Declaration of Human Rights,
codes of conduct, guidelines, and documents
Traditional Definition of Public International resulting from international conferences are
Law examples of soft laws.
International law is a body of rules and principles of
action which are binding upon civilized states in their International Comity (comitas gentium)
relations to one another (Bernas, Public Refers to the rules or politeness, convenience, and
International Law, 2009). goodwill observed by States in their mutual
intercourse without being legally bound by them.
Modern Definition of Public International Law
International law as the law which deals with the
conduct of states and of international organizations
and with their relations inter se, as well as some of
their reasons with persons, whether natural or
juridical. (Restatement (Third) of Foreign Relations
Law of the United States).
Public International Law vs Private

International Law
PUBLIC PRIVATE
Governs the relation of Deals with private
sovereign states and individuals.
other entities with an
international
personality.
publicFOR ONE ATENEO

They are generally It is really municipal or
accepted principles of national in character
international because each State
law, giving the subject has its own conflict
an international nature. rules.
Sanctions may be in Relief prayed for may
the form of peaceful be obtained from
remedies (i.e municipal tribunals.
diplomatic, negotiation,
mediation, conciliation,
arbitration, diplomatic
efforts, settlement by
the ICJ)
Hard Law
This refers to binding international legal norms or
those which have coercive character.
(SARMIENTO)
Vienna Conventions on Diplomatic and Consular

Relations and the Vienna Convention on the Law of
Treaties are some of the examples of hard laws.
Soft Law
It is used to describe international instruments that
their makers recognize are not treaties, but have as
their purpose the promotion of ‘norms’ which are
believed to be good and therefore should have
general or universal application.
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I. SOURCES OF OBLIGATIONS A. TREATIES

Treaty, Definition
TOPIC OUTLINE UNDER THE SYLLABUS A treaty is an international agreement concluded
between States in written form and governed by
I. SOURCES OF OBLIGATIONS international law, whether embodied in a single
A. TREATIES instrument or in two or more related instruments and
(1) Concept of Jus Cogens (Peremptory whatever its particular designation (VCLT, ART
Norms of International Law) 2(1)(a)).
(2) Reservations, Withdrawal,
Termination, and Rebus Sic
Under the VCLT, the term “treaty” includes all
Stantibus
agreements between states, regardless of how they
B. CUSTOMARY INTERNATIONAL LAW
are called. Thus, for purposes of international law:
(1) Elements
treaties, executive agreements, exchanges of
(2) Obligations Erga Omnes
notes, etc., are all treaties.
C. GENERAL PRINCIPLES OF LAW
D. APPLICATION OF INTERNATIONAL
Under the E.O. 459, a treaty is defined as
DOMESTIC COURTS
international agreements entered into by the
(1) Monism
Philippines which require legislative concurrence
(2) Dualism
after executive ratification. This term may include
(3) Inverted Monism
compacts like conventions, declarations, covenants
(4) Harmonization
and acts. (E.O. 459, Section 2)
Pacta Sunt Servanda

Under the principle of pacta sunt servanda, a state
FOR ONE ATENEO

party to a treaty is bound to comply with the
obligations it assumed under such treaty in good
faith (VCLT, art. 26).
Requisites of a Treaty SWI
1. Must be concluded between States
2. In Writing
3. Governed by International Law
Basis of Treaty Obligation

Treaty obligation is based on consent. No state may
be bound by a treaty obligation unless it has so
consented (VCLT, art. 34).
Elements of a Valid Treaty
(1) Treaty making capacity, which is

possessed by all States as an attribute of
sovereignty. International organizations
also possess treaty- making capacity,
although limited by the organization’s
purpose, as revised in its charter;
(2) Competence of the representative/organ
making the treaty, which may be the head
of state, which generally has full powers, or
other persons called plenipotentiaries,
which must produce an instrument showing
authority to sign a treaty binding their
government;
(3) Consent freely given by the parties. If
consent was given erroneously, or was
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induced by fraud, the treaty shall be In the Philippines, the negotiation of treaties and
voidable; their ratification are executive functions, subject to
(4) Object and subject matter, which must be concurrence of the Senate.
lawful;
(5) Ratification in accordance with the Treaty vs Executive Agreements
constitutional process EXECUTIVE
TREATY
AGREEMENT
Treaty-Making Process SUBJECT MATTER
1. Political Issues 1. Arrangements of
VCLT PROCESS 2. Changes in Temporary
National Policy Nature
NEGOTIATION 3. International 2. Implementation
The state representative discusses the terms Arrangements of of Treaties and
and provisions of the treaty a Permanent Statutes
Character 3. Transitory
Effectivity
4. Adjustments of
ADOPTION details carrying
When the form and content have been settled by out established
the negotiating states, the treaty is adopted. This national policies
is only preparatory to (1) the authentication of and tradition
the text of the treaty and (2) the signing thereof. RATIFICATION
(VCLT, ART 9) Must be ratified by 2/3 Ratification by the
of the senate to Senate not necessary
A definitive text of the treaty is established as become valid and
effective. (1987
FOR ONE ATENEO

the correct and authentic one
Constitution, ART 7,
S21)
EXPRESSION OF CONSENT Under international law, there is no difference
The state parties express their consent to be between treaties and executive agreements in terms
bound by the terms of the treaty. The modes of of their binding effects on the contracting states
such expression are provided in the VCLT. concerned, as long as the negotiating functionaries
have remained within their powers. (Bayan Muna v.
Romulo, G.R. No. 159618, 2011).
REGISTRATION There are no hard and fast rules on the propriety of

The treaty is then registered with the Secretariat entering, on a given subject, into a treaty or an
of the United Nations. Otherwise, the treaty may executive agreement as an instrument of
not be invoked before any UN organ, including international relations. The primary consideration in
the ICJ. (UN Charter, ART 102(2)) the choice of the form of agreement is the parties’
intent and desire to craft an international agreement
in the form they so wish to further their respective
DOMESTIC PROCESS interests. Verily, the matter of form takes a back seat
RATIFICATION when it comes to effectiveness and binding effect of
The treaty is ratified by the President. This act the enforcement of a treaty oral executive
explicitly conveys the country’s consent to be agreement, as the parties in either international
bound by treaty. agreement each labor under the pacta sunt
servanda principle. (Bayan Muna v. Romulo, G.R.
No. 159618, Feb 1, 2011)
CONCURRENCE Grounds for Invalidity of Treaty FED-CJ

At least 2/3 of the members of the Senate must (1) Fraud
concur with the ratification of the President (2) Error of Fact
(3) Duress
(4) Corruption
(5) Jus Cogens
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Invalid Treaties Note, however, that the definition quoted here

