Political and Public International Law &

Labor Law and Social Legislation

TAXATION
POLxLAB Pre-Week Notes

Compiled by RGL | USC

 POLxLAB PRE-WEEK NOTES For WEEK 1 of the 2020_21 #BestBarEver

TABLE OF CONTENTS Labor Standards 146 B. Parts of a Constitution

POLITICAL AND PUBLIC INTERNATIONAL LAW Post-Employment 164 1) Constitution of Liberty — consists of a series of prescriptions
setting forth the fundamental civil and political rights of the
The 1987 Constitution 2 Labor Relations 182 citizens and imposing limitations on the powers of government
as a means of securing the enjoyment of those rights;
Basic Concepts 3 Management Prerogative 192
2) Constitution of Government — series of provisions outlining
National Territory 13 Social Legislation 194 the organization of the government, enumerating its powers,
laying down certain rules relative to its administration, and
Citizenship 14 Jurisdiction and Remedies 206 de ining the electorate; and
3) Constitution of Sovereignty — consists of the provisions
Legislative Department 17
I. THE 1987 CONSTITUTION pointing out the mode or procedure in accordance with which
Executive Department 27 formal changes in the fundamental law may be brought about.
A. Nature and Concept of a Constitution
Judicial Department 37 C. Amendments and Revisions
B. Parts of a Constitution
Article XVII. Section 1. Any amendment to, or revision of, this
Constitutional Commissions 41 C. Amendments and Revisions Constitution may be proposed by:

Bill of Rights 43 D. Methods of Interpreting the Constitution 1. The Congress, upon a vote of three-fourths of all its
Members; or
Law on Public Of icers 73 2. A constitutional convention.
A. Nature and Concept of a Constitution
Administrative Law 85 Section 2. Amendments to this Constitution may likewise be directly
A constitution is a system of fundamental laws for the
proposed by the people through initiative upon a petition of
Election Law 96 governance and administration of a nation. It is supreme,
imperious, absolute and unalterable except by the authority a. at least twelve per centum of the total number of
Local Governments 109 from which it emanates. registered voters,

It has been de ined as the fundamental and paramount law of the b. of which every legislative district must be represented by at
National Economy and Patrimony 120
nation. least three per centum of the registered voters therein.
Social Justice and Human Rights 123 Manila Prince Hotel v. GSIS No amendment shall be authorized within ive years following the
rati ication of this Constitution nor oftener than once every ive years
Education, Science, Technology, Arts, Culture & Sports 124 Under the doctrine of constitutional supremacy, if a law or
contract violates any norm of the constitution that law or contract thereafter.

Public International Law 125 whether promulgated by the legislative or by the executive branch or Section 3. The Congress may,
entered into by private persons for private purposes is null and void
a. by a vote of two-thirds of all its Members, call a
LABOR LAW AND SOCIAL LEGISLATION and without any force and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation, it is constitutional convention, OR
Fundamental Principles 141 deemed written in every statute and contract. b. by a majority vote of all its Members, submit to the
electorate the question of calling such a convention.
Recruitment and Placement 142

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Section 4. Any amendment to, or revision of, this Constitution shall be
valid when rati ied by a majority of the votes cast in a
plebiscite which shall be held not earlier than sixty days nor later
than ninety days
a. after the approval of such amendment or revision; (Constituent
Assembly or Constitutional Convention) OR
b. after the certi ication by the Comelec of the suf iciency of
the petition. (People’s Initiative)
Lambino v. Comelec
The Initiative Petition Does Not Comply with Section 2, Article
XVII of the Constitution on Direct Proposal by the People
The framers of the Constitution intended that the "draft of the
proposed constitutional amendment" should be "ready and
shown" to the people "before" they sign such proposal.
The Initiative Violates Section 2, Article XVII Disallowing
Revision through Initiatives
A people's initiative to change the Constitution applies ONLY to an
amendment of the Constitution and NOT to its revision.
Revision broadly implies a change that
a. alters a basic principle in the constitution, like altering
the principle of separation of powers or the system of
checks-and-balances.
There is also revision if the change
b. alters the substantial entirety of the constitution, as
when the change affects substantial provisions of the
constitution.
A two-part test is thus used: the quantitative test and the qualitative
test. The quantitative test examines only the number of
provisions affected and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the
proposed change in the constitution. The main inquiry is whether the
change will "accomplish such far reaching changes in the nature of
our basic governmental plan as to amount to a revision.".
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r
D. Methods of Interpreting the Constitution
1) The Constitution should be interpreted in such a way as to give
effect to the intendment of the framers.
2) In case of doubt, the constitution should be considered
a) self-executing rather than non self-executing;
b) mandatory rather than directory; and
c) prospective rather than retrospective.
Manila Prince Hotel v. GSIS
A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not
self-executing.
But a provision which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that
which supplies suf icient rule by means of which the right it grants
may be enjoyed or protected, is self-executing. Thus, a
constitutional provision is self-executing
1. if the nature and extent of the right conferred and
2. the liability imposed are ixed by the constitution itself,
3. so that they can be determined by an examination and
construction of its terms, and
4. there is no language indicating that the subject is referred to
the legislature for action.
Unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing.
A constitutional provision may be self-executing in
one part and non-self-executing in another.
Sec 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and
which needs no further guidelines or implementing laws or rules for
its enforcement. It is per se judicially enforceable. Where there is a
right there is a remedy. Ubi jus ibi remedium.
Compare with Tanada v. Angara
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These principles in Article II are not intended to be self-executing
principles ready for enforcement through the courts. They are used
by the judiciary as aids or as guides in the exercise of its power of
judicial review, and by the legislature in its enactment of laws.
Reiterated in Espina v. Zamora
While Section 19, Article II of the 1987 Constitution requires the
development of a self-reliant and independent national economy
effectively controlled by Filipino entrepreneurs, it does not impose
a policy of Filipino monopoly of the economic environment. The
objective is simply to prohibit foreign powers or interests from
maneuvering our economic policies and ensure that Filipinos are
given preference in all areas of development.
II. BASIC CONCEPTS
A. Declaration of Principles and State Policies
B. Sovereignty
C. State Immunity
D. Separation of Powers
E. Checks and Balances
F. Delegation of Powers
G. Fundamental Powers of the State
Police Power
Eminent Domain
Taxation
A. Declaration of Principles and State Policies
The State as Parens Patriae
Maynilad v. SENR 2019 En Banc
Hand-in-hand with police power in the promotion of general welfare
is the doctrine of parens patriae.
Under the doctrine, the state has the sovereign power of guardianship
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over persons of disability, and in the execution of the doctrine the
legislature is possessed of inherent power to provide protection to
persons non sui juris and to make and enforce rules and regulations
as it deems proper for the management of their property.
Parens patriae means "father of his country", and refers to the State
as a last-ditch provider of protection to those unable to care and
fend for themselves.
While the Regalian doctrine is state ownership over natural
resources, police power is state regulation through legislation, and
parens patriae is the default state responsibility to look after the
defenseless, there remains a limbo on a lexible state policy bringing
these doctrines into a cohesive whole. We ill this void through the
Public Trust Doctrine.
In this framework, a relationship is formed — the state is the
trustee, which manages speci ic natural resources and the trust
principal — for the trust principal for the bene it of the current
and future generations — the bene iciaries.
The public is regarded as the bene icial owner of trust resources, and
courts can enforce the public trust doctrine even against the
government itself.
DepEd v. Rizal Teachers Kilusang Bayan for Credit 2019
May the DepEd be compelled by writ of mandamus to collect, by
salary deductions, the loan payments of public school teachers and
remit them to the RTKBCI?
RTKBCI has no clear legal right to demand that DepEd act as its
collecting and remitting agent. This is not one of DepEd's power,
duties, and functions.
Teachers have no one else to turn to for protection of their welfare
except the State itself. For its part, the State is duty bound to render
such protection in observance of its duty under the doctrine of
parens patriae. In implementing the payroll deduction system,
DepEd performed a function only secondarily to favor RTKBCI as a
private lending institution and primarily to protect and promote the
welfare of teachers and institutions of basic education.
Adherence to International Law
Philip Morris v. CA
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
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The fact that international law has been made part of the law of the
land does not by any means imply the primacy of international law
over national law in the municipal sphere. Under the doctrine of
incorporation as applied in most countries, rules of international
law are given a standing equal, not superior, to national legislative
enactments.
Tanada v. Angara
In its Declaration of Principles and State Policies, the Constitution
“adopts the generally accepted principles of international law
as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity, with all
nations." By the doctrine of incorporation, the country is bound by
generally accepted principles of international law, which are
considered to be automatically part of our own laws. One of the
oldest and most fundamental rules in international law is pacta
sunt servanda — international agreements must be performed in
good faith.
SOJ v. Lantion
The doctrine of incorporation is applied whenever municipal
tribunals are confronted with situations in which there appears to be
a con lict between a rule of international law and the provisions of
the constitution or statute of the local state. Efforts should irst be
exerted to harmonize them, so as to give effect to both.
In a situation, however, where the con lict is irreconcilable and a
choice has to be made between a rule of international law and
municipal law, jurisprudence dictates that municipal law should be
upheld by the municipal courts.
In the absence of a law or principle of law, we must apply the rules
of fair play. An application of the basic twin due process rights of
notice and hearing will not go against the treaty or the implementing
law. Neither the Treaty nor the Extradition Law precludes these rights
from a prospective extraditee.
Ang Ladlad v. Comelec 2010 En Banc
We explicitly recognize the principle of non-discrimination as it
relates to the right to electoral participation, enunciated in the UDHR
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and the ICCPR.
The principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons,
regardless of sexual orientation. Although sexual orientation is not
speci ically enumerated as a status or ratio for discrimination in
Article 26 of the ICCPR, the ICCPR Human Rights Committee has
opined that the reference to "sex" in Article 26 should be construed to
include "sexual orientation."
The Yogyakarta Principles, consisting of a declaration formulated by
various international law professors, are — at best - de lege ferenda
— and do not constitute binding obligations on the Philippines.
Compare Doctrine of Transformation in US v. Purganan
The US-RP Extradition Treaty in particular, undoubtedly affects not
only state organs but also private individuals as well. It is said that,
in treaties of this nature, it should behoove the state to undertake or
adopt the necessary steps to make the treaty binding upon said
subjects either by incorporation or transformation.
Existing legislation contrary to the provisions of the treaty becomes
invalid, but legislation is necessary to put the treaty into effect. The
constitutional requirement that the treaty be concurred in by no less
than two-thirds of all members of the Senate is, for legal intent and
purposes, an equivalent to the required transformation of
treaty law into municipal law.
In preserving harmony between treaty law and municipal law, it is
submitted —
1) That treaty law has the effect of amending, or even repealing
an inconsistent municipal statute, a later enactment being
controlling,
2) but that an inconsistent municipal statute subsequently
passed cannot modify treaty law, without the concurrence of
the other state party thereto, following the generally
accepted principle of pacta sunt servanda.
Proceed to Relationship between International
and Philippine Domestic Law
Separation of Church and State
Section 6. The separation of Church and State shall be inviolable.
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Aglipay v. Ruiz
What is guaranteed by our Constitution is religious liberty, not mere
religious toleration. Religious freedom, however, as a constitutional
mandate is not inhibition of profound reverence for religion and is
not a denial of its in luence in human affairs. In fact, certain general
concessions are indiscriminately accorded to religious sects and
denominations.
Here, the stamps were not issued and sold for the bene it of the
Roman Catholic Church. Nor were money derived from the sale of the
stamps given to that church. On the contrary, it appears that the only
purpose in issuing and selling the stamps was "to advertise the
Philippines and attract more tourists to this country."
Right to life of the unborn
Imbong v. Ochoa 2014 En Banc
The Philippine national population program has always been
grounded two cornerstone principles: “principle of no-abortion”
and the “principle of non-coercion.”
The Court agrees with ALFI that the authors of the RH-IRR gravely
abused their of ice when they rede ined the meaning of abortifacient.
It allows “contraceptives” and recognizes as “abortifacient” only
those that primarily induce abortion.
Evidently, the addition of the word “primarily,” in the RH-IRR is
indeed ultra vires. With such quali ication in the RH-IRR, it appears
to insinuate that a contraceptive will only be considered as an
“abortifacient” if its sole known effect is abortion or, as pertinent
here, the prevention of the implantation of the fertilized ovum.
Thus, the word “primarily” in Section 3.01(a) and (j) of the
RH-IRR should be declared void.
Right to balanced and healthful ecology
International Service for the Acquisition of Agri-Biotech
Applications v. Greenpeace Southeast Asia 2015 En Banc
Greenpeace, et al alleged that the Bt talong ield trials violate their
constitutional right to health and a balanced ecology.
Oposa v. Factoran, Jr. signaled an even more liberalized policy on
locus standi in public suits. In said case, we recognized the "public
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right" of citizens to "a balanced and healthful ecology which, for
the irst time in our nation's constitutional history, is solemnly
incorporated in the fundamental law." Their personality to sue in
behalf of the succeeding generations can only be based on the
concept of intergenerational responsibility insofar as the
right to a balanced and healthful ecology is concerned.
When in doubt, cases must be resolved in favor of the constitutional
right to a balanced and healthful ecology. Parenthetically, judicial
adjudication is one of the strongest fora in which the precautionary
principle may ind applicability.
Mosqueda v. Pilipino Banana Growers & Exporters Association
2016 En Banc
The constitutional right to health and maintaining environmental
integrity are privileges that do not only advance the interests of a
group of individuals. The bene its of protecting human health and
the environment transcend geographical locations and even
generations. This is the essence of Sections 15 and 16, Article II of
the Constitution. In Oposa v. Factoran, Jr. we declared that the right
to a balanced and healthful ecology under Section 16 is an issue of
transcendental importance with intergenerational
implications. It is under this milieu that the questioned ordinance
should be appreciated.
Resident Marine Mammals v. Reyes 2015 En Banc
The need to give the Resident Marine Mammals legal standing has
been eliminated by our Rules, which allow any Filipino citizen, as a
steward of nature, to bring a suit to enforce our environmental laws.
It is worth noting here that the Stewards are joined as real parties in
the Petition and not just in representation of the named cetacean
species.
Right to Quality Education
⭐Council of Teachers and Staff of Colleges and Universities of the
Philippines v. Secretary of Education 2018 En Banc
While the Constitution indeed mandates the State to provide quality
education, the determination of what constitutes quality
education is best left with the political departments who have
the necessary knowledge, expertise, and resources to determine the
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same.
Right of Indigenous Cultural Communities
⭐Tawahig v. Lapinid 2019 Leonen, J
The Philippine legal system's framework for the protection of
indigenous peoples was never intended and will not operate to
deprive courts of jurisdiction over criminal offenses. Individuals
belonging to indigenous cultural communities who are charged with
criminal offenses cannot invoke the Indigenous Peoples' Rights Act
of 1997, to evade prosecution and liability under courts of law.
With respect to dispensing justice, resolving con licts, and
peace-building, the application of customary laws and practices
is permissible only to the extent that it is in harmony with the
national legal system. A set of customary laws and practices is
effective only within the con ines of the speci ic indigenous cultural
community that adopted and adheres to it.
Family as social institution
⭐Falcis III v. Civil Registrar General 2019 Leonen En Banc
The Constitution does not de ine or restrict marriage on the basis of
sex, gender, sexual orientation, or gender identity or expression.
Lacking a manifestly restrictive textual de inition of marriage, the
Constitution is capable of accommodating a contemporaneous
understanding of sexual orientation, gender identity and expression,
and sex characteristics (SOGIESC). The plain text and meaning of
our constitutional provisions do not prohibit SOGIESC.
To continue to ground the family as a social institution on the
concept of the complementarity of the sexes is to perpetuate the
discrimination faced by couples, whether opposite-sex or same-sex,
who do not it into that mold.
B. Sovereignty
Concurring Opinion of Justice Mendoza in Estrada v. Arroyo, supra
While Art. II, §1 of the Constitution says that "sovereignty resides
in the people and all government authority emanates from
them," it also says that "the Philippines is a democratic and
republican state."
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This means that ours is a representative democracy — as
distinguished from a direct democracy — in which the sovereign
will of the people is expressed through the ballot, whether in an
election, referendum, initiative, recall or plebiscite. Any exercise of
the powers of sovereignty in any other way is unconstitutional.
Indeed, the right to revolt cannot be recognized as a constitutional
principle. A constitution to provide for the right of the people to
revolt will carry with it the seeds of its own destruction. Rather, the
right to revolt is af irmed as a natural right. Even then, it must be
exercised only for weighty and serious reasons.
What took place at EDSA from January 16 to 20, 2001 was not a
revolution but the peaceful expression of popular will. The operative
fact which enabled VP Arroyo to assume the presidency was the fact
that there was a crisis, nay a vacuum, in the executive leadership
which made the government rife for seizure by lawless elements. The
presidency was up for grabs, and it was imperative that the rule of
succession in the Constitution be enforced.
Dissenting Opinion of Justice Puno in Tolentino, et al. v Comelec
The people can directly exercise their sovereign authority through the
following modes, namely:
1) Elections. — the people choose the representatives to
whom they will entrust the exercise of powers of
government.
2) Plebiscite. — the people ratify any amendment to or
revision of the Constitution and may introduce amendments
to the constitution.
3) Initiative. — legal process whereby the registered voters of
an LGU may directly propose, enact, or amend any ordinance
through an election called for the purpose.
4) Recall. — a method of removing a local of icial from of ice
before the expiration of his term because of loss of
con idence.
5) Referendum. — the people can approve or reject a law or
an issue of national importance.
The 1987 Constitution not only enlarged the democratic space with
provisions on the electorate’s direct exercise of sovereignty, but also
highlighted the right of the people to information on matters of
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
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public interest as a predicate to good governance and a
working democracy.
In our jurisdiction, it is also the rule that the exercise of the right of
suffrage should be an enlightened one, hence, based on relevant
facts, data and information.
C. State Immunity
Section 3 Art XVI. The State may not be sued without its consent.
Suit against State
Arigo v. Swift 2014 En Banc
While the doctrine appears to prohibit only suits against the state
without its consent, it is also applicable to complaints iled against
of icials of the state for acts allegedly performed by them in the
discharge of their duties.
The rule is that if the judgment against such of icials will require the
state itself to perform an af irmative act to satisfy the same, such as
the appropriation of the amount needed to pay the damages awarded
against them, the suit must be regarded as against the state itself
although it has not been formally impleaded.
This traditional rule has evolved into a restrictive doctrine which
distinguishes
a) sovereign and governmental acts (jure imperii) from
b) private, commercial and proprietary acts (jure gestionis).
Under the restrictive rule of state immunity, state immunity
extends only to acts jure imperii. The restrictive application of
State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial
activities or economic affairs.
The doctrine of immunity from suit will not apply and may not be
invoked where the public of icial is being sued in his private and
personal capacity as an ordinary citizen.
In this case, the US respondents were sued in their of icial capacity as
commanding of icers of the US Navy. The suit is deemed to be one
against the US itself. The principle of State immunity thus applies.
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Consent
1) Where a suit is iled NOT against the government itself or its
of icials but against one of its entities, it must be ascertained
whether or not the State has given its consent to be sued.
2) This ascertainment will depend in the irst instance on WON
the agency impleaded is incorporated or unincorporated.
3) An incorporated agency has a charter of its own that invests it
with a separate juridical personality. The test of suability lies
in its charter — It is suable if its charter says so; regardless of
the nature of the functions it is performing.
4) Unincorporated agencies have no separate juridical
personality as they are merged in the general machinery of the
government.
a. A suit against it is necessarily against the State.
b. Suability then depends on the nature of the function it
is performing either governmental or proprietary.
5) Suability vs. Liability. — Waiver of immunity by the State
does not mean concession of its liability.
a. Suability is the result of the express or implied
consent of the State to be sued.
b. Liability is determined after hearing on the basis of
relevant laws and established facts.
Philippine Textile Research Institute v. CA 2019
PTRI, et al. are not immune from suit. Being an unincorporated
government agency that exercises a governmental function,
ordinarily, the PTRI enjoys immunity from suit.
The State may be sued with its consent. The State's consent to be
sued may be given either expressly or impliedly. Express consent
may be made through a general law or a special law. The general law
waiving the immunity of the state from suit is found in Act No. 3083,
where the Philippine government 'consents and submits to be sued
upon any money claim involving liability arising from contract,
express or implied, which could serve as a basis of civil action
between private parties.
PTRI entered into a Contract of Works with B.A. Ramirez. PTRI is
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being sued upon a claim involving liability arising from a contract.
Hence, the general law on the waiver of immunity from suit
inds application.
Furthermore, there is implied consent on the part of the State to be
subjected to suit when the State enters into a contract. However,
distinction must still be made between one which is executed in the
exercise of its sovereign functions and another which is done in its
proprietary capacity.
D. Separation of Powers
The separation of powers is a fundamental principle in our system
of government. It obtains not through express provision but by
actual division in our Constitution.
Separate Opinion, Justice Puno, Macalintal v. Comelec, et al.
The principle of separation of powers prevents the concentration
of legislative, executive, and judicial powers to a single branch of
government by deftly allocating their exercise to the three branches of
government.
It is now beyond debate that the principle of separation of powers
1) allows the “blending” of some of the executive, legislative,
or judicial powers in one body;
2) does not prevent one branch of government from inquiring
into the affairs of the other branches to maintain the balance
of power;
3) but ensures that there is no encroachment on matters within
the exclusive jurisdiction of the other branches.
In Re Production of Court Records re Independence of the Judiciary
The doctrine of separation of powers inures not by express
provision of the Constitution, but as an underlying principle that
constitutes the bedrock of our system of checks and balances in
government. It divides the government into three branches, each with
well-de ined powers. In its most basic concept, the doctrine declares
that the legislature enacts the law, the executive implements it, and
the judiciary interprets it.
Each branch is considered separate, co-equal, coordinate and
supreme within its own sphere, under the legal and political
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reality of one overarching Constitution that governs one
government and one nation for whose bene it all the three
separate branches must act with unity.
A lesser known but no less important aspect of the principle of
separation of powers is the principle of comity or the practice of
voluntarily observing inter-departmental courtesy in undertaking
their assigned constitutional duties for the harmonious working of
government.
E. Checks and Balances
Separate Opinion, Justice Puno, Macalintal v. Comelec, et al.
For its part, this Court checks the exercise of power of the other
branches of government through judicial review. Since then, the Court
has used its expanded power to check acts of the House of
Representatives, the President, and even of independent bodies such
as the Electoral Tribunal, the Comelec, and the CSC.
Congress checks the other branches of government primarily
through its law making powers. Congress can create administrative
agencies, de ine their powers and duties, ix the terms of of icers and
their compensation. It can also create courts, de ine their jurisdiction
and reorganize the judiciary so long as it does not undermine the
security of tenure of its members. Concomitant with its principal
power to legislate is the auxiliary power to ensure that the laws it
enacts are faithfully executed.
F. Delegation of Powers
The rule is that what has been delegated, cannot be delegated or as
expressed in a Latin maxim—potestas delegata non delegari potest.
The recognized exceptions to the rule are delegation:
1) Of tariff powers to the President under Sec 28(2) Art VI;
2) Of emergency powers to the President under Sec 23(2) Art VI;
3) To the people at large;
4) To local governments; and
5) To administrative bodies.
In every case of permissible delegation, there must be a showing that
the delegation itself is valid. It is valid only if the law
a) is complete in itself, setting forth therein the policy to be
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executed, carried out, or implemented by the delegate; and
b) ixes a standard — the limits of which are suf iciently
determinate and determinable — to which the delegate must
conform in the performance of his functions.
A suf icient standard is one which de ines legislative policy, marks
its limits, maps out its boundaries and speci ies the public agency to
apply it. It indicates the circumstances under which the legislative
command is to be effected.
⭐Provincial Bus Operators Association of the Philippines v. DOLE
2018 En Banc Leonen, J
Our governmental structure rests on the principle of separation of
powers. In reality, however, the powers are not as strictly con ined or
delineated to each branch. The growing complexity of modern life,
the multiplication of the subjects of governmental regulation, and the
increased dif iculty of administering the laws require the
delegation of powers traditionally belonging to the legislative to
administrative agencies.
⭐Kilusang Mayo Uno v. Aquino III 2019 En Banc Leonen, J
All that is required for the valid exercise of this power of subordinate
legislation is that
1) the regulation must be germane to the objects and purposes
of the law; and
2) that the regulation be not in contradiction to, but in
conformity with, the standards prescribed by the law.
The Social Security Act has validly delegated the power to ix the
contribution rate and the minimum and maximum amounts for the
monthly salary credits. It is within the scope of the Social Security
Commission's power to ix them, as clearly laid out in the law.
G. Fundamental Powers of the State
Brie ly
1) Police Power regulates liberty and property for the promotion
of the general welfare.
2) Eminent Domain enables the State to forcibly acquire
property, upon payment of just compensation, for some
intended public use.
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3) Taxation is the ability to demand from the members of society 2. In a positive sense, it is the power to prescribe regulations to 4. Municipal governments exercise quasi-legislative powers
their proportionate share or contribution in the maintenance of promote the health, morals, peace, education, good order or under the general welfare clause, Sec 16, Local Government
the government. safety, and general welfare of the people. Code.
In negative terms, it is that inherent and plenary power in the State 5. No mandamus is available to coerce the exercise of police
Similarities
which enables it to prohibit all things hurtful to the comfort, safety power.
1) Inherent in the State and may be exercised without express and welfare of society. (Agustin v. Edu) 6. The question of validity of legislation as determined by the
constitutional grant. 3. The most essential, insistent and the least limitable of criterion of their conformity to the Constitution is justiciable.
2) Not only necessary but indispensable. The State cannot powers, extending as it does “to all the great public needs.”
Evasco, Jr. v. Montañez 2018
continue or be effective unless it is able to exercise them. 4. May not be bargained away through the medium of contract or
even a treaty. The impairment clause must yield to the police Ordinance No. 092-2000, which regulates the construction and
3) Methods by which the State interferes with private rights.
power whenever the contract deals with a subject affecting the installation of building and other structures such as billboards
4) Presuppose an equivalent compensation for the private rights public welfare. within Davao City, is an exercise of police power. This direct and
interfered with. 5. May sometimes use the taxing power as an implement for speci ic grant takes precedence over requirements set forth in
the attainment of a legitimate police objective. another law of general application, in this case the National Building
5) Exercised primarily by the legislature.
Code.
a. In Lutz v. Araneta, the SC sustained as a legitimate exercise
of the police power the imposition of a special tax on sugar Even if the National Building Code imposes minimum requirements
Police Power Eminent Domain Taxation
producers for the purpose of creating a special fund to be as to the construction and regulation of billboards, the city
used for the rehabilitation of the sugar industry. government may impose stricter limitations because its police
Regulates Both liberty Only property rights power to do so originates from its charter and not from the
and property b. In Gerochi v. DOE, the Universal Charge was considered as
an exaction in the exercise of the State’s police power, National Building Code.
Exercised by Government Government and Government imposed to ensure the viability of the country’s electric
private entities power industry. City of Cagayan De Oro v. Cagayan Electric Power & Light 2018
6. Power of eminent domain could also be used as an implement.
The purpose of an imposition will determine its nature as either a tax
Property taken Destroyed Intended for public use or 7. When the conditions so demand as determined by the or a fee. If the purpose is primarily revenue, or if revenue is at least
because it is purpose and is therefore legislature, property rights must bow to the primacy of one of the real and substantial purposes, then the exaction is properly
noxious wholesome police power because property rights, though sheltered by due classi ied as an exercise of the power to tax. On the other hand, if the
process, must yield to general welfare. (Carlos Superdrug v. purpose is primarily to regulate, then it is deemed an exercise of
Compensation Intangible A full and fair equivalent of the
DSWD) police power in the form of a fee, even though revenue is
altruistic property expropriated or
Exercise incidentally generated. In other words, if generation of revenue is
feeling that he protection and public
the primary purpose, the imposition is a tax but, if regulation is
has improvements for the taxes paid 1. Lodged primarily in the national legislature. the primary purpose, the imposition is properly categorized as
contributed to
2. By virtue of valid delegation, may be exercised by: a regulatory fee.
the general
welfare a. The President;
Tests
b. Administrative boards;
1) Rational Basis Test. —
Police Power c. Lawmaking bodies on all municipal levels, including the
barangay. a) Applied mainly in analysis of equal protection
1. Power of promoting the public welfare by restraining and challenges;
3. Quasi-legislative power — authority delegated by the
regulating the use of liberty and property. lawmaking body to the administrative body to adopt rules and b) Laws and ordinances are upheld if they rationally further
regulations intended to carry out the provisions of the law and a legitimate governmental interest. Under intermediate
implement legislative policy.

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review, governmental interest is extensively examined and
the availability of less restrictive measures is considered.
c) Two requisites must concur:
i) The interests of the public generally, as
distinguished from those of a particular class, require
its exercise; and
ii) The means employed are reasonably necessary for
the accomplishment of the purpose and not unduly
oppressive upon individuals.
2) Strict Scrutiny Test. — Focus is on the presence of
compelling, rather than substantial, government interest and
on the absence of less restrictive means for achieving that
interest.
Lawful Subject
1. Subject of the measure is within the scope of police power, i.e.
the activity or property sought to be regulated affects the
public welfare.
2. In Taxicab Operators of Metro Manila v. Board of
Transportation, an administrative regulation phasing out
taxicabs more than six years old was held a valid police
measure to protect the riding public and promote their
comfort and convenience.
3. In Velasco v. Villegas, an ordinance prohibiting barber shop
operators from rendering massage services in a separate room
was likewise sustained, to prevent immorality and enable the
authorities to properly assess license fees.
4. In Bautista v. Junio, to conserve energy, prohibition of heavy
and extra-heavy vehicles from using public streets on
weekends and legal holidays was sustained.
5. In Tio v. Videogram Regulatory Board, the creation of the VRB
Lawful Means
was sustained “to answer the need for regulating the video
industry, particularly because of the rampant ilm piracy, the
lagrant violation of intellectual property rights, and the
proliferation of pornographic video tapes.”
6. In the landmark case of Lozano v. Martinez, the SC upheld the
validity of BP 22 as it preserves the integrity of the banking
system by preventing worthless checks from looding the
system.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
7. In Department of Education v. San Diego, a regulation
disqualifying any person who has failed the NMAT three times
from taking it again was reinstated by the SC as the measure
was intended to protect the patients.
8. In Sangalang v. IAC, the SC sustained the opening of two
erstwhile private roads due to the demands of the common
good, namely, traf ic decongestion and public convenience.
9. In Del Rosario v. Bengzon, the Generics Act was sustained to
“promote and require the use of generic drug products
that are therapeutically equivalent to their brand-name
counterparts.”
10. In Telecommunications and Broadcast Attorneys of the
Philippines v. COMELEC, Sec 92 of BP Blg 881 requiring radio
and television stations to give free airtime to respondent for
broadcasting information regarding the candidates in the 1998
elections was validated.
11. In Social Justice Society v. Atienza, a zoning ordinance of the
City of Manila reclassifying “certain areas of the city from
industrial to commercial” was upheld by the SC citing its
implementation for the protection and bene it of the
residents.
12. In Ople v. Torres, an administrative order establishing the
National Computerized Identi ication Reference System for the
expressed purpose of facilitating transactions with the
government, particularly those providing basic services and
social security bene its was struck down as an invasion of
people’s privacy.
13. However, in Kilusang Mayo Uno v. Director General, NEDA, the
Court upheld EO 420 prescribing for all government agencies
and GOCCs a “uniform data collection and format for their
existing ID systems” for their respective employees.
1. Both ends and means must be legitimate. Otherwise, the
police measure shall be struck down as an arbitrary intrusion
into private rights.
2. There should be reasonable relation between the means
and the end.
a. In Ynot v. IAC, an EO prohibiting the transport of carabaos
and carabeef across provincial boundaries without
government clearance, was invalidated as the purpose of
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
indiscriminate slaughter was not satisfactorily met by the
means employed.
b. A law limiting the capacity of common carriers, or of
theaters as in the case of People v. Chan, is valid as this
would be a reasonable method for promoting the comfort,
convenience and safety of the customers.
c. In City Government of QC v. Ericta, in invalidating an
ordinance, the SC said “there is no reasonable relation
between the setting aside of at least 6% of the total area of
private cemeteries for charity burial grounds of deceased
paupers and the promotion of health, morals, good order,
safety, or the general welfare of the people. The ordinance
is actually a taking without just compensation.”
d. In OSG v. Ayala Land, Inc., the SC rejected petitioner’s
contention that malls, inasmuch as they are required by
the National Building Code to provide parking spaces for
their customers, should provide such for free.
3. The SC has invariably applied certain standards for judicial
review:
Laws dealing with the freedom of the mind
Strict scrutiny
or restricting the political process.
Rational basis
Review of economic legislation
standard
Heightened or Evaluating classi ications based on gender
immediate scrutiny and legitimacy
Overbreadth A statute needlessly restrains even
doctrine constitutionally guaranteed rights
Void-for-vagueness A penal statute encroaches upon the freedom
doctrine of speech.
4. In ine, the means employed for the accomplishment of the
police objective must pass the test of reasonableness and,
speci ically, conform to the safeguards embodied in the Bill of
Rights for the protection of private rights.
Eminent Domain
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De inition, Nature and Function
Also called the power of expropriation, it is described as “the
highest and most exact idea of property remaining in the
government” that may be acquired for some public purpose through
a method “in the nature of a compulsory sale to the State.”
Sec 9 Art III of the Constitution, providing that “private property
shall not be taken for public use without just compensation”, serves
as a limitation, not a grant, of such power. It should be strictly
interpreted against the expropriator and liberally in favor of the
property owner.
Essential requisites for the exercise by an LGU
1) Enactment of an ordinance, not just a resolution;
2) Must be for a public use, purpose or welfare, or for the bene it
of the poor and the landless;
3) Payment of just compensation; and
4) Exercise must be preceded by a valid and de inite offer made
to the owner, who rejects the same.
Conditions precedent to the issuance of a writ of possession
1) Complaint for expropriation suf icient in form and substance is
iled in the proper court; and
2) Deposit with said court at least 15% of the property’s fair
market value based on its current tax declaration.
City of Manila v. Prieto 2019
The SC adopted the ruling of the CA wherein the latter found the
following circumstances to invalidate the expropriation done by
petitioner:
1. The records lack any evidence to support petitioner's claim
that an on-site development program is the most
practicable and advantageous for the bene iciaries, to justify
the non-applicability of the list of priorities in land
acquisition under Section 9 of R.A. No. 7279.
2. Petitioner failed to exhaust other modes of acquisition
before it resorted to expropriation in violation of Section 10
of R.A. No. 7279. Failure to renegotiate the offer to
purchase the property before iling the expropriation case
warrants the dismissal of the complaint for expropriation.
3. The intended bene iciaries of petitioner's socialized housing
program are not "underprivileged and homeless," in
violation of Section 8.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
Sec 19 of the LGC states that the exercise of such delegated power
should be pursuant to the Constitution and pertinent laws. R.A. No.
7279 is such pertinent law in this case as it governs the local
expropriation of properties for purposes of urban land reform
and housing.
The case of Estate or Heirs of the Late Ex-Justice Jose B.L. Reyes v.
City of Manila emphatically ruled that the provisions are strict
limitations on the exercise of the power of eminent domain by local
government units, especially with respect to:
1) the order of priority in acquiring land for socialized
housing; and
2) the resort to expropriation proceedings as a means of
acquiring it.
Compliance with these conditions is mandatory.
Necessity of Exercise
1. Essentially political in nature when exercised by the
legislature.
2. In cases of delegated authority, the judiciary has assumed the
power to inquire whether the authority conferred has been
correctly or properly exercised. This involves looking into the
necessity of the expropriation.
Stages
1) Determination of the validity of the expropriation. Necessity of
an expropriation is a justiciable question.
2) Determination of just compensation.
Private Property
1. Anything that can come under the dominion of man, including:
(1) real and personal, (2) tangible and intangible properties.
Except money and choses in action.
2. Property already devoted to public use is still subject to
expropriation, provided this is done (1) directly by the
legislature, or (2) under a speci ic grant of authority to the
delegate.
3. In NHA v. DARAB, land, whether tenanted or not, acquired by
the NHA for its housing and resettlement programs are exempt
from land reform under PD 1472.
4. Services are considered embraced in the concept of property.
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For WEEK 1 of the 2020_21 #BestBarEver
a. In Republic v. PLDT, the SC upheld the right of the Bureau of
Telecommunications to demand the interconnection
between the Government Telephone System and PLDT, so
that the former could make use of the lines and facilities of
PLDT.
b. Similarly, in PLDT v. NTC, the petitioner was required to
interconnect with a private telecommunications company.
PNOC Alternative Fuels v. NGCP 2019
Republic v. East Silverlane Realty Development Corp. held that
when the subject property is classi ied by the government as an
industrial zone, the subject property therein had been declared
patrimonial. Further, it is apparent from R.A. No. 10516 and its IRR
that the industrial estate is being owned, managed, and operated by
the State, not in its sovereign capacity, but rather in its private
capacity. It is apparent from P.D. No. 949, as amended by R.A. No.
10516, that the Petrochemical Industrial Park is intended and
accordingly devoted by law as a commercial and business venture.
Thus, NGCP has the authority under Section 4 of R.A. No. 9511
to expropriate the subject property.
Taking
1. May include trespass without actual eviction of the owner,
material impairment of the value of the property or prevention
of the ordinary uses for which the property was intended.
a. In Ayala de Roxas v. City of Manila, the imposition of an
easement over a 3-meter strip of the plaintiff’s property
could not be legally done without payment of just
compensation.
b. In People v. Fajardo, a municipal ordinance prohibiting
construction of any building that would destroy the view
of the plaza from the highway was considered a taking
under the power of eminent domain.
c. The right-of-way easement, resulting in the restriction or
limitation on property rights over the land traversed by
transmission lines is also an exercise of expropriation, as
in NPC v. Aguirre-Paderanga.
d. In NPC v. Ileto, the prohibition imposed by the
transmission lines, i.e. construction of any improvements
or planting of any trees that exceed 3 meters within the
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aerial right of way, clearly interferes with the
landowners’ right to possess and enjoy their properties.
2. Not every taking is compensable, as it may be justi ied
under the police power.
a. Thus, losses sustained are in the nature of damnum
absque injuria.
b. This rule is only valid as long as the prejudice suffered by
an individual is shared in common with the rest as was
illustrated in Richards v. Washington Terminal.
3. Compensable taking includes destruction, restriction,
diminution, or interruption of the rights of ownership or of the
common and necessary use and enjoyment of the property in a
lawful manner, lessening or destroying its value.
4. Requisites of Taking in Eminent Domain (according to
Republic v. Castellvi)
a. The expropriator must enter a private property;
b. The entry must be for more than a momentary period;
c. The entry must be under warrant or color of legal
authority;
d. The property must be devoted to public use or otherwise
informally appropriated or injuriously affected;
e. The utilization of the property for public use must be in
such a way as to oust the owner and deprive him of
bene icial enjoyment of the property.
National Transmission Corp. v. Sps Taglao 2020
True, an easement of a right of way transmits no rights except the
easement itself, and the respondents would retain full ownership of
the property taken. Nonetheless, the acquisition of such easement is
not gratis. The limitations on the use of the property taken for an
inde inite period would deprive its owner of the normal use thereof.
NPC v. Sps Aoque citing NPC v. Tiangco held that if the easement is
intended to perpetually or inde initely deprive the owner of his
proprietary rights, then the owner should be compensated for the
monetary equivalent of the land.
In this case, considering that the installation of the power lines
would de initely deprive Spouses Taglao of the normal use of their
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
property, they are entitled to the payment of a just compensation.
Public use
1. Any use directly available to the general public as a matter of
right and not merely of forbearance or accommodation.
2. There will also be public use involved even if the expropriated
property is not actually acquired by the government but is
merely devoted to public services administered by
privately-owned public utilities such as telephone or light
companies.
3. Important thing is that any member of the general public can
demand, for free or for a fee, the right to use the converted
property for his direct and personal convenience.
4. Broadened to include those that will redound to the indirect
advantage or bene it of the public.
MCIAA v. Lozada, et al. 2010 En Banc
We now expressly hold that the taking of private property,
consequent to the Government's exercise of its power of eminent
domain, is always subject to the condition that the property be
devoted to the speci ic public purpose for which it was taken.
Corollarily, if this particular purpose or intent is not initiated or
not at all pursued, and is peremptorily abandoned, then the
former owners, if they so desire, may seek the reversion of the
property, subject to the return of the amount of just compensation
received. In such a case, the exercise of the power of eminent domain
has become improper for lack of the required factual
justi ication.
Just compensation
1. The determination of just compensation is a judicial function
which cannot be curtailed or limited by legislation, much less
by an administrative rule. (LBP v. Manzano 2018 Leonen, J)
2. According to De Knecht v. CA, owner refers to all those who
have lawful interest in the property to be condemned, including
a mortgagee, a lessee, and a vendee in possession under an
executory contract.
3. However, in LBP v. AMS Farming Corporation, SC rejected
respondent’s claim for just compensation as it was a mere
lessee.
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
⭐LBP v. Manzano 2018 Leonen, J
The Special Agrarian Court must ensure that the amount determined
at the end of the proceedings is equivalent to the fair market value
of the property at the time of the taking, and not based on a
strict adherence to a particular set or series of rules imposed
by agricultural reform laws or administrative orders. While
Section 17 requires due consideration of the formula prescribed by
DAR, the determination of just compensation is still subject to the
inal decision of the proper court.
How determined
1. To ascertain just compensation, the court should determine
irst the actual or basic value of the property.
If Consequential Damages > Consequential Bene its
J .C. = Actual V alue + (Damages − B enef its )
Otherwise: J ust Compensation = Actual V alue
2. The basic or market value of the property is the price that
may be agreed upon by parties willing but not compelled to
enter into a contract of sale.
3. Among the factors to be considered in arriving at the fair
market value:
a. Cost of acquisition;
b. Current value of like properties at the time of taking;
c. Actual or potential uses;
d. In case of land, their size, shape or location and the tax
declarations thereon.
4. The measure is not the taker's gain, but the owner's loss.
City Government of Valenzuela v. Sps Abacan 2019
In Meralco v. Pineda, the Court held that where the issue is
determining the amount of just compensation in an expropriation
suit, a trial before the commissioners is indispensable. However,
while the appointment of commissioners is mandatory in resolving
the issue of just compensation, courts are not bound by their
indings. Courts may substitute their estimate of the value, as long
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as it is supported by the evidence on record.
Damages and interest as part of just compensation
1. Consequential Damages consist of injuries directly caused
on the residue of the private property taken through
expropriation.
2. In Republic v. BPI, SC clari ied that no actual taking of the
building is necessary to grant consequential damages.
3. In Heirs of Banaag v. AMS Farming Corporation, it was
stressed that just compensation for the crops and
improvements is inseparable from the valuation of the raw
lands as the former are part and parcel of the latter. These must
be awarded to the landowner irrespective of the nature of
ownership of said crops.
4. Where entry preceded the iling of the complaint for
expropriation, the assessment should be made at the time
of the entry.
5. As a general rule, Rule 67 Sec 4 provides that just
compensation is computed at the time of taking of the
property or at the time the complaint is iled, whichever
comes irst.
6. In Republic v. Castellvi, property was deemed taken only when
expropriation proceedings were commenced in 1959, not as of
the time of commencement of the lease in 1947. Thus, just
compensation was ascertained in 1959.
7. In City of Cebu v. Dedamo, the iling of the complaint preceded
the taking of the property but SC said that the valuation should
be computed at the time of taking not necessarily at the time of
the iling of complaint which was done earlier the reason for
that is there is a provision under Section 19 of RA 7160
which provides in essence that the valuation taken by the LGU
should be reckoned as of the date of actual possession.
8. Value of the land and its character at the time it was
taken by the government are the criteria for determining just
compensation.
9. The owner is entitled to payment of interest from the time
of the taking until just compensation is actually paid to him.
To be just, the compensation must not only be the correct
amount to be paid; it must also be paid within a reasonable
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
time from the time the land is taken from the owner. (Apo
Fruits v. LBP 2010 En Banc)
10. Neither laches nor prescription may bar a claim for just
compensation for property taken for public use.
11. Title to the property shall not be transferred until after
actual payment of just compensation.
LBP v. Rivera 2010
The formula outlined in DAR Administrative Order No. 5, series of
1998 should be applied in computing just compensation, thus:
LV = (CNI x 0.6) + (CS x 0.3) + (MV x 0.1)
Where:
LV = Land Value
CNI = Capitalized Net Income
CS = Comparable Sales
MV = Market Value per Tax Declaration
Republic v. Dela Cruz 2019
Interest in eminent domain cases "runs as a matter of law and
follows as a matter of course from the right of the landowner to be
placed in as good a position as money can accomplish, as of the
date of taking."
Rental
Export Processing Zone Authority v. Estate of Jimenez 2011
The Court has held that compensation cannot be just to the owner
in the case of property that is immediately taken unless there is
prompt payment, considering that the owner thereby immediately
suffers not only the loss of his property but also the loss of its fruits
or income. Thus, in addition, the owner is entitled to legal interest
from the time of the taking of the property until the actual
payment in order to place the owner in a position as good as, but not
better than, the position he was in before the taking occurred.
Remedy of Dispossessed Owner
1. Owner’s failure to question for a long period of time the
government’s failure to institute expropriation proceedings
constitutes a waiver of his right to regain possession of his
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
property. His only remedy is an action for payment of just
compensation and may not sue for ejectment.
2. Amount to be Deposited
a. Rule 67 — an amount equivalent to the full assessed
value of the property in order for the court to issue a writ
of possession;
b. If the expropriator is an LGU, the amount to be deposited is
only 15% of the assessed value of the property.
c. In RA 8974, if the purpose of the expropriation is to
implement a national government infrastructure project,
what needs to be done is not a deposit but payment of
BIR Zonal valuation of the property. This amount
deposited or paid is NOT the just compensation.
3. In NPC v. Pobre, the expropriator is not allowed to unilaterally
withdraw because damages may have already been caused to
the property.
NTC v. Bermuda Development 2019
A case iled by a landowner for recovery of possession or
ejectment against a public utility corporation, which has occupied
the land belonging to the former without prior acquisition of title
thereto by negotiated purchase or expropriation proceedings, will not
prosper.
The proper recourse is for the ejectment court:
1) to dismiss the case without prejudice to the landowner iling
the proper action for recovery of just compensation and
consequential damages; or
2) to dismiss the case and direct the public utility corporation
to institute the proper expropriation or condemnation
proceedings and to pay the just compensation and
consequential damages assessed therein; or
3) to continue with the case as if it were an expropriation
case and determine the just compensation and
consequential damages pursuant to Rule 67, if the ejectment
court has jurisdiction over the value of the subject land.
Distinguished from police power
Agan, Jr. v. PIATCO
Sec 17 Art XII pertains to the right of the State in times of national
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emergency, and in the exercise of its police power, to temporarily take
over the operation of any business affected with public interest.
The term "national emergency" was de ined to include threat
from external aggression, calamities or national disasters, but
not strikes "unless it is of such proportion that would paralyze
government service." The temporary takeover by the government
extends only to the operation of the business and not to the
ownership thereof. As such the government is not required to
compensate the private entity-owner of the said business as there
is no transfer of ownership. The private entity-owner affected
cannot, likewise, claim just compensation as the temporary takeover
by the government is in exercise of its police power and not of its
power of eminent domain.
Thus, requiring the government to pay reasonable
compensation for the reasonable use of the property pursuant
to the operation of the business contravenes the Constitution.
Manila Memorial Park v. Secretary of the DSWD 2013 En Banc
In the exercise of police power, xxxx examples of these regulations
are
1) property condemned for being noxious or intended for
noxious purposes;
2) zoning ordinances prohibiting the use of property for
purposes injurious to the health, morals or safety of the
community.
On the other hand, in the exercise of the power of eminent domain,
it is a settled rule that the acquisition of title or total destruction of
the property is not essential for “taking” under the power of eminent
domain to be present. Examples of these include
1) establishment of easements such as where the landowner is
perpetually deprived of his proprietary rights because of the
hazards posed by electric transmission lines constructed
above his property or
2) the compelled interconnection of the telephone system
between the government and a private company.
People v. Fajardo
A regulation which substantially deprives an owner of all
bene icial use of his property is con iscation and is a
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
deprivation.
Drugstore Association v. National Council on Disability Affairs
2016
The PWD mandatory discount on the purchase of medicine is
supported by a valid objective or purpose. It has a valid subject
considering that the concept of public use is no longer con ined to the
traditional notion of use by the public, but held synonymous with
public interest, public bene it, public welfare, and public
convenience. As in the case of senior citizens, the discount privilege
to which the PWDs are entitled is actually a bene it enjoyed by the
general public to which these citizens belong. The means employed
in invoking the active participation of the private sector, in order to
achieve the purpose or objective of the law, is reasonably and directly
related. Also, the means employed to provide a fair, just and quality
health care to PWDs are reasonably related to its accomplishment,
and are not oppressive, considering that as a form of reimbursement,
the discount extended to PWDs in the purchase of medicine can be
claimed by the establishments as allowable tax deductions.
See also Eminent domain under Local Governments
Taxation
1. Taxes are the enforced proportional contributions from
persons and property, levied by the State by virtue of its
sovereignty, for the support of government and for all public
needs. Obligation to pay taxes is not based on contract.
2. Except only in the case of poll taxes, nonpayment of a tax may
be the subject of criminal prosecution and punishment.
3. Taxes are the nation’s lifeblood through which government
agencies continue to operate and with which the State
discharges its functions for the welfare of its constituents.
4. Taxes = levied to raise revenues; Licenses = imposed for
regulatory purpose.
5. In Angeles University Foundation v. City of Angeles, SC held that
the payment of building permit fee is a regulatory imposition,
and not a charge on property, and is therefore not an imposition
from which petitioner is exempt.
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Purposes
1) Revenue — The purpose of taxation is to provide funds or
property with which the State promotes the general welfare and
protection of its citizens. Raising the revenues is the principal
object of taxation.
2) Non-Revenue. —
a) Regulation;
b) Promotion of General Welfare;
c) Reduction of Social Inequality;
d) Promote Economic Growth;
e) Protectionism.
Characteristics
1) Inherent — the power to tax, an inherent prerogative, has to be
availed of to assure the performance of vital state functions.
2) Legislative — taxing power is peculiarly and exclusively
legislative in character and remains undiminished in the
legislative in character.
3) Constitutionally limited — the power to tax is an attribute of
sovereignty. It is the strongest of all the powers of the
government. The Constitution sets forth such limits.
Exercise
1. Inherent in the State, primarily vested in the Legislature.
2. May be delegated to the President pursuant to Sec 28(2) Art VI
of the Constitution — tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or imposts.
3. Pursuant to direct authority conferred by Sec 5 Art X of the
Constitution, local legislative bodies may also exercise the
power of taxation.
4. There must be a law granting an LGU to lawfully impose a tax.
Public Purpose
1. Revenues received from the imposition of taxes or levies
cannot be used for purely private purposes or for the exclusive
bene it of private persons.
2. In Planters Products Inc v. Fertiphil Corporation, the Court
declared that a tax levy on the sale of fertilizers for purposes of
bene iting a private corporation, Philippine Planters Inc., is
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residence in this country. House of Representatives

Tabasa v. CA
The only persons entitled to repatriation under RA 8171 are the
following:
1. Filipino women who lost their Philippine citizenship by
marriage to aliens; and
2. Natural-born Filipinos including their minor children who
lost their Philippine citizenship on account of political or
economic necessity.
Petitioner was no longer a minor at the time of his "repatriation". The
privilege under RA 8171 belongs to children who are of minor age
at the time of the iling of the petition for repatriation.
Unlike those with dual allegiance, who must, therefore, be subject to
strict process with respect to the termination of their status, for District representatives
candidates with dual citizenship, it should suf ice if, upon the
Party-list system
iling of their certi icates of candidacy, they elect Philippine
citizenship to terminate their status as persons with dual C. Legislative privileges, inhibitions, and disquali ications
citizenship.
D. Quorum and voting majorities
By electing Philippine citizenship, such candidates at the same
E. Discipline of members
time forswear allegiance to the other country of which they are
also citizens and thereby terminate their status as dual citizens. F. Process of law-making
G. Electoral Tribunals and the Commission on Appointments
RA No 9225 or the Citizenship Retention
and Re-acquisition Act of 2003 H. Powers of Congress
I. Initiative and Referendum
Nicolas-Lewis v. Comelec

Neither can petitioner be a natural-born Filipino who left the country
due to political or economic necessity. Clearly, he lost his
Philippine citizenship by operation of law and not due to political
or economic exigencies. Thus, petitioner is not quali ied to avail
himself of repatriation under RA 8171. However, he can possibly
reacquire Philippine citizenship by availing of the Citizenship
Retention and Re-acquisition Act of 2003 by simply taking an
oath of allegiance to the Republic of the Philippines.
F. Dual Citizenship and Dual Allegiance
Section 5. Dual allegiance of citizens is inimical to the national interest
and shall be dealt with by law.
Mercado v. Manzano
Dual citizenship is different from dual allegiance. The former
arises when, as a result of the concurrent application of the different
laws of two or more states, a person is simultaneously considered a
national by the said states.
Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two
or more states. While dual citizenship is involuntary, dual allegiance
is the result of an individual's volition.
With respect to dual allegiance, Article IV, §5 of the Constitution
provides: "Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law."
There is no provision in the dual citizenship law — R.A. 9225 —
requiring "duals" to actually establish residence and physically stay
in the Philippines irst before they can exercise their right to vote.
Calilung v. Datumanong
What RA No. 9225 does is allow dual citizenship to natural-born
Filipino citizens who have lost Philippine citizenship by reason
of their naturalization as citizens of a foreign country.
On its face, it does not recognize dual allegiance. By swearing to the
supreme authority of the Republic, the person implicitly renounces
his foreign citizenship. Plainly, from Section 3, RA No. 9225 stayed
clear out of the problem of dual allegiance and shifted the burden of
confronting the issue of whether or not there is dual allegiance to the
concerned foreign country.
Section 5, Article IV of the Constitution is a declaration of a policy
and it is not a self-executing provision. The legislature still has to
enact a law on dual allegiance.
V. LEGISLATIVE DEPARTMENT
A. Legislative power
B. Chambers of Congress
Senate
A. Legislative power
Legislative power has been de ined not only as the power to
pass laws but also the power to alter or modify them. It also covers
the amendment of existing legislations and that would still be
encompassed as legislative power.
General Plenary Powers. — The legislative power shall be vested
in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum. (Sec 1 Art
VI)
Express Limitations
1. Sec 26. Every bill passed by the Congress shall embrace only
one subject which shall be expressed in the title thereof.
2. Sec 28(4). No law granting any tax exemption shall be passed
without the concurrence of a majority of all the Members of the
Congress.
3. Sec 30. No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this
Constitution without its advice and concurrence.
4. Sec 31. No law granting a title of royalty or nobility shall be
enacted.