(referring to Article 53 of the Vienna Convention on
(1) If the treaty violates a jus cogens norm of the Law of Treaties) is based on the legal effect of
international law; the rule and not on its intrinsic nature. It seems to
(2) If the conclusion of a treaty is procured by say that the rule is jus cogens because no
threat or use of force; derogation from it is permitted. However, what jus
(3) Error of fact, provided that such fact formed cogens really means is that no derogation is allowed
an essential basis of a state’s consent to be because it is jus cogens. It is the intrinsic nature of
bound; the rule that disallows derogation. (Bernas, Public
(4) If the representative of a state was International Law, 2009)
corrupted to consent by another negotiating
state; Elements of Jus Cogens (Vienna Convention
(5) If consent was obtained through fraudulent on the Law of Treaties, ART 53) ANDS
conduct of another negotiating state;
(6) If the representative consented in violation (1) A norm Accepted and recognized by the
of specific restrictions on authority provided international community of states as a
the restriction was notified to the other whole
negotiating states prior to the (2) No Derogation is permitted
representative expressing such consent; (3) It can only be modified by a Subsequent
(7) If consent was given in violation of norm having the same character
provisions of internal law regarding
competence to conclude treaties that is Status of a later treaty which is contrary to jus
manifest and of fundamental importance. cogens
(VCLT) Treaties that conflict with a peremptory norm of
general international law or jus cogens is considered
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1. CONCEPT OF JUS COGENS VOID (Vienna Convention on the Law of Treaties,
(PEREMPTORY NORMS OF art. 53). Emergence of a subsequent peremptory
INTERNATIONAL LAW) norm of general international law renders any
existing treaty that conflicts with it void. (Vienna
Convention on the Law of Treaties, art. 64).
In international law, the term "jus cogens" (literal
meaning: compelling law) refers to norms accepted [Jus cogens > Treaty]
and recognized by the international community of
States as a whole, that command peremptory 2. RESERVATIONS, WITHDRAWAL,
authority, superseding conflicting treaties and TERMINATION, AND REBUS SIC
custom. Jus cogens norms are considered STANTIBUS
peremptory in the sense that they are mandatory, do
not admit derogation, and can be modified only by Reservations
general international norms of equivalent authority General rule: A reservation is a unilateral statement
(Vinuya v. Romulo, G.R. 162230, April 28, 2010). made by a state upon entering a treaty and operates
to exclude or modify the legal effect of certain
“The term ‘jus cogens’ means the ‘compelling law.’” provision/s of the treaty in their application to the
Corollary, “a jus cogens norm holds the highest reserving state. [VCLT, art. 19]
hierarchical position among all other customary Exceptions: A reservation shall not operate to
norms and principles.” As a result, jus cogens norms modify or exclude the provisions of a treaty:
are deemed “peremptory and non-derogable.” (1) Where the treaty expressly prohibits
(Bayan Muna v. Romulo, G.R. No. 159618, February reservations in general;
1, 2011). (2) Where the treaty expressly prohibits that
specific reservation being made; or
A peremptory norm of general international law is a (3) Where the reservation is incompatible with
norm accepted and recognized by the international the object and purpose of the treaty.
community of States as a whole as a norm from (Reservation to the Genocide Conventions
which no derogation is permitted and which can be Advisory Opinion, ICJ, 1951)
modified only by a subsequent norm of general
international law having the same character. Withdrawal
(Vienna Convention on the Law of Treaties, art. 53) It is the act of a state to voluntarily withdraw from an
international agreement.
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In Pangilinan v Cayetano, the Court adopted the (d) The doctrine was invoked within a
following guidelines for evaluating cases concerning reasonable time;
the president’s withdrawal from international (e) The duration of the treaty is
agreements: indefinite;
(f) The doctrine cannot operate
(a) President enjoys some leeway in retroactively (it must not adversely
withdrawing from agreements which he or affect provisions which have
she determines to be contrary to the already been complied with prior to
Constitution or statutes. the vital change);
(b) President cannot unilaterally withdraw from (10) Outbreak of war between the parties,
agreements which were entered into unless the treaty relates to the conduct of
pursuant to congressional imprimatur war;
(c) President cannot unilaterally withdraw from (11) Severance of diplomatic relations, if such
international agreements where the Senate relationship is indispensable for the treaty’s
concurred and expressly declared that any application;
withdrawal must also be made with its (12) Jus cogens application, or the emergence
concurrence. of a new peremptory norm of general
international law which renders void any
The withdrawal made by Duterte from ICC should existing, conflicting treaty.
not have been allowed because unilateral
withdrawals are not allowed if the agreement was Rebus Sic Stantibus
concurred by the senate. However, the court ruled General Rule: A fundamental change of
that the issue on the withdrawal’s validity is already circumstances is not a ground for a treaty to be
moot and academic because ICC already accepted suspended or terminated.
it. (Pangilinan v Cayetano. G.R. No. 238875, 2021).
Exceptions:
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Termination (1) The circumstance is the essential basis of
The grounds for termination of a treaty are: consent.
(2) The obligation is transformed radically that
(1) Expiration of the term, or withdrawal of a it becomes burdensome or unreasonable.
party in accordance with the treaty;
(2) Extinction of a party to the treaty, when the Exceptions to the Exceptions:
treaty rights and obligations would not (1) If the treaty establishes a boundary;
devolve upon the successor- state; (2) If the fundamental change is the result of a
(3) Mutual agreement of parties; breach by the party invoking it either of an
(4) Denunciation or desistance by a party; obligation under the treaty or of any other
(5) Supervening impossibility of performance; international obligation owed to any other
(6) Conclusion of a subsequent inconsistent party to the treaty. (VCLT, art. 62)
treaty;
(7) Loss of subject matter Note: Rebus Sic Stantibus is an exception to the rule
(8) Material breach or violation of treaty of Pacta Sunt Servanda
(9) Fundamental change in circumstance
(similar to the customary norm of rebus sic
stantibus) such that the foundation upon B. CUSTOMARY INTERNATIONAL
which the consent of a state to be bound LAW
initially rested has disappeared. (VCLT, art.
62) Custom
General and consistent practice of States followed
The requisites are: by them from a sense of legal obligation.
(a) The change is so substantial that (Restatement (Third) of Foreign Relations Law of
the foundation of the treaty has the United States)
altogether disappeared;
(b) The change was unforeseen or Not only must acts amount to a settled practice, but
unforeseeable at the time of the they must also be such or be carried out in such a
perfection of the treaty; way, as to be evidence of a belief that this practice
(c) The change was not caused by the is rendered obligatory by the existence of a rule of
party invoking the doctrine law requiring it. (International Court of Justice in the
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North Sea Continental Shelf Cases, cited in Mijares 3. Generality (majority of specially affected
v. Ranada, G.R. No. 139325, April12, 2005) states) (Bernas, Public International Law,
2009)
Unlike treaties, customary norms are legally binding
upon all States regardless of whether they consent, Elements of State Practice
subject to the persistent objector rule. Practice must be:
(1) Consistent
Note that the theory of tabula rasa does not erase (2) General
obligations under Customary International Law.
Consistency requires substantial uniformity and not
No particular length of time is required for the necessarily complete uniformity in practice (Asylum
formation of customary norms so long as the Case (ICJ), November 20, 1950).
existence of the two elements of custom are
manifest (North Sea Continental Shelf Cases (ICJ) Generality likewise does not require universality.
February 20, 1969).
Evidence of State Practice
The number of parties, the explicit acceptance of The following acts may evidence state practice:
rules of law, and, in some cases, the declaratory (1) Diplomatic Correspondence
nature of the provisions produces a strong law- (2) Policy Statements
creating effect at least as great as the general (3) Press Releases
practice considered sufficient to support a (4) Opinions of official legal advisers
customary rule (BROWNLIE). (5) Official manuals on legal decisions
(executive decisions and practices, and
Scope of Custom government comments on drafts by the
A custom may be: ILC);
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(1) General – binding upon all or most states. (6) International and National Judicial
(2) Particular – binding only between two or Decisions;
among a few states. (7) Recitals in treaties and international
instruments;
Regional Custom
(8) Practice of International Organs (HARRIS)
A practice among states within a particular area for
the world which can be sufficiently well established UN General Assembly resolutions are generally just
and accepted as law that is binding among the recommendations. However, such resolutionsmay
states of that region but not elsewhere. be an evidence of state practice that is relevant in
the development of custom. [See Nicaragua Case
Instant Custom (Diritto Spontaneo) (ICJ, June 27, 1986)].
Customary law may emerge even within a relatively
short period of time. If within that period, State b. Opinio Juris Give Necessitatis
practice has been uniform and extensive. It comes
out as a spontaneous activity of a great number of As an element in the formation of customary norm
states supporting a specific line of action. (Bernas, in international law, it is required that States, in their
Public International Law, 2009). conduct amounting to general practice, must act out
Special or Local Custom a sense of legal duty and not only by the motivation
A long continued practice between two states, of courtesy, convenience or tradition.
accepted by them as regulating their relations that
form the basis of mutual rights and obligations. Element of Opinio Juris Give Necessitaties
(Portugal v. India (ICJ), April 12, 1960). This refers to the belief on the part of states that a
particular practice is required by law, and not
1. ELEMENTS because of courtesy or political expedience (North
Sea Continental Shelf Cases (ICJ) February 20,
a. State Practice 1969).
A consistent and uniform external conduct of States. It is the existence of opinion juris that distinguishes
Generally, both what States say and what they do binding custom from mere usage, from comity, and
are considered state practice. DUG from courtesy or protocol.
1. Duration of Practice
2. Uniformity and Consistency of Practice
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2. Obligations Erga Omnes One is not the subset of the other.
The term erga omnes (literal meaning: in relation to Customary Norms Identified by the Supreme
everyone) in international law has been used as a Court of the Philippines
legal term describing obligations owed by States
towards the community of states as a whole (1) Rules and principles of land warfare and of
(Romulo v. Vinuya, G.R. 162230, 2010). humanitarian law under the Hague
Convention and the Geneva Convention
By their very nature, these are the obligations of a (Kuroda v. Jalandoni, G.R. No. L-2662,
State towards the international community as a March 26, 1949)
whole. Such obligations derive, for example, in (2) Pacta sunt servanda (La Chemise Lacoste
contemporary international law, from the outlawing v. Fernandez, G.R. Nos. L- 63796- 97, May
of acts of aggression, and of genocide, as also from 2,1984)
the principles and rules concerning the basic rights (3) Human rights as defined under the
of the human person, including protection from Universal Declaration of Human Rights
slavery and racial discrimination. Some of the (Reyes v. Bagatsing, G.R. No. L-65366,
corresponding rights of protection have entered into November 9, 1983)
the body of general international law others are (4) The Principle of the Sovereign Equality of
conferred by international instruments of a universal States (Sanders v. Veridiano, G.R. No.L-
or quasi- universal character. (Vinuya v. Romulo, 46930, June 10, 1988)
G.R. 162230, April 28, 2010). (5) The principle in diplomatic law that the
receiving state has the special duty to
Types of Obligations Erga Omnes protect the premises of the diplomatic
Authorities classify erga omnes obligations into mission of the sending state (Reyes
either: v.Bagatsing, G.R. No. L-65366, November
(1) Erga Omnes Omnium, or 9,1983)
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(2) Erga Omnes Partes [see IDI, Resolution on (6) The right of a citizen to return to his own
Obligations erga omnes in international law country (Marcos v. Manglapus, G.R.
(2005), ART 1]. No.88211, September 15, 1989)
(7) The principle that “a foreign army allowed
Erga Omnes Omnium v Erga Omnes Partes to march through friendly country or to be
stationed in it, by permission of its
ERGA OMNES ERGA OMNES
government or sovereign, is exempt from
OMNIUM PARTES
the civil and criminal jurisdiction of the
Basis
place” (Raquiza v. Bradford, G.R. No. L-44,
General International Multilateral Treaty
September 13,1945)
Law
(8) The principle that judicial acts, not of a
To whom owned political complexion, of a de facto
The international All the other States government established by the military
community, in any parties to the same occupant in an enemy territory, are valid
given case. treaty in any given under international law. It is legal truism in
case. political and international law that all acts
Interest and proceedings of the legislative,
The common values of The common values of executive and judicial departments of ade
the international States parties and factogovernment are good and valid
community and their concern for (Montebon v.Director of Prisons, G.R. No.
concern for compliance. L-1352, April30, 1947)
compliance. (9) The principle that private property seized
and used by the enemy in times of war
Difference between jus cogens and erga omnes under circumstances not constituting valid
Jus cogens pertains to the non-derogability of a requisition does not become enemy
norm and the validity of rules and acts that conflict property and its private ownership is
with it. retained, the enemy having acquired onlyits
temporary use (Noceda v. Escobar, G.R.
Erga omnes pertains to the obligations owed by No. L-2939, August 29, 1950)
states towards the international community. (10) The principle that a State has the right to
protect itself and its revenues, a right not
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limited to its own territory but extending to Concurring Opinion, G.R. No. 176830,
the high seas (Asaali v. Commissioner, 2014).
G.R. No. L-24170, December 16, 1968).
Principles that are considered as general
C. GENERAL PRINCIPLES OF LAW principles of international law
(1) Roman Principles
Definition (2) Principles such as estoppel, res judicata,
Principles based on natural justice common to most res inter alios acta, and prescription; e.g.
national systems of law. These refer to those With respect to estoppel, when Thailand
general principles in municipal law (particularly did not object to, and has in fact benefited
those of private law) that may be appropriated to from, the Treaty of 1904 for 50 years, it is
apply to the relations of states [OPPENHEIM].(e.g., deemed to have accepted said treaty. It is
good faith, estoppel, exhaustion of local remedies, thereby precluded from questioning Annex
unjust enrichment). I thereof, which showed that the Temple of
Preah Vihear was within Cambodian
This is also not an independent source of law/ territory (Temple of Preah Vihear Case
obligation. (ICJ, June 15, 1962)).
(3) Other substantive principles, such as the
duty to make reparations (Chorzow Factory
(1) The ban on enforced disappearance is a
Case, PCIJ, September 13, 1928), principle
generally accepted principle of international
of reciprocity, pacta sunt servanda,
law which is considered part of the law of
separate corporate personality (see
the land (Razon v. Tagitis, G.R. No.
Barcelona Traction Case, ICJ, February 5,
182498, December 3, 2009).Note,
1970).
however, that RA 10353 (An Act Defining
(4) Procedural rules, such as rules governing
and Penalizing Enforced or Involuntary
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the use of circumstantial and hearsay
Disappearance) was passed on December
evidence are likewise so considered. e.g.
21, 2012.
Press reports can be used to corroborate
(2) The Yogyakarta Principles (the Application
the existence of a fact. When they
of International Human Rights Law In
demonstrate matters of public knowledge
Relation to Sexual Orientation and Gender
which have received extensive press
Identity) has not yet evinced an obligatory
coverage, they can be used to prove a fact
norm in the Philippines. There are
to the satisfaction of the court (Nicaragua
declarations and obligations outlined in
Case, ICJ, June 27, 1986).
said Principles which are not reflective of
(5) Circumstantial evidence is admitted as
the current state of international law, and do
indirect evidence in all systems of law and
not find basis in any of the sources of
its use is recognized by international
international law enumerated under Article
decisions. Such circumstantial evidence,
38(1) of the Statute of the International
however, must consist of a series of facts
Court of Justice. (Ang Ladlad LGBT Party
or events that lead to a single conclusion
v. COMELEC, G.R. No. 190582, April 8,
(Corfu Channel Case, ICJ, April 9, 1949).
2010).
(6) Jurisdictional principles, such as the power
(3) Rep. Act No. 9851 defines and provides for
of a tribunal to determine the extent of its
the penalties of crimes against humanity,
own jurisdiction (competence de la
serious violations of IHL, genocide, and
competence).
other crimes against humanity. This law
provides for the non- prescription of the
prosecution of and execution of sentences D. APPLICATION OF
imposed with regard to the crimes defined INTERNATIONAL DOMESTIC
in the Act. It also provides for the COURTS
jurisdiction of the Regional Trial Court over
the crimes defined in the Act. These crimes 1. MONISM
are, therefore, separate from or
independent from the crime of rebellion There is no substantial distinction between
even if they occur on the occasion of or international law and municipal law. Under this
argued to be connected with the armed theory, international law and domestic law belong to
uprisings.(Ocampo v. Abando, Leonen’s only one system of law.
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Theory 1: Municipal Law subsumes and is superior
to international law.
Theory 2: International law is superior to domestic

law.
2. DUALISM
International law and national law are essentially

different from each other as to source (i.e. municipal
law is a product of local custom or legislation;
whereas sources of international law are treaties
and custom grown among states.); as regards the
relations they regulate (i.e. municipal law regulated
relations between individual persons under the
state; whereas international law regulates relations
between states); and lastly, as to substance (i.e.
municipal law is a law of the sovereign over
individuals whereas international law is a law
between sovereign states). (Bernas, Public
International Law, 2009).
For the dualists, when international law and

municipal law conflict, municipal law must prevail.
(Bernas, Public International Law, 2009).
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Under dualism, no conflict can ever arise between
international and municipal law, because the two
systems are mutually exclusive. If International law
is applied within a state, it is only because it has
been expressly incorporated by municipal law. The
Philippines is a dualist state.
4. INVERTED MONISM
Inverse monism is a species of monism in the

reverse, asserting that municipal law has primacy
over international law in both international and
municipal decisions.
5. HARMONIZATION
Harmonization radically rejects the supposition of

conflict between international law and municipal law
altogether.
Questions the overall soundness of monist and

dualist positions by arguing that the attempt to
resolve conflict by asserting the automatic
superiority of one legal order over the other does not
reflect the reality.
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II. INTERNATIONAL LEGAL PERSON A. STATES

States, as subject of international law, have
TOPIC OUTLINE UNDER THE SYLLABUS international personality which means that it has the
right to have its claims respected internationally. A
A. STATES state has absolute personality.
(1) Elements
(2) Recognition of States and Rights of the state
Governments (1) Jurisdiction
B. NON-STATE ENTITIES (2) Equality
C. INTERNATIONAL ORGANIZATIONS (3) Individual or Collective self-defense
D. STATUS OF INDIVIDUALS AND (4) Independence
CORPORATIONS (5) Legation
Duties of states
(1) To carry out in good faith all its
obligations;
(2) To refrain from recognizing any
territorial acquisition by another State
which resorts to war or to the use of
threat or force;
(3) To refrain from giving assistance to
any State which resorts to war or
threat or use of force, or against which
the UN is taking preventive or
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enforcement actions
(4) To conduct its relations with other
States in accordance with
International Law
(5) To ensure that conditions prevailing in
its territory do not menace
international peace and order
(6) To refrain from resorting to war and
the threat or use of force
(7) To treat all persons under its
jurisdiction with respect for human
rights and fundamental rights, without
discrimination
(8) To refrain from intervening
(9) To settle its disputes with other States
by peaceful means
1. ELEMENTS
The elements of a state are the following: GSPoT
(1) Government
• the physical manifestation of a state.
Government must be organized, exercising
control over and capable of maintaining law
and order within its territory.
• A State cannot come into existence or exist
for long, unless it has a government. The
existence of a government implies the
capacity to autonomously establish and
maintain a legal order. (AKEHURST)
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• A state does not cease to exist when it is • Territory is the physical or geographical
temporarily deprived of an effective area, separated by borders from other
government as a result of civil war or similar areas, over which a State has sovereignty,
upheavals i.e. the competence to exercise its
i. The long period of de exclusive authority within that territory and
facto partition of prohibit foreign governments from
Lebanon did not hinder exercising their authority there.
its continued legal status • National and international jurisprudence is
as a State. also clear that territorial sovereignty is not
ii. the lack of a constituted by the instances and patterns of
government in Somalia the effective exercise of State authority.
in the 1990s did not The rules for statehood do not necessarily
lead to the abolition of apply for depriving States thereof. The loss
the international legal of effective control over part of its territory
personality of Somalia does not deprive the State of the authority
or make its territory to exercise sovereign regulatory powers
terra nullius. over that part of territory, and the State is
iii. Even when all of its equally sovereign with regard to any part of
territory is occupied by its territory whether it effectively controls it
the enemy in wartime, or not. (AKEHURST)
the State continues to
exist. (AKEHURST) Effective Government
General Rule: There must be a central government
(2) Sovereignty operating as a political body within the law of the
• the capacity to enter into relations with land in effective control of the territory. [AUST].
Exception: The requirement of effective
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other States.
government is not strictly applied when the State,
(3) Permanent Population already long-existing, happens to undergo a period
• The population does not have to be of civil strife or internal chaos due to natural disaster
homogeneous racially, ethnically, tribally, or invasion.
religiously, linguistically, or otherwise. But it
must be a settled population, although the
presence of certain nomadic inhabitants
does not matter.
Government de jure
Government from law, that is , one with color of
legitimacy
• Permanent population refers to the State
permanently having population, not Government de facto
necessarily to that population consisting of One that governs without a mandate of law. So long
those who reside permanently within that as it is in place. It may command obedience from the
State’s territory. inhabitants of the occupied area. The de facto rule
• What is required is the existence of a may suspend laws and enact new ones.
permanent population of individuals who
owe allegiance and obedience to that Jus Postlimium
State, i.e. nationals as well as non-national Acts (executive, legislative, and judicial) done under
residents who are subject to that State’s the control of a de facto government, when they are
laws. (AKEHURST) not of a political complexion remain good even upon
the restoration of the legitimate government. [See
(7) Defined Territory Co Kim Cham v. Valdez Tan Keh (November 16,
• State territory is that defined portion of the 1945)]
surface of the globe which is subjected to
the sovereignty of the State. 2. RECOGNITION OF STATES AND
(OPPENHEIM) A state must exercise GOVERNMENT
control over certain area. It need not be
exactly defined by metes and bounds, so Recognition
long as there exists a reasonable certainty Recognition is an act by which a state
of identifying it. No minimum land area is acknowledges the existence of another state,
required. (Montevideo Convention, art. 1). government or belligerent community and indicates
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willingness to deal with the entity as such under (4) Sovereignty v. Independence
international law. Sovereignty and Independence are
different. Sovereignty refers to the supreme
Recognition is not a legal duty. As a public act of and uncontrollable power inherent in the
state, recognition is an optional and political act and state by which the State is governed.
there is no legal duty in this regard. (This is under Independence refers to the power of a
the declaratory school) State to manage its external affairs without
direction or interference from another state.
Views on recognition (5) Principle of Auto-Limitation
(1) Declarative Theory The concept of sovereignty as auto-
• Recognition is merely “declaratory” of the limitation is the property of State-force due
existence of the state and that its being a to which it has the exclusive capacity of
state depends upon its possession of the legal self-determination and self-
required elements and not upon restriction. (People v. Gozo, G.R. No. L-
recognition. (Bernas, Public International 36409, October 26, 1973, citing Jellinek).
Law, 2009). Any State may, by its consent, express or
(2) Constitutive Theory implied, submit to a restriction of its
• recognition “constitutes” a state, that is, it is sovereign rights. (People v. Gozo, G.R. No.
what it makes a state a state and confers L-36409, October 26, 1973)
legal personality on the entity. (Bernas,
Public International Law, 2009). Concept of association of states
An association is formed when two States of
The weight of authority favors the unequal power voluntarily establish durable links. In
“declaratory view”. (Bernas, Public the basic model, one State, the associate, delegates
International Law, 2009). certain responsibilities to the other, the principal,
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while maintaining its international status as a State.
Doctrines on recognition of de facto However, this concept is not recognized under the
governments present Constitution. The Constitution does not
(1) Wilson/Tobar Doctrine - Also known as contemplate any State in this jurisdiction other than
the Philippine State, much less does it provide for a
“Doctrine of Legitimacy” or “Policy of
Democratic Legitimacy.” Holds that transitory status that aims to prepare any part of
governments which came into power by Philippine territory for independence. (The Province
extra-constitutional means [e.g. revolution, of North Cotabato v. GRP Panel on Ancestral
civil war, coup d’etat or other forms of Domains, G.R. No.183591, October 14, 2008).
internal violence] should not be recognized,
at least until the change had been accepted Principle of state continuity
by the people. [After US President Wilson, The State continues as a juristic being
1913 and Ecuadorian FM Tobar (1907)] notwithstanding the changes in its circumstances,
(2) Stimson Doctrine - Doctrine of not provided only that such changes do not result in the
recognizing any situation, treaty or loss of any of its essential elements.
agreement brought about by non- legal
means. Precludes recognition of any B. NON-STATE ENTITIES
government established as a result of
external aggression. [After US Sec. of State Non-State Entities
Henry Stimson (1932)] These entities take on various forms:
(3) Estrada Doctrine - States should refrain (1) Non-Government Institutions, both national
from recognizing governments, as such are and international
superfluous. Change in government does (2) Indigenous and Minority groups (People of
not affect the change in status of a state. Rwanda, Lumads, Ifugaos)
This in effect results in the automatic (3) Semi-autonomous groups
recognition of governments in all (4) Human Rights Defenders
circumstances. Posits that dealing or not (5) Terrorists (CPP-NPA, Al-Qa’ida, ISIS)
dealing with the government established (6) Paramilitary Groups (FBI SWAT, CIA,
through a political upheaval is not a MILF)
judgment on the legitimacy of the said (7) Autonomous Areas
government. [After Mexican Minister (8) Internationalized Territories
Genaro Estrada (1930)] [SHAW] (9) Multinational Enterprises
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(10) Certain Individuals C. INTERNATIONAL
ORGANIZATIONS
Non-State actors are groups that may promote
human rights while others, commit crimes affecting International Organizations
the lives and human rights of individuals. International organizations are created by sovereign
International Legal Personality States and whose functioning are regulated by
International personality is in principle indivisible, international law, not the law of any given country.
and its scope should be the same with respect to all They have functional personality which is limited to
primary (states) and derivative or secondary (all what is necessary to carry out their functions as
other subjects including non-state actors, found in the instruments of the organization.
sometimes called non-state participants in
international relations) actors. This is different from an international NGO. NGOs
are a diverse group of organizations that defy
There are four elements connected with generalization, ranging from small informal groups
international legal personality: to large formal agencies. NGOs play different roles
(1) Treaty-making power (jus tractatuum) and take different shapes within and across different
(2) A right to send and receive diplomatic societies. As a result, ‘‘NGO’’ as an analytical
envoys (jus legationis) category remains complex and unclear. For
(3) A right to present claims based on example, despite the fact that NGOs are neither run
international responsibility by government, nor driven by the profit motive, there
(4) Right to use armed force are nevertheless some NGOs that receive high
levels of government funding, and others that seek
Recognition to generate profits to plough back into their work.
The recognition of the right to self-determination will Boundaries are unclear, and as one might expect
be decisive for establishing non-state actors’ from a classification that emphasizes what they are
position in international relations, and for granting
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not rather than what they are, NGOs therefore turn
them rights and obligations. Those rights depend out to be quite difficult to pin down analytically.
therefore on the will of the third parties, so in fact
non-state actors do not have international legal International Personality
personality. General Rule - The status and powers of an
international organization is determined by
There are no homogenous criteria allowing the agreement and not by general or customary
identification of particular subjects of non-state international law. They are considered subjects of
actors, and their acceptance depends upon international law “if their legal personality is
recognition, so it’s highly political. established by their constituent instrument.”
They only possess certain international legal rights Further, its constituent rights and duties, or
and obligations, e.g. in the domain of the law of capacities and immunities, are limited to those set
armed conflicts (as to admissible weapons and forth in the treaty creating the international
methods of warfare) and humanitarian law. The organization. Thus, legal personality in this context
scope of those rights and obligations is dependent is a relative concept. (MAGALLONA)
upon the recognition by third parties, and
consequently on conferral by them. Exception – United Nations. It has objective
international personality. Its personality is binding
The recognition will be of constitutive importance. on the whole international community, including
The recognized non-state actors do not have per se States who are not UN members. (Reparations for
any attributes of international legal personality, Injuries Advisory Opinion, ICJ, April 11, 1949).
derived directly from general international law,
except those connected with customary Preconditions for international personality
international human rights law. (1) It must constitute a permanent association
of states, with lawful objects, equipped with
organs;
(2) There must be a distinction, in terms of
legal powers and purposes, between the
organization and its member states; and
(3) It must have legal powers that it may
exercise on the international plane and not
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solely within the national systems of one or and liabilities upon individuals as well as
more states. [BROWNLIE] upon states.
(5) Convention on the Prevention and
D. STATUS OF INDIVIDUALS AND Punishment of the Crime of Genocide, art.
CORPORATIONS VI defined “parties charged with genocide”
as including individuals. (MAGALLONA)
Personality of Individuals (6) The International Criminal Court has
Under modern international law, an individual has jurisdiction over individuals who commit
limited personality. genocide, crimes against humanity and war
crimes, subject to conditions under the ICC
The question whether the Philippine government Statute. (ICC Statute, art. 25(1) in relation
should espouse claims of its nationals against a to art. 5)
foreign government is a foreign relations matter, the
authority for which is demonstrably committed by Corporations’ International Legal Obligation
our Constitution not to the courts but to the political In domestic law, it has long been accepted that legal
branches. In the Comfort Women Case, the persons such as companies have legal obligations -
Executive Department has decided that it is to the for example under labour and environmental law -
best interest of the country to waive all claims of its and that they may be held liable for breaches of
nationals for reparations against Japan in the Treaty these obligations. As a matter of fact, companies
of Peace of 1951. The wisdom of such decision is cannot be imprisoned but in most states they can be
not for the courts to question; thus, said sentenced to other criminal sanctions such as fines.
determination by the Executive Department cannot
be questioned through a petition for certiorari. In international law, there is no general rule that
(Vinuya v. Romulo G.R. No. 162230, April 28, 2010). companies are responsible for their internationally
wrongful acts. For obvious reasons it cannot be
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Special Personality of Individuals assumed that companies have the same obligations
Individuals may assume the status of subjects of as states or even as individuals, even if
international law only on the basis of agreement by developments appear to go in that direction. In 1998
states and in specific context, not in accordance with the Rome Conference that adopted the Statute of
the International Criminal Court came close to
general or customary international law.
providing the Court with jurisdiction to try not only
natural persons but also legal persons for the
Examples of assumption of status as subjects offences listed in the Statute. In the end, however,
of international law the proposal failed to gather sufficient support.
(1) UNCLOS, art. 187(c)-(e) provides for
jurisdiction of the Sea-Bed Disputes Multilateral treaties generally impose obligations on
Chamber of the ITLOS over disputes states, not on companies. However, there are
between parties to contracts relating to the existing multilateral treaties that impose obligations
exploitation of marine resources. Parties to to companies as well. (Kamminga, OHCHR)
such contracts may be natural or juridical
persons.
(2) The Claims Settlement Declaration of 1981
between US and Iran provides for direct ————- end of topic ————
access to the Iran-US Claims Tribunal to
individuals for the settlement of their claims
involving more than $250,000either against
Iran or the US.
(3) The Mixed Claims Tribunals established in
the Treaties of Peace concluded at the end
of World War I provided for locus standi of
individuals in actions against states relating
to contracts, debts, and property adversely
affected by the war.
(4) The London Agreement of the International
Military Tribunal at Nuremberg, relating to
crimes against peace, war crimes and
crimes against humanity, imposed duties
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III. JURISDICTION A. BASIS OF JURISDICTION
Jurisdiction
Jurisdiction means the power of a state under
international law to govern persons and property by
its municipal law. This may be criminal or civil, and
A. BASIS OF JURISDICTION
may be exclusive or concurrent with other states.
(1) Territoriality Principle
[HARRIS]
(2) Nationality Principle
(3) Protective Principle
(4) Passive Personality Principle Kinds of Jurisdiction
B. TITLE TO TERRITORY
C. ADJACENT MARITIME SEAS (1) Prescriptive jurisdiction
(1) Territorial Sea - refers to the power of a State to
(2) Contiguous Zone makes its law applicable to the
(3) Exclusive Economic Zone activities, relations, or status of
(4) Continental Shelf persons, or the interests of persons
D. JURISDICTION OVER PERSONS AND in things, whether by legislation, by
ECONOMIC ACTIVITY executive act or order, by
(1) Criminal Jurisdiction administrative rule or regulation, or
a) General Theory by determination by a court.
b) Extradition (2) Adjudicative jurisdiction
(2) Civil Jurisdiction - refers to a State’s jurisdiction to
(3) Immunity from Jurisdiction subject persons or things to the
a) Sovereign Immunity process of its courts or
b) Diplomatic and Consular administrative tribunals, whether in
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Immunity civil or in criminal proceedings,
(4) Areas Not Subject to Jurisdiction of whether or not the state is a party to
Individual States the proceedings.
a) High Seas (3) Enforcement jurisdiction
- refers to a State’s jurisdiction to
b) Deep Seabed
c) Outer Space enforce or compel compliance or to
punish noncompliance with its laws
or regulations, whether through the
courts or by use of executive,
administrative, police, or other non-
judicial action.
Territoriality, Nationality, and Protective principles

are generally supported by customary law.
Universality Principle applies in special cases.
Passive personality principle does not enjoy wide
acceptance.
1. TERRITORIALITY PRINCIPLE
Territoriality Principle
The fundamental source of jurisdiction is
sovereignty over territory. A State has absolute, but
not necessarily exclusive, power to prescribe,
adjudicate and enforce rules for conduct that occurs
within its territory. (Bernas, Public International Law,
2009)
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Effects Doctrine that person on behalf of the international