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Fabian v. Desierto
Section 27 of Republic Act No. 6770 cannot validly authorize an
appeal to this Court from decisions of the Of ice of the Ombudsman
in administrative disciplinary cases. It consequently violates the
proscription in Section 30, Article VI of the Constitution against a law
which increases the Appellate jurisdiction of this Court.
Prohibition on passage of irrepealable laws
City of Davao v. RTC Br XII - Davao City
It is a basic precept that among the implied substantive limitations
on the legislative powers is the prohibition against the passage of
irrepealable laws. Irrepealable laws deprive succeeding legislatures
of the fundamental best senses carte blanche in crafting laws
appropriate to the operative milieu.
Kida v. Senate of the Philippines 2011 En Banc
Does the requirement of a supermajority vote for amendments or
revisions to RA No. 9054 violate Secs 1 and 16(2), Art VI and the
corollary doctrine on irrepealable laws?
YES. While a supermajority is not a total ban against a repeal, it is a
limitation in excess of what the Constitution requires on the
passage of bills and is constitutionally obnoxious because it
signi icantly constricts the future legislators' room for action and
lexibility.
Procedural Limitations
Phil Judges Association v. Prado
The purposes of the one subject – one title rule are:
1) to prevent hodge-podge or "log-rolling" legislation;
2) to prevent surprise or fraud upon the legislature by means
of provisions in bills of which the title gives no intimation,
and which might therefore be overlooked and carelessly and
unintentionally adopted; and
3) to fairly apprise the people, through such publication of
legislative proceedings as is usually made, of the subject of
legislation that is being considered, in order that they may
have the opportunity of being heard thereon, by petition or
otherwise, if they shall so desire.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
The title of the bill is not required to be an index to the body of the
act, or to be as comprehensive as to cover every single detail of the
measure. It has been held that if the title fairly indicates the general
subject, and reasonably covers all the provisions of the act, and is not
calculated to mislead the legislature or the people, there is suf icient
compliance with the constitutional requirement.
Principle of non-delegability
⭐Two tests of valid delegation in
Acosta v. Ochoa 2019 En Banc Leonen, J
As an exception to the non-delegation of legislative power,
Congress has historically delegated to the chief of the police force the
power to approve or disapprove applications for license to possess
or deal with irearms.
The completeness test requires that the law to be implemented be
complete and should set forth therein the policy to be executed,
carried out or implemented by the delegate. On the other hand, the
suf icient standard test requires that the law to be implemented
contain adequate guidelines to map out the boundaries of the
delegate's authority. To be suf icient, the standard must specify the
limits of the delegate's authority, announce the legislative policy, and
identify the conditions under which it is to be implemented.
RA No. 10591 sets forth a suf icient standard found in Section 2. It
lays down the State policy to "maintain peace and order and
protect the people against violence" by providing "a
comprehensive law regulating the ownership, possession, carrying,
manufacture, dealing in and importation of irearms, ammunition, or
parts thereof."
B. Chambers of Congress
Sema v. Comelec
The of ice of a legislative district representative to Congress is a
national of ice, and its occupant, a Member of the House of
Representatives, is a national of icial. It would be incongruous
for a regional legislative body like the ARMM Regional Assembly to
create a national of ice when its legislative powers extend only to its
regional territory.
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Senate
1) The Senate shall be composed of 24 Senators who shall be
elected at large by the quali ied voters.
2) The term of of ice of the Senators shall be 6 years. No Senator
shall serve for more than two consecutive terms.
House of Representatives
3) The Members of the House of Representatives shall be elected
for a term of 3 years xxx. No Member of the House of
Representatives shall serve for more than 3 consecutive
terms. xxxx
District representatives and questions of apportionment
Aquino III v. Comelec 2010 En Banc
There is no speci ic provision in the Constitution that ixes a 250,000
minimum population that must compose a legislative district. While
a province is entitled to at least a representative, with nothing
mentioned about population, a city must irst meet a population
minimum of 250,000 in order to be similarly entitled.
Plainly read, Section 5(3) requires a 250,000 minimum population
only for a city to be entitled to a representative, but not so for a
province.
Population is not the only factor but is just one of several other
factors in the composition of the additional district.
Aldaba v. Comelec 2010 En Banc Resolution
The constitutionality of a legislative apportionment act is a judicial
question, and not a political one.
Aside from failing to comply with Section 5(3), Article VI on the
population requirement, the creation by RA 9591 of a legislative
district for Malolos City, carving the city from the former 1st
District, leaves the town of Bulacan isolated from the rest of the
geographic mass of that district. This contravenes the requirement
in Section 5(3), Article VI that each legislative district shall
"comprise, as far as practicable, contiguous, compact, and
adjacent territory."
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e. It violates or fails to comply with laws, rules or regulations
relating to elections;
f. It declares untruthful statements in its petition;
g. It has ceased to exist for at least one (1) year; or
h. It fails to participate in the last two (2) preceding elections
or fails to obtain at least two percentum (2%) of the votes
cast under the party-list system in the two (2) preceding
elections for the constituency in which it has registered.
3. The party or organization must NOT be an adjunct of, or a
project organized or an entity funded or assisted by, the
government.
4. The party must not only comply with the requirements of the
law; its nominees must likewise do so.
5. Not only the candidate party or organization must represent
marginalized and underrepresented sectors; so also must its
nominees.
Phil Guardians Brotherhood v. Comelec 2010 En Banc
6. While lacking a well-de ined political constituency, the nominee
must likewise be able to contribute to the formulation and
enactment of appropriate legislation that will bene it the nation
as a whole.
BANAT v. Comelec 2009 En Banc Decision and Resolution
There is no need for legislation to create an additional party-list seat
whenever four additional legislative districts are created by law.
Section 5(2), Article VI of the 1987 Constitution automatically
creates such additional party-list seats.
Atong Paglaum v. Comelec 2013 En Banc
The illing-up of all available party-list seats is not mandatory.
Actual occupancy of the party-list seats depends on the number of
participants in the party-list election.
There are four parameters in a Philippine-style party-list election
system:
1. Twenty percent of the total number of the membership of
the House is the maximum number of seats available to
party-list organizations, such that there is automatically
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
one party-list seat for every four existing legislative
districts.
2. Garnering two percent of the total votes cast in the
party-list elections guarantees a party-list organization
one seat.
3. The additional seats shall be distributed to the party-list
organizations including those that received less than two
percent of the total votes.
The continued operation of the two percent threshold as it
applies to the allocation of the additional seats is now
unconstitutional.
The additional seats shall be distributed to the parties in a
second round of seat allocation until all available
seats are completely distributed.
4. The three-seat cap is constitutional.
The COMELEC may motu proprio or upon veri ied complaint of any
interested party, remove or cancel, after due notice and hearing, the
registration of any national, regional or sectoral party, organization or
coalition if it:
a) fails to participate in the last two (2) preceding elections; or
b) fails to qualify for a seat in the two preceding elections
for the constituency in which it registered.
1. National parties or organizations and regional parties or
organizations do not need to organize along sectoral lines and
do not need to represent any “marginalized and
underrepresented” sector.
2. Political parties can participate in party-list elections provided
they register under the party-list system and do not ield
candidates in legislative district elections.
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A political party that ields candidates in legislative district
elections can participate in party-list elections only through its
sectoral wing that can separately register under the party-list
system. The sectoral wing is by itself an independent
sectoral party, and is linked to a political party through a
coalition.
3. Sectoral parties or organizations may either be
a. “marginalized and underrepresented” — labor,
peasants, isherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and overseas
workers; or
b. lacking in “well-de ined political constituencies.” —
professionals, the elderly, women, and the youth.
4. A majority of the members of sectoral parties must belong
to the “marginalized and underrepresented” sector they
represent. Same rule applies to sectors that lack “well-de ined
political constituencies.”
The nominees of sectoral parties or organizations either
a. must belong to their respective sectors, or
b. must have a track record of advocacy for their
respective sectors.
The nominees of national and regional parties or organizations
must be bona- ide members of such parties or organizations.
C. Legislative privileges, inhibitions,
and disqualifications
Privileges
Freedom from Arrest
Sect 11. A Senator or Member of the House of Representatives
shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is in
session.
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No Member shall be questioned nor be held liable in any other
place for any speech or debate in the Congress or in any committee
thereof.
Trillanes IV v. Castillo-Marigomen 2018
The questioned statements in this case were admittedly made in
response to queries from the media during gaps in the Senate's
plenary and committee hearings, thus, beyond the purview of
privileged speech or debate under Section 11, Article VI.
Petitioner cannot successfully invoke parliamentary
nonaccountability to insulate his statements, uttered outside the
"sphere of legislative activity," from judicial review.
Privilege of Speech and Debate
Trillanes IV v. Pimentel, Sr.
The performance of legitimate and even essential duties by public
of icers has never been an excuse to free a person validly in prison.
The duties imposed by the "mandate of the people" are multifarious.
Never has the call of a particular duty lifted a prisoner into a
different classi ication from those others who are validly
restrained by law.
Pobre v. Santiago
Courts do not interfere with the legislature or its members in
the manner they perform their functions in the legislative loor
or in committee rooms. Any claim of an unworthy purpose or of the
falsity and mala ides of the statement uttered by the member of the
Congress does not destroy the privilege. The disciplinary authority of
the assembly and the voters, not the courts, can properly discourage
or correct such abuses committed in the name of parliamentary
immunity.
For the above reasons, the plea of Senator Santiago for the dismissal
of the complaint for disbarment or disciplinary action is well taken.
Indeed, her privilege speech is not actionable criminally or in a
disciplinary proceeding under the Rules of Court.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
Restrictions and Prohibitions
1) No Senator or Member of the House of Representatives may
hold any other of ice or employment in the Government, or any
subdivision, agency, or instrumentality thereof, including
GOCCs or their subsidiaries, during his term without forfeiting
his seat. (Incompatible of ice)
2) Neither shall he be appointed to any of ice which may have
been created or the emoluments thereof increased during the
term for which he was elected. (Forbidden of ice)
Liban v. Gordon
Not being a government of icial or employee, the PNRC Chairman, as
such, does not hold a government of ice or employment. We hold that
the of ice of the PNRC Chairman is not a government of ice or an
of ice in a GOCC for purposes of the prohibition in Section 13, Article
VI of the 1987 Constitution.
Appearance as counsel
Puyat v. de Guzman
Ordinarily, by virtue of the Motion for Intervention, Assemblyman
Fernandez cannot be said to be appearing as counsel. Ostensibly, he
is not appearing on behalf of another, although he is joining the cause
of the private respondents.
We are constrained to ind that there has been an indirect "appearance
as counsel before x x x an administrative body" and, in our opinion,
that is a circumvention of the Constitutional prohibition. That which
the Constitution directly prohibits may not be done by
indirection or by a general legislative act which is intended to
accomplish the objects speci ically or impliedly prohibited.
D. Quorum and voting majorities
Voting separately
1. Sec 11(4). If the Congress, within ten days after receipt of the
last written declaration, or, if not in session, within twelve days
after it is required to assemble, determines by a two-thirds
vote of both Houses, voting separately, that the President is
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unable to discharge the powers and duties of his of ice, the
Vice-President shall act as President; otherwise, the President
shall continue exercising the powers and duties of his of ice.
2. Sec 9. Whenever there is a vacancy in the Of ice of the
Vice-President during the term for which he was elected, the
President shall nominate a Vice-President from among the
Members of the Senate and the House of Representatives who
shall assume of ice upon con irmation by a majority vote of
ALL the Members of both Houses of the Congress, voting
separately.
Voting jointly
1. Art VII Sec 18. xxxx The Congress, voting jointly, by a vote of
at least a majority of ALL its Members in regular or special
session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. xxxx
E. Discipline of members
1. Sec 16(3). Each House may xxxx punish its Members for
disorderly behavior, and, with the concurrence of two-thirds
of ALL its Members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed sixty days.
Santiago v. Sandiganbayan
The authority of the Sandiganbayan to order the preventive
suspension of an incumbent public of icial charged with violation of
the provisions of RA No. 3019 has both legal and jurisprudential
support.
RA No. 3019 does not exclude from its coverage the members of
Congress and that, therefore, the Sandiganbayan did not err in thus
decreeing the assailed preventive suspension order.
F. Process of law-making
Subject and Title
De la Cruz v. Paras
The title was not in any way altered. It was not changed one whit. The
exact wording was followed. The power granted remains that of
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regulation, not prohibition. There is thus support for the view
advanced by petitioners that to construe Republic Act No. 938 as
allowing the prohibition of the operation of night clubs would give
rise to a constitutional question. The Constitution mandates: "Every
bill shall embrace only one subject which shall be expressed in the
title thereof." Since there is no dispute as the title limits the power to
regulating, not prohibiting, it would result in the statute being invalid
if, as was done by the Municipality of Bocaue, the operation of a night
club was prohibited.
As to specific laws
1. Art VII Sec 22. The President shall submit to the Congress,
within thirty days from the opening of every regular session as
the basis of the general appropriations bill, a budget of
expenditures and sources of inancing, including receipts
from existing and proposed revenue measures.
2. Art VI Sec 24. All appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local
application, and private bills, shall originate exclusively in
the House of Representatives, but the Senate may propose or
concur with amendments.
3. Sec 25. The Congress may not increase the appropriations
recommended by the President for the operation of the
Government as speci ied in the budget.
4. No provision or enactment shall be embraced in the general
appropriations bill unless it relates speci ically to some
particular appropriation therein. Any such provision or
enactment shall be limited in its operation to the appropriation
to which it relates.
5. No law shall be passed authorizing any transfer of
appropriations; however, the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of Constitutional
Commissions may, by law, be authorized to augment any item
in the general appropriations law for their respective of ices
from savings in other items of their respective appropriations.
Tolentino v. SOF
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
It is not the law – but the revenue bill – which is required by the
Constitution to "originate exclusively" in the House of
Representatives.
Nor does the Constitution prohibit the iling in the Senate of a
substitute bill in anticipation of its receipt of the bill from the
House, so long as action by the Senate as a body is withheld pending
receipt of the House bill.
Demetria v. Alba
The purpose and conditions for which funds may be transferred were
speci ied, i.e.
1. transfer may be allowed for the purpose of augmenting
an item and
2. such transfer may be made only if there are savings from
another item in the appropriation of the government branch
or constitutional body.
Abakada Guro v. Ermita
Since there is no question that the revenue bill exclusively originated
in the House, the Senate was acting within its constitutional power to
introduce amendments to the House bill when it included provisions
in Senate Bill No. 1950 amending corporate income taxes, percentage,
excise and franchise taxes. The sections introduced by the Senate are
germane to the subject matter and purposes of the house bills, which
is to supplement our country’s iscal de icit, among others. Thus, the
Senate acted within its power to propose those amendments.
Araullo v. Aquino III 2014 En Banc
The transfer of appropriated funds, to be valid under Section
25(5) must be made upon a concurrence of the following
requisites, namely:
1) There is a law authorizing the President, the President of the
Senate, the Speaker, the Chief Justice, and the heads of the
Constitutional Commissions to transfer funds within their
respective of ices;
2) The funds to be transferred are savings generated from the
appropriations for their respective of ices; and
3) The purpose of the transfer is to augment an item in the
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general appropriations law for their respective of ices.
To comply with the irst requisite, the GAAs should expressly
authorize the transfer of funds. Savings should be actual.
The power to augment was to be used only when the purpose for
which the funds had been allocated were already satis ied, or
the need for such funds had ceased to exist, for only then could
savings be properly realized.
According to Philconsa v. Enriquez, impoundment refers to a
refusal by the President, for whatever reason, to spend funds made
available by Congress. It is the failure to spend or obligate budget
authority of any type.
It is the President who proposes the budget but it is Congress that has
the inal say on matters of appropriations. For this purpose,
appropriation involves two governing principles, namely:
1) a Principle of the Public Fisc, asserting that all monies
received from whatever source by any part of the
government are public funds; and
2) a Principle of Appropriations Control, prohibiting
expenditure of any public money without legislative
authorization.
On Cross-border augmentations
Section 25(5) has delineated borders between their of ices, such that
funds appropriated for one of ice are prohibited from crossing over
to another of ice even in the guise of augmentation of a de icient item
or items. Cross-border transfers, whether as augmentation, or as aid,
were prohibited under Section 25(5).
Pork barrel system
Belgica v. Ochoa 2013 En Banc
The Legislative branch of government, much more any of its
members, should not cross over the ield of implementing the
national budget since, as earlier stated, the same is properly the
domain of the Executive. Upon approval and passage of the GAA,
Congress‘ law-making role necessarily comes to an end and from
there the Executive‘s role of implementing the national budget
begins.
The foregoing cardinal postulates were de initively enunciated in
Abakada where the Court held that from the moment the law
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becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of
powers and is thus unconstitutional.
The Court must therefore abandon its ruling in Philconsa which
sanctioned the conduct of legislator identi ication on the guise
that the same is merely recommendatory and, as such,
respondents‘ reliance on the same falters altogether.
Procedure for passage of bills
Tolentino v. SOF
The presidential certi ication dispensed with the requirement not
only of printing but also that of reading the bill on separate days. The
phrase "except when the President certi ies to the necessity of its
immediate enactment, etc." in Art VI, §26(2) quali ies the two stated
conditions before a bill can become a law:
1) the bill has passed three readings on separate days and
2) it has been printed in its inal form and distributed three
days before it is inally approved.
Art VI §26(2) must, therefore, be construed as referring only to bills
introduced for the irst time in either house of Congress, NOT to
the conference committee report.
G. Electoral Tribunals and the Commission on
Appointments
Nature of Electoral Tribunals
1. Sole Judge. Not subject to appeal. May only be questioned via
Certiorari petition to the SC. Its exercise of power is intended to
be its own — full, complete and unimpaired.
2. Contests. May only be iled by one who seeks to replace the
protestee.
3. Members. Electoral tribunal acquires jurisdiction upon taking
of oath and assumption of of ice of the proclaimed winner.
Prior to assumption, COMELEC has jurisdiction.
Composition
Tanada v. Cuenco
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
1. The Senate may not elect, as members of the Senate Electoral
Tribunal, those Senators who have not been nominated by
the political parties speci ied in the Constitution;
2. The party having the largest number of votes in the Senate
may nominate not more than three (3) members;
3. The party having the second largest number of votes in the
Senate has the exclusive right to nominate the other three (3)
members;
4. Neither these three (3) Senators, nor any of them, may be
nominated by a person or party other than the one having
the second largest number of votes in the Senate or its
representative therein;
5. The Committee on Rules for the Senate has no standing to
validly make such nomination.
Powers
Dueñas, Jr. v. HRET
So long as the Constitution grants the HRET the power to be the sole
judge of all contests relating to the election, returns and
quali ications of members of the House of Representatives, any inal
action taken by the HRET on a matter within its jurisdiction shall, as
a rule, not be reviewed by this Court.
It is hornbook doctrine that jurisdiction, once acquired, is not lost at
the instance of the parties but continues until the case is terminated.
Thus, in Robles v. HRET, the Court ruled that the mere iling of the
motion to withdraw protest on the remaining uncontested precincts,
without any action on the part of respondent tribunal, does not by
itself divest the tribunal of its jurisdiction over the case.
Barbers v. Comelec
In Pangilinan v. Comelec, we ruled that “where the candidate has
already been proclaimed winner in the congressional elections, the
remedy of petitioner is to ile an electoral protest with the Electoral
Tribunal of the House of Representatives.”
Certiorari and prohibition will not lie in this case considering that
there is an available and adequate remedy in the ordinary course of
law to annul the COMELEC’s assailed proceedings.
Limkaichong v. Comelec
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
Once a winning candidate has been proclaimed, taken his oath,
and assumed of ice as a Member of the House of Representatives,
the jurisdiction of the HRET begins over election contests relating
to his election, returns, and quali ications, and mere allegation as
to the invalidity of her proclamation does not divest the
Electoral Tribunal of its jurisdiction.
Reyes v. Comelec 2013 En Banc
Contrary to petitioner’s claim the COMELEC retains jurisdiction for
the following reasons:
First, the HRET does not acquire jurisdiction over the issue of
petitioner’s quali ications, as well as over the assailed COMELEC
Resolutions, unless a petition is duly iled with said tribunal.
Second, the jurisdiction of the HRET begins only after the candidate
is considered a Member of the House.
In Vinzons-Chato v. COMELEC, citing Aggabao v. COMELEC and
Guerrero v. COMELEC, the Court ruled that once a winning candidate
has been proclaimed, taken his oath, and assumed of ice as a
Member of the House of Representatives, the COMELEC’s jurisdiction
over election contests relating to his election, returns, and
quali ications ends, and the HRET’s own jurisdiction begins.
To be considered a Member of the House, there must be a
concurrence of the following requisites:
1) a valid proclamation,
2) a proper oath, and
3) assumption of of ice.
Here, the petitioner cannot be considered a Member of the House of
Representatives because, primarily, she has not yet assumed of ice.
Before there is a valid or of icial taking of the oath it must be made
1) before the Speaker of the House of Representatives, and
2) in open session.
Here, although she made the oath before Speaker Belmonte, there is
no indication that it was made during plenary or in open session and,
thus, it remains unclear whether the required oath of of ice was
indeed complied with.
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2) The communication must be authored or "solicited and
received" by a close advisor of the President or the President
himself. The judicial test is that an advisor must be in
"operational proximity" with the President.
3) The presidential communications privilege remains a
quali ied privilege that may be overcome by a showing of
adequate need, such that the information sought "likely
contains important evidence" and by the unavailability of
the information elsewhere by an appropriate investigating
authority.
United States v. Nixon held that a claim of executive privilege is
subject to balancing against other interest. In other words,
con identiality in executive privilege is not absolutely protected by
the Constitution.
Standard Chartered Bank v. Senate Committee on Banks
Central to the Court’s ruling in Bengzon was the Court’s
determination that the intended inquiry was not in aid of
legislation.
Indeed, the mere iling of a criminal or an administrative complaint
before a court or a quasi-judicial body should not automatically bar
the conduct of legislative investigation.
Romero II v. Estrada
Suf ice it to state that when the Committee issued invitations and
subpoenas to petitioners to appear before it in connection with its
investigation of the aforementioned investments, it did so pursuant
to its authority to conduct inquiries in aid of legislation. And the
Court has no authority to prohibit a Senate committee from requiring
persons to appear and testify before it in connection with an inquiry
in aid of legislation in accordance with its duly published rules of
procedure.
Oversight
Separate Opinion, Justice Puno, Macalintal v. Comelec, et al.
Concept and bases of congressional oversight
The power of oversight embraces all activities undertaken by
Congress to enhance its understanding of and in luence over the
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concerns suffused in a broad daylight of discussion.” (Separate
implementation of legislation it has enacted. Clearly, oversight
concerns post-enactment measures undertaken by Congress. Opinion, Justice Puno, Macalintal v. Comelec, et al.)
The power of oversight has been held to be intrinsic in the grant of Power of impeachment
legislative power itself and integral to the checks and balances Who may be impeached
inherent in a democratic system of government.
1. The President,
Categories of congressional oversight functions
a. Scrutiny. — Its primary purpose is to determine economy 2. the Vice-President,
and ef iciency of the operation of government activities. It is 3. the Members of the Supreme Court,
based primarily on the power of appropriation of Congress.
4. the Members of the Constitutional Commissions, and
Under the Constitution, the “power of the purse” belongs to
Congress. 5. the Ombudsman.
Likewise, Congress exercises legislative scrutiny thru its
power of con irmation. Through the power of con irmation, In re Gonzales
Congress shares in the appointing power of the executive.
A public of icer who under the Constitution is required to be a
b. Investigation. — Congressional investigation involves a more Member of the Philippine Bar as a quali ication for the of ice held by
intense digging of facts. As now contained in the 1987 him and who may be removed from of ice only by impeachment,
Constitution, the power of Congress to investigate is cannot be charged with disbarment during the incumbency of
circumscribed by three limitations, namely: such public of icer.
a) it must be in aid of its legislative functions, A Member of the Supreme Court must irst be removed from of ice
b) it must be conducted in accordance with duly published via the constitutional route of impeachment. Should the tenure of the
rules of procedure, and Supreme Court Justice be thus terminated by impeachment, he may
then be held to answer either criminally or administratively.
c) the persons appearing therein are afforded their
constitutional rights. Grounds
c. Supervision. — This connotes a continuing and informed for, and conviction of,
awareness on the part of a congressional committee regarding
1. culpable violation of the Constitution,
executive operations in a given administrative area. While both
congressional scrutiny and investigation involve inquiry into 2. treason,
past executive branch actions in order to in luence future
3. bribery,
executive branch performance, congressional supervision allows
Congress to scrutinize the exercise of delegated law-making 4. graft and corruption,
authority, and permits Congress to retain part of that delegated
5. other high crimes, or
authority.
6. betrayal of public trust.
Non-legislative
Procedure
Informing function
Gutierrez v. The House of Representatives Committee on Justice
The legislature’s informing function should be preferred to its
2011 En Banc Decision
legislative function. He emphasized that “even more important
The determination of suf iciency of form and substance of an
than legislation is the instruction and guidance in political affairs
impeachment complaint is an exponent of the express constitutional
which the people might receive from a body which kept all national
By RGL 26 of 216
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grant of rule-making powers of the House of Representatives which
committed such determinative function to public respondent.
A determination of what constitutes an impeachable offense is a
purely political question which the Constitution has left to the
sound discretion of the legislature.
It is not for this Court to tell a co-equal branch of government how to
promulgate when the Constitution itself has not prescribed a speci ic
method of promulgation. The Court is in no position to dictate a
mode of promulgation beyond the dictates of the Constitution.
It bears stressing that, unlike the process of inquiry in aid of
legislation where the rights of witnesses are involved, impeachment
is primarily for the protection of the people as a body politic,
and not for the punishment of the offender.
The one-year bar rule
Article XI, Section 3, paragraph (5) of the Constitution reads: "No
impeachment proceedings shall be initiated against the same
of icial more than once within a period of one year."
Francisco states that the term "initiate" refers to the iling of the
impeachment complaint coupled with Congress' taking initial action
of said complaint. The initial action taken by the House on the
complaint is the referral of the complaint to the Committee on
Justice.
Referring the complaint to the proper committee ignites the
impeachment proceeding. With a simultaneous referral of multiple
complaints iled, more than one lighted matchsticks light the candle
at the same time. What is important is that there should only be
ONE CANDLE that is kindled in a year, such that once the candle
starts burning, subsequent matchsticks can no longer rekindle
the candle.
Indubitably, an impeachment is not a judicial proceeding, but rather a
political exercise. (Resolution)
Gonzales III v. Of ice of the President 2014 En Banc
Section 8(2) of RA No. 6770 vesting disciplinary authority in the
President over the Deputy Ombudsman violates the independence of
the Of ice of the Ombudsman and is thus unconstitutional.
The Of ice of the Ombudsman, by express constitutional mandate,
includes its key of icials, all of them tasked to support the
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Ombudsman in carrying out her mandate. What is true for the
Ombudsman must be equally and necessarily true for her
Deputies who act as agents of the Ombudsman in the
performance of their duties.
Effect
Art XI Sec 3[7]. Judgment in cases of impeachment shall not
extend further than removal from of ice and disquali ication to
hold any of ice under the Republic of the Philippines, but the
party convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment, according to law.
Barcenas v. House of Representatives
Section 3 (1) of Art XI speaks of initiating "cases of impeachment"
while Section 3 (5) pertains to the initiation of "impeachment
proceedings." "Cases," no doubt, refers to those iled before the
Senate. Its use and its sense are consistent throughout Section 3.
Thus, Section 3(6) states, “The Senate shall have the sole power to
decide all cases [not "proceedings"] of impeachment." Section 3(7)
provides, "Judgment in cases [not "proceedings"] of impeachment
shall not extend further than removal from of ice and disquali ication
to hold any of ice...."
I. Initiative and Referendum
RA No. 6735 or the The Initiative and Referendum Act.
1. "Initiative" is the power of the people to propose
amendments to the Constitution or to propose and enact
legislations through an election called for the purpose.
There are three (3) systems of initiative, namely:
a. Initiative on the Constitution which refers to a
petition proposing amendments to the Constitution;
b. Initiative on statutes which refers to a petition
proposing to enact a national legislation; and
c. Initiative on local legislation which refers to a
Garcia v. Comelec
petition proposing to enact a regional, provincial, city,
municipal, or barangay law, resolution or ordinance.
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
2. "Indirect initiative" is the exercise of initiative by the people
through a proposition sent to Congress or the local legislative
body for action.
3. "Referendum" is the power of the electorate to approve or
reject a legislation through an election called for the purpose. It
may be of two classes, namely:
a. Referendum on statutes which refers to a petition to
approve or reject an act or law, or part thereof, passed
by Congress; and
b. Referendum on local law which refers to a petition to
approve or reject a law, resolution or ordinance
enacted by regional assemblies and local legislative
bodies.
4. "Proposition" is the measure proposed by the voters.
5. "Plebiscite" is the electoral process by which an initiative on
the Constitution is approved or rejected by the people.
6. To exercise the power of initiative or referendum,
a. at least ten per centum (10%) of the total number of
the registered voters,
b. of which every legislative district is represented by at
least three per centum (3%) of the registered voters
thereof,
c. shall sign a petition for the purpose and register the
same with the Comelec.
7. A petition for an initiative on the 1987 Constitution must have
a. at least twelve per centum (12%) of the total
number of registered voters as signatories,
b. of which every legislative district must be represented
by at least three per centum (3%) of the registered
voters therein.
The Constitution clearly includes not only ordinances but
resolutions as appropriate subjects of a local initiative.
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Sec 4. The President and the Vice-President shall be elected by
VI. EXECUTIVE DEPARTMENT
direct vote of the people for a term of 6 years xxx. The President
A. Quali ications, election, and term of the President and shall not be eligible for any re-election.
No person who has succeeded as President and has served as such
Vice-President
for more than 4 years shall be quali ied for election to the same
B. Privileges, inhibitions, and disquali ications
of ice at any time.
C. Powers of the President
No Vice-President shall serve for more than 2 successive terms.
General executive and administrative powers
B. Privileges, inhibitions, and disqualifications
Power of appointment
Presidential immunity
Power of control and supervision
⭐De Lima v. Duterte 2019 En Banc
Emergency powers
The concept of presidential immunity under our governmental and
Commander-in-chief powers constitutional system does not distinguish whether or not the suit
pertains to an of icial act of the President. Neither does immunity
Executive clemency
hinge on the nature of the suit. The lack of distinctions prevents us
Diplomatic power from making any distinctions.
Powers relative to appropriation measures Separate concurring of Leonen, J
Delegated powers Presidential immunity from suit only extends to civil, criminal, and
administrative liability. A proceeding for the issuance of a writ of
Residual powers
habeas data, as in this case, does not determine any such liability.
Veto powers
However, the proper respondent in a habeas data case for
D. Rules of Succession pronouncements made by the President in his of icial capacity is the
Executive Secretary, following the ruling in Aguinaldo v. Aquino
III. This is in accord with the doctrine that the president should
not be impleaded in any suit during his or her incumbency, as
A. Qualifications, election, and term of the recently reiterated in Kilusang Mayo Uno v. Aquino III.
President and Vice-President
Presidential privilege
Sec 2. No person may be elected President unless he is
⭐Senate of the Philippines v. Ermita
1. a natural-born citizen of the Philippines,
Executive privilege is de ined as "the power of the Government
2. a registered voter,
to withhold information from the public, the courts, and the
3. able to read and write, Congress." It is "the right of the President and high-level
executive branch of icers to withhold information from
4. at least 40 years of age on the day of the election, and
Congress, the courts, and ultimately the public."
5. a resident of the Philippines for at least 10 years
1. One variety of the privilege is the state secrets privilege
immediately preceding such election. on the ground that the information is of such nature that its
disclosure would subvert crucial military or diplomatic
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objectives.
2. Another variety is the informer's privilege, or the privilege
of the Government not to disclose the identity of persons
who furnish information of violations of law to of icers
charged with the enforcement of that law.
3. Finally, a generic privilege for internal deliberations.
Executive privilege, whether asserted against Congress, the
courts, or the public, is recognized only in relation to certain types
of information of a sensitive character. While executive privilege
is a constitutional concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and the context in
which it is made. Indeed, the extraordinary character of the
exemptions indicates that the presumption inclines heavily
against executive secrecy and in favor of disclosure.
Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine.
Executive privilege is properly invoked in relation to speci ic
categories of information and not to categories of persons.
A claim of privilege, being a claim of exemption from an
obligation to disclose information, must, therefore, be clearly
asserted.
In light of this highly exceptional nature of the privilege, the Court
inds it essential to limit to the President the power to invoke the
privilege. The privilege being an extraordinary power, it must be
wielded only by the highest of icial in the executive hierarchy.
⭐Neri v. Executive Secretary
There are two (2) kinds of executive privilege
a) presidential communications privilege — pertains to
communications, documents or other materials that re lect
presidential decision-making and deliberations and that the
President believes should remain con idential.
b) deliberative process privilege. — includes advisory
opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and
policies are formulated.
Congressional or judicial negation of the presidential
communications privilege is always subject to greater scrutiny
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than denial of the deliberative process privilege.
The right of Congress or any of its Committees to obtain information
in aid of legislation cannot be equated with the people's right to
public information. The former cannot claim that every legislative
inquiry is an exercise of the people's right to information.
The Claim of Executive Privilege is Properly Invoked
Jurisprudence teaches that for the claim to be properly invoked,
there must be a formal claim of privilege, lodged by the head of
the department which has control over the matter. A formal and
proper claim of executive privilege requires a "precise and certain
reason" for preserving their con identiality.
Prohibitions
Sec 13. The President, Vice-President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold ANY other of ice or
employment during their tenure.
They shall not, during said tenure, directly or indirectly,
a) practice any other profession,
b) participate in any business, or
c) be inancially interested in any contract with, or in any
franchise, or special privilege granted by the Government
or any subdivision, agency, or instrumentality thereof,
including GOCCs or their subsidiaries.
The spouse and relatives by consanguinity or af inity within the
fourth civil degree of the President shall not, during his tenure, be
appointed as
a) Members of the Constitutional Commissions, or
Public Interest Center v. Elma Decision and Resolution
b) the Of ice of the Ombudsman, or
c) as Secretaries, Undersecretaries, chairmen or heads of
bureaus or of ices, including GOCCs and their subsidiaries.
Civil Liberties Union v. Executive Secretary
The prohibition imposed on the President and his of icial
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PRE-WEEK NOTES
family is all-embracing and covers both public and private
of ice or employment.
Section 7, Article IX-B is meant to lay down the general rule
applicable to all elective and appointive public of icials and
employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President, Members of the
Cabinet, their deputies and assistants. The phrase "unless otherwise
provided in this Constitution" must be given a literal interpretation to
refer only to those particular instances cited in the Constitution itself,
to wit:
1. the Vice-President being appointed as a member of the
Cabinet under Section 3, par(2), Article VII; or acting as
President in those instances provided under Section 7, pars.
(2) and (3), Article VII; and,
2. the Secretary of Justice being an ex-of icio member of the
Judicial and Bar Council by virtue of Section 8(1), Article
VIII.
If the functions required to be performed are merely incidental,
remotely related, inconsistent, incompatible, or otherwise alien
to the primary function of a cabinet of icial, such additional
functions would fall under the purview of "any other of ice"
prohibited by the Constitution.
In order that such additional duties or functions may not transgress
the prohibition embodied in Section 13, Article VII of the 1987
Constitution,
1. such additional duties or functions must be required by the
primary functions of the of icial concerned,
2. who is to perform the same in an ex-of icio capacity as
provided by law,
3. without receiving any additional compensation therefor.
The crucial test in determining whether incompatibility exists
between two of ices was laid out in People v. Green — whether one
of ice is subordinate to the other, in the sense that one of ice has the
right to interfere with the other.
In this case, an incompatibility exists between the positions of the
PCGG Chairman and the CPLC. The PCGG is, without question, an
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
agency under the Executive Department. Thus, the actions of the
PCGG Chairman are subject to the review of the CPLC.
The strict prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor to the
CPLC. However, Elma remains covered by the general prohibition
under Section 7, Article IX-B.
Elma's concurrent appointments as PCGG Chairman and CPLC are
unconstitutional, for being incompatible of ices. This ruling does not
render both appointments void. Following the common-law rule on
incompatibility of of ices, Elma had, in effect, vacated his irst
of ice as PCGG Chairman when he accepted the second of ice as
CPLC.
Funa v. Executive Secretary 2010 En Banc
Respondent Bautista being then the appointed Undersecretary of
DOTC, she was thus covered by the stricter prohibition under Section
13, Article VII and consequently she cannot invoke the exception
provided in Section 7, paragraph 2, Article IX-B where holding
another of ice is allowed by law or the primary functions of the
position. Neither was she designated OIC of MARINA in an ex-of icio
capacity, which is the exception recognized in Civil Liberties Union.
C. Powers of the President
General executive and administrative powers
Section 1. THE executive power shall be vested in the President of
the Philippines.
Marcos v. Manglapus Decision and Resolution
The powers of the President cannot be said to be limited only to the
speci ic powers enumerated in the Constitution. In other words,
executive power is more than the sum of speci ic powers so
enumerated.
This is so, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986—to limit the powers of the
President, for the result was a limitation of speci ic powers of the
President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive
power.
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Vinuya v. Romulo 2010 En Banc
The Executive Department has determined that taking up petitioners'
cause would be inimical to our country's foreign policy interests, and
could disrupt our relations with Japan, thereby creating serious
implications for stability in this region. For us to overturn the
Executive Department's determination would mean an assessment of
the foreign policy judgments by a coordinate political branch to
which authority to make that judgment has been constitutionally
committed.
Power of appointment
In general
Gov of Phil Islands v. Springer
Appointment to of ice is intrinsically an executive act involving
the exercise of discretion.
With Concurrence of CA
Art VII Sec 16. The President shall nominate and, WITH the
consent of the Commission on Appointments, appoint
a) the heads of the executive departments,
b) ambassadors, other public ministers and consuls, or
c) of icers of the armed forces from the rank of colonel or
naval captain, and
d) other of icers whose appointments are vested in him in
this Constitution.
i) The regular members of the JBC shall be appointed by
the President for a term of four years with the consent
of the CA. (Art VIII Sec 8[2])
He shall also appoint
a) all other of icers of the Government whose appointments
are not otherwise provided for by law, and
b) those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other of icers
lower in rank in the President alone, in the courts, or in the heads
of departments, agencies, commissions, or boards.
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Ru ino v. Endriga
The President appoints the irst group of of icers with the consent
of the CA. The President appoints the second and third groups of
of icers without the consent of the CA. The President appoints the
third group of of icers if the law is silent on who is the appointing
power, or if the law authorizing the head of a department, agency,
commission, or board to appoint is declared unconstitutional. Thus,
if Section 6(b) and (c) of PD 15 is found unconstitutional, the
President shall appoint the trustees of the CCP Board because the
trustees fall under the third group of of icers.
The CCP must fall under the Executive branch. Under the Revised
Administrative Code of 1987, any agency "not placed by law or order
creating them under any speci ic department" falls "under the Of ice
of the President."
Section 6(b) and (c) of PD 15 makes the CCP a self-perpetuating
entity, virtually outside the control of the President. Such a public
of ice or board cannot legally exist under the 1987
Constitution.
Upon recommendation of JBC
a) Members of SC and all other courts. — Art VIII Sec 9. The
Members of the Supreme Court and judges of lower courts shall
be appointed by the President from a list of at least three
nominees preferred by the Judicial and Bar Council for every
vacancy. Such appointments need no con irmation.
b) Ombudsman and deputies. — Art XI Sec 9. The
Ombudsman and his Deputies shall be appointed by the
President from a list of at least six nominees prepared by the
JBC, and from a list of three nominees for every vacancy
thereafter. Such appointments shall require no
con irmation. All vacancies shall be illed within three
months after they occur.
Limitations
Prohibition against Nepotism and Midnight Appointments
Sec 13[2]. The spouse and relatives by consanguinity or
af inity within the fourth civil degree of the President shall not,
during his tenure, be appointed as
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a) Members of the Constitutional Commissions, or
b) the Of ice of the Ombudsman, or
c) as Secretaries, Undersecretaries, chairmen or heads of
bureaus or of ices, including GOCCs and their subsidiaries.
Sec 15. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting
President shall not make appointments, except
a) temporary appointments
b) to executive positions
c) when continued vacancies therein will prejudice public
service or endanger public safety.
De Castro v. JBC 2010 En Banc
Prohibition under Section 15, Article VII does not apply to
appointments to ill a vacancy in the Supreme Court or to other
appointments to the Judiciary.
Given the background and rationale for the prohibition in Section 15,
Article VII, we have no doubt that the Constitutional Commission
con ined the prohibition to appointments made in the
Executive Department. The framers did not need to extend the
prohibition to appointments in the Judiciary, because their
establishment of the JBC ensured that there would no longer be
midnight appointments to the Judiciary.
Types of appointment
Interim or recess appointments
Art VII Sec 16(2). The President shall have the power to make
appointments during the recess of the Congress, whether voluntary
or compulsory, but such appointments shall be effective only until
disapproved by the Commission on Appointments or until the next
adjournment of the Congress.
Guevara v. Inocentes
It is the clear intent of the framers of our Constitution to make a
recess appointment effective only
a) until disapproval by the Commission on Appointments, or
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b) until the next adjournment of Congress, and never a day
longer regardless of the nature of the session adjourned.
De Rama v. CA
There is no law that prohibits local elective of icials from making
appointments during the last days of his or her tenure.
The constitutional prohibition on so-called "midnight appointments,"
applies only to the President or Acting President.
Matibag v. Benipayo
An ad interim appointment is a permanent appointment because it
takes effect immediately and can no longer be withdrawn by the
President once the appointee has quali ied into of ice. The fact that it
is subject to con irmation by the CA does not alter its permanent
character. The Constitution itself makes an ad interim appointment
permanent in character by making it effective until disapproved by
the CA or until the next adjournment of Congress.
A distinction is thus made between the exercise of such presidential
prerogative requiring con irmation by the CA when Congress is in
session and when it is in recess.
In the former, the President nominates, and only upon the consent of
the CA may the person thus named assume of ice. It is not so with
reference to ad interim appointments. It takes effect at once. Thus,
the term “ad interim appointment”, as used in letters of
appointment signed by the President, means a permanent
appointment made by the President in the meantime that
Congress is in recess.
The Constitutionality of Renewals of Appointments
There is no dispute that an ad interim appointee disapproved by the
CA can no longer be extended a new appointment. The disapproval is
a inal decision on the merits by the CA in the exercise of its checking
power on the appointing authority of the President. Since the
Constitution does not provide for any appeal from such decision, the
disapproval is inal and binding on the appointee as well as on
the appointing power.
A by-passed appointment is one that has not been inally acted
upon on the merits by the CA at the close of the session of Congress.
There is no inal decision by the CA. Absent such decision, the
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President is free to renew the ad interim appointment of a
by-passed appointee.
It is well settled in this jurisdiction that the President can
renew the ad interim appointments of by-passed appointees.
The phrase “without reappointment” applies only to one who
1. has been appointed by the President and
2. con irmed by the CA, whether or not such person completes
his term of of ice.
There must be a con irmation by the CA of the previous appointment
before the prohibition on reappointment can apply.
Temporary designations
Administrative Code of 1987, Book III, SECTION 17. Power to Issue
Temporary Designation. —
1) The President may temporarily designate an of icer already in
the government service or any other competent person to
perform the functions of an of ice in the executive branch,
appointment to which is vested in him by law, when:
a) the of icer regularly appointed to the of ice is unable
to perform his duties by reason of illness, absence or
any other cause; or
b) there exists a vacancy;
2) In no case shall a temporary designation exceed one (1)
year.
Power to remove
Gonzales III v. OP 2012 En Banc
Under the doctrine of implication, the power to appoint carries with
it the power to remove. As a general rule, therefore, all of icers
appointed by the President are also removable by him.
The exception to this is when the law expressly provides otherwise.
The Constitution expressly separates the power to remove from the
President's power to appoint.
1. Under Sec 9 Art VIII, the Members of the Supreme Court and
judges of lower courts shall be appointed by the President.
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a. However, Members of the Supreme Court may be
removed after impeachment proceedings initiated
by Congress (Sec 2 Art XI),
b. while judges of lower courts may be removed only
by the Supreme Court (Secs 6 and 11, Art VIII).
2. The Chairpersons and Commissioners of the Constitutional
Commissions shall likewise be appointed by the President,
but they may be removed only by impeachment (Sec 2 Art
XI).
3. The Ombudsman himself shall be appointed by the
President (Sec 9 Art XI) but may also be removed only by
impeachment (Sec 2 Art XI).
In giving the President the power to remove a Deputy Ombudsman
and Special Prosecutor, Congress simply laid down in express terms
an authority that is already implied from the President's
constitutional authority to appoint the aforesaid of icials in the Of ice
of the Ombudsman.
Power of control and supervision
Section 17. The President shall have control of all the executive
departments, bureaus, and of ices. He shall ensure that the laws be
faithfully executed.
⭐PIDS v. COA 2019 En Banc Leonen, J
There is no absolute or categorical rule stating that a Senior Deputy
Executive Secretary has no power to act on his own or in default of
the Executive Secretary by authority of the President generally or
speci ically.
While this may be true, the authority to issue the exemption must
nonetheless be done upon the express designation and
delegation by the president through a presidential or executive
issuance.
Furthermore, it must be stressed that the Administrative Code
explicitly grants the power to sign papers by authority of the
president to the executive secretary. It grants no similar authority
to a senior deputy executive secretary.
There are powers vested in the President by the Constitution which
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may not be delegated to or exercised by an agent or alter ego of the
President.
1. The declaration of martial law,
2. the suspension of the writ of habeas corpus, and
3. the exercise of the pardoning power,
The list is by no means exclusive, but there must be a showing that
the executive power in question is of similar gravitas and exceptional
import.
In this case, then Executive Secretary Ermita, as the President's alter
ego, had the authority to let petitioner continue implementing its
annual medical checkup program through enrollment with health
maintenance organizations. Consequently, the exemption granted by
Executive Secretary Ermita, as the President's alter ego, is valid. It
will remain so, unless disapproved or reprobated by the President.
Nacino v. Of ice of the Ombudsman 2019 En Banc
Aquino’s actuations do not constitute a participation in the planning
and implementation of Oplan Exodus since, as President of the
Republic, he does not exercise direct control over the PNP under
the doctrine of quali ied political agency.
The President of the Republic of the Philippines is NOT part of
the chain of command of the PNP. Under Section 26 of RA No.
6975, the command and direction of the PNP is vested in the Chief of
the PNP.
The President's power over the PNP is subsumed in his general
power of control and supervision over the executive department of
the government. In fact, Carpio v. Executive Secretary held that "the
national police force does not fall under the Commander-in-Chief
power of the President. As a civilian agency of the government, it is
only subject to the exercise by the President of the power of
executive control."
Command responsibility has a technical meaning. In Saez, We
ruled that to hold someone liable under the doctrine of command
responsibility, the following elements must obtain:
a) the existence of a superior-subordinate relationship
between the accused as superior and the perpetrator of the
crime as his subordinate;
b) the superior knew or had reason to know that the crime
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was about to be or had been committed; and
c) the superior failed to take the necessary and reasonable
measures to prevent the criminal acts or punish the
perpetrators thereof.
In this case, since Aquino is considered a superior of the AFP but not
the PNP which is the agency involved in this case, the irst element is
not satis ied.
Doctrine of qualified political agency
DENR v. DENR Employees
It is apropos to reiterate the elementary doctrine of quali ied
political agency. This doctrine is corollary to the control
power of the President as provided for under Article VII, Section 17.
In the case at bar, the DENR Secretary can validly reorganize the
DENR by ordering the transfer of the DENR XII Regional Of ices from
Cotabato City to Koronadal, South Cotabato. The exercise of this
authority by the DENR Secretary, as an alter ego, is presumed to be
the acts of the President for the latter had not expressly repudiated
the same.
In Chiongbian v. Orbos, this Court stressed the rule that the power
of the President to reorganize the administrative regions carries with
it the power to determine the regional centers.
⭐PIDS v. COA 2019 En Banc Leonen, J
The Court in Berdin v. Mascariñas expanded the application of
the doctrine of quali ied political agency. In that case, the doctrine
was extended to cover the Assistant Regional Director as an alter ego
of the Finance Secretary.
While this Court has at times expanded the application of the doctrine
of quali ied political agency, the doctrine remains limited to the
President's executive secretary and other Cabinet secretaries. It does
not extend to deputy executive secretaries or assistant deputy
secretaries.
Executive departments and offices
Biraogo v. Philippine Truth Commission 2010 En Banc
Does the creation of the PTC fall within the ambit of the power to
reorganize as expressed in Section 31 of the Revised Administrative
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Code? NO. Section 31 contemplates "reorganization" as limited by
the following functional and structural lines:
1) restructuring the internal organization of the Of ice of the
President Proper by abolishing, consolidating or merging
units thereof or transferring functions from one unit to
another;
2) transferring any function; or
3) transferring any agency, under the Of ice of the President
to any other Department or Agency or vice versa;
The creation of an of ice is nowhere mentioned, much less
envisioned in said provision.
While the power to create a truth commission cannot pass muster on
the basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation
of the PTC inds justi ication under Section 17, Article VII of
the Constitution, imposing upon the President the duty to ensure that
the laws are faithfully executed. (Faithful Execution Clause)
One of the recognized powers of the President granted pursuant to
this constitutionally-mandated duty is the power to create ad hoc
committees. This lows from the obvious need to ascertain facts and
determine if laws have been faithfully executed. Thus, in DOH v.
Camposano, the authority of the President to create an investigative
committee to look into the administrative charges iled against the
employees of the DOH for the anomalous purchase of medicines was
upheld.
Local government units
Art X Sec 4. The President of the Philippines shall exercise
general supervision over local governments. xxx.
Section 16. The President shall exercise general supervision
over autonomous regions to ensure that laws are faithfully
executed.
Ganzon v. CA
1. Local autonomy, under the Constitution, involves a mere
decentralization of administration, not of power, in
which local of icials remain accountable to the central
government in the manner the law may provide;
2. The new Constitution does not prescribe federalism;
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3. The change in constitutional language with respect to the
supervision clause was meant but to deny legislative control
over local governments; it did not exempt the latter from
legislative regulation provided regulation is consistent with
the fundamental premise of autonomy;
4. Since local governments remain accountable to the national
authority, the latter may, by law, and in the manner set forth
therein, impose disciplinary action against local of icials;
5. "Supervision" and "investigation" are not inconsistent
terms: "investigation" does not signify "control" which the
President does not have.
Dadole v. COA
Whether LBC 55 of the DBM is void for going beyond the
supervisory powers of the President
In administrative law, supervision means overseeing or the power
or authority of an of icer to see that subordinate of icers perform
their duties. Control, on the other hand, means the power of an
of icer to alter or modify or nullify or set aside what a subordinate
of icer has done in the performance of his duties and to substitute the
judgment of the former for that of the latter.
By constitutional iat, heads of political subdivisions are subject to
the President’s supervision only, not control, so long as their acts
are exercised within the sphere of their legitimate powers.
Any directive therefore by the President or any of his or her alter egos
seeking to alter the wisdom of a law-conforming judgment on local
affairs of an LGU is a patent nullity.
Does LBC 55 go beyond the law it seeks to implement? YES.
LBC 55 provides that the additional monthly allowances to be given
by an LGU should not exceed P1K in provinces and cities and P700
in municipalities. Section 458, par. (a)(1)(xi), of RA 7160, the law
that supposedly serves as the legal basis of LBC 55, allows the grant
of additional allowances to judges “when the inances of the city
government allow.” The said provision does not authorize setting a
de inite maximum limit.
Emergency powers
Sec 23(2) Art VI provides that in times of war or other national
emergency, the Congress may, by law, authorize the President, for
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a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution
of the Congress, such powers shall cease upon the next adjournment
thereof.
Ampatuan v. Puno 2011 En Banc re Maguindanao Massacre
The President did not proclaim a national emergency invoking Sec
23(2) of Art VI, only a state of emergency in the three places
mentioned. The calling out of the armed forces to prevent or
suppress lawless violence in such places is a power that the
Constitution directly vests in the President. She did not need a
congressional authority to exercise the same.
On declaring a state of national emergency in David v. Arroyo
A distinction must be drawn between the President's authority to
declare "a state of national emergency" and to exercise
emergency powers. To the irst, Section 18, Article VII grants the
President such power, hence, no legitimate constitutional objection
can be raised. But to the second, manifold constitutional issues arise.
President Arroyo could validly declare the existence of a state of
national emergency even in the absence of a Congressional
enactment.
But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public
interest requires a delegation from Congress.
Generally, Congress is the repository of emergency powers.
Certainly, a body cannot delegate a power not reposed upon it.
The Framers of our Constitution deemed it wise to allow Congress to
grant emergency powers to the President, subject to certain
conditions, thus:
1) There must be a war or other emergency.
2) The delegation must be for a limited period only.
3) The delegation must be subject to such restrictions as the
Congress may prescribe.
4) The emergency powers must be exercised to carry out a
national policy declared by Congress.
In Araneta v. Dinglasan, this Court emphasized that legislative
power, through which extraordinary measures are exercised, remains
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in Congress even in times of crisis.
Here, PP 1017 does not authorize the President during the
emergency to temporarily take over or direct the operation of
any privately owned public utility or business affected with
public interest without authority from Congress.
Agan v. PIATCO
The temporary takeover by the government extends only to the
operation of the business and not to the ownership thereof. As such
the government is not required to compensate the private
entity-owner of the said business as there is no transfer of
ownership, whether permanent or temporary. The State in effecting
the temporary takeover is exercising its police power.
Commander-in-chief powers
Graduated powers
Sec 18 grants the President, as Commander-in-Chief, a “sequence” of
“graduated powers.” From the most to the least benign, these are:
1. The calling out power. — The only criterion is that
‘whenever it becomes necessary,’ the President may call the
armed forces ‘to prevent or suppress lawless violence, invasion
or rebellion.’
2. The power to suspend the privilege of the writ of habeas
corpus. — It is only the privilege that is suspended, not the
writ itself. Thus, when a person is detained for an offense
related to rebellion or invasion, the Judge need not inquire into
the legality of his detention.
3. The power to declare martial law. — For the latter two
powers, the Constitution requires 2 requisites to concur:
1) An actual invasion or rebellion; AND
2) That public safety requires it.
On declaring a state of rebellion
Section 18, Article VII does not expressly prohibit the President
from declaring a state of rebellion. The President’s authority to
declare a state of rebellion springs in the main from her powers as
chief executive and, at the same time, draws strength from her
Commander-in-Chief powers.
In calling out the armed forces, a declaration of a state of
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rebellion is an utter super luity. At most, it only gives notice to
the nation that such a state exists. Sanlakas v. Reyes inds that
such a declaration is devoid of any legal signi icance. For all legal
intents, the declaration is deemed not written.
During a state of rebellion, Lacson v. Perez tells us that authorities
may only resort to warrantless arrests of persons suspected of
2.
rebellion. They should not be based on the declaration of a "state of
rebellion."
Calling out powers
3.
IBP v. Zamora
When the President calls the armed forces to prevent or suppress
lawless violence, invasion or rebellion, he necessarily exercises a
discretionary power solely vested in his wisdom. The Court, thus,
4.
cannot be called upon to overrule the President’s wisdom or
substitute its own.
However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave abuse of
discretion. It is incumbent upon the petitioner to show that the
5.
President’s decision is totally bereft of factual basis.
Congress may revoke the proclamation of martial law or suspension
of the privilege of the writ of habeas corpus and the Court may
review the suf iciency of the factual basis thereof. However, there is
no such equivalent provision dealing with the revocation or
review of the President’s action to call out the armed forces.
6.
Declaration of martial law and suspension of the
privilege of the writ of habeas corpus; extension
1. Fortun v. Arroyo 2012 En Banc af irms that although Sec 18
Art VII vests in the President the power to proclaim martial
law or suspend the privilege of the writ of habeas corpus, he
shares such power with Congress. Thus:
a. The President’s proclamation or suspension is
temporary, good for only 60 days;
b. He must, within 48 hours of the proclamation or
suspension, report his action in person or in writing
to Congress;
c. Both houses of Congress, if not in session must jointly
convene within 24 hours of the proclamation or
suspension for the purpose of reviewing its validity;
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and
d. The Congress, voting jointly, may revoke or af irm
the President’s proclamation or suspension, allow
their limited effectivity to lapse, or extend the same
if Congress deems warranted.
The constitutional validity of the President’s proclamation of
martial law or suspension of the writ of habeas corpus is irst
a political question in the hands of Congress before it
becomes a justiciable one in the hands of the Court.
Lansang held that the factual basis of the declaration of
martial law and the suspension of the privilege of the writ of
habeas corpus is not a political question and is within the
ambit of judicial review.
On extending martial law
The phrase "in an appropriate proceeding" appearing on the
third paragraph of Section 18, Article VII refers to any action
initiated by a citizen for the purpose of questioning the
suf iciency of the factual basis of the exercise of the Chief
Executive's emergency powers. It could be denominated as a
complaint, a petition, or a matter to be resolved by the Court.
In Lagman v. Medialdea 2017 En Banc, the Court had the
occasion to reexamine Fortun and clarify that the Court can
simultaneously exercise its power of review with, and
independently from, the power to revoke by Congress. In other
words, the judicial power to review is not dependent on
whether Congress exercised its own power to review the act of
the President.
Lagman established the suf iciency of factual basis test as
being the only test for judicial review of the President's power
to declare martial law and suspend the privilege of the writ of
habeas corpus under Section 18, Article VII.
a. It must be based only on facts or information
known by or available to the President at the time
he made the declaration or suspension;
b. The Court should look into the full complement or
totality of the factual basis, and not piecemeal or
individually.
c. Neither should the Court expect absolute
correctness of the facts stated in the proclamation
and in the written Report.
d. To require precision in the President's appreciation of
facts would unduly burden him and therefore impede
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the process of his decision-making.
7. The parameters for determining the suf iciency of factual
basis are as follows:
a. actual rebellion or invasion;
b. public safety requires it; the irst two requirements
must concur; and
c. there is probable cause for the President to believe
that there is actual rebellion or invasion.
8. Public safety "involves the prevention of and protection from
events that could endanger the safety of the general public from
signi icant danger, injury/harm, or damage, such as crimes or
disasters."
9. The only limitations to the exercise of congressional authority
to extend such proclamation or suspension are that:
a. the extension should be upon the President's
initiative;
b. it should be grounded on the persistence of the
invasion or rebellion and the demands of public
safety; and
c. it is subject to the Court's review of the suf iciency of
its factual basis upon the petition of any citizen.
(Lagman v. Medialdea 2019 En Banc)
10. The Court is not barred by the doctrine of conclusiveness
of judgment from examining the persistence of rebellion. The
manner in which Congress deliberated on the President's
request for extension is not subject to judicial review.
(Lagman v. Pimentel III 2018 En Banc)
11. Checks and balances on the exercise of martial law and
suspension powers. —
a. The President may declare martial law or suspend of
the privilege or the writ of the privilege of habeas
corpus only when there is an invasion or rebellion
and public safety requires such declaration or
suspension.
b. The President's proclamation or suspension shall be
for a period not exceeding 60 days.
c. Within 48 hours from the proclamation or
suspension, the President must submit a Report in
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person or in writing to Congress.
d. The Congress, voting jointly and by a vote of at
least a majority of all its Members, can revoke the
proclamation or suspension.
e. The President cannot set aside the Congress'
revocation of his proclamation or suspension.
f. The President cannot, by himself, extend his
proclamation or suspension. He should ask the
Congress' approval.
g. Upon such initiative or request from the President, the
Congress, voting jointly and by a vote of at least a
majority of all its Members, can extend the
proclamation or suspension.
h. The extension shall only be approved when the
invasion or rebellion persists and public safety
requires it.
i. The SC may review the suf iciency of the factual
basis of the proclamation or suspension or the
extension thereof, in an appropriate proceeding iled
by any citizen.
j. The SC must promulgate its decision within 30 days
from the iling of the appropriate proceeding.
k. Martial law does not suspend the operation of the
Constitution.
l. Martial law does not supplant the functioning of the
civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to
function.
m. The suspension of the privilege of the writ applies
only to persons judicially charged for rebellion or
offenses inherent in or directly connected with
invasion.
n. Finally, during the suspension of the privilege of the
writ, any person thus arrested or detained should be
judicially charged within three days, otherwise he
should be released.
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Executive clemency
Nature and limitations
Sec 19. Except in cases of impeachment, or as otherwise provided
in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit ines and forfeitures, after
conviction by inal judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of ALL the Members of the Congress.
Art IX-C Sec 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and regulations shall
be granted by the President without the favorable recommendation
of the Comelec.
Forms of executive clemency
Pardon distinguished from probation
People v. Vera
The power to suspend sentence was always a part of the judicial
power; the power to grant reprieves and pardons was always a part of
the executive power. The suspension of the sentence simply
postpones the judgment of the court temporarily or inde initely, but
the conviction and liability following it, and all civil disabilities,
remain and become operative when judgment is rendered.