A State also has jurisdiction over acts occurring community, regardless of the nationality of the
outside its territory but having effects within it. offender or victim or where the crime was
(Bernas, Public International Law, 2009) committed. (Bernas, citing Bassiouini).
Principles of Effects Doctrine Recognizes that certain activities, universally

dangerous to states and their subjects, require
(1) Subjective Territorial Principle authority in all community members to punish such
- A state has jurisdiction to acts wherever they may occur, even absent a link
prosecute and punish for crime between the state and the parties or the acts in
commenced within the state but question. (Bernas, Public International Law, 2009)
completed or consummated
abroad. 4. PASSIVE PERSONALITY
(2) Objective Territorial Principle PRINCIPLE
- A state has jurisdiction to
prosecute and punish for crime Passive Personality Principle
commenced without the state but A State may apply law – particularly criminal law –
consummated within its territory. to an act committed outside its territory by a person
(Bernas, Public International Law, not its national where the victim of the act was its
2009) national.
2. NATIONALITY PRINCIPLE The principle has not been ordinarily accepted for
ordinary torts or crimes, but is increasingly accepted
Nationality Principle as applied to terrorist and other organized attacks
Every state has jurisdiction over its nationals even on a state’s nationals by reason of their nationality,
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when those nationals are outside the state. (Bernas, or to assassination of a state’s diplomatic
Public International Law, 2009) representatives or other officials. (Bernas, citing The
Comment on § 402 of Third Restatement)
Statelessness
Stateless persons are those who do not havea Conflict of Jurisdiction
nationality. They are either de jure or de facto Since there are various accepted principles for
stateless. (Bernas, Public International Law, 2009) assuming jurisdiction, more than one State may
have a valid claim to jurisdiction. (Bernas, Public
De jure Stateless Persons International Law, 2009).
Those who have lost their nationality, if they had
one, and have not acquired a new one. (Bernas, Modes to Resolve Conflict of Jurisdiction
Public International Law, 2009)
(1) Was there an actual or intended effect on
De facto Stateless Persons the State acquiring jurisdiction?
Those who have a nationality but to whom (2) Is the effect sufficiently large to present a
protection is denied by their state when out of the cognizable injury?
state. This is the situation of many refugees. (3) Are the interest and link to the State
(Bernas, Public International Law,2009) sufficiently strong, vis-à-vis those of other
nations, to justify an assertion of
3. PROTECTIVE PRINCIPLE extraordinary authority?
Protective Principle If the answer is yes to all, then the court will assume
A State may exercise jurisdiction over conduct jurisdiction. (Timberlane Lumber Co. v. Bank of
outside its territory that threatens its security, as America, 549 F2d 597, 1976).
long as that conduct is generally recognized as
criminal by states in the international community. International Comity
(Bernas, citing Restatement (402)[3]) If exercising jurisdiction will be unreasonable, the
State should refrain from doing so.
Universality Principle Unreasonableness is determined by evaluating
Recognizes that certain offenses are so heinous various factors, such as the link of the activity to the
and so widely condemned that any State, if it territory of the regulating State, the connection, such
captures the offender, may prosecute and punish as nationality and residence or economic activity,
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between the regulating state and the person Modes of Acquiring Territory
principally responsible for the activity to be There are four modes of acquiring territory. The first
regulated, the character of the activity to be two are original modes while the last two are
regulated, the existence of justified expectations derivative modes.
that might be protected or hurt by the regulation, the (1) Occupation - refers not to mere discovery,
likelihood of conflict with regulation by another state. but to effective exercise of sovereignty over
(Hartford Fire Insurance Co. v. California, 509 US a territory which is terra nullius (i.e., not
764, 1993). subject to the sovereignty of any other
state). It is the acquisition of territory that is
Forum non conveniens terra nullius by any State which has the
The principle is based on the real unfairness to one intention to claim sovereignty and occupies
of the suitors in permitting the choice of a forum that territory by exercising effective and
which is not the natural or proper forum, either on continued control.
the ground of convenience of trial or the residence (2) Accession or accretion - the natural
or domicile of parties or of its being the locus process of land formation resulting in the
contractuss, or locus solutionis. Its application is increase of territory.
discretionary on the part of the court. Forum (3) Cession - the transfer of territory from one
conveniens presumptionis with the plaintiff. (Piper state to another by treaty (derivative). It is
Aircraft Co. v. Reyno, 545 U.S. 235, 1981). the only bilateral mode of acquiring
territorial sovereignty.
Requisites for forum non conveniens (4) Prescription - title is acquired by
Under the rule of forum non conveniens, a Philippine continuous and undisturbed exercise of
court or agency may assume jurisdiction over the sovereignty over a period of time.
case if it chooses to do so, provided: (5) Conquest - the taking of a territory of
another sovereign by force of arms.
(1) that the Philippine court is one to which the Conquest is generally accepted to have
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parties may conveniently resort to; been prohibited an considered acts as of
(2) that the Philippine court is in a position to aggression and violative of the prohibition
make an intelligent decision as to the law on the use of force and territorial integrity.
and the facts; and [See Definition of Aggression, UN GA Res.
(3) that the Philippine court has or is likely to 3314 (XXIX) (1974)
have power to enforce its decision. (Manila
Hotel v. NLRC, G.R. No. 120077, October C. ADJACENT MARITIME SEAS
13, 2000).
1. TERRITORIAL SEA
Reserved Domain of Domestic Jurisdiction
It is the domain of state activities where the
Every State has the right to establish the breadth of
jurisdiction of the state is not bound by international
its territorial sea up to a limit not exceeding 12
law. The extent of this domain depends on
nautical miles, measured from baselines
international law and varies accordingly to its
determined in accordance with the UNCLOS.
development (i.e., when a norm crystallizes into
(UNCLOS, art. 3).
custom).
The reservation of this domain is without prejudice Sovereignty over these waters (including the
to the use of enforcement measures under UN airspace above it and the seabed under it) is the
Charter, Ch. VII same extent as its sovereignty over land. There is a
right of innocent passage (UNCLOS, art. 7), and in
case of certain straits, to transit passage.
B. TITLE TO TERRITORY Under the UNCLOS, features that are above water
at high tide generate an entitlement to at least a 12
Title to Territory nautical mile territorial sea, whereas features that
Validity of claims by particular states. It is related to are submerged at high tide generate no entitlement
the conception of jurisdiction as powers and rights, to maritime zones. (The South China Sea
as regulatory authority of states dependent on Arbitration, 2013-19, Jul. 12, 2016)
effective exercise of these powers. (CAMBRIDGE)
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2. CONTIGUOUS ZONE (a) the establishment and use of

artificial islands, installations and
Coverage structures;
The contiguous zone may not extend beyond 24 (b) maritime scientific research;
nautical miles from the baselines from which the (c) the protection and preservation of
breadth of the territorial sea is measured. the marine environment;
(UNCLOS, art. 33) (d) Other rights and duties provided
for in the UNCLOS. (UNCLOS, art.
Area of water not exceeding 24 nautical miles from 56)
the baseline. It thus extends 12 nautical miles from Under the UNCLOS, states have the sovereign right
the edge of the territorial sea (UNCLOS, art. 33). to exploit the resources of this zone, but shall share
that part of the catch that is beyond its capacity to
Jurisdiction over Contiguous Zone harvest. (UNCLOS, art. 62)
In the contiguous zone, the coastal State may
exercise the control necessary to: Obligations of States in EEZ
- Prevent infringement of its customs, In exercising their rights and performing their duties
fiscal, immigration, or sanitary laws and under the UNCLOS in the exclusive economic zone,
regulations within its territory or territorial States:
sea; (1) shall have due regard to the rights and
- Punish infringement of the above laws duties of the coastal State and;
and regulations committed within its (2) shall comply with the laws and regulations
territory or territorial sea. (UNCLOS, art. adopted by the coastal State in accordance
33) with the provisions of the UNCLOS and
other rules of international law. (UNCLOS,
art. 58)
3. EXCLUSIVE ECONOMIC ZONE
Coverage
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The exclusive economic zone shall not extend
beyond 200 nautical miles from the baselines from
Obligations of Coastal States
In exercising their rights and performing their duties
under the UNCLOS in the exclusive economic zone,
the coastal State shall have due regard to the rights
which the breadth of the territorial sea is measured. and duties of other States and shall act in a manner
(UNCLOS, art. 57) compatible with the provisions of the UNCLOS
(UNCLOS, art. 56)
The exclusive economic zone is an area beyond and
adjacent to the territorial sea, subject to the specific Other Obligations of Coastal States
legal regime established in this Part, under which (1) Ensuring conservation and management
the rights and jurisdiction of the coastal State and measures that the living resources of the
the rights and freedoms of other States are EEZ are not subject to overexploitation.
governed by the relevant provisions of the UNCLOS (UNCLOS, art. 61)
(UNCLOS, art. 55). (2) Promote the objective of “optimum
utilization” of the living resources.
Jurisdiction over EEZ (UNCLOS, art. 62)
In the exclusive economic zone, the coastal State
has: The entitlement of a feature to an exclusive
(1) sovereign rights for the purpose of economic zone depends on the objective capacity
exploring and exploiting, conserving and of a feature, in its natural condition, to sustain either
managing the natural resources, whether a stable community of people or economic activity
living or non-living, of the waters that is neither dependent on outside resources nor
suprajacent to the seabed and of the purely extractive in nature. The current presence of
seabed and its subsoil, and with regard to official personnel on the features is not enough to
other activities for the economic establish the right to an EEZ. (The South China Sea
exploitation and exploration of the zone, Arbitration, 2013-19, Jul. , 2016)
such as the production of energy from the
water, currents and winds; If after determining the maximum allowable catch,
(2) jurisdiction as provided for in the relevant the coastal State does not have the capacity to
provisions of the UNCLOS with regard to: harvest the entire catch, it shall give other states
access to the surplus by means of arrangements
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allowable under the UNCLOS. (UNCLOS, art. 62) (2) A distance of 200 nautical miles from the
The UNLCOS, however, does not specify the baselines of the territorial sea where the
method for determining “allowable catch.” outer edge of the continental margin does
not extend up to that distance. (UNCLOS,
Within its EEZ, A Coastal State may also: art. 76)
(1) Establish and use of artificial islands,
installations and structures; (UNCLOS, art. Continental Margin
60) The submerged prolongation of the land mass of the
(2) Conduct scientific research; and coastal state, and consists of the seabed and
(3) Preserve and protect its marine subsoil of the shelf, the slope and the rise.
environment. (UNCLOS, art. 76)
However, under Article 58, UNCLOS, all states Limits of the Continental Shelf
enjoy the freedom of navigation, over flight, and The juridical or legal continental shelf covers the
laying of submarine cables and pipelines in the EEZ area until 200 nautical miles from baselines.
of coastal states.
The extended continental shelf covers the area from
The coastal state has the right to enforce all laws the 200-mile mark to 350 nautical miles from the
and regulations enacted to conserve and manage baselines depending on geomorphologic or
the living resources in its EEZ. It may board and geological data and information.
inspect a ship, arrest a ship and its crew and institute
judicial proceedings against them. In detention of When the continental shelf extends beyond 200
foreign vessels, the coastal state has the duty to nautical miles, the coastal state shall establish its
promptly notify the flag state of the action taken. outer limits.
(UNCLOS, art. 73)
At any rate, the continental shelf shall not extend
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Conflicts regarding the attribution of rights and beyond 350 nautical miles from the baseline of the
jurisdiction in the EEZ must be resolved on the basis territorial sea, or 100 nautical miles from the 2500-
of equity and in the light of all relevant meter isobath (i.e., the point where the waters are
circumstances, taking into account the respective 2500 meters deep).
importance of the interests involved to the parties as
well as to the international community as a whole Rights of the Coastal State
(UNCLOS, art. 59). The continental shelf does not form part of the
territory of the coastal state.
4. CONTINENTAL SHELF
It only has sovereign rights with respect to the
Coverage exploration and exploitation of its natural resources,
Also known as the archipelagic or insular shelf including the mineral and other non-living resources
which refers to: of the seabed and subsoil together with living
(1) The seabed and subsoil of the submarine organisms belonging to the sedentary species.
areas adjacent to the coastal State but (UNCLOS, art. 77)
outside the territorial sea, to a depth of 200
meters, or beyond that limit, to where the The coastal state has the exclusive right to authorize
depth allows exploitation, and and regulate oil-drilling on its continental shelf.
(2) The seabed and subsoil of areas adjacent (UNCLOS, art. 81)
to islands. (UNCLOS, art. 76).
These rights are exclusive in the sense that when
Extended Continental Shelf the coastal state does not explore its continental
It is part of the Continental Shelf that lies beyond the shelf or exploit its resources, no one may undertake
200 nautical miles from the coastal baselines. It is these activities without the coastal state’s consent.
the seabed and subsoil of the submarine areas (UNCLOS, art. 77)
extending beyond the territorial sea of the coastal
state throughout the natural prolongation of its lands
territory up to:
(1) The outer edge of the continental margin;
or
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CONTINENTAL EXCLUSIVE authorities to enable the requesting state or

SHELF ECONOMIC ZONE government to hold him in connection with any
Duty to conserve and manage living criminal investigation directed against him or the
resources execution of a penalty imposed on him under the
No Duty The coastal state is penal or criminal law of the requesting state or
obliged to manage and government. [Philippine Extradition Law, Section
conserve the living 2(a)]
resources in the EEZ.
Rights of the coastal state to natural Extradition means the surrender of a person by one
resources state to another state where he is wanted for
Relate to mineral and Have to do with prosecution or, if already convicted, for punishment.
other non-living natural resources of
resources of the both waters super Fundamental Principles
seabed and the adjacent to the seabed General Rule: There can only be extradition if there
subsoil. and those of the is a treaty between the States. (Philippine
seabed and the Extradition Law, Sec. 3) Outside a treaty, there is no
subsoil. rule in international law compelling a State to
Rights of the coastal state to living extradite anyone.
resources
Apply only to Do not pertain to Extradition may also sometimes take place as a
sedentary species of sedentary species. matter of comity in the absence of an extradition
such living resources. treaty, if the states concerned are willing to allow it,
although this has occasioned protests from a third
state whose nationals are extradited in such
D. JURISDICTION OVER PERSONS circumstances [Oppenheim’s International Law, Vol.
AND ECONOMIC ACTVITY
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1 Peace (9th Ed.), 2008, pp. 951-952]
1. CRIMINAL JURISDICTION Exception: Political criminals are, as a rule, not

extradited, and according to many extradition
a. General Theory treaties, military deserters and persons who have
committed offences against religion are likewise
In General excluded from extradition; and many states refuse
States enjoy exclusive jurisdiction when it comes to extradition if the death penalty will be enforced for
dealing with crimes committed within their the crime. [Oppenheim’s International Law, Vol. 1
respective territories. Peace (9th Ed.), 2008, p. 959]
Objections on states absolute sovereignty in Exceptions to the Exception:

criminal cases (1) Attentat clause – murder of the Head of a
foreign Government or of a member of his
2. Crimes against peace, war crimes, crimes family, should not be considered a political
against humanity and genocide are
crime.
perpetrated by Governments or by
individuals as representatives of
Although the attentat clause originated in
Governments. Thus, their repression by
Belgium in 1856, it has since been widely
territorial courts is so improbable that only
adopted. [Oppenheim’s International Law,
an international criminal court could
Vol. 1 Peace (9th Ed.), 2008, p. 969]
properly try these international crimes.
3. Absolute sovereignty is incompatible with (2) Article 7 of the Genocide Convention 1948
the UN’s existence and functioning. provides that the crime of genocide shall
States had to accept that a part of their not be considered a political crime for the
sovereignty had been relinquished to the purpose of avoiding extradition in
UN. (ALFARO) accordance with laws and treaties in force.
[Oppenheim’s International Law, Vol. 1
b. Extradition Peace (9th Ed.), 2008, p. 970]
Definition Principle of Specialty

The removal of an accused from the Philippines with A condition of extradition that the surrendered
the object of placing him at the disposal of foreign individual shall be tried and punished for those
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crimes exclusively for which his extradition has been Notice and Hearing
asked and granted, or for those at least which the A person does not have the right to notice and
extradition treaty concerned enumerates. hearing during the evaluation stage of the
[Oppenheim’s International Law, Vol. 1 Peace (9th extradition process. Extradition is a proceeding sui
Ed.), 2008, p. 961] generis. It is not a criminal proceeding which will call
into operation all the rights of an accused
Who may be Extradited guaranteed by the Bill of Rights. The process of
In principle, any individual, whether he is a national extradition does not involve the determination of the
of the prosecuting state, or of the state which is guilt or innocence of an accused. There is no
required to extradite him, or of a third state, may be deprivation of the right to due process. (Secretary of
extradited. [Oppenheim’s International Law, Vol. 1 Justice v. Hon. Lantion and Mark Jimenez, G.R. No.
Peace (9th Ed.), 2008, p. 955] 139465, Oct. 17, 2000).
Absence of a Special Agreement Right to Bail

In the absence of special agreement, the offense An 461xtradite should not be deprived of his right to
must have been committed within the territory or apply for bail, provided that a certain standard for
against the interests of the demanding state. the grant is satisfactorily met. The standard of proof
Aut dedere aut judicare required in granting or denying bail in extradition
This means “either extradite or prosecute.” cases is clear and convincing evidence that the
461xtradite is not a flight risk and will abide with the
This principle is found in several multilateral treaties orders of the extradition court. (Government of Hong
dealing with offences evoking the general Kong v. Olalia, Jr., G.R. No.153675, Apr. 19, 2007).
condemnation of the international community have
adopted the practice of obliging parties either to If bail can be granted in deportation proceedings,
extradite persons found on their territory but wanted there is no justification not to allow it for extradition
for trial on such an offence by another party, or to try because both are administrative proceedings where
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such persons themselves. [Oppenheim’s the innocence or guilt of the parties is not in issue.
International Law, Vol. 1 Peace (9th Ed.), 2008, p. (Government of Hong Kong v. Olalia, Jr., G.R.
953] No.153675, Apr. 19, 2007).
A state subject to this obligation is bound to extradite Procedure for Extradition
if it does not prosecute, and prosecute if it does not (1) Foreign diplomat of the Requesting State or
extradite. Government requests for extradition with
Secretary of Foreign Affairs.
Principle of Double Criminality (2) DFA forwards request to DOJ.
According to this, extradition is only granted in (3) DOJ files a petition for extradition with RTC.
respect of a deed which is a crime according to the (4) RTC issues summons or Warrant of Arrest
law of the state which is asked to extradite, as well to compel the appearance of the individual.
as of the state which demands extradition— (5) Hearing (provide for counsel de officio if the
although not necessarily a crime of the same name accused does not have a legal counsel at
in each, so long as there is a substantial similarity the day of the hearing).
between the offences in each state. This is usually (6) Appeal to CA within 10 days whose
included in extradition treaties. [Oppenheim’s decision shall be final and executory
International Law, Vol. 1 Peace (9th Ed.), 2008, p. (7) Decision forwarded to DFA through the
958] DOJ
(8) Individual placed at the disposal of
Extradition for a crime before treaty effectivity authorities of the requesting State. The
A party to an extradition treaty may ask the other costs and expenses is to be shouldered by
party to extradite a person for a crime committed the Requesting State. (Philippine
before the effectivity of a treaty. It does not violate Extradition Law, §§ 4-8, 12, 16 & 18).
the prohibition against ex post facto laws. The
constitutional prohibition applies to penal laws only. Distinguished from deportation
An extradition treaty is not a penal law. (Wright v. Extradition is the “removal of an accused from the
CA, G.R. No. 113213, Aug. 15, 1994). Philippines with the object of placing him at the
disposal of foreign authorities.” (PD 1069, §2(a)). It
is a form of international judicial assistance
designed to deny criminals a safe haven abroad. It
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is a formal procedure whereby an individual, its authority or extend its jurisdiction to another state
accused or convicted of a crime under the laws of without the consent of the latter through a waiver of
one State, is arrested in another State and handed immunity.
over to the former State, at that State’s request, for
trial or punishment. (Boczek, The A to Z of Thus, domestic courts must decline to hear cases
International Law, 60, 2010). against foreign sovereigns out of deference to their
role as sovereigns.
Deportation is the act or an instance of removing a
person to another country. (Black’s Law Dictionary, Types of Immunity
504, 2004). It is exercised by the President to expel
or deport aliens whose presence is deemed inimical 1. Absolute Sovereign Immunity – where a
to the public interest. Deportation is based on the state cannot be sued in a foreign court no
face that since the aliens are not part of the nation, matter what the act it is sued for
their admission to the territory is a matter of purse 2. Restrictive Sovereign Immunity – where
permission and simple tolerance which creates no a state is immune from suits involving
obligation on the part of the government to permit governmental actions (jure imperii), but not
them to stay. (Djumantan v. Domingo, G.R. No. from those arising from commercial or
99358, Jan. 30, 1995) non-governmental activity (jure gestionis).
(Bernas, Public International Law, 2009)
EXTRADITION DEPORTATION
Effected at the request Unilateral act of the Absolute sovereign immunity is the dominant view
of another state State in keeping with the maxim par in parem non habet
Based on Offenses Based on causes imperium which stated that all states are sovereign
Committed in the State arising in the local equals and cannot assert jurisdiction over one
or Origin State another. A contrary attitude would “unduly vex the
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Calls for the return of An undesirable alien peace of nations”. (Bernas, Public International law,
the fugitive to the may be deported to a 2009)
requesting state state other than his
own or the state of Status of principle of sovereign immunity from
origin suits in international law
It is a customary norm of international law that holds,
Aliens may be expelled or deported from the unless waived by the state concerned.
Philippines only on grounds and in the manner
provided for by the Constitution, the Philippine Such immunity applies even if the claim against the
Immigration Act of 1940, as amended and state is for violation of a jus cogens norm in
administrative issuances pursuant thereto. (Sec. of international law.
Justice v. Koruga, G.R. No. 166199, Apr. 24, 2009).
Furthermore, State assets are also immune from
2. CIVIL JURISDICTION execution in connection with such claim.(Germany
v. Italy, Jurisdictional Immunities of the State Case,
ICJ, February 3, 2012).
General Rule
International Law particularly address questions of
DFA determines immunity in the Philippines
criminal law and essentially leaves civil jurisdiction
Under Philippine law, the DFA’s function includes
to national control.
the determination of persons and institutions
covered by diplomatic immunities. While exclusive
3. IMMUNITY FROM JURISDICTION to the DFA, the DFA’s determination is not
conclusive.
a. Sovereign Immunity
Even with a DFA certification, however, the court is
State Immunity from Suit not precluded from making an inquiry into the
It refers to a principle by which a state, its agents, intrinsic correctness of such certification. (China
and property are immune from the jurisdiction of National Machinery & Equipment Corp. v.
another state (MAGALLONA). Santamaria, G.R. No. 185572,February 7, 2012)
This principle is premised on the juridical equality of

states, according to which a state may not impose
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Rule on criminal jurisdiction on board merchant to the independence of sovereignty of every
ships and government ships operated for sovereign State (PCGG v. Sandiganbayan, G.R.
commercial purpose No. 124772, August 14, 2007).
The criminal jurisdiction of the coastal State should
not be exercised on board a foreign ship passing The Act of State doctrine is one of the methods by
through the territorial sea to arrest any person or to which States prevent their national courts from
conduct any investigation in connection with any deciding disputes which relate to the internal affairs
crime committed on board the ship during its of another State, the other two being immunity and
passage. non-justiciability. It is an avoidance technique that is
directly related to a State’s obligation to respect the
Exceptions: independence and equality of other States by not
(1) If the consequences of the crime extend to requiring them to submit to adjudication in a national
the coastal State; court or to settlement of their disputes without their
(2) If the crime is of a kind to disturb the peace consent. It requires the forum court to exercise
of the country or the good order of the restraint in the adjudication of disputes relating to
territorial sea; legislative or other governmental acts which a
(3) If the assistance of the local authorities has foreign State has performed within its territorial
been requested by the master of the ship or limits. (PCGG v. Sandiganbayan, G.R. No. 124772,
by a diplomatic agent or consular officer of August 14, 2007).
the flag State; or
(4) If such measures are necessary for the b. Diplomatic and Consular
suppression of illicit traffic in narcotic drugs Immunity
or psychotropic substances.
Diplomatic Immunity
Except as provided in Part XII (Protection and Diplomatic immunity essentially differs from State
Preservation of the Marine Environment) or with immunity in that the modern law on diplomatic
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respect to violations of laws and regulations adopted immunity is contained in the 1961 Vienna
in accordance with Part V (Exclusive Economic Convention on Diplomatic Relations
Zone), the coastal State may not take any steps on
board a foreign ship passing through the territorial Consequently, the rules on diplomatic immunity
sea to arrest any person or to conduct any work much more smoothly and uniformly than, say,
investigation in connection with any crime the ‘rules’ on State immunity.
committed before the ship entered the territorial sea,
if the ship, proceeding from a foreign port, is only Diplomatic relations are established by mutual
passing through the territorial sea without entering consent between the two States concerned.
internal waters. (UNCLOS, art. 27). However, they may be broken off unilaterally (often
as a mark of disapproval of an illegal or unfriendly
Non-Commercial Transactions of Ships owned act by the other State); when State A breaks off
and operated by the State diplomatic relations with State B, it not only
Unless otherwise agreed between the States withdraws its own diplomatic mission from State B,
concerned, a State which owns or operates a ship but also requires State B to withdraw its mission
cannot invoke immunity from jurisdiction before a from State A. (AKEHURST)
court of another State which is otherwise competent
in a proceeding which relates to the operation of that Immunity from the jurisdiction of courts
ship if, at the time the cause of action arose, the ship The preamble to the 1961 Vienna Convention
was used for other than government non- recites that “the purpose of such privileges and
commercial purposes. (UN Convention on immunities is not to benefit individuals but to ensure
Jurisdictional Immunities of States and Their the efficient performance of the functions of
Property, art. 16) diplomatic missions as representing States”
Rule on immunity from warships from execution it is still the case that diplomatic immunity under
A state’s naval vessel may not be proceeded Article 31 VCDR is wider than State immunity
against to answer for said state’s financial available to all State officials, in that Article 31 does
not focus on the nature of acts in relation to which
Act of State Doctrine immunities may be claimed. (AKEHURST)
Courts of one country will not sit in judgment on the
acts of the government of another in due deference
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Diplomat’s Liability (3) The international organization should, as a

One of the most striking features of the Vienna collective of States members, be accorded
Convention is that it does not grant full immunity to the facilities for the conduct of its official
all the staff of a diplomatic mission. In addition to business customarily extended to each
diplomatic agents, the Convention speaks of other by its individual member States.
administrative and technical staff (for example, (International Catholic Immigration
clerical assistants) and of service staff (for example, Commission v. Calleja, G.R. No. 85750,
drivers and receptionists). September 28, 1990
These two categories of subordinate staff have 4. AREAS NOT SUBJECT TO

complete immunity from criminal jurisdiction, but JURISDICTION OF INDIVIDUAL
their immunity from civil and administrative STATES
jurisdiction is limited to their official acts. The same
is true of diplomatic agents who are nationals or
permanent residents of the receiving State a. High Seas
When an individual ceases to be a member of the All parts of the sea that are not included in the
staff of a diplomatic mission, his immunity continues exclusive economic zone, in the territorial sea or in
for a reasonable time thereafter, in order to give him the internal waters of a State, or in the archipelagic
time to leave the country. After that, he may be sued waters of an archipelagic State. (UNCLOS, Art. 86)
for private acts done during his period of office, but
not for official acts. (AKEHURST) Allowable Acts in the High Seas
Immunities of international organizations and its
officers (1) Freedom of navigation
One of the basic immunities of an international (2) Freedom of overflight
(3) Freedom of scientific research
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organization is immunity from local jurisdiction, i.e.,
it is immune from the legal writs and processes (4) Freedom to construct artificial islands and
issued by the tribunals of the country where it is structures
found. The obvious reason for this is that the (5) Freedom of fishing
subjection of such an organization to the authority of (6) Freedom to lay submarine cables and
the local courts would afford a convenient medium pipelines (UNCLOS, art. 87).
thru which the host government may interfere in
their operations or even influence or control its China’s “nine-dash line” and its claim to resources
policies and decisions of the organization; besides, based on historic right is incompatible with the
such subjection to local jurisdiction would impair the detailed allocation of rights and maritime zones
capacity of such body to discharge its under the UNCLOS. Even if China had historic rights
responsibilities impartially on behalf of its member- to resources in the waters of the South China Sea,
states. (Southeast Asian Fisheries v. NLRC, G.R. such rights were extinguished by the entry into force
No. 86773, February14, 1992). of the Convention to the extent they were
incompatible with the Convention’s system of
There are basically three propositions underlying maritime zones. Further, China’s historical
the grant of international immunities to international navigation and fishing in the waters of the South
organizations. These principles, contained in the China sea represents the exercise of high seas
ILO Memorandum are stated thus: freedom, not the exercise of historic right. (The
South China Sea Arbitration, 2013-19, July. 12,
(1) International institutions should have a 2016)
status which protects them against control
or interference by any one government in b. Deep Seabed
the performance of functions for the
effective discharge of which they are Coverage
responsible to democratically constituted This is the part of the seabed that is beyond national
international bodies in which all the nations jurisdiction and is referred to as ‘the Area’ in the UN
concerned are represented; Convention on the Law of the Sea.
(2) No country should derive any national
financial advantage by levying fiscal
charges on common international funds;
and
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c. Outer Space
Outer Space Treaty