A pardon reaches both the punishment prescribed for the offense
and the guilt of the offender. It releases the punishment, and blots out
of existence the guilt, so that in the eye of the law, the offender is as
innocent as if he had never committed the offense. It removes the
penalties and disabilities, and restores him to his civil rights. It
makes him, as it were, a new man, and gives him a new credit and
capacity.
Pardon distinguished from parole
Torres v. Gonzales
The grant of pardon and the determination of the terms and
conditions of a conditional pardon are purely executive acts which
are not subject to judicial scrutiny.
Pardon distinguished from amnesty
Barrioquinto v. Fernandez
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1. Pardon is a private act which must be pleaded and proved
by the person pardoned, because the courts take no notice
thereof; while amnesty is a public act of which the courts
should take judicial notice.
2. Pardon is granted to one after conviction; while amnesty
is granted to classes of persons or communities who may be
guilty of political offenses, generally before or after the
institution of the criminal prosecution and sometimes after
conviction.
3. Pardon looks forward; while amnesty looks backward
and abolishes and puts into oblivion the offense with which
he is charged that the person released by amnesty stands
before the law precisely as though he had committed no
offense.
Vera v. People
Whether or not a person invoking the bene it of amnesty should
irst admit having committed the crime of which they were
accused.
It is rank inconsistency for appellant to justify an act, or seek
forgiveness for an act which, according to him, he has not committed.
(superseding Barrioquinto)
Effect of Pardon
Monsanto v. Factoran
The pardon granted to petitioner has resulted in removing her
disquali ication from holding public employment but it cannot go
beyond that. To regain her former post as assistant city treasurer, she
must reapply and undergo the usual procedure required for a new
appointment.
Risos-Vidal v. COMELEC 2015 En Banc
Former President Estrada was granted an absolute pardon that fully
restored all his civil and political rights, which naturally includes the
right to seek public elective of ice, the focal point of this controversy.
The only instances in which the President may not extend pardon
remain to be in:
1) impeachment cases;
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2) cases that have not yet resulted in a inal conviction; and
3) cases involving violations of election laws, rules and
regulations in which there was no favorable
recommendation coming from the COMELEC.
Therefore, it can be argued that any act of Congress by way of statute
cannot operate to delimit the pardoning power of the President. The
foregoing pronouncements solidify the thesis that Articles 36 and
41 of the RPC cannot, in any way, serve to abridge or diminish
the exclusive power and prerogative of the President to pardon
persons convicted of violating penal statutes.
Who may avail of amnesty
Macaga-an v. People
The crimes to be amnestied must have been for violations of
subversion laws or those de ined and proscribed under crimes
against public order under the RPC.
Diplomatic power
Sec 21. No treaty or international agreement shall be valid and
effective unless concurred in by at least 2/3 of all the Members
of the Senate.
Bayan v. Zamora re VFA
Section 21, Article VII deals with treatise or international
agreements in general. This provision lays down the general rule
on treatise or international agreements. All treaties or
international agreements entered into by the Philippines, regardless
of subject matter, coverage, or particular designation or appellation,
requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that
applies to treaties which involve the presence of foreign military
bases, troops or facilities in the Philippines. It disallows foreign
military bases, troops, or facilities in the country, unless the
following conditions are suf iciently met, viz:
a) it must be under a treaty;
b) the treaty must be duly concurred in by the Senate and,
when so required by congress, rati ied by a majority of the
votes cast by the people in a national referendum; and
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c) recognized as a treaty by the other contracting state.
The phrase "recognized as a treaty" means that the other
contracting party accepts or acknowledges the agreement as a
treaty.
Moreover, it is inconsequential whether the United States treats the
VFA only as an executive agreement because, under international
law, an executive agreement is as binding as a treaty. To be sure, as
long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.
In our jurisdiction, the power to ratify is vested in the
President and not, as commonly believed, in the legislature.
The role of the Senate is limited only to giving or withholding
its consent, or concurrence, to the rati ication.
Pimentel v. Executive Secretary
The usual steps in the treaty-making process are: negotiation,
signature, rati ication, and exchange of the instruments of
rati ication. The treaty may then be submitted for registration and
publication under the U.N. Charter, although this step is not essential
to the validity of the agreement as between the parties.
The signature is primarily intended as a means of authenticating the
instrument and as a symbol of the good faith of the parties. It is
usually performed by the state's authorized representative in the
diplomatic mission. Rati ication, on the other hand, is the formal
act by which a state con irms and accepts the provisions of a treaty
concluded by its representative. It is generally held to be an
executive act, undertaken by the head of the state or of the
government.
Although the refusal of a state to ratify a treaty which has been signed
in its behalf is a serious step that should not be taken lightly, such
decision is within the competence of the President alone, which
cannot be encroached by this Court via a writ of mandamus.
Powers relative to appropriation measures
Pimentel, Jr. v. Aguirre
Section 4 of AO 372 cannot be upheld. A basic feature of local
iscal autonomy is the automatic release of the shares of LGUs
in the National internal revenue. This is mandated by no less than
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the Constitution. The LGC speci ies further that the release shall be
made directly to the LGU concerned within ive (5) days after every
quarter of the year and “shall not be subject to any lien or holdback
that may be imposed by the national government for whatever
purpose.” As a rule, the term “SHALL” is a word of command that
must be given a compulsory meaning. The provision is, therefore,
IMPERATIVE.
Delegated powers
1) Tariff powers under Section 28(2) of Article VI;
2) Emergency powers under Section 23(2) of Article VI;
Residual powers
Marcos v. Manglapus Decision and Resolution
The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the
President, as steward of the people. It is a power borne by the
President's duty to preserve and defend the Constitution. It also may
be viewed as a power implicit in the President's duty to take care that
the laws are faithfully executed.
Veto powers
1) General veto power. — veto of entire bill.
2) Item-veto. — The President shall have the power to veto any
particular item or items in an Appropriation, Revenue, or
Tariff bill, but the veto shall not affect the item or items to
which he does not object.
Bolinao Electronics v. Valencia
When a provision of an appropriation bill affects one or more items
of the same, the President cannot veto the provision without at the
same time vetoing the particular item or items to which it relates.
Whether the President may legally veto a condition attached to
an appropriation or item in the appropriation bill. NO.
If the veto is unconstitutional, it follows that the same produced no
effect whatsoever, and the restriction imposed by the
appropriation bill, therefore, remains.
Gonzales v. Macaraig
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The power given the executive to disapprove any item or items in an
Appropriations Bill does not grant the authority to veto a part of an
item and to approve the remaining portion of the same item.
The terms item and provision in budgetary legislation and practice
are concededly different. An item in a bill refers to the particulars,
the details, the distinct and severable parts x x x of the bill. It is an
indivisible sum of money dedicated to a stated purpose.
Explicit is the requirement that a provision in the Appropriations
Bill should relate speci ically to some "particular
appropriation" therein. The challenged "provisions" fall short of
this requirement. Consequently, Section 55 (FY '89) and Section 16
(FY ‘90), although labelled as "provisions," are actually
inappropriate provisions that should be treated as items for the
purpose of the President's veto power.
PHILCONSA v. Enriquez
Veto of Provision on Debt Ceiling — VOID
Also to be included in the category of "inappropriate
provisions" are unconstitutional provisions and provisions which
are intended to amend other laws, because clearly these kinds of laws
have no place in an appropriations bill.
These provisos are germane to and have a direct connection with the
item on debt service. Inherent in the power of appropriation is
the power to specify how the money shall be spent. The said
provisos, being appropriate provisions, cannot be vetoed
separately. Hence, the item veto of said provisions is void.
Veto of provision on ratio for road maintenance — VOID
It is not alien to the appropriation for road maintenance, and on the
other hand, it speci ies how the said item shall be expended — 70%
by administrative and 30% by contract.
Veto of provision on purchase of medicines by AFP — VOID
Being directly related to and inseparable from the appropriation item
on purchases of medicines by the AFP, the special provision cannot
be vetoed by the President without also vetoing the said item
following Bolinao Electronics.
Veto of provision on prior approval of Congress for purchase of
military equipment — VALID
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
Any provision blocking an administrative action in implementing a
law or requiring legislative approval of executive acts must be
incorporated in a separate and substantive bill.
Furthermore, Special Provision No. 3, prohibiting the use of the
Modernization Fund for payment of the trainer planes and armored
personnel carriers, which have been contracted for by the AFP, is
violative of the Constitutional prohibition on the passage of laws that
impair the obligation of contracts (Art III Sec 10), more so, contracts
entered into by the Government itself.
Veto of provision on use of savings to augment AFP pension
funds. — VALID
The Special Provision, which allows the Chief of Staff to use savings
to augment the pension fund for the AFP being managed by the
AFP-RSBS is violative of Secs 25(5) and 29(1) of the Art VI.
Condition on the deactivation of the CAFGU — VOID
Such intention must be embodied and manifested in another law
considering that it abrades the powers of the Commander-in-Chief
and there are existing laws on the creation of the CAFGU to be
amended. Again we state: a provision in an appropriations act
cannot be used to repeal or amend other laws, in this case, P.D.
No. 1597 and R.A. No. 6758.
D. Rules of Succession
a) At the beginning of the term
1. If the President-elect fails to qualify or shall not have been
chosen, the VP-elect shall ACT as President until the
President-elect shall have been chosen and quali ied.
2. If at the beginning of the term of the President, the
President-elect shall have died or shall have become
permanently disabled, the VP-elect shall BECOME President.
3. Where no President and VP shall have been chosen or shall
have quali ied, or where both shall have died or become
permanently disabled, the Senate President or, in case of his
inability, the Speaker, shall ACT as President until a President
or a VP shall have been chosen and quali ied.
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
b) During the term
4. In case of death, permanent disability, removal from of ice,
or resignation of the President, the VP shall BECOME the
President to serve the unexpired term.
5. In case these happen to both the President and VP, the Senate
President or, in case of his inability, the Speaker, shall then
ACT as President until the President or VP shall have been
elected and quali ied.
c) Temporary Disability
6. Whenever the President transmits to the Senate President and
the Speaker his written declaration that he is unable to
discharge the powers and duties of his of ice, and until he
transmits to them a written declaration to the contrary, such
powers and duties shall be discharged by the VP as Acting
President.
7. The above also applies whenever a majority of all the
Members of the Cabinet transmit the same.
8. Thereafter, when the President transmits his written
declaration that no inability exists, he shall reassume the
powers and duties of his of ice.
9. Meanwhile, should a majority of all the Members of the Cabinet
transmit within ive days their written declaration that the
President is unable to discharge the powers and duties of his
of ice, the Congress shall decide the issue. For that purpose,
the Congress shall convene, if it is not in session, within
forty-eight hours, in accordance with its rules and without need
of call.
10. If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is
required to assemble, determines by a two-thirds vote of
both Houses, voting separately, that the President is
unable to discharge the powers and duties of his of ice, the VP
shall ACT as President; otherwise, the President shall continue
exercising the powers and duties of his of ice.
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accomplished or performed by either branch before a court may
VII. JUDICIAL DEPARTMENT come into the picture."
A. Concepts Kilusang Mayo Uno v. Aquino III 2019 En Banc Leonen, J
Most important in this list of requisites is the existence of an
Judicial power
⭐actual case or controversy. In every exercise of judicial
Judicial review power, whether in the traditional or expanded sense, this is an
B. Judicial independence and autonomy absolute necessity.
C. Appointments to the judiciary There is an actual case or controversy if there is a "con lict of legal
right, an opposite legal claims susceptible to judicial
Judicial and Bar Council resolution." A petitioner bringing a case before this Court must
establish that there is a legally demandable and enforceable
D. The Supreme Court
right under the Constitution. There must be
1. a real and substantial controversy,
A. Concepts 2. with de inite and concrete issues involving the legal
Judicial power relations of the parties, and
3. admitting of speci ic relief that courts can grant.
The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law. Moreover, an actual case or controversy requires that the right must
be enforceable and legally demandable. A case is ripe for
Judicial power includes the duty of the courts of justice to settle
adjudication when the challenged governmental act is a completed
actual controversies involving rights which are legally
action such that there is a direct, concrete, and adverse effect on the
demandable and enforceable xxx. petitioner. In connection with acts of administrative agencies,
Judicial review ripeness is ensured under the doctrine of exhaustion of
administrative remedies. One other concept pertaining to judicial
and to determine whether or not there has been a grave abuse
review is intrinsically connected to it: the concept of a case being
of discretion amounting to lack or excess of jurisdiction on the moot and academic.
part of any branch or instrumentality of the Government.
As for mootness, Courts cannot render judgment after the issue has
Requisites already been resolved by or through external developments.
However, Courts will decide cases, otherwise moot and academic, if:
1. Ripeness. — An actual case or controversy calling for
the exercise of judicial power; 1. there is a grave violation of the Constitution;
2. Locus standi. — The person challenging the act must have 2. the exceptional character of the situation and the
"standing" to challenge; paramount public interest is involved;
3. when constitutional issue raised requires formulation of
3. The question of constitutionality must be raised at the earliest
possible opportunity; and controlling principles to guide the bench, the bar, and the
public; and
4. The issue of constitutionality must be the very lis mota of the
case. 4. the case is capable of repetition yet evading review.
Ripeness Three (3) circumstances must be present before this Court may rule
on a moot issue. There must be an issue raising a grave violation
Tan v. Macapagal held that for a case to be considered ripe for of the Constitution, involving an exceptional situation of
adjudication, "it is a prerequisite that something had by then been
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena By RGL
For WEEK 1 of the 2020_21 #BestBarEver
paramount public interest that is capable of repetition yet
evading review.
Locus Standi
or legal standing has been de ined as a personal and substantial
interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that
is being challenged.
Taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements
are met:
1) cases involve constitutional issues;
2) for taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is
unconstitutional;
3) for voters, there must be a showing of obvious interest in
the validity of the election law in question;
4) for concerned citizens, there must be a showing that
the issues raised are of transcendental importance
which must be settled early; and
5) for legislators, there must be a claim that the of icial
action complained of infringes upon their prerogatives as
legislators.
⭐Provincial Bus Operators Association of the Philippines v. DOLE
2018 En Banc Leonen, J
Another exception is the concept of third-party standing. Under
this concept, actions may be brought on behalf of third parties
provided the following criteria are met:
1. irst, the party bringing suit must have suffered an
'injury-in-fact,' thus giving him or her a suf iciently
concrete interest' in the outcome of the issue in dispute;
2. second, the party must have a close relation to the third
party; and
3. third, there must exist some hindrance to the third party's
ability to protect his or her own interests.
In some circumstances similar to those in White Light, the third
parties represented by the petitioner would have special and
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legitimate reasons why they may not bring the action themselves.
Understandably, the cost to patrons in the White Light case to
bring the action themselves—i.e., the amount they would pay
for the lease of the motels—will be too small compared with
the cost of the suit. This is the free rider problem in economics. It
is a negative externality which operates as a disincentive to sue and
assert a transcendental right.
As to actual controversy.
Only constitutional rights shared by many and requiring a
grounded level of urgency can be transcendent. This Court is not a
forum to appeal political and policy choices made by the Executive,
Legislative, and other constitutional agencies and organs.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever
possible. Courts will not touch the issue of constitutionality unless
it is truly unavoidable and is the very lis mota or crux of the
controversy.
Operative fact doctrine
League of Cities v. Comelec 2010 En Banc Resolution
Under the operative fact doctrine, the law is recognized as
unconstitutional but the effects of the unconstitutional law, prior to
its declaration of nullity, may be left undisturbed as a matter of
Estrada v. Arroyo
equity and fair play. In fact, the invocation of the operative fact
doctrine is an admission that the law is unconstitutional.
In Planters Products, Inc. v. Fertiphil Corporation, the Court
stated:
The general rule is that an unconstitutional law is void. It
produces no rights, imposes no duties and affords no protection. It
has no legal effect. It is, in legal contemplation, inoperative as if it has
not been passed. The doctrine of operative fact, as an exception to
the general rule, only applies as a matter of equity and fair play.
The doctrine is applicable when a declaration of unconstitutionality
will impose an undue burden on those who have relied on the
invalid law.
Political question doctrine
⭐Francisco v. House of Representatives
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
The term “political question” refers to "those questions which,
under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority
has been delegated to the Legislature or executive branch of the
Government." It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.
Judicial power is not only a power; it is also a DUTY, a duty
which cannot be abdicated by the mere specter of this creature called
the political question doctrine.
There are two species of political questions:
1) "truly political questions" and
2) those which "are not truly political questions."
Truly political questions are beyond judicial review, the reason
for respect of the doctrine of separation of powers to be maintained.
On the other hand, by virtue of Sec 1 Art VIII, courts can review
questions which are not truly political in nature.
In our jurisdiction, the determination of a truly political question
from a non-justiciable political question lies in the answer to the
question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are,
then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such limits.
EDSA I involves the exercise of the people power of revolution
which overthrew the whole government. EDSA II is an exercise of
people power of freedom of speech and freedom of assembly to
petition the government for redress of grievances which only
affected the of ice of the President.
EDSA I is extra constitutional and the legitimacy of the new
government that resulted from it cannot be the subject of judicial
review, but EDSA II is intra constitutional and the resignation of
the sitting President that it caused and the succession of the Vice
President as President are subject to judicial review.
EDSA I presented political question; EDSA II involves legal
questions.
The cases at bar pose LEGAL and not political questions. The
principal issues for resolution require the proper interpretation of
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
certain provisions in the 1987 Constitution. The issues likewise call
for a ruling on the scope of presidential immunity from suit. They
also involve the correct calibration of the right of petitioner against
prejudicial publicity.
B. Judicial independence and autonomy
To maintain the independence of the judiciary, the following safeguards
have been embodied in the Constitution:
1) The Supreme Court is a constitutional body. It cannot be
abolished nor may its membership or the manner of its
meetings be changed by mere legislation.
2) The members of the SC may not be removed except by
impeachment.
3) The SC may not be deprived of its minimum original and
appellate jurisdiction.
4) The appellate jurisdiction of the SC may not be increased by
law without its advice and concurrence.
5) Appointees to the judiciary are now nominated by the JBC and
no longer subject to con irmation by the CA.
6) The SC now has administrative supervision over all lower
courts and their personnel.
7) The SC has exclusive power to discipline judges of lower
courts.
8) The members of the SC and all lower courts have security of
tenure, which cannot be undermined by a law reorganizing the
judiciary.
9) They shall not be designated to any agency performing
quasi-judicial or administrative functions.
10) The salaries of judges may not be reduced during their
continuance in of ice.
11) The judiciary shall enjoy iscal autonomy. — Fiscal autonomy
means freedom from outside control. (Bengzon v. Drilon)
Any law which provides for an exemption from said fees would
be constitutionally in irm for it impairs the Court’s guaranteed
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iscal autonomy and erodes its independence. (AM 12-2-03-0
2012 En Banc)
12) The SC alone may initiate rules of court.
13) Only the SC may order the temporary detail of judges.
14) The SC can appoint all of icials and employees of the judiciary.
In re NPC and Re GSIS 2010 En Banc
Since the payment of legal fees is a vital component of the rules
promulgated by this Court concerning pleading, practice and
procedure, it cannot be validly annulled, changed or modi ied by
Congress.
C. Appointments to the judiciary
Sec 9. The Members of the Supreme Court and judges of lower
courts shall be appointed by the President from a list of at least
three nominees preferred by the Judicial and Bar Council for every
vacancy. Such appointments need no con irmation.
For the lower courts, the President shall issue the appointment
within 90 days from the submission of the list.
Qualifications of members of the judiciary
Sec 7. No person shall be appointed Member of the Supreme
Court or any lower collegiate court unless he is a natural-born
citizen of the Philippines. A Member of the Supreme Court must be
1. at least 40 years of age, and
2. must have been for 15 years or more, a judge of a lower
court or engaged in the practice of law in the Philippines.
The Congress shall prescribe the quali ications of judges of lower
courts, but no person may be appointed judge thereof unless he is a
citizen of the Philippines and a member of the Philippine Bar.
A Member of the Judiciary must be a person of proven
competence, integrity, probity, and independence.
Judicial and Bar Council
Composition
Sec 8. A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
1. the Chief Justice as ex of icio Chairman,
2. the Secretary of Justice, and
3. a representative of the Congress as ex of icio Members,
4. a representative of the Integrated Bar,
5. a professor of law,
6. a retired Member of the Supreme Court, and
7. a representative of the private sector.
The regular members of the Council shall be appointed by the
President for a term of 4 years with the consent of the
Commission on Appointments.
Powers
De Castro v. JBC 2010 En Banc
Does mandamus lie to compel the submission of the shortlist of
nominees by the JBC?
NO. The 90-day period is directed at the President, not at the
JBC. Thus, the JBC should start the process of selecting the candidates
to ill the vacancy in the Supreme Court before the occurrence of the
vacancy.
The duty of the JBC to submit a list of nominees before the start of the
President's mandatory 90-day period to appoint is ministerial, but
its selection of the candidates whose names will be in the list to be
submitted to the President lies within the discretion of the JBC. For
mandamus to lie against the JBC, therefore, there should be an
unexplained delay on its part in recommending nominees to the
Judiciary, that is, in submitting the list to the President.
Aguinaldo v. Aquino III 2017 En Banc re
clustering of nominees by the JBC
The clustering of nominees for the six vacancies in the
Sandiganbayan by the JBC impaired the President's power to
appoint members of the Judiciary and to determine the seniority of
the newly-appointed Sandiganbayan Associate Justices.
It also bears to point out that part of the President's power to appoint
members of a collegiate court, such as the Sandiganbayan, is the
power to determine the seniority or order of preference of such
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
newly appointed members by controlling the date and order of
issuance of said members' appointment or commission papers. By
already designating the numerical order of the vacancies, the JBC
would be establishing the seniority or order of preference of the new
Sandiganbayan Associate Justices even before their appointment by
the President and, thus, unduly arrogating unto itself a vital part of
the President's power of appointment.
D. The Supreme Court
Composition
Sec 4. The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion,
in division of three, ive, or seven Members. Any vacancy shall be
illed within 90 days from the occurrence thereof. xxxx
Powers and functions
1. Exercise original jurisdiction over cases affecting ambassadors,
other public ministers and consuls, and over petitions for
certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.
2. Review, revise, reverse, modify, or af irm on appeal or
certiorari, as the law or the Rules of Court may provide, inal
judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or
regulation is in question.
b. All cases involving the legality of any tax, impost, assessment,
or toll, or any penalty imposed in relation thereto.
c. All cases in which the jurisdiction of any lower court is in
issue.
d. All criminal cases in which the penalty imposed is reclusion
perpetua or higher.
e. All cases in which only an error or question of law is involved.
3. Assign temporarily judges of lower courts to other stations as
public interest may require. Such temporary assignment shall not
exceed six months without the consent of the judge concerned.
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4. Order a change of venue or place of trial to avoid a miscarriage of
justice.
5. Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts,
the admission to the practice of law, the integrated bar, and legal
assistance to the under-privileged.
6. Appoint all of icials and employees of the Judiciary in
accordance with the Civil Service Law.
People v. Mateo re intermediate review of the CA of cases requiring
automatic review by the SC
While the Fundamental Law requires a mandatory review by the
Supreme Court of cases where the penalty imposed is reclusion
perpetua, life imprisonment, or death, nowhere, however, has it
proscribed an intermediate review. If only to ensure utmost
circumspection before the penalty of death, reclusion perpetua or life
imprisonment is imposed, the Court now deems it wise and
compelling to provide in these cases a review by the Court of Appeals
before the case is elevated to the Supreme Court.
Estipona, Jr. v. Lobrigo 2017 En Banc re Plea-bargaining
The SC has rejected previous attempts on the part of the Congress, in
the exercise of its legislative power, to amend the Rules of Court, to
wit:
1. Fabian v. Desierto — Appeal from the decision of the Of ice
of the Ombudsman in an administrative disciplinary case
should be taken to the CA under the provisions of Rule 43 of
the Rules instead of appeal by certiorari under Rule 45 as
provided in Section 27 of R.A. No. 6770.
2. Cathay Metal v. Laguna West Multi-Purpose
Cooperative, Inc. — The Cooperative Code provisions on
notices cannot replace the rules on summons under Rule 14
of the Rules.
3. Carpio-Morales v. CA 2015 En Banc — The irst paragraph
of Section 14 of R.A. No. 6770, which prohibits courts except
the Supreme Court from issuing temporary restraining order
and/or writ of preliminary injunction to enjoin an
investigation conducted by the Ombudsman, Is
unconstitutional as it contravenes Rule 58 of the Rules.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
In determining whether a rule prescribed by the Supreme Court, for
the practice and procedure of the lower courts, abridges, enlarges, or
modi ies any substantive right, the test is whether the rule really
regulates procedure, that is, the judicial process for enforcing
rights and duties recognized by substantive law and for justly
administering remedy and redress for a disregard or infraction of
them. If the rule takes away a vested right, it is not procedural.
If the rule creates a right such as the right to appeal, it may be
classi ied as a substantive matter; but if it operates as a means of
implementing an existing right then the rule deals merely with
procedure.
Section 23 of Republic Act No. 9165 is declared unconstitutional for
being contrary to the rule-making authority of the Supreme Court
under Section 5(5), Article VIII.
Maceda v. Vasquez re supervision of lower courts and personnel
Article VIII, Section 6 exclusively vests in the Supreme Court
administrative supervision over all courts and court personnel. By
virtue of this power, it is only the Supreme Court that can oversee the
judges' and court personnel's compliance with all laws, and take the
proper administrative action against them if they commit any
violation thereof.
Thus, the Ombudsman should irst refer the matter of
petitioner's certi icates of service to this Court for determination
of whether said certi icates re lected the true status of his pending
case load, as the Court has the necessary records to make such a
determination.
Where a criminal complaint against a judge or other court
employee arises from their administrative duties, the
Ombudsman must defer action on said complaint and refer the
same to this Court for determination whether said judge or
court employee had acted within the scope of their
administrative duties.
VIII. CONSTITUTIONAL COMMISSIONS
A. Common provisions
B. Institutional independence safeguards
C. Powers and functions
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
D. Composition and quali ications of members
E. Prohibited of ices and interests
A. Common provisions
Sec 1. The Constitutional Commissions, which shall be
independent, are
a) the Civil Service Commission,
b) the Commission on Elections, and
c) the Commission on Audit.
Sec 5. The Commission shall enjoy iscal autonomy. Their
approved annual appropriations shall be automatically and
regularly released.
Sec 7. Each Commission shall decide by a majority vote of all its
Members, any case or matter brought before it within 60 days from
the date of its submission for decision or resolution.
Additional Commonalities
1) How appointed and term of of ice. — All chairpersons and
commissioners are appointed by the President with the
consent of the Commission on Appointments for a term of 7
years without reappointment.
2) Staggering of terms. — Of those irst appointed, the
Chairman shall hold of ice for seven years, a Commissioner for
ive years (2 for Comelec), and another Commissioner for three
years (the remaining 4 for Comelec), without reappointment.
3) Appointment to any vacancy shall be only for the unexpired
term of the predecessor.
4) In no case shall any Member be appointed or designated in a
temporary or acting capacity.
5) Common quali ications. — All members must be
a) Natural-born citizens;
b) at least 35 years old at the time of appointment and
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c) must not have been candidates for any elective public accountability. D. Composition and qualifications of members
position in the elections immediately preceding their
appointment. Comelec 1. Enforce and administer all laws and regulations CSC Comelec COA
relative to the conduct of an election, plebiscite,
B. Institutional independence safeguards initiative, referendum, and recall.
Composition
1 Chair + 2 1 Chair + 6
1 Chair + 2 Comms
2. Exercise exclusive original jurisdiction over all Comms Comms
1) These bodies may not be abolished by statute.
contests relating to the elections, returns, and
2) Each of them is expressly described as independent. Term 7 years without reappointment
quali ications of all elective regional, provincial,
3) Each of them is conferred certain powers and functions which and city of icials, and appellate jurisdiction over all
CPAs with not less
cannot be withdrawn or reduced by statute. contests involving elective municipal of icials
a majority than 10 years of
decided by trial courts of general jurisdiction, or
4) The chairmen and members may not be removed from of ice thereof, auditing
involving elective barangay of icials decided by
except by impeachment. including the experience, OR
trial courts of limited jurisdiction.
Chair, shall be members of the
5) The chairmen and members are given a fairly long term of 3. Decisions, inal orders, or rulings on election with proven members of Philippine Bar who
seven years. contests involving elective municipal and barangay Special capacity for the Philippine have been engaged
of ices shall be inal, executory, and not appealable. quali ication public Bar who have in the practice of
6) The terms of of ice are staggered in such a manner as to lessen
4. Decide, except those involving the right to vote, all administration been engaged law for at least 10
the opportunity for appointment of the majority of the body by years.
questions affecting elections, including in the practice
the same President. determination of the number and location of of law for at At no time shall all
7) The chairmen and members may not be reappointed or polling places, appointment of election of icials least 10 Members belong to
appointed in an acting capacity. and inspectors, and registration of voters. years. the same
among others profession.
8) The salaries may not be decreased during their continuance in
of ice.
COA Shall have the power, authority, and duty to examine, Funa v. Villar 2012 En Banc
9) The Commissions enjoy iscal autonomy. audit, and settle all accounts pertaining to the revenue
and receipts of, and expenditures or uses of funds and The Court restates its ruling on Sec. 1(2), Art. IX(D) of the
10) Each Commission may promulgate its own rules. Constitution, viz:
property, owned or held in trust by, or pertaining to, the
11) The chairmen and members are subject to certain Government, or any of its subdivisions, agencies, or 1. The appointment of members of any of the three
disquali ications and inhibitions calculated to strengthen their instrumentalities, including GOCCs with original constitutional commissions, after the expiration of the
integrity. charters, and on a post-audit basis: uneven terms of of ice of the irst set of commissioners,
1. constitutional bodies, commissions and of ices shall always be for a ixed term of seven (7) years; an
12) They are allowed to appoint their own of icials and employees.
that have been granted iscal autonomy under this appointment for a lesser period is void and unconstitutional.
C. Powers and functions Constitution; 2. Appointments to vacancies resulting from certain causes
2. autonomous state colleges and universities; shall only be for the unexpired portion of the term of the
CSC As the central personnel agency of the Government, 3. other GOCCs and their subsidiaries; and predecessor, but such appointments cannot be less than
shall establish a career service. It shall the unexpired portion as this will likewise disrupt the
4. such non-governmental entities receiving subsidy
staggering of terms.
1. strengthen the merit and rewards system, or equity, directly or indirectly, from or through the
Government, which are required by law or the 3. Members who were appointed for a full term of seven years
2. integrate all human resources development and who served the entire period, are barred from
programs for all levels and ranks, and granting institution to submit to such audit as a
condition of subsidy or equity. reappointment to any position in the Commission.
3. institutionalize a management climate conducive to 4. A commissioner who resigns after serving in the

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Commission for less than seven years is eligible for an
appointment to the position of Chairman for the unexpired
portion of the term of the departing chairman.
Such appointment is not covered by the ban on
reappointment, provided that the vacancy in the position of
Chairman resulted from death, resignation, disability or
removal by impeachment.
5. Any member of the Commission cannot be appointed or
designated in a temporary or acting capacity.
E. Prohibited o ces and interests
Sec 2. No member shall, during his tenure,
a) hold any other of ice or employment;
b) engage in the practice of any profession or
c) in the active management or control of any business,
d) be inancially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by
the Government, any of its subdivisions, agencies, or
instrumentalities, including GOCCs or their subsidiaries.
IX. BILL OF RIGHTS
A. Concept of Bill of Rights
B. Due Process of Law
C. Equal Protection of Laws
D. Right Against Unreasonable Searches and Seizures
E. Privacy of Communications and Correspondence
F. Freedom of Speech and Expression
G. Freedom of Religion
H. Liberty of Abode and Freedom of Movement
I. Eminent Domain
J. Non-impairment of Contracts
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K. Adequate Legal Assistance and Free Access to Courts
L. Right Against Self-incrimination
M. Rights of Persons Under Custodial Investigation
N. Rights of the Accused
O. Right to the Speedy Disposition of Cases
P. Right Against Excessive Fines and Cruel, Degrading, and
Inhuman Punishments
Q. Non-imprisonment for Debts
R. Right Against Double Jeopardy
S. Right Against Involuntary Servitude
T. Ex post facto laws and Bills of Attainder
A. Concept of Bill of Rights
Nature of provisions
Manila Prince Hotel v GSIS
Thus, we have treated as self-executing the provisions in the Bill of
Rights on arrests, searches and seizures, the rights of a person under
custodial investigation, the rights of an accused, and the privilege
against self-incrimination. It is recognized that legislation is
unnecessary to enable courts to effectuate constitutional provisions
guaranteeing the fundamental rights of life, liberty and the
protection of property. The same treatment is accorded to
constitutional provisions forbidding the taking or damaging of
property for public use without just compensation.
Against whom enforceable
People v. Domasian
The Bill of Rights cannot be invoked against acts of private
individuals, being directed only against the government and its
law-enforcement agencies as a limitation on of icial action.
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Privacy and autonomy
Ople v. Torres
The essence of privacy is the "right to be let alone."
Speci ic guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and
substance. Various guarantees create zones of privacy.
The right to privacy as such is accorded recognition
independently of its identi ication with liberty; in itself, it is fully
deserving of constitutional protection.
The right to privacy is a fundamental right guaranteed by the
Constitution, hence, it is the burden of government to show that A.O.
No. 308 is justi ied by some compelling state interest and that it is
narrowly drawn. The possibilities of abuse and misuse of the PRN,
biometrics and computer technology are accentuated when we
consider that the individual lacks control over what can be read or
placed on his ID, much less verify the correctness of the data
encoded. They threaten the very abuses that the Bill of Rights seeks
to prevent.
Vivares v. STC 2014
The three strands of the right to privacy, viz:
1) locational or situational privacy — refers to the privacy
that is felt in physical space, such as that which may be
violated by trespass and unwarranted search and seizure;
2) informational privacy — usually de ined as the right of
individuals to control information about themselves; and
3) decisional privacy — usually de ined as the right of
individuals to make certain kinds of fundamental choices
with respect to their personal and reproductive autonomy.
Relation to human rights
Republic v. Sandiganbayan
The Bill of Rights under the 1973 Constitution was not operative
during the interregnum. However, the protection accorded to
individuals under the Covenant and the Declaration remained
in effect during the interregnum.
During the interregnum, a person could not invoke any
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exclusionary right under a Bill of Rights because there was
neither a constitution nor a Bill of Rights during the interregnum.
Under Article 17(1) of the ICCPR, the revolutionary government had
the duty to insure that "no one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or
correspondence." Although the signatories to the Declaration did not
intend it as a legally binding document, being only a declaration, the
Court has interpreted the Declaration as part of the generally
accepted principles of international law and binding on the
State. Thus, the revolutionary government was also obligated under
international law to observe the rights of individuals under the
Declaration.
B. Due Process of Law
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, xxxx.
Notes
1. Due process is a guaranty against any arbitrariness on the part
of the government.
2. Protects all persons, natural as well as juridical, citizen or
alien.
3. Juridical persons are also covered but only insofar as their
property is concerned.
4. To deprive is to “take away forcibly, to prevent from
possessing, enjoying or using something.”
5. Deprivation is denial of the right to life, liberty or property. It
is per se not unconstitutional. What is prohibited is deprivation
without due process of law.
Concept of right to life, liberty and property
1. Life is the integrity of the physical person.
2. Included therein is the
a) right to give full rein to one’s all natural attributes,
b) to expand the horizons of one’s mind,
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c) to widen the reach of one’s capabilities,
d) to enhance those moral and spiritual values that can make
one’s life more meaningful and rewarding.
3. According to Imbong v. Ochoa, life commences upon
“conception, that is, upon fertilization.”
4. Liberty is the freedom to do right and never wrong; it is ever
guided by reason and the upright honorable conscience of the
individual.
Agcaoili, Jr. v. Fariñas 2018 En Banc
In Secretary of National Defense et al. v. Manalo et al., the Court
explained the concept of right to life in this wise:
While the right to life under Article III, Section 1 guarantees
essentially the right to be alive—upon which the enjoyment of all
other rights is preconditioned—the right to security of
person is a guarantee of the secure quality of this life. In a broad
sense, the right to security of person "emanates in a person's
legal and uninterrupted enjoyment of his life, his limbs, his body,
his health, and his reputation. It includes the right to exist, and
the right to enjoyment of life while existing, and it is invaded not
only by a deprivation of life but also of those things which are
necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual."
The right to liberty, on the other hand, was de ined in the City of
Manila, et al. v. Hon. Laguio, Jr., in this manner:
Liberty as guaranteed by the Constitution was de ined to include
"the right to exist and the right to be free from arbitrary
restraint or servitude.
⭐Acosta v. Ochoa 2019 En Banc Leonen, J
There is no constitutional right to bear arms. Neither is the
ownership or possession of a irearm a property right. Persons
intending to use a irearm can only either accept or decline the
government's terms for its use. The grant of license, however, is
without prejudice to the inviolability of the home.
With the bearing of arms being a mere privilege granted by the
State, there could not have been a deprivation of petitioners'
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right to due process in requiring a license for the possession of
irearms. Article III, Section 1 of the Constitution is clear that only
life, liberty, or property is protected by the due process
clause. True property rights arise from legitimate claims of
entitlement de ined by existing rules or understanding that stem from
an independent source, such as law.
Assuming, for the sake of argument, that the right to possess a
irearm was considered a property right, it is doctrine that
property rights are always subject to the State's police power.
Kinds of due process
Palacios v. People 2019
Due process is comprised of two (2) components —
a) substantive due process which requires the intrinsic
validity of the law in interfering with the rights of the person
to his life, liberty, or property, and
b) procedural due process which consists of the two basic
rights of notice and hearing, as well as the guarantee of
being heard by an impartial and competent tribunal.
Substantive
1. Requires the intrinsic validity of the law in interfering with the
rights of the person to his life, liberty or property.
2. Inquiry is whether it is a proper exercise of legislative power.
3. The law must have a valid governmental objective.
4. This objective must be pursued in a lawful manner. In other words,
the means employed must be reasonably related to the
accomplishment of the purpose and not unduly oppressive.
5. In Kwong Sing v. City of Manila, an ordinance requiring all laundry
establishments to issue their receipts in English or Spanish was
sustained by the Court to protect the public from deceptions and
misunderstandings that might arise with the receipts in Chinese
characters that most don’t understand.
6. However, in Yu Cong Eng v. Trinidad, a law prohibiting the keeping
of account books in any language other than English, Spanish, or
any other local dialect was invalidated.
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The right to preliminary investigation is substantive, not Administrative speech, gender, or race, interest and on the absence
merely formal or technical. As such, to deny petitioner's motion for Requisites other fundamental of less restrictive means for
reinvestigation on the basis of the provisions of A.M. No. 11-6-10-SC rights such as suffrage, achieving that interest.
would be to deprive him of the full measure of his right to due 1) The right to a hearing, which includes the right to present judicial access,
process on purely procedural grounds. one’s case and submit evidence in support thereof. interstate travel