The exploration and use of outer space, including
the Moon and other celestial bodies, shall be carried
out for the benefit and in the interests of all
countries, irrespective of their degree of economic
or scientific development, and shall be the province
of all mankind.
Outer space, including the Moon and other celestial

bodies, shall be free for exploration and use by all
States without discrimination of any kind, on a basis
of equality and in accordance with international law,
and there shall be free access to all areas of
celestial bodies.
There shall be freedom of scientific investigation in

outer space, including the Moon and other celestial
bodies, and States shall facilitate and encourage
international cooperation in such investigation.
(ART 1, UN Outer Space Treaty)
Outer space, including the Moon and other celestial

bodies, is not subject to national appropriation by
claim of sovereignty, by means of use or occupation,
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or by any other means. (ART 2, UN Outer Space
Treaty)
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IV. INTERNATIONAL RESPONSIBILITY A. CONCEPT OF IMPUTABILITY OF

INTERNATIONALLY WRONGFUL
TOPIC OUTLINE UNDER THE SYLLABUS ACT OR OMISSION
A. CONCEPT OF IMPUTABILITY OF Doctrine of State Responsibility

INTERNATIONALLY WRONGFUL ACT OR State responsibility is a fundamental principle of
OMISSION international law whereby a State, either by an act
or omission, has breached an international
B. REPARATION obligation in force and incurs, in the absence of
circumstances precluding wrongfulness of its
C. INTERNATIONAL PROTECTION OF HUMAN conduct, certain legal consequences for the
RIGHTS (INCLUDING REFUGEES AND internationally wrongful act attributable to it,
STATELESS PERSONS) including the obligation to cease the wrongful
1. Remedies Under Treaty-Based conduct and make such full reparation of any
Mechanisms material and moral damage to the injured State or
States as is reasonably adequate depending on the
D. INTERNATIONAL MINIMUM STANDARD merits of the case in question. (Boczek, The A to Z
AND NATIONAL TREATMENT (INCLUDING of International Law, 121, 2010).
EXPROPRIATION OF FOREIGN-OWNED
PROPERTIES) Every internationally wrongful act of a state entails
the international responsibility of that State.
E. ENVIRONMENTAL HARM
1. Precautionary principle Elements of an Internationally Wrongful Act or
Omission
F. INTERNATIONAL CLAIMS There is an internationally wrongful act of a State
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when conduct consisting of an action or omission:
(1) is attributable to the State under
international law; and
(2) constitutes a breach of an international
obligation of the State. (ARSIWA, art. 2)
The characterization of an act of a State as

internationally wrongful is governed by international
law. Such characterization is not affected by the
characterization of the same act as lawful by internal
law. (ARSIWA, art. 3)
Responsibility of a State in connection with the

Act of Another State
(1) A State which aids or assists another State
in the commission of an internationally
wrongful act by the latter is internationally
responsible for doing so if:
(a) that State does so with knowledge of
the circumstances of the internationally
wrongful act; and
(b) the act would be internationally
wrongful if committed by that State.
(ARSIWA, art. 16)
(2) A State which directs and controls another

State in the commission of an
internationally wrongful act by the latter is
internationally responsible for that act if:
(a) that State does so with knowledge of
the circumstances of the internationally
wrongful act; and
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(b) the act would be internationally
wrongful if committed by that State. Force Majeure
(ARSIWA, art. 17) The wrongfulness of an act of a State not in
conformity with an international obligation of that
(3) A State which coerces another State to State is precluded if the act is due to force majeure,
commit an act is internationally responsible that is the occurrence of an irresistible force or of an
for that act if: unforeseen event, beyond the control of the State,
(a) the act would, but for the coercion, be making it materially impossible in the circumstances
an internationally wrongful act of the to perform the obligation.
coerced State; and
(b) the coercing State does so with This does not apply if:
knowledge of the circumstances of the (1) the situation of force majeure is due, either
act. (ARSIWA, art. 18) alone or in combination with other factors,
to the conduct of the State invoking it; or
Circumstances Precluding Wrongfulness (2) the State has assumed the risk of that
(1) Consent situation occurring. (ARSIWA, art. 23)
(2) Self-Defense
(3) Countermeasure in Respect of an Distress
Internationally Wrongful Act The wrongfulness of an act of a State not in
(4) Force Majeure conformity with an international obligation of that
(5) Distress State is precluded if the author of the act in question
(6) Necessity has no other reasonable way, in a situation of
(7) Compliance with Peremptory Norms distress, of saving the author’s life or the lives of
(ARSIWA, Ch. V). other persons entrusted to the author’s care.
Consent This does not apply if:
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Valid consent by a State to the commission of a (1) the situation of distress is due, either alone
given act by another State precludes the or in combination with other factors, to the
wrongfulness of that act in relation to the former conduct of the State invoking it; or
State to the extent that the act remains within the (2) the act in question is likely to create a
limits of that consent. (ARSIWA, art. 20) comparable or greater peril. (ARSIWA, art.
24)
Self-defense
The wrongfulness of an act of a State is precluded if Necessity
the act constitutes a lawful measure of self- defense Necessity may not be invoked by a State as a
taken in conformity with the Charter of the United ground for precluding the wrongfulness of an act not
Nations. (ARSIWA, art. 21) in conformity with an international obligation of that
State unless the act:
Requisites of Self-Defense: (a) is the only way for the State to safeguard
(1) A State must have been the victim of an an essential interest against a grave and
armed attack; imminent peril; and
(2) That State must declare itself as a victim of (b) does not seriously impair an essential
an armed attack. The assessment on interest of the State or States towards
whether an armed attack had taken place which the obligation exists, or of the
or not, is done by the State who was international community as a whole.
subjected to the attack.
(3) In the case of collective self-defense, the In any case, necessity may not be invoked by a
victim State must request for assistance. State as a ground for precluding wrongfulness
(U.S. v. Nicaragua, ¶195) if:
(1) the international obligation in question
Countermeasure in Respect of an Internationally excludes the possibility of invoking
Wrongful Act necessity; or
The wrongfulness of an act of a State not in (2) the State has contributed to the situation of
conformity with an international obligation towards necessity. (ARSIWA, art. 25)
another State is precluded if and to the extent that
the act constitutes a countermeasure taken against
the latter State. (ARSIWA, art. 22)
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Compliance with Peremptory Norms Compensation

Nothing in the ASR precludes the wrongfulness of The State responsible for an internationally wrongful
any act of a State which is not in conformity with an act is under an obligation to compensate for the
obligation arising under a peremptory norm of damage caused thereby, insofar as such damage is
general international law. (ARSIWA, art. 26) not made good by restitution.
B. REPARATION The compensation shall cover any financially

assessable damage including loss of profits insofar
Duty to cease the act as it is established. (ARSIWA, art. 36)
The State responsible for the wrongful act is under
the obligation to: Satisfaction
(1) Cease the act if it is still continuing; and The State responsible for an internationally wrongful
(2) Offer appropriate assurances and act is under an obligation to give satisfaction for the
guarantees of non-repetition, if injury caused by that act insofar as it cannot be
circumstances so require (ARSIWA, art. made good by restitution or compensation.
30).
Satisfaction may consist in an acknowledgement of
The legal consequences of an internationally the breach, an expression of regret, a formal
wrongful act under this part do not affect the apology or another appropriate modality.
continued duty of the responsible State to perform
the obligation breached. (ARSIWA, art. 29) Satisfaction shall not be out of proportion to the
injury and may not take a form humiliating to the
Duty to make reparations responsible State. (ARSIWA, art. 37)
The responsible State is under an obligation to
make full reparation for the injury caused by the Objects and limits of countermeasures
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internationally wrongful act. (1) An injured State may only take
countermeasures against a State which is
Injury includes any damage, whether material or responsible for an internationally wrongful
moral, caused by the internationally wrongful act of act in order to induce that State to comply
with its obligations.
a State. (ARSIWA, art. 31)
(2) Countermeasures are limited to the non-
State cannot invoke internal law performance for the time being of
The responsible State may not rely on the provisions international obligations of the State taking
of its internal law as justification for failure to comply the measures towards the responsible
with its obligations to make reparations. (ARSIWA, State.
art. 32) (3) Countermeasures shall, as far as possible,
be taken in such a way as to permit the
resumption of performance of the
Three Forms of Reparation:
obligations in question. (ARSIWA, art. 49)
(1) Restitution
(2) Compensation
Proportionality of countermeasures
(3) Satisfaction
Countermeasures must be commensurate with the
Either singly or in combination (ARSIWA,
injury suffered, taking into account the gravity of the
art. 34).
internationally wrongful act and the rights in
question. (ARSIWA, art. 51)
Restitution
A State responsible for an internationally wrongful Conditions for Countermeasures
act is under an obligation to make restitution, that is, (1) Before taking countermeasures, an injured
to reestablish the situation which existed before the State shall:
wrongful act was committed, provided and to the (a) call upon the responsible State, in
extent that restitution: accordance with [the procedure for
(1) Is not materially impossible; putting forward claims], to fulfil its
(2) Does not involve a burden out of all obligations;
proportion to the benefit of the party (b) notify the responsible State of any
deriving from restitution instead of decision to take countermeasures and
compensation. (ARSIWA, art. 35) offer to negotiate with that State.
(2) Notwithstanding paragraph 1 (b), the
injured State may take such urgent
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countermeasures as are necessary to opinion, is outside the country of his nationality, and
preserve its rights. is unable, or owing to such fear, is unwilling to avail
(3) Countermeasures may not be taken, and if himself of the protection of that country.
already taken must be suspended without
undue delay if: It is also one who, not having a nationality and being
(a) the internationally wrongful act has outside the country of his former habitual residence
ceased; and as a result of such events, is unable or, owing to
(b) the dispute is pending before a court or such fear, is unwilling to return to it. [1951
tribunal which has the authority to Convention Relating to the Status of Refugees
make decisions binding on the parties. (“1951 Convention”), art. 1(A)(2)]
(4) Paragraph 3 does not apply if the
responsible State fails to implement the Governing Statutes
dispute settlement procedures in good The controlling international convention on refugee
faith. (ARSIWA, art. 52) law is the 1951 Convention relating to the Status of
Refugees (1951 Convention) and its 1967 Optional
Obligations not Affected by Countermeasures Protocol relating to the Status of Refugees.
Countermeasures shall not affect:
(1) the obligation to refrain from the threat or Persons not covered by the 1951 Convention
use of force as embodied in the Charter of Relating to the Status of Refugees
the United Nations; (1) One who has committed a crime against
(2) obligations for the protection of peace, a war crime, or a crime against
fundamental human rights humanity, as defined in the international
(3) obligations of a humanitarian character instruments drawn up to make provision in
prohibiting reprisals respect of such crimes;
(4) other obligations under peremptory norms (2) One who has committed a serious non-
of general international law. political crime outside the country of refuge
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prior to his admission to that country as a
A State taking countermeasures is not relieved from refugee;
fulfilling its obligations: (3) One who has been guilty of acts contrary to
(1) under any dispute settlement procedure the purposes and principles of the United
applicable between it and the responsible Nations. [1951 Convention, art 1(F)].
State;
(2) to respect the inviolability of diplomatic or Rights of Refugees
consular agents, premises, archives and Refugee law and international human rights law are
documents. (ARSIWA, art. 50) closely intertwined; refugees are fleeing
governments that are either unable or unwilling to
Termination of Countermeasures protect their basic human rights. Additionally, in
Countermeasures shall be terminated as soon as cases where the fear of persecution or threat to life
the responsible State has complied with its or safety arises in the context of an armed conflict,
obligations under part two in relation to the refugee law also intersects with international
internationally wrongful act. (ARSIWA, art. 53) humanitarian law.
Specific Rights under the 1951 Convention

C. INTERNATIONAL PROTECTION (1) Right to have rights previously acquired
OF HUMAN RIGHTS (INCLUDING and dependent on personal status, more
REFUGEES AND STATELESS particularly rights attaching to marriage, be
respected, subject to compliance [art.
PERSONS) 12(2)]
(2) Free access to courts of law [art. 16(1)]
1. REMEDIES UNDER TREATY-BASED (3) Right to receive the same treatment as
MECHANISMS nationals of the receiving country with
regard to the following rights:
Definition of Refugees (a) Free exercise of religion and religious
As a result of events occurring before January 1, education (art. 4)
1951, and owing to a well-founded fear of being (b) Protection of rights in literary, artistic
persecuted for reason of race, religion, nationality, and scientific works (art. 14)
membership of a particular social group or political
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(c) Protection of intellectual property, such Internally Displaced Persons