Procedural 2) The tribunal must consider the evidence presented. In terms of judicial Determines the quality and
Our SC has held that “the twin requirements of notice and hearing 3) The decision must have something to support itself. review of statutes or the amount of governmental
constitute the essential elements of due process and neither of these ordinances: interest brought to justify
4) The evidence must be substantial. the regulation of
elements can be eliminated without running afoul of the
fundamental freedoms.
constitutional guaranty.” 5) The decision must be rendered on the evidence presented
at the hearing. Rational Review for economic Rationally further a
Judicial
6) The tribunal or body or any of its judges must act on its or his Basis legislation; equal legitimate governmental
Requirements are as follows
Standard protection challenges interest
1) There must be an impartial court or tribunal clothed with own independent consideration of the law and facts of the
judicial power to hear and determine the matter before it. controversy and not simply accept the views of a subordinate Heightened Classi ication based on Governmental interest is
in arriving at a decision. or gender and legitimacy extensively examined and
2) Jurisdiction must be lawfully acquired over the person of the
Immediate the availability of less
defendant and over the property which is the subject matter of 7) The board or body should, in all controversial questions,
Scrutiny restrictive measures
the proceeding. render its decision in such a manner that the parties to the considered.
proceeding can know the various issues involved, and the
3) The defendant must be given an opportunity to be heard.
reason for the decision rendered. C. Equal Protection of Laws
4) Judgment must be rendered upon lawful hearing.
Ang v. Belaro, Jr. 2019
In re Abellana v. Paredes 2019 Section 1. xxx nor shall any person be denied the equal protection
The right to be heard is the most basic principle of due process.
of the laws.
Jurisprudence has recognized that the writ of habeas corpus may also There is only denial of due process when there is total absence or
be availed of as a post-conviction remedy when, as a consequence lack of opportunity to be heard or to have one's day in court. Concept
sentence as to circumstance of a judicial proceeding, any of the
Technical rules of procedure are not strictly applied in administrative 1. Requires that all persons or things similarly situated should be
following exceptional circumstances is attendant:
proceedings and administrative due process cannot be fully treated alike, both as to rights conferred and responsibilities
1) there has been a deprivation of a constitutional right equated with due process in its strict judicial sense. The essence of
imposed.
resulting in the restraint of a person; due process is simply to be heard, or as applied to administrative
2) the court had no jurisdiction to impose the sentence; or proceedings, an opportunity to explain one's side, or an 2. Substantive equality is not enough. The law must also be
opportunity to seek a reconsideration of the action or ruling enforced and applied equally.
3) the imposed penalty has been excessive, thus voiding the complained of.
sentence as such excess. 3. In People v. Vera, the old Probation Law provided that the
Even if it were true that petitioner or his counsel were not noti ied of Levels of Scrutiny probation system shall be applicable “only in those provinces
the scheduled hearing, it is still not enough to warrant a inding of in which the respective provincial boards have provided for the
denial of due process. For in the application of the principle of due Test Deals with How?
salary of a probation of icer.” On its face, it is a sound law. But
process, what is sought to be safeguarded is not lack of previous
Strict Freedom of the mind; Focus is on the presence of when applied, it discriminates against persons in one
notice but the denial of the opportunity to be heard.
Scrutiny restricting the political compelling, rather than province that may not be able to provide for the salary of a
process; regulation of substantial governmental probation of icer. Thus, they are denied probation.