as inventions and trade names (art. 14) Persons or groups of persons who have been forced
(d) Free access to the courts, including or obliged to flee or to leave their homes of places
legal assistance and exemption from of habitual residence, in particular as a result of or
caution judicatum solvi [art. 16(2)] in order to avoid the effects of armed conflict,
(e) Access to elementary education [art. situations of generalized violence, violations of
22(1)] human rights or natural or human-made disasters,
(f) Access to public relief and assistance and who have not crossed an internationally
(art. 23) recognized State border. (UN Guiding Principles on
(g) Protection provided by social security Internal Displacement, par. 2)
[art. 24(1)(b)]
(h) h. Equal treatment by taxing authorities Stateless Persons
[art. 29(1)] A person who is not considered as a national by any
(4) Right to receive the most favorable State under the operation of its law. [1954
treatment provided to nationals of a foreign Convention relating to the Status of Stateless
country with regard to the following rights: Persons (“Statelessness Convention”), art. 1(1)]
(a) Right of association (art. 15)
(b) The right to engage in wage- earning Stateless Convention Not Applicable to the
employment [art. 17(1)] Following:
(5) Right to receive the most favorable (1) To persons who are at present receiving
treatment possible, which must be at least from organs or agencies of the United
as favorable to that accorded aliens Nations other than the United Nations High
generally in the same circumstances, with Commissioner for Refugees protection or
regard to the following rights: assistance so long as they are receiving
(a) The right to own property (art. 13) such protection or assistance;
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(b) The right to self-employment (art. 18) (2) To persons who are recognized by the
(c) The right to practice a profession [art. competent authorities of the country in
19(1)] which they have taken residence as having
(d) Access to housing (art. 21) the rights and obligations which are
(e) Access to higher education [art 22(2)] attached to the possession of the
(6) Right to receive the same treatment as that nationality of that country;
accorded to aliens generally with regard to (3) To persons with respect to whom there are
the following rights: serious reasons for considering that:
(a) The right to choose their place of (a) they have committed a crime against
residence (art. 26) peace, a war crime, or a crime against
(b) The right to move freely within the humanity, as defined in the
country (art. 26) international instruments drawn up to
make provisions in respect of such
Principle of Non-Refoulement crimes;
No Contracting State shall expel or return (b) they have committed a serious non-
(“refouler”) a refugee in any manner whatsoever to political crime outside the country of
the frontiers of territories where his life or freedom their residence prior to their admission
would be threatened on account of his race, religion, to that country;
nationality, membership of a particular social group (c) they have been guilty of acts contrary
or political opinion. to the purposes and principles of the
United Nations. [Statelessness
The benefit of the present provision may not, Convention, art. 1(2)]
however, be claimed by a refugee whom there are
reasonable grounds for regarding as a danger to the Rights of Stateless Persons
security of the country in which he is, or who, having Under the Statelessness Convention, a stateless
been convicted by a final judgment of a particularly person is entitled to, among others, the right to
serious crime, constitutes a danger to the religion and religious instruction, access to courts,
community of that country. (1951 Convention, art. elementary education, public relief and assistance
33). and rationing of products in short supply, as well as
treatment of no less favorable than that accorded to
It does not distinguish between returning them to the aliens.
State from which they might have come or to one
that will also maltreat them.
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Also, under the Universal Declaration of Human (Poe-Llamanzares v. COMELEC, G.R. No. 221697,
Rights: Mar. 8, 2016)
(1) Everyone has a right to the nationality. [art.
15(1)] That the Philippines is not a party to the 1930 Hague
(2) No one shall be arbitrarily deprived of his Convention nor to the 1961 Convention on the
nationality nor denied the right to change Reduction of Statelessness does not mean that their
his nationality. [art. 15(2)] principles are not binding. While the Philippines is
not a party to the 1930 Hague Convention, it is a
Types of Stateless Persons signatory to the Universal Declaration on Human
(1) De Jure Stateless Persons - Persons who Rights, Article 15 (1) of which effectively affirms
are not nationals of any State, either Article 14 of the 1930 Hague Convention. Article 2
because at birth or subsequently they were of the 1961 "United Nations Convention on the
not given any nationality, or because during Reduction of Statelessness" merely "gives effect" to
their lifetime they lost their own nationality Article 15 (1) of the UDHR. (Poe-Llamanzares v.
and did not acquire a new one. (UN Study COMELEC, G.R. No. 221697, Mar. 8, 2016)
of Statelessness, p.7) Citizenship of Foundlings
(2) De Facto Stateless Persons – Persons Foundlings are citizens under international law.
who, having left the country of which they Article 24 of the International Covenant on Civil and
were nationals, no longer enjoy the Political Rights provides for the right of every child
protection and assistance of their national “to acquire a nationality.” The Philippines is
authorities, either because these obligated under UDHR, UNCRC and ICCPR to grant
authorities refuse to grant them assistance nationality from birth and ensure that no child is
and protection, or because they stateless. This grant of nationality must be at the
themselves renounce the assistance and time of birth, and it cannot be accomplished by the
protection of the countries of which they are application of our present naturalization laws,
nationals. (UN Study of Statelessness, p. 7) Commonwealth Act No. 473, as amended, and RA
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9139, both of which require the applicant to be at
Asylum Seeker least 18 years old. (Poe-Llamanzares v. COMELEC,
A person who has left their country and is seeking G.R. No. 221697, Mar. 8, 2016)
protection from persecution and serious human
rights violations in another country, but who hasn’t In a case decided by the Supreme Court, the Chief
yet been legally recognized as a refugee and is Justice pointed out that in 166 out of 189 countries
waiting to receive a decision on their asylum claim. surveyed (or 87.83%), foundlings are recognized as
(Amnesty International) citizens. These circumstances, including the
practice of jus sanguinis countries, show that it is a
Foundlings generally accepted principle of international law to
presume foundlings as having been born of
Definition nationals of the country in which the foundling is
A foundling shall be a deserted or abandoned child found. (Poe-Llamanzares v. COMELEC, G.R. No.
or infant with unknown facts of birth and parentage. 221697, Mar. 8, 2016)
This shall also include those who have been duly
registered as a foundling during her or his infant D. INTERNATIONAL MINIMUM
childhood, but have reached the age of majority STANDARD AND NATIONAL
without benefitting from adoption procedures upon
the passage of this law (R.A 11767. Foundling
TREATMENT (INCLUDING
Recognition and Protection Act) EXPROPRIATION OF FOREIGN-
OWNED PROPERTIES)
A foundling found in the territory of a Contracting
State shall, in the absence of proof to the contrary, Treatment and Admission of Foreign
be considered to have been born within the territory Investments
of parents possessing the nationality of that State. Under general international law, a State has an
(Poe-Llamanzares v. COMELEC, G.R. No. 221697, unlimited discretion as to allowing investors entry
Mar. 8, 2016, citing 1961 United Nations Convention into its own territory. The content of bilateral
on the Reduction of Statelessness, art. 2) investment treaty provisions entails no automatic
claim to being admitted, and “the host State is under
These principles found in the two conventions are no obligation to revise its domestic laws of
generally accepted principles of international law.
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admission after ratification of the bilateral (3) Maladministration of justice in civil or

investment treaty”. criminal proceedings can engage a State’s
responsibility
Instead, full play is given to laws and regulations of (4) Failure to safeguard aliens’ rights,
a host country so that only foreign investments especially in the context of unrest or
admitted into the State in conformity with domestic rebellion, relating to the doctrine of
legislation are entitled to protection stipulated under attribution under the law of State
relevant treaties. (AKEHURST) responsibility.
Requirements to be considered an Investment Most Favored Nation and National Treatment

(1) Contribution of money or assets; Most favored nation clauses included in a treaty
(2) Certain duration over which the project was ordinarily require that one party grants to the
to be implemented; nationals of another party any privilege or favor it
(3) Element of risk; and grants to nationals of any other State under another
(4) Contribution to the host state’s economy treaty.
(AKEHURST)
It can have a precise subject matter or a more
Doctrine of Acquired Rights general content.
“Acquired” (or “vested”) rights concern whether the
same State under whose law the relevant private Ordinarily, for a MFN clause to take effect,
law right has been acquired must respect the obligations contained in the basic treaty containing
existence and exercise of that right; and whether a the MFN clause and in the treaty to which the MFN
State should respect rights acquired under another clause refers should cover the same subject matter.
State’s legal system. (AKEHURST) (AKEHURST)
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International Minimum Standard Expropriation
A State’s only duty was to treat foreigners in the
same way as it treated its own nationals (“national Concept of Expropriation
standard”). Expropriation is commonly understood to refer to
unilateral interference by the State with the property
A national treatment standard is difficult to formulate or comparable rights of an owner in general terms.
and apply as a matter of general international law,
because national legal systems and standards Customary law limits on State expropriation:
diverge from State to State. An international (1) Expropriation must be for public purpose
minimum standard at least aspires to formulate a (2) It must be accompanied by payment of
uniformly applicable international standard. compensation for the full value of the
property
General international law imposes on States no
distinct protection standards specifically with regard Indirect expropriation
to investors. Instead investors enjoy only such rights Indirect expropriation can be defined as treatment
as are available to all aliens under general rendering property rights useless even if not actually
international law or human rights treaties. involving expropriation of the property.
(AKEHURST)
Any act which deprives a foreigner indefinitely of all
A State’s international responsibility will be benefit from his property is regarded by international
engaged if: law as an expropriation, even though a formal
(1) Unlawful killing, imprisonment, physical ill- change of ownership may not have occurred.
treatment or damage of property (AKEHURST)
(2) Excessive severity in maintaining law and
order Calculation of compensation for expropriation
(a) Such as punishment without a fair trial, Some disputes arising between those States which
(b) excessively long detention before trial, believe that full compensation must be paid for
(c) fatal injuries inflicted by policemen expropriation and other States which think
dispersing a peaceful demonstration, otherwise, are usually settled by a compromise; the
(d) unduly severe punishment for a trivial expropriating State pays part of the value of the
offence, and so on. expropriated property.
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The compromise usually takes the form of a global the Acquisition of Agri-Biotech Applications v.
settlement or “lump sum agreement”, so-called Greenpeace, G.R. No. 209271, Dec. 8, 2015)
because it covers all the claims made by one State
arising out of a particular nationalization program of The case for the precautionary principle is strongest
the other State, instead of dealing with each when the following features coincide:
individual’s claim separately. (AKEHURST) (1) Settings in which the risks of harm are
uncertain;
Expropriation of contractual rights (2) Settings in which harm might be irreversible
Contractual rights fall within the concept of and what is lost is irreplaceable; and
expropriation where “investment” can be defined to (3) Settings in which the harm that might result
include contractual rights, and the host State acts in would be serious. (International Service for
a way that goes beyond an ordinary breach of the Acquisition of Agri-Biotech Applications
contract and engages in the unlawful or arbitrary use v. Greenpeace, G.R. No. 209271, Dec. 8,
of State authority. (AKEHURST) 2015)
E. ENVIRONMENTAL HARM When in doubt, cases must be resolved in favor of

the constitutional right to a balanced an d healthful
Concept of environmental harm ecology. Parenthetically, judicial adjudication is one
Environmental damage is “damage caused by the of the strongest fora in which the precautionary
hazardous activity to the environment itself with or principle may find applicability. (International
without simultaneously causing damage to persons Service for the Acquisition of Agri-Biotech
or property and hence is independent of any Applications v. Greenpeace, G.R. No. 209271, Dec.
damage to such persons and property”. (ILC’S 2006 8, 2015)
DRAFT ARTICLES)
The precautionary principle only applies when the
1. PRECAUTIONARY PRINCIPLE link between the cause, that is the human activity
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In order to protect the environment, the
precautionary approach shall be widely applied by
States according to their capabilities. Where there
sought to be inhibited, and the effect, that is the
damage to the environment, cannot be established
with full scientific certainty. (West Tower
Condominium v. First Philippine Industrial
are threats of serious or irreversible damage, lack of Corporation, G.R. No. 194239, Jun. 16, 2015)
full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent F. INTERNATIONAL CLAIMS
environmental degradation (Principle 15, Rio
Declaration). Concept of international claims
International claims for compensation for illegal acts
In the Philippines, the legal remedy is called Writ of are regarded as being intensely “personal”. So long
Kalikasan. It provides for protection of one’s right to as the State responsible remains in existence as a
a balance and healthful ecology in accord with the legal person, it can and should bear responsibility
rhythm and harmony of nature. for its own deeds.
Factors to be Considered However, new States ought to commence with a

(1) Threatening to human life or health; “clean slate” and extinction of either the claimant
(2) Inequity to present or future generations; or State or the defendant State might be seen as
(3) Prejudice to the environment without legal resulting in the extinction of the claim. (AKEHURST)
consideration of the environmental rights of
those affected
(International Service for the Acquisition of ————- end of topic ————
Agri-Biotech Applications v. Greenpeace,
G.R. No. 209271, Dec. 8, 2015, citing Part
V, Rule 20 of the Rules)
For purposes of evidence, the precautionary

principle should be treated as a principle of last
resort, where application of the regular Rules of
Evidence would cause in an inequitable result for
the environmental plaintiff. (International Service for
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V. DISPUTE RESOLUTION A. LEGALITY OF THE USE OF

FORCE
Jus ad Bellum v. Jus in Bello
(1) Jus ad bellum refers to the conditions under
which States may resort to war or to the use
A. LEGALITY OF THE USE OF FORCE
of armed force in general. The prohibition
against the use of force amongst States
B. CONCEPT OF INTERNATIONAL AND
and the exceptions to it (self-defense and
NON-INTERNATIONAL ARMED
UN authorization for the use of force), set
CONFLICTS
out in the United Nations Charter of 1945,
A. The Role of the International Criminal
are the core ingredients of jus ad bellum
Court
(2) Jus in bello regulates the conduct of parties
engaged in an armed conflict. IHL is
C. JUDICIAL AND ARBITRAL
synonymous with jus in bello; it seeks to
SETTLEMENT
minimize suffering in armed conflicts,
A. International Court of Justice
notably by protecting and assisting all
B. Permanent Court of Arbitration
victims of armed conflict to the greatest
extent possible. (ICRC)
Two Branches
(1) Law of The Hague - the body of rules
establishing the rights and obligations of
belligerents in the conduct of hostilities, and
which limits means and methods of
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warfare.
(2) Law of Geneva - the body of rules that
protects victims of armed conflict, such as
military personnel who are hors de combat
and civilians who are not or are no longer
directly participating in hostilities (ICRC)
International Human Rights Law v. International

Humanitarian Law
IHRL IHL
Both are aimed at protecting the individual and
apply simultaneously in times of international &
non-international armed conflicts.
Protects the individual Regulates the
from abusive or conduct of hostilities
arbitrary exercise of and the protection of
power by State persons in situations
authorities of armed conflict
Human rights law The personal,
applies only where material and territorial
individuals find applicability of IHL
themselves within essentially depends
territory controlled by on the existence of a
a nexus with an armed
State, including conflict
occupied territories
(territorial jurisdiction),
or where a State
exercises effective
control, most
commonly physical
custody, over
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individuals outside its Types of Armed Conflict

territorial Jurisdiction IHL distinguishes two types of armed conflicts,
(personal jurisdiction). namely:
Human rights law IHL also directly (1) International armed conflicts (“IAC”),
focuses specifically on protects, for example, opposing two or more States
human beings livestock, civilian (a) Wars of National Liberation are also
objects, cultural considered IAC. [How is the Term
property, the “Armed Conflict” Defined in
environment and the International Humanitarian Law?,
political order of ICRC, Opinion Paper, March 2008, p.
occupied territories. 2 (“ICRC Opinion Paper”)]
Human rights law is IHL is binding on all (2) Non-international armed conflicts (“NIAC”),
binding only on States parties to an armed between governmental forces and non-
conflict, including non- governmental armed groups, or between
State armed groups such groups only. (ICRC Opinion Paper, p.
Human rights law IHL applies only in 1)
applies irrespective of armed conflicts and is
whether there is an specifically designed Armed conflicts subject to foreign intervention are a
armed conflict. In for such situations. special form of armed conflict sometimes also less
times of public accurately referred to as “internationalized” armed
emergency, however, Therefore, unless conflicts. In essence, this concept refers to a State,
human rights law expressly foreseen in or coalition of States, intervening in a pre-existing
allows for derogations the relevant treaty non-international armed conflict, thereby becoming
from protected rights provisions, the rules a (co-belligerent) party to that conflict. (Intro to IHL,
to the extent actually and principles of IHL p. 73).
required by the cannot be derogated
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exigencies of the from International Armed Conflicts (IAC)
situation. An international armed conflict occurs when one or
[Table made from IHL: A Comprehensive more States have recourse to armed force against
Introduction (“Intro to IHL”), p. 27-30] another State, regardless of the reasons or the
intensity of this confrontation. No formal declaration
of war or recognition of the situation is required.
B. CONCEPT OF INTERNATIONAL
AND NON-INTERNATIONAL The existence of an international armed conflict, and
ARMED CONFLICTS as a consequence, the possibility to apply IHL to this
situation, on what actually happens on the ground.
Armed Conflict v. War It is based on factual conditions. (ICRC)
ARMED CONFLICT WAR
Today, an Traditionally, States General Rule: Under Article 2(4) of the UN Charter,
international armed expressed their all Members shall refrain in their international
conflict is presumed to belligerent intent relations from the threat or use of force against the
exist as soon as a (animus belligerendi) territorial integrity or political independence of any
State uses armed through formal state, or in any other manner inconsistent with the
force against another declarations of war, Purposes of the United Nations.
State, regardless of which, ipso facto,
the reasons for or created a political Exception: Nothing in the present Charter shall
intensity of the state of war and impair the inherent right of individual or collective
confrontation, and triggered the self-defense if an armed attack occurs against a
irrespective of applicability of the law Member of the United Nations, until the Security
whether a political of war (jus in bello) Council has taken measures necessary to maintain
state of war has been between them, even international peace and security. (UN Charter, art.
formally declared or in the absence of 51)
recognized. open hostilities.
Anticipatory Self Defense
Article 51 of the UN Charter recognizes the inherent
right of States to self-defense if an armed attack
occurs.
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Collective Self-Defense in areas of weak governance, such as so-called

Before a State can be justified in assisting another “failed States.”
by way of collective self -defense:
(1) A State must have been the victim of an In order for a non-State armed group to be
armed attack; considered a “party” to a conflict, common Article 3
(2) That State must declare itself as a victim of does not require any recognition of belligerency by
an armed attack. The assessment of the opposing State, nor popular support, territorial
whether an armed attack had taken place control or political motivation. (Intro to IHL, p. 68)
or not, is done by the State who was
subjected to the attack. A third State cannot Requisites of an NIAC:
exercise a right of collective self-defense (1) Protracted armed violence
based on that third State’s own (2) Such armed violence is between
assessment; governmental authorities and organized
(3) In the case of collective self-defense, the armed groups or between such groups
victim State must request for assistance. within a State. (Prosecutor v. Tadić Trial
(U.S. v. Nicaragua, ¶232, Jun. 27, 1986) Decision, ¶561, May 7, 1997)
Self Defense v. Just War Threshold of Protracted Armed Violence

SELF DEFENSE JUST WAR A criterion that in practice has been interpreted as
It refers to the use of Once a State has a referring more to the intensity of the armed violence
force to repel an attack valid reason for than to its duration.
or imminent threat of resorting to force,
attack directed against there is no limit on the Indicative factors for assessing “intensity” have
oneself or others or a extent of force which included: “the number, duration and intensity of
legally protected could be employed. individual confrontations; the type of weapons and
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interest. other military equipment used; the number and
caliber of munitions fired; the number of persons
Self-defense in and type of forces partaking in the fighting; the
international law refers number of casualties; the extent of material
to the inherent right of destruction; and the number of civilians fleeing
a State to use of force
in response to an
armed attack. (ICRC)
combat zones. (Intro to IHL, p.70)
Organized Armed Group

The armed wing of a non-state party to a non-
international armed conflict, and may be comprised
Internal or Non-International Armed Conflict of either:
(NIAC) (1) dissident armed forces (for example,
These are armed conflicts that take place in the breakaway parts of state armed forces); or
territory of a High Contracting Party between its (2) other organized armed groups which recruit
armed forces and dissident armed forces or other their members primarily from the civilian
organized armed groups which, under responsible population but have developed a sufficient
command, exercise such control over a part of its degree of military organization to conduct
territory as to enable them to carry out sustained hostilities on behalf of a party to the conflict.
and concerted military operations.
The term organized armed group refers exclusively
It does not include situations of internal disturbances to the armed or military wing of a non-state party to
and tensions, such as riots, isolated and sporadic a non-international armed conflict. It does not
acts of violence and other acts of a similar nature, include those segments of the civilian population
as not being armed conflicts. [Additional Protocol II that are supportive of the non-state party such as its
to the Geneva Conventions of 1949 (AP II)], art. 1]. political wing. (ICRC)
Difference of AP II, art. 1 and Common Article 3 The level of organization of non-State armed groups
of the Geneva Conventions has in practice been assessed based on a series of
A NIAC within the meaning of common Article 3 indicative factors including elements such as: “the
does not necessarily have to involve a government; existence of a command structure and disciplinary
it can also take place entirely between organized rules and mechanisms within the group; the
armed groups, a scenario that is particularly relevant existence of a headquarters; the fact that the group
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controls a certain territory; the ability of the group to
gain access to weapons, other military equipment, The Court’s jurisdiction can be exercised only in
recruits and military training; its ability to plan, relation to crimes committed after the entry of the
coordinate and carry out military operations, Statute into force, or after its entry into force for a
including troop movements and logistics; its ability State that has acceded to it afterwards, whichever
to define a unified military strategy and use military is the later (Article 11 ICC Statute). Article 12 ICC
tactics; and its ability to speak with one voice and Statute further specifies the Court can exercise
negotiate and conclude agreements such as cease- jurisdiction over a crime if either, or both, the State
fire or peace accords.[Additional Protocol II to the of nationality of the perpetrator or the State where
Geneva Conventions of 1949 (AP II), art. 1]. (Intro the crime has occurred are parties to the Statute.
to IHL, p.69)
Thus, Article 12 ICC Statute clearly allows
Internationalized Armed Conflict jurisdiction to be exercised over nationals of a non-
An internationalized armed conflict refers to an State-party as well as over crimes committed on the
internal conflict that had become internationalized territory of a non-State- party.
because of external support. An NIAC becomes
internationalized when another State has overall C. JUDICIAL AND ARBITRAL
control over an organized armed group, which is SETTLEMENT
going beyond the mere financing and equipping of
such forces and involving also participation in the
planning and supervision of military operations. 1. INTERNATIONAL COURT OF
(Prosecutor v. Tadić) JUSTICE
Wars of National Liberation The International Court of Justice shall be the

Armed conflicts in which people are fighting against principal judicial organ of the United Nations. (Article
colonial domination and alien occupation and 92, United Nations Charter)
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against racist regimes in the exercise of their right of
self-determination. Those engaged in such a conflict
receive combatant status and are entitled to
combatant rights and duties. This conflict is
The Court has two functions: to settle legal disputes
submitted to it by States (contentious jurisdiction)
and to give advisory opinions on legal questions
considered an international armed conflict under referred to it by international organs and agencies
Article 1, 3rd and 4th pars., Protocol 1. (Additional duly authorized to do so (advisory jurisdiction).
Protocol I to the Geneva Conventions of 1949). (AKEHURST)
Wars by peoples against racist, colonial and alien Members of the International Court of Justice
domination “for the implementation of their right to (1) All Members of the United Nations are ipso
self-determination and independence is legitimate facto parties to the Statute of the
and in full accord with principles of international International Court of Justice.
law,” and that any attempt to suppress such struggle (2) A state which is not a Member of the United
is unlawful [Resolution 3103 (XXVIII)]. Nations may become a party to the Statute
of the International Court of Justice on
When peoples subjected to alien domination resort conditions to be determined in each case
to forcible action in order to exercise their right to by the General Assembly upon the
self-determination, they “are entitled to seek and to recommendation of the Security Council
receive support in accordance with the purposes (Article 93, United Nations Charter)
and principles of the Charter.” [UN GA Reso. 2625
(XXV)] Decisions of the International Court of Justice
(1) Each Member of the United Nations
1. THE ROLE OF THE undertakes to comply with the decision of
the International Court of Justice in any
INTERNATIONAL CRIMINAL COURT
case to which it is a party.
(2) If any party to a case fails to perform the
Jurisdiction of the International Criminal Court
obligations incumbent upon it under a
The International Criminal Court has jurisdiction
judgment rendered by the Court, the other
over individuals who commit genocide, crimes
party may have recourse to the Security
against humanity and war crimes, subject to
Council, which may, if it deems necessary,
conditions under the ICC Statute. (ICC Statute, art.
make recommendations or decide upon
25(1) in relation to art. 5)
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measures to be taken to give effect to the

judgment. (Article 94, United Nations
Charter)
Nothing in the present Charter shall prevent

Members of the United Nations from entrusting the
solution of their differences to other tribunals by
virtue of agreements already in existence or which
may be concluded in the future. (Article 95, United
Nations Charter)
2. Permanent Court of Arbitration
Arbitration gives the parties wider choice as regards

the seat of the tribunal, the appointment and
selection of arbitrators and their qualifications, the
procedure to be applied and the regulating the
power of the tribunal through formulating its terms of
reference (the so-called compromise).
A frequent pattern in arbitration treaties is for each

of the two parties to appoint an arbitrator; the two
arbitrators thus appointed agree on the choice of the
third arbitrator (or umpire); the arbitral tribunal
consequently consists of three (or more) persons,
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who can decide by majority vote. Of course, the
parties can also decide to refer the dispute to a
single arbitrator, including to a foreign head of State
or government (a practice which is now rare).
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FOR ONE ATENEO

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2023 - BLUE NOTES - Political and Public International Law One Ateneo

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ATENEO CENTRAL

BAR OPERATIONS 2023 POLITICAL LAW & PUBLIC INTERNATIONAL LAW

FOR ONE ATENEO

FOR ONE ATENEO

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PART ONE: POLITICAL LAW

POWERS AND STRUCTURE OF THE GOVERNMENT

A. NATURE OF A CONSTITUTION ................................................................................................. 16

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II. LEGISLATIVE DEPARTMENT........................................................................................................... 35

A. NATURE OF LEGISLATIVE POWER.................................................................................................. 36

D. QUORUM AND VOTING MAJORITIES ...................................................................................... 53

III. EXECUTIVE DEPARTMENT ............................................................................................................ 68

A. NATURE OF EXECUTIVE POWER .............................................................................................. 69

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IV. JUDICIAL DEPARTMENT ............................................................................................................... 91

A. CONCEPT OF JUDICIAL POWER ................................................................................................ 91

D. APPOINTMENTS TO THE JUDICIARY......................................................................................... 98

VI. CONSTITUTIONAL COMMISSIONS .............................................................................................. 109

A. CONSTITUTIONAL SAFEGUARDS TO ENSURE INDEPENDENCE OF COMMISSIONS .................... 109

THE CITIZEN IN RELATION TO THE STATE

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II. BILL OF RIGHTS .......................................................................................................................... 132

A. PRIVATE ACTS AND THE BILL OF RIGHTS ................................................................................ 133

1. PRIVATE AND PUBLIC COMMUNICATIONS ................................................................................. 163

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2. IMMUNITY STATUTES.................................................................................................................. 225

III. SOCIAL JUSTICE AND HUMAN RIGHTS ........................................................................................ 242

A. CONCEPT OF SOCIAL JUSTICE ................................................................................................ 242

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A. ACADEMIC FREEDOM ........................................................................................................... 250

NATIONAL ECONOMY AND PATRIMONY

II. PUBLIC TRUST DOCTRINE............................................................................................................ 253

III. NATIONALIST AND CITIZENSHIP REQUIREMENT PROVISIONS ..................................................... 254

IV. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES ............................. 256

VI CONCEPT OF ANCESTRAL DOMAIN ............................................................................................. 259

VII. PRACTICE OF PROFESSIONS ...................................................................................................... 259

A. GENERAL PRINCIPLES ............................................................................................................ 261

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II. ADMINISTRATIVE LAW ............................................................................................................... 303

A. GENERAL PRINCIPLES ............................................................................................................ 303

III. ELECTION LAW .......................................................................................................................... 333

A. SUFFRAGE ............................................................................................................................ 333

C. CAMPAIGN ........................................................................................................................... 356

IV. LOCAL GOVERNMENT............................................................................................................... 382

A. PUBLIC CORPORATIONS ........................................................................................................ 382

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PART TWO: PUBLIC INTERNATIONAL LAW

I. SOURCES OF OBLIGATIONS .......................................................................................................... 442

A. TREATIES .............................................................................................................................. 442

3. INVERTED MONISM..................................................................................................................... 449

II. INTERNATIONAL LEGAL PERSON ................................................................................................. 450

A. STATES ................................................................................................................................. 450

III. JURISDICTION ........................................................................................................................... 455

A. BASIS OF JURISDICTION ........................................................................................................ 455

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IV. INTERNATIONAL RESPONSIBILITY .............................................................................................. 466

A. CONCEPT OF IMPUTABILITY OF INTERNATIONALLY WRONGFUL ACT OR OMISSION ................ 466

V. DISPUTE RESOLUTION ................................................................................................................ 474

A. LEGALITY OF THE USE OF FORCE ............................................................................................ 474