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4. Signi icantly, in Yrasuegui v. PAL, the dismissal of an
overweight light attendant was upheld as the equal protection
clause erects no shield against private conduct, however
discriminatory or wrongful. In another case of International
School Alliance of Educators v. Quisumbing, however, the equal
protection clause was applied on a private entity.
Requisites for valid classification
The grouping of persons or things similar to each other in certain
particulars and different from all others in these same particulars.
1) Based upon substantial distinctions.
2) Germane to the purpose of the law.
3) Not be limited to existing conditions only.
4) Apply equally to all members of the same class.
Substantial Distinctions
1. Certain physical differences of persons can in some instance be
the basis of a valid classi ication, i.e. strength, height and
weight, health condition, age.
2. In Ceniza v. COMELEC, a law classifying cities as highly
urbanized if they had an annual revenue of at least P40 million
and all others as component cities was upheld since it would
show whether a city is capable of existence and development
independent from the province where it is geographically
located. Being so, they are exempt from voting for provincial
of icials.
3. There is also a substantial distinction between barangay
of icials and other elected public of icials, in terms of
term-limit and length of term.
4. RA 6770 which authorizes the Ombudsman to impose a
six-month preventive suspension, instead of the civil service
provisions of the Admin Code, which limits such suspension to
not exceeding 90 days, does not violate equal protection.
5. In International School Alliance of Educators v. Quisumbing, it
was ruled that there exists no substantial distinction between
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local-hire and foreign teachers, in light of the long honored
legal truism, “equal pay for equal work.”
6. In DECS v. San Diego, the three- lunk rule in NMAT was upheld
and not violative of equal protection as there was a substantial
distinction between medical students and other students who
are not subjected to the NMAT and the three- lunk rule.
7. There also exists between presidential appointees occupying
upper-level positions in government from non-presidential
appointees and those that occupy the lower positions in
government.
8. Goldenway Merchandising Corporation v. Equitable PCI Bank
upheld Sec 47 RA 8791 that shortens the period of
redemption for juridical persons whose properties were
foreclosed and sold in accordance with Act No 3135. There is
substantial difference based on the nature of the properties
foreclosed, residence for natural persons, as compared to
industrial or commercial purposes for juridical persons which
necessitates a shorter redemption period to reduce the period
of uncertainty in the ownership of said properties and enable
mortgagee-banks to dispose sooner of their acquired assets.
9. Garcia v. Drilon validated RA 9262 or the VAWC Law as there
is a need to employ protection upon women as they are more
likely to be victims of abuses.
10. In Tatad v. Secretary of Energy, the law deregulating the oil
industry was declared unconstitutional on the ground inter alia
that it discriminated against the new players, insofar as it
placed them at a competitive disadvantage vis-a-vis the
established oil companies by requiring them to meet certain
conditions already being observed by the latter.
11. Serrano v. Gallant Maritime Services, Inc. declared that there
was suspect classi ication against overseas workers with an
unexpired portion of one year or more in their contracts which
burdens them with a peculiar disadvantage.
12. There is no substantial distinction between those tried and
convicted by a military court vis-a-vis those tried and
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convicted in regular courts in terms of their rights as accused,
as held in Garcia v. Executive Secretary.
13. EO No 1 of President Benigno Aquino III on his “Truth
Commission” was invalidated as it zeroed-in on the past
administration of Arroyo.
14. Also considered by the SC as discriminatory was Sec 5.24 of
the IRR of the Reproductive Health Law. It nulli ied said
law in Imbong v. Ochoa, saying that the conscientious
objection clause should be equally protective of the religious
belief of public health of icers. There is no perceptible
distinction why they should not be considered exempt from the
mandates of the law. The protection accorded to other
conscientious objectors should equally apply to all medical
practitioners without distinction whether they belong to the
private or public sector.
15. In granting the petition in Ang Ladlad LGBT Party v. COMELEC,
the Court further invoked the principle of non-discrimination,
as provided for also under the ICCPR and the UDHR.
Philippine Plastics Industry Association v. San Pedro 2018
Resolution
The subject Ordinance did not violate the equal protection clause
of the Constitution, as there is substantial distinction between the
primary and secondary plastic packaging materials, or even between
plastic packaging materials and plastic cutlery.
Relevance to Purpose of Law
16. Classi ication will still be invalid if not relevant or germane to
the purpose of the law.
Duration
17. Classi ication must be enforced not only for the present but as
long as the problem sought to be corrected continues to exist.
18. In People v. Cayat, the law prohibited members of the
non-Christian tribes from drinking foreign liquor as they have
low tolerance of such drink.
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19. In Ormoc Sugar Co., Inc. v. Treasurer of Ormoc City, an
ordinance imposing 1% tax per export sale to the US of said
company was invalidated as it is restricted to the current
condition that only one sugar mill exists in Ormoc. Should
there be another sugar mill, it will not be imposed with such
tax as the ordinance speci ically mentioned the petitioner.
Theory of Relative Constitutionality
20. The constitutionality of a statute cannot, in every instance, be
determined by a mere comparison of its provisions with
applicable provisions of the Constitution, since the statute may
be constitutionally valid as applied to one set of facts and
invalid in its application to another.
21. A statute valid at one time may become void at another time
because of altered circumstances.
22. Thus, if a statute in its practical operation becomes arbitrary or
con iscatory, its validity, even though af irmed by a former
adjudication, is open to inquiry and investigation in the
light of changed conditions.
Applicability to All
23. Substantive similarity will suf ice; and as long as this is
achieved, all those covered by the classi ication are to be
treated equally.
24. In Villegas v. Hiu Chong Tsai Pao Ho, an ordinance imposing a
work permit fee of P50.00 upon all aliens desirous of obtaining
employment in Manila was struck down noting that the same
amount is being collected whether the alien is casual or
permanent, part time or full-time, or whether he is a lowly
employee or a highly paid executive.
25. In Tatad v. Secretary of Energy, the SC struck down a law
deregulating the downstream oil industry for violation of the
equal protection clause as it favored the oligopoly of the 3 big
players to the prejudice of prospective investors that would be
saddled with requirements already complied with by the three
oil giants.
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DPWH Region IV-A v. COA 2019 En Banc on Selective Prosecution
In People v. Dela Piedra, the Court declared that an erroneous
performance of statutory duty — such as an apparent selective
enforcement of the statute — could not be considered a
violation of the equal protection clause, unless the element of
intentional or purposeful discrimination is shown.
Levels of scrutiny
⭐Zomer Development v. CA 2020 En Banc Leonen, J
In Samahan ng Progresibong Kabataan v. Quezon City, this Court
summarized the three (3) tests to determine the reasonableness
of a classi ication:
The strict scrutiny test applies when a classi ication either
1. interferes with the exercise of fundamental rights,
including the basic liberties guaranteed under the
Constitution, or
2. burdens suspect classes.
The intermediate scrutiny test applies when a classi ication
does not involve suspect classes or fundamental rights, but requires
heightened scrutiny, such as in classi ications based on gender and
legitimacy.
Lastly, the rational basis test applies to all other subjects not
covered by the irst two tests.
A "suspect class" is "a class saddled with such disabilities, or
subjected to such a history of purposeful unequal treatment, or
relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political
process. "
Juridical entities cannot be considered a "suspect class."
The rational basis test may be applied to determine the
constitutionality of Republic Act No. 8971, Section 47. The rational
basis test requires only that
a) there be a legitimate government interest and that
b) there is a reasonable connection between it and the means
employed to achieve it.
A longer period of redemption is given to natural persons whose
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mortgaged properties are more often used for residential purposes. A
shorter period of redemption is given to juridical persons whose
properties are more often used for commercial purposes. Goldenway
Merchandising explains that the shorter period is aimed to ensure
the solvency and liquidity of banks.
D. Right Against Unreasonable Searches and
Seizures
Sec 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except
1. upon probable cause
2. to be determined personally by the judge
3. after examination under oath or af irmation of the
complainant and the witnesses he may produce, and
4. particularly describing the place to be searched and the
persons or things to be seized.
Concept of privacy
1. The rights against unreasonable searches and seizures and to
the privacy of communication and correspondence are
available to all persons.
2. Such right is personal and may only be invoked by the person
entitled to it.
3. The “right to be left alone” extends not only to the privacy of
one’s home but also to his of ice, including the papers and
effects that may be found there.
4. The right applies as a distraint directed only against the
government and its agencies tasked with the enforcement of
the law.
Concept of a search
1. What constitutes a reasonable or unreasonable search and
seizure in any particular case is purely a judicial question,
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determinable from a consideration of the circumstances
involved.
Requisites of a valid warrant
1) Existence of Probable Cause
1. Probable cause has been de ined as referring to “such facts
and circumstances antecedent to the issuance of the warrant
that in themselves are suf icient to induce a cautious man to
rely on them and act in pursuance thereof.”
2. A inding of probable cause need not be based on clear and
convincing evidence, or on evidence beyond reasonable doubt.
But, it must be more than mere suspicion.
3. The warrant must refer to only one speci ic offense, provided
in Sec 3 Rule 126 of the Rules of Court.
Estrada v. Of ice of the Ombudsman 2015 En Banc
Probable cause can be established with hearsay evidence, as
long as there is substantial basis for crediting the hearsay.
Hearsay evidence is admissible in determining probable cause in a
preliminary investigation because such investigation is merely
preliminary, and does not inally adjudicate rights and obligations of
parties.
People v. Ramon 2019
The quantum of proof to establish probable cause and a prima
facie case for purposes of issuance of an arrest warrant and for
preliminary investigation are one and the same.
If the evidence on record does not clearly establish probable cause
then the imperative is for the prosecutor or the judge to relieve the
accused from the pain of going through trial. Conversely, if the inding
by the prosecutor or the judge is that the evidence on record
suf iciently establishes a prima facie case or probable cause against
the accused, the accused should be indicted and held for trial.
2) Personal Determination by the Judge
1. Such issuance is not a ministerial function of the judge who had
the right to determine for himself the existence of probable
cause. He is not bound by the indings of the prosecutor.
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2. Thus, in Soliven v. Makasiar, the judge shall: the search of the of ice and the seizure of documents,
paraphernalia, properties and other implements of any
a. Personally evaluate the report and the supporting
unlicensed recruiter for overseas employment, was declared
documents submitted by the iscal regarding the
unconstitutional.
existence of probable cause and on the basis thereof,
People v. Gabiosa, Sr. 2020
issue a warrant of arrest, or
b. If on the basis thereof he inds no probable cause, he There is no need to examine both the applicant and the witnesses if
either one of them is suf icient to establish probable cause.
may disregard the iscal’s report and require the
submission of supporting af idavits of witnesses to The searching questions propounded to the applicant and the
aid him in arriving at a conclusion as to the existence witnesses depend largely on the discretion of the judge. It is
axiomatic that
of probable cause.
1) the examination must be probing and exhaustive, not
4. In other words, as was held in Enrile v. Salazar, the judge
merely routinary, general, peripheral, perfunctory or
need not personally determine the existence of probable cause pro-forma;
by examining under oath or af irmation the complainant and 2) the judge must not simply rehash the contents of the
his witnesses, it being suf icient that he follows established af idavit but must make his own inquiry on the intent and
justi ication of the application;
procedure by personally evaluating the report and
supporting documents submitted by the prosecutor. 3) the questions should not merely be repetitious of the
averments stated in the af idavits or depositions of the
5. In People v. Desmond, MeTC or MTC, and MTCC judges are no
applicant and the witnesses.
longer authorized to conduct preliminary investigations as
per AM No. 05-8-26-SC, 30 August 2005.
Fenix v. CA 2016
6. In Ho v. People, the objectives of the prosecutor and the judge
We uphold the power of judges to dismiss a criminal case when the
in determining probable cause were distinguished: evidence on record clearly fails to establish probable cause for the
Prosecutor Judge issuance of a warrant of arrest.
First, judges have no capacity to review the prosecutor's
Whether there is reasonable If a warrant of arrest should be determination of probable cause. That falls under the of ice of the
ground to believe that the issued to place the accused in DOJ Secretary.
accused is guilty and should be immediate custody so as not to
held for trial. frustrate the ends of justice. Second, once a complaint or an Information has been iled, the
disposition of the case is addressed to the sound discretion of the
Conducts preliminary Conducts preliminary inquiry/ court, subject only to the quali ication that its action must not impair
investigation proper examination the substantial rights of the accused or the right of the People to due
process of law.
Executive: for the purpose of Judicial: to ascertain whether a Third, the judge's determination of probable cause has a different
iling a criminal information in warrant of arrest should be objective than that of the prosecutor.
court issued.
The judge is not compelled to follow the prosecutor's certi ication of
the existence of probable cause. As stated in People v. Inting, "it is
7. In Salazar v. Achacoso, Art 38(c) of the Labor Code which the report, the af idavits, the transcripts of stenographic notes, and all
empowers the SOLE to cause the arrest and detention and order
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other supporting documents behind the prosecutor's certi ication
4) Particularity of Description
which are material in assisting the judge to make his determination."
The panel's act of resolving the complaint against petitioners and
Ong primarily on the basis of Doble's evidence, and in spite of the
timely submission of the counter-af idavits, was clearly committed
with grave abuse of discretion.
3) Examination of Applicant
1. Evidence must be based on the personal knowledge of those
who offered same and not on mere information or belief.
Hearsay is not allowed.
2. In Alvarez v. CFI, a search warrant was annulled as it was
issued of an af idavit based on “reliable information” only.
3. In the Burgos case, the application for search warrants iled by
two military of icers on the basis of “the evidence gathered and
collected by our unit” was rejected.
4. By contrast, the search warrant was sustained in Yee Sue Koy v.
Almeda, where it was shown that the complainant and his
witnesses, of their own personal knowledge obtained from the
personal investigations conducted by them, both declared
under oath that the petitioner was engaged in usurious
activities.
5. The cases of Mata v. Bayona and Tabujara v. People
invalidated the search warrant and warrant of arrest,
respectively, as they were based solely on the statement of
witnesses whom the judge did not personally examine in
writing and under oath.
6. A challenge against the participation of a private person in a
search warrant proceeding was rejected in PLDT v. HPS
Software and Communication Corporation, for as long as
the private party is in collaboration with the NBI or such
government agency. The party may ile an opposition to a
motion to quash the search warrant issued by the court, or
a motion for reconsideration of the court order granting such
motion to quash.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
1. The Constitution requires that the place to be searched or the
persons or things to be seized be described with such
particularity as to enable the person serving the warrant to
identify them. Otherwise, it is considered as a general
warrant which is proscribed.
2. Tests for speci icity:
a) When the description therein is as speci ic as the
circumstances will ordinarily allow;
b) When the description expresses a conclusion of fact
— not of law — by which the warrant of icer may be
guided;
c) When the things described are limited to those which
bear direct relation to the offense for which the
warrant is being issued.
4. A search warrant need not identify with particularity the
person against whom it is directed; it suf ices that the place to
be searched and the things to be seized are described.
5. While a John Doe warrant is generally held invalid, it is enough
if there is some descriptio personae that will enable the
of icer to identify the accused.
6. A warrant would be valid:
a) When it enables the police of icers to readily identify
the properties to be seized;
b) It leaves them with no discretion regarding the
articles to be seized;
c) When the things described are limited to those that
bear a direct relation to the offense charged.
8. Only the articles particularly described in the warrant can be
seized, and no other property can be taken thereunder unless it
is prohibited by law.
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9. A search warrant is severable. Those items which are not
particularly described may simply be cut off without
destroying the whole warrant. (Microsoft Corporation v.
Maxicorp, Inc.)
10. The fact that the of icers, after making a legal search and
seizure under the warrant, illegally made a search and seizure
of other property not within the warrant does not invalidate the
irst search and seizure.
11. The Constitution requires search warrants to particularly
describe not only the place to be searched, but also the persons
to be searched.
12. In People v. Tiu Won Chua, the validity of the search warrant
was upheld despite the mistake in the name of the persons to
be searched, because the authorities conducted surveillance
and a test-buy operation before obtaining the search warrant
and subsequently implementing it.
Dimal v. People 2018
A description of a place to be searched is suf icient if the of icer with
the warrant can ascertain and identify with reasonable effort the
place intended, and distinguish it from other places in the
community. A designation that points out the place to be searched to
the exclusion of all others, and on inquiry unerringly leads the peace
of icers to it, satis ies the constitutional requirement of de initeness.
In Vallejo v. CA, the Court clari ied that technical precision of
description is not required. It is only necessary that there be
reasonable particularity and certainty as to the identity of the
property to be searched for and seized, so that the warrant shall not
be a mere roving commission.
An otherwise overbroad warrant will comply with the particularity
requirement when the af idavit iled in support of the warrant is
physically attached to it, and the warrant expressly refers to the
af idavit and incorporates it with suitable words of reference.
Warrantless searches
1) Consented searches
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1. It is not to be lightly inferred and must be shown by clear and implied acquiescence, which amounts to no consent at all. The
convincing evidence. validity of a supposedly consented warrantless search is contingent
on the totality of the attendant circumstances.
2. It must be voluntary in order to validate an otherwise illegal
search; that is, the consent must be Here, Sison, who was then unarmed, was prodded by the arresting
of icers to open the pickup's hood. His beguiling conformity is easily
a) unequivocal,
accounted by how he was then surrounded by police of icers who
had speci ically lagged him and his companions down. He was
b) speci ic,
under the coercive force of armed law enforcers. His consent, if
c) intelligently given and at all, was clearly vitiated.
d) uncontaminated by any duress or coercion.
2) Incident to a lawful arrest
3. It must be shown that
1. The individual being arrested may be frisked for concealed
a) The right exists;
weapons that may be used against the arresting of icer and all
b) That the person involved had knowledge. Either actual unlawful articles found in his person or within his
or constructive, of the existence of such right; and immediate control may be seized.
c) The said person had an actual intention to relinquish 2. People v. Figueroa stressed that evidence obtained during a
the right. warrantless search made before, and not after, a warrantless
4. The following characteristics of person giving consent and the arrest would be inadmissible.
environment in which consent is given may be of help: 3. While buy-bust operations have been recognized as valid, it
1) Age of defendant; must be distinguished from instigation, when a person who is
otherwise not predisposed to commit the crime is enticed or
2) Public or secluded place;
lured or talked into committing the crime.
3) Objected or passively looked on;
4. Decoy solicitation or the act of soliciting drugs during a
4) Education and intelligence; buy-bust operation has been ruled as valid.
5) Presence of coercive police procedures; 5. Prior surveillance is not necessary for as long as the buy-bust
team is accompanied to the target area by the informant.
6) Belief that no incriminating evidence will be found;
7) Nature of police questioning; 6. Warrantless arrests made on the basis alone of “tips” or
“reliable information” is not suf icient. It is further required
8) Environment where questioning took place; and
that the accused performed some overt act that would indicate
9) Possibly vulnerable subjective state of the person that he has committed, is actually committing, or is attempting
consenting. to commit an offense.
⭐People v. Yanson 2019 Leonen, J 7. The warrantless arrests of the accused which were based solely
It cannot be said that Sison, the driver, consented to the search on a “report from a civilian asset” or mere “information” were
made by the arresting of icers. Jurisprudence has settled that mere likewise invalidated in People v. Tudtud and People v.
passive conformity or silence to the warrantless search is only an Nuevas.
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8. Antiquera v. People, in acquitting the accused, declared, citing
People v. Martinez, that a waiver of an illegal warrantless
arrest does not carry with it a waiver of the inadmissibility of
evidence seized during the illegal warrantless arrest.
9. May only be made within the permissible area of search, or the
place within the immediate control of the person being arrested
as per Espano v. CA.
10. It has later been ruled that a search substantially
contemporaneous with an arrest can precede the arrest if the
police have probable cause to make the arrest at the outset of
the search.
⭐Manibog v. People 2019 Leonen, J
For a "stop and frisk" search to be valid, the totality of suspicious
circumstances, as personally observed by the arresting of icer, must
lead to a genuine reason to suspect that a person is committing an
illicit act.
Two (2) of the exceptions to a search warrant—a warrantless search
incidental to a lawful arrest and "stop and frisk"—are often confused
with each other. Malacat v. CA explained that they "differ in terms of
the requisite quantum of proof before they may be validly effected
and in their allowable scope."
The lawful arrest generally precedes, or is substantially
contemporaneous, with the search. In direct contrast with
warrantless searches incidental to a lawful arrest, stop and frisk
searches are conducted to deter crime.
For a valid stop and frisk search, the arresting of icer must have had
personal knowledge of facts, which would engender a reasonable
degree of suspicion of an illicit act.
To sustain the validity of a stop and frisk search, the arresting
of icer should have personally observed two (2) or more
suspicious circumstances, the totality of which would then create a
reasonable inference of criminal activity to compel the arresting
of icer to investigate further.
3) Of vessels and aircraft for violation of immigration, customs,
and drug laws
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1. In People v. Aminnudin, where the accused was searched and
arrested upon disembarkation from a passenger vessel, the
Court held that there was no urgency to effect a warrantless
search. The Philippine Constabulary had at least two days
within which they could have obtained a warrant to search and
arrest the accused. Yet, they did nothing; no effort was made to
comply with the law.
2. Search made pursuant to routine airport security procedure
which is allowed under Sec 9 of RA 6235 was applied in
People v. Johnson and People v. Canton, such that
announcements place passengers on notice that ordinary
constitutional protections against warrantless searches and
seizures do not apply to routine airport procedures.
3. The scope of a search pursuant to airport security procedures
is not con ined only to search for weapons.
4) Of moving vehicles
1. In People v. Dequina, the SC considered dried marijuana
leaves in traveling bags being carried or transported by the
accused in a taxi cab as admissible in evidence against them.
Since a crime was actually then being committed by the
accused, their warrantless arrest was legally justi ied, as well
as the ensuing search.
2. A warrantless search and seizure involving an accused which
was caught in lagrante delicto transporting marijuana using a
bicycle was upheld in People v. Pena lorida.
3. It has been clari ied though that the exception from securing a
search warrant when it comes to moving vehicles does not give
the police authorities unbridled discretion to conduct a
warrantless search of an automobile. Probable cause must
People v. Johnson
exist.
5) Of automobiles at borders or constructive borders
1. One such form of search of moving vehicles is the
"stop-and-search" for as long as it is warranted by the
exigencies of public order and conducted in a way least
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
intrusive to motorists. Routine inspections may be had:
a) where the of icer merely draws aside the curtain of a
vacant vehicle which is parked on the public
fairgrounds;
b) simply looks into a vehicle;
c) lashes a light therein without opening the car's doors;
d) where the occupants are not subjected to a physical or
body search;
e) where the inspection of the vehicles is limited to a
visual search or visual inspection; and
f) where the routine check is conducted in a ixed area.
2. In the cases of Caballes v. CA and People v. Libnao, a
checkpoint search may either be a mere routine inspection,
or it may involve an extensive search.
3. For a mere routine inspection, the search is normally
permissible when it is:
a. limited to a mere visual search,
b. where the occupants are not subjected to a physical or
body search.
4. On the other hand, when the vehicle is stopped and subjected to
an extensive search, it would be constitutionally permissible
only if
a. the of icers conducting the search had reasonable or
probable cause to believe, before the search, that either
the motorist is a law offender or
b. they will ind the instrumentality or evidence
pertaining to a crime in the vehicle to be searched.
Persons may lose the protection of the search and seizure clause by
exposure of their persons or property to the public in a manner
re lecting a lack of subjective expectation of privacy, which
expectation society is prepared to recognize as reasonable. Such
recognition is implicit in airport security procedures. There is
little question that such searches are reasonable, given their
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minimal intrusiveness, the gravity of the safety interests involved,
and the reduced privacy expectations associated with airline
travel.
Dela Cruz v. People 2016 Leonen, J
Here, petitioner presented his bag for scanning in the x-ray machine.
When his bag went through the x-ray machine and the irearms were
detected, he voluntarily submitted his bag for inspection to the port
authorities.
Customs searches are allowed when persons exercising police
authority under the customs law effect search and seizure in the
enforcement of customs laws.
Hence, to be a valid customs search, the requirements are:
1) the person/s conducting the search was/were exercising
police authority under customs law;
2) the search was for the enforcement of customs law; and
3) the place searched is not a dwelling place or house.
Here, the facts reveal that the search was part of routine port security
measures. The search was not conducted by persons authorized
under customs law. It was also not motivated by the provisions of the
Tariff and Customs Code or other customs laws. Although customs
searches usually occur within ports or terminals, it is important that
the search must be for the enforcement of customs laws.
6) Where the prohibited articles are in ‘plain view’
1. The following requisites must concur:
a) Prior justi ication for an intrusion or is in a position
from which he can view a particular area;
b) Inadvertent discovery;
c) Immediately apparent to the of icer that the item he
observes may be evidence of a crime, contraband or
otherwise subject to seizure;
d) Justi ied mere seizure of evidence without further
search.
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2. If the package proclaims its contents, whether by its (a)
distinctive con iguration, its (b) transparency, or its (c)
contents are obvious to the observer, then the contents are in
plain view.
3. The element of inadvertence would not be present if the
police of icers intentionally entered the house with no prior
surveillance or investigation before they discovered the
accused with the subject items.
4. The “immediately apparent” test does not require an unduly
high degree of certainty as to the incriminating character of
evidence; that a nexus exists between the viewed object and
criminal activity.
5. In People v. Bolasa, acting on an anonymous tip, the
warrantless arrest and search of the suspects were invalidated
as the objects seized were not in plain view as it was shown
that the police of icers had to peep to see them. They ought to
have conducted prior surveillance and obtained a search
warrant.
6. In People v. Figueroa, where, while serving a warrant of
arrest, police of icers searched the house and found a pistol, a
magazine and seven rounds of ammunition, the seizure of the
irearm and ammunition was held lawful, because the objects
seized were in plain view of the of icer who had the right to be
in the place where he was.
7. In People v. Salanguit, the peace of icers entered the dwelling
armed with a search warrant for the seizure of shabu and drug
paraphernalia. In the course of the search, they found the shabu
irst, and then came upon an article wrapped in newspaper
which turned out to be marijuana. Once the valid portion of the
search warrant has been executed, the “plain view” doctrine can
no longer provide any basis for admitting the other items
subsequently found.
Dominguez y Argana v. People 2019
The "plain view" doctrine may not be used to launch unbridled
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
searches and indiscriminate seizures nor to extend a general
exploratory search made solely to ind evidence of defendant's guilt.
In the case at hand, while it can be said that the presence of the police
of icers was legitimate as they were patrolling the area and that
discovery of the plastic sachet was inadvertent, it should be
emphasized that, as to the third requisite, it was clearly not
apparent that such plastic sachet is an evidence of a crime, a
contraband, or otherwise subject to seizure.
7) Of buildings and premises to enforce ire, sanitary, and
building regulations. — This is basically an exercise of the police
power of the State, and would not require a search warrant. These
are routine inspections which, however, must be conducted during
reasonable hours.
8) Stop and frisk or “Terry searches”
In Manalili v. CA, the policemen chanced upon the accused who had
reddish eyes, walking in a swaying manner, and who appeared to be
high on drugs; thus, the search.
1. The apprehending police of icer must have a genuine reason,
in accordance with the police of icer’s experience and the
surrounding conditions, to warrant the belief that the person to
be held has weapons or contraband concealed about him. It
should, therefore, be emphasized that a search and seizure
should precede the arrest for the principle to apply.
2. In People v. Solayao, the Supreme Court found justi iable
reason to apply the “stop-and-frisk” rule, because of the
drunken actuations of the accused and his companions, and
because of the fact that his companions led when they saw the
policemen, and inally, because the peace of icers were
precisely on an intelligence mission to verify reports that
armed persons were roaming the vicinity.
3. The rule was not applied in Malacat v. CA, where the Supreme
Court said that there was no valid search because there was
nothing in the behavior or conduct of the petitioner which
could have elicited even mere suspicion other than that his
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eyes were moving fast. There was no reasonable ground to
believe that the petitioner was armed with a deadly weapon.
4. There must be a con luence of several suspicious
circumstances. A solitary tip hardly suf ices as probable
cause; items seized during warrantless searches based on
solitary tips are inadmissible as evidence. (People v. Yanson)
People v. Cristobal 2019
The CA overlooked the fact that the seized items were con iscated
from Cristobal as he was being issued a traf ic violation ticket.
The police of icers' act of proceeding to search Cristobal's body,
despite their own admission that they were unable to ind any
weapon on him, constitutes an invalid and unconstitutional search.
9) Under exigent and emergency circumstances
1. In People v. de Gracia, the raid of, and the consequent seizure
of irearms and ammunition in, the Eurocar Sales Of ice was
held valid, considering the exigent and emergency situation
obtaining. The military operatives had reasonable grounds to
believe that a crime was being committed, and they had no
opportunity to apply for a search warrant from the courts
because the latter were closed.
10) At military checkpoints
In People v. Malmstedt, a passenger bus was stopped at a military
checkpoint for inspection. One of the soldiers noticed a bulge on the
waist of the accused which turned out to be a pouch containing
hashish. Further search revealed more hashish concealed in several
teddy bears he was carrying in his bag.
Saluday v. People 2018 En Banc on Bus Searches and Inspections
In the conduct of bus searches, the Court lays down the following
guidelines.
Prior to entry, passengers and their bags and luggages can be
subjected to a routine inspection akin to airport and seaport
security protocol. In this regard,
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1. metal detectors and x-ray scanning machines can be
installed at bus terminals;
2. passengers can also be frisked;
3. in lieu of electronic scanners, passengers can be required
instead to open their bags and luggages for inspection, which
inspection must be made in the passenger's presence;
4. should the passenger object, he or she can validly be refused
entry into the terminal.
While in transit, a bus can still be searched by government agents or
the security personnel of the bus owner in the following three
instances.
1. First, upon receipt of information that a passenger carries
contraband or illegal articles, the bus where the passenger is
aboard can be stopped en route to allow for an inspection of
the person and his or her effects.
2. Second, whenever a bus picks passengers en route, the
prospective passenger can be frisked and his or her bag or
luggage be subjected to the same routine inspection by
government agents or private security personnel as though
the person boarded the bus at the terminal.
3. Third, a bus can be lagged down at designated military or
police checkpoints where State agents can board the vehicle
for a routine inspection of the passengers and their bags or
luggages.
In both situations, the inspection of passengers and their effects prior
to entry at the bus terminal and the search of the bus while in transit
must also satisfy the following conditions to qualify as a valid
reasonable search.
1. First, as to the manner of the search, it must be the least
intrusive and must uphold the dignity of the person or
persons being searched, minimizing, if not altogether
eradicating, any cause for public embarrassment,
humiliation or ridicule.
2. Second, neither can the search result from any
discriminatory motive such as insidious pro iling,
stereotyping and other similar motives.
3. Third, as to the purpose of the search, it must be continued
to ensure public safety.
4. Fourth, as to the evidence seized from the reasonable
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
search, courts must be convinced that precautionary
measures were in place to ensure that no evidence was
planted against the accused.
Aside from public transport buses, any moving vehicle that
similarly accepts passengers at the terminal and along its route
is likewise covered by these guidelines. However, the guidelines
do not apply to
a) privately-owned cars; and
b) moving vehicles dedicated for private or personal use,
as in the case of taxis.
People v. Gardon-Mentoy 2019
⭐Vaporoso v. People 2019
The irst search made on petitioners, i.e., the cursory body search
which, however, did not yield any drugs but only personal belongings
of petitioners, may be considered as a search incidental to a lawful
arrest as it was done contemporaneous to their arrest and at the place
of apprehension. On the other hand, the same cannot be said of the
second search which yielded the drugs subject of this case,
considering that a substantial amount of time had already elapsed
from the time of the arrest to the time of the second search, not to
mention the fact that the second search was conducted at a venue
other than the place of actual arrest, i.e., the Panabo Police Station.
Warrantless arrests and detention
Porteria v. People 2019
There are three (3) instances when warrantless arrests may be lawfully
effected. These are:
a) an arrest of a suspect in lagrante delicto;
b) Hot pursuit. — an arrest of a suspect where, based on
personal knowledge of the arresting of icer, there is probable
cause that said suspect was the perpetrator of a crime which
had just been committed; and
c) an arrest of a prisoner who has escaped.
People v. Olarte 2019
Here, the offense had already been consummated but not in the
presence of the peace of icer or private person who, nevertheless,
should have personal knowledge of facts or circumstances that the
person to be arrested had committed it. More importantly, there is
durational immediacy between the offense that had just been
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committed and the peace of icer or private person's perception or
observation of the accused's presence at the incident or immediate
vicinity.
The rule only requires that the accused perform some overt act that
would indicate that he has committed, is actually committing, or is
attempting to commit an offense. Therefore, it does not matter that
accused-appellant was previously identi ied only from a CCTV
footage supposedly covering his previous criminal conduct because
he was seen by PO2 Intud and PO2 Monilar performing an overt act of
drawing a gun as he was about to enter LBC.
Inspections at checkpoints are con ined to visual searches. An
extensive search of the vehicle is permissible only when the of icer
conducting the search had probable cause to believe prior to the
search that he will ind inside the vehicle to be searched the
instrumentality or evidence pertaining to the commission of a crime.
Under Section 5(a), the of icer himself witnesses the commission of
the crime; under Section 5(b), the of icer actually knows that a crime
has just been committed.
The arrest of the accused did not justify the search because the
arrest did not precede the search.
The prosecution failed to establish any overt act which could lead to
Marvin's in lagrante delicto arrest. There was also no evidence that
the arresting of icers, or SPO4 Pequiras in particular, knew of an
offense that was just committed and that Marvin was the perpetrator
of the offense.
In the same manner, the present circumstances do not suf ice to
ful ill the requirements for a hot pursuit arrest. The prosecution did
not allege and prove that SPO4 Pequiras and the arresting of icers had
personal knowledge of facts that Marvin had just committed an
offense. Neither does the anonymous report of a suspicious person
operate to vest personal knowledge on the police of icers about the
commission of an offense.
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Exclusionary rule
1. “Fruit of the poisonous tree” doctrine, non-exclusionary
rule originally enunciated in Stonehill v. Diokno and later
constitutionally af irmed in Sec 3(2) Art III.
2. Evidence illegally obtained however may nonetheless be used
in the judicial or administrative action that may be iled against
the of icer responsible for its illegal seizure.
3. Such objection should be made before arraignment as per
People v. Zaspa. Otherwise, waiver sets in.
4. The constitutional guaranty against unreasonable searches and
seizure is applicable only against government authorities and
NOT to private individuals such as the barangay tanod.
5. In Del Castillo v. People, however, having been established
that the assistance of the barangay tanods were sought by the
police authorities who effected the search warrant, the same
barangay tanods therefore acted as agents of persons in
Effects of illegal detention
authority. Thus, the constitutional proscription applied to
them.
6. The complaint for warrantless searches charges no criminal
offense. The remedy is civil under Article 32, in relation to
Article 2219(6) and (10) of the Civil Code.
Polangcos v. People 2019
Polangcos' violations were punishable only by a city ordinance that
prescribes as penalty certain ines. SPO2 Juntanilla thus conducted an
illegal search when he frisked Polangcos for the foregoing violations
which were punishable only by ine.
Ultimately, Polangcos must be acquitted, as the corpus delicti of the
crime, i.e. the seized drug, is excluded evidence, inadmissible in any
proceeding, including this one, against him. This is in accordance
with the exclusionary rule in Section 3(2), Article III.
Concept of communications, correspondence
Effects of unreasonable searches and seizures
In re Sabio
Remedies against unlawful searches
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PRE-WEEK NOTES
1) File a motion to quash the search warrant and motion to
suppress evidence illegally obtained if a search warrant is
issued and the same is invalid.
2) File a petition for certiorari on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of the judge who issued the search warrant.
3) Interpose a timely objection when the prosecution is
formally offered the evidence during the trial for the
inadmissibility of the evidence. The failure to object to the
illegality of the arrest does not include the waiver to object to
the inadmissibility of the objects con iscated.
u
4) File a criminal case for violation of domicile or illegal
procurement of search warrant.
5) Ask for the return of the objects con iscated when the same is
not illegal. However, this can only be asked during the
termination of the case.
Vivares v. STC 2014
The conspicuous illegality of the arrest cannot affect the
jurisdiction of the trial court, because even in instances not allowed
by law, a warrantless arrest is not a jurisdictional defect, and any
objection thereto is waived when the person arrested submits to
arraignment without any objection.
E. Privacy of Communications and Correspondence
Section 3. The privacy of communication and correspondence
shall be inviolable except
a) upon lawful order of the court, or
b) when public safety or order requires otherwise, as
prescribed by law.
Intrusion, when and how allowed
Pollo v. David 2011 En Banc
In evaluating a claim for violation of the right to privacy, a court must
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determine
1. whether a person has exhibited a reasonable expectation
of privacy and, if so,
2. whether that expectation has been violated by unreasonable
government intrusion.
Petitioners were invited in the Senate's public hearing to deliberate
on Senate Res. No. 455. The inquiry focused on petitioners' acts
committed in the discharge of their duties as of icers and directors of
the said corporations. Consequently, they have no reasonable
expectation of privacy over matters involving their of ices in a
corporation where the government has interest.
This goes to show that the right to privacy is not absolute where
there is an overriding compelling state interest. In Valmonte v.
Belmonte, the Court remarked that as public igures, the Members of
the former Batasang Pambansa enjoy a more limited right to
privacy as compared to ordinary individuals, and their actions are
subject to closer scrutiny.
Without an actionable entitlement in the irst place to the right to
informational privacy, a habeas data petition will not prosper. Is
there a right to informational privacy in OSN activities of its
users?
The right to informational privacy on Facebook
Before one can have an expectation of privacy in his or her OSN
activity, it is irst necessary that said user, in this case the children
of petitioners, manifest the intention to keep certain posts
private, through the employment of measures to prevent
access thereto or to limit its visibility. And this intention can
materialize in cyberspace through the utilization of the OSN’s privacy
tools. In other words, utilization of these privacy tools is the
manifestation, in cyber world, of the user’s invocation of his or her
right to informational privacy.
The existence of privacy right under prior decisions involved a
two-fold requirement:
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irst, that a person has exhibited an actual (subjective)
expectation of privacy; and
l
second, that the expectation be one that society is prepared to
recognize as reasonable (objective).
In Mancusi v. DeForte, the US Supreme Court held that a union
employee had Fourth Amendment rights with regard to an of ice at
union headquarters that he shared with other union of icials.
In O'Connor the Court recognized that "special needs" authorize
warrantless searches involving public employees for work-related
reasons. The Court thus laid down a balancing test under which
government interests are weighed against the employee's reasonable
expectation of privacy.
This Court, in Social Justice Society (SJS) v. DDB has also
recognized the fact that there may be such legitimate intrusion of
privacy in the workplace. The employees' privacy interest in an
of ice is to a large extent circumscribed by
1) the company's work policies,
2) the CBA, if any, entered into by management and the
bargaining unit, and
3) the inherent right of the employer to maintain discipline and
ef iciency in the workplace.
Their privacy expectation in a regulated of ice environment is, in ine,
reduced; and a degree of impingement upon such privacy has been
upheld.
Here, the relevant surrounding circumstances to consider include
1) the employee's relationship to the item seized;
2) whether the item was in the immediate control of the
employee when it was seized; and
3) whether the employee took actions to maintain his privacy
in the item.
Thus, where the employee used a password on his computer, did not
share his of ice with co-workers and kept the same locked, he had a
legitimate expectation of privacy and any search of that space and
items located therein must comply with the Fourth Amendment.
The CSC in this case had implemented a policy that put its employees
on notice that they have no expectation of privacy in anything they
create, store, send or receive on the of ice computers, and that the CSC
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
may monitor the use of the computer resources using both automated
or human means. This implies that on-the-spot inspections may be
done to ensure that the computer resources were used only for such
legitimate business purposes.
Exclusionary rule
Any evidence obtained in violation of this xxxx section shall be
inadmissible for any purpose in any proceeding.
F. Freedom of Speech and Expression
Sec 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
Sec 18. No person shall be detained solely by reason of his
political beliefs and aspirations. xxxx
Sec 8. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged.
Concept
⭐The Diocese of Bacolod v. Comelec 2015 En Banc Leonen, J
COMELEC does not have the authority to regulate the enjoyment of
the preferred right to freedom of expression exercised by a
non-candidate in this case.
Continuum of thought, speech, expression, and speech acts
The right to freedom of expression applies to the entire
continuum of speech from utterances made to conduct enacted, and
even to inaction itself as a symbolic manner of communication.
Ebralinag v. The Division Superintendent of Schools of Cebu
declares that:
Freedom of speech includes the right to be silent. The salute
is a symbolic manner of communication that conveys its
message as clearly as the written or spoken word. As a valid
form of expression, it cannot be compelled any more than it can
be prohibited in the face of valid religious objections like those
raised in this petition.
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
The form of expression is just as important as the information
conveyed that it forms part of the expression. The present case is in
point. Large tarpaulins, therefore, are not analogous to time and
place. They are fundamentally part of expression protected under
Art III, Section 4.
Free speech must be protected under the safety valve theory. This
provides that “nonviolent manifestations of dissent reduce the
likelihood of violence.” This court has held free speech and other
intellectual freedoms as “highly ranked in our scheme of
constitutional values.” These rights enjoy precedence and
primacy.
This primordial right calls for utmost respect, more so “when
what may be curtailed is the dissemination of information to make
more meaningful the equally vital right of suffrage.”
Balance between unbridled expression and liberty
Restrictions on speech may be resorted to by the state for reasons
of public order, national security,and other situations which impel
the government to repress the freedom of speech.
Types of regulation
Prior restraint and subsequent punishment
Tordesillas v. Puno 2018
WON the Advisory issued by the respondents is not content-neutral
and thus constitutes prior restraint, censorship, and is
content-restrictive, which resulted to a "chilling effect" in violation of
the freedom of the press.
Our jurisprudence has recognized four aspects of freedom of
the press, to wit:
1) freedom from prior restraint;
2) freedom from punishment subsequent to publication;
3) freedom of access to information; and
4) freedom of circulation.
Prior restraint refers to of icial governmental restrictions on the
press or other forms of expression in advance of actual publication or
dissemination. Freedom from prior restraint precludes
governmental acts that required
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a) approval of a proposal to publish;
b) licensing or permits as prerequisites to publication
including the payment of license taxes for the privilege to
publish; and
c) even injunctions against publication.
Any law or of icial that requires some form of permission to be had
before publication can be made, commits an infringement of the
constitutional right, and remedy can be had at the courts.
1. In Chavez, the Court struck down the statements made by
then SOJ Gonzales and the NTC warning the media on airing
the alleged wiretapped telephone conversations of then
President Arroyo, as constituting unconstitutional prior
restraint on the exercise of free speech and of the press.
2. In Primicias, the City Mayor of Manila's refusal to issue
permit for a public assembly was held to have violated the
freedom of expression.
3. In ABS-CBN v. COMELEC, the Court held that the COMELEC
resolution totally prohibiting the conduct of exit polls is an
absolute infringement of the constitutionally guaranteed
rights of the media and the electorate.
4. In Sanidad v. COMELEC, a provision in a COMELEC
resolution prohibiting the media to allow the use of a
column or radio or television time to campaign for or
against the plebiscite issues as regards the rati ication of the
act establishing the CAR, was declared null and void and
unconstitutional by the Court as the same restricts, without
justi iable reason, the choice of forum where one may
express his view, tantamount to a restriction of the freedom
of expression.
5. In David, the Court declared as unconstitutional the
warrantless search of the Daily Tribune of ices, the seizure
of materials for publication therein, the stationing of
policemen in the vicinity, and the arrogant warning of
government of icials to media, among others, pursuant to
President Arroyo's PP No. 1017 and GO No. 5, as the said
acts constitute plain censorship.
There is prior restraint when the government totally prohibits and/or
in some way, restricts the expression of one's view or the manner of
expressing oneself. There is none in this case. No other interpretation
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can be had of respondents' pronouncements except that for being a
reminder of prevailing provisions of the law and jurisprudence,
applicable to all and not only to media personalities, that resistance
or disobedience to lawful orders of authorities may result to
criminal, and even administrative, liabilities.
Content based and content neutral
⭐The Diocese of Bacolod v. Comelec 2015 En Banc Leonen, J
Content-based regulations can either be based on the viewpoint of
the speaker or the subject of the expression. Content-based restraint
or censorship refers to restrictions “based on the subject matter of
the utterance or speech.” In contrast, content-neutral regulation
includes controls merely on the incidents of the speech such as time,
place, or manner of the speech.
Content-based regulation bears a heavy presumption of
invalidity, and this court has used the clear and present danger
rule as measure.
Even with the clear and present danger test, there is no reason for the
state to minimize the right of non-candidate petitioners to post the
tarpaulin in their private property. The size of the tarpaulin does not
affect anyone else’s constitutional rights.
If we apply the test for content-neutral regulation, the questioned
acts of COMELEC will not pass the three requirements for evaluating
such restraints on freedom of speech. “When the speech restraints
take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity,” and it is subject
only to the intermediate approach.
A content-neutral government regulation is suf iciently
justi ied:
1. if it is within the constitutional power of the Government;
2. if it furthers an important or substantial governmental
interest;
3. if the governmental interest is unrelated to the suppression
of free expression; and
4. if the incident restriction is no greater than is essential to the
furtherance of that interest.
In this case, limiting the maximum size of the tarpaulin would render
ineffective petitioners’ message and violate their right to exercise
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
freedom of expression. The restriction in the present case does not
pass even the lower test of intermediate scrutiny for content-neutral
regulations.
Incitement and advocacy
There are two categories of speech, the latter of which is a more
speci ic type of the former which is directed to produce imminent
lawless action and which is likely to incite or produce such action.
Specificity of regulation and overbreadth doctrine
Under this doctrine, the statute must be carefully drawn or be
authoritatively construed to punish only unprotected speech and
not be susceptible to application to protected expression.
Southern Hemisphere Engagement Network v. Anti-Terrorism
Council 2010 En Banc on Facial Challenge
A facial invalidation of a statute is allowed only in free speech
cases, wherein certain rules of constitutional litigation are rightly
excepted.
The doctrine of vagueness and the doctrine of overbreadth do
NOT operate on the same plane. — A statute or act suffers from
the defect of vagueness when it lacks comprehensible standards. It
is repugnant to the Constitution in two respects:
1) it violates due process; and
2) it leaves law enforcers unbridled discretion in carrying out
its provisions and becomes an arbitrary lexing of the
Government muscle.
The overbreadth doctrine, meanwhile, decrees that a
governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms. As distinguished from the vagueness
doctrine, the overbreadth doctrine assumes that individuals will
understand what a statute prohibits and will accordingly refrain
from that behavior, even though some of it is protected.
A "facial" challenge is likewise different from an "as-applied"
challenge. — Distinguished from an as-applied challenge which
considers only extant facts affecting real litigants, a facial
invalidation is an examination of the entire law, pinpointing its
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laws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very
existence may cause others not before the court to refrain from
constitutionally protected speech or activities.
The vagueness and overbreadth doctrines, as grounds for a facial
challenge, are not applicable to penal laws. The allowance of a
facial challenge in free speech cases is justi ied by the aim to avert
the "chilling effect" on protected speech, the exercise of which
should not at all times be abridged. This rationale is inapplicable to
plain penal statutes that generally bear an "in terrorem effect" in
deterring socially harmful conduct.
By its nature, the overbreadth doctrine has to necessarily apply a
facial type of invalidation. The most distinctive feature of the
overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation.
Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth
analysis, those rules give way.
In this jurisdiction, the void-for-vagueness doctrine asserted under
the due process clause has been utilized in examining the
constitutionality of criminal statutes.
Speech regulation in relation to election
Adiong v. Comelec
The COMELEC's prohibition on posting of decals and stickers on
"mobile" places whether public or private except in designated areas
provided for by the COMELEC itself is null and void on constitutional
grounds.
National Press Club v. Comelec ruled that regulation of election
activity has its limits. We examine the limits of regulation and not the
limits of free speech. Regulation of election campaign activity may
NOT pass the test of validity
1) if it is too general in its terms or not limited in time and
scope in its application,
2) if it restricts one's expression of belief in a candidate or
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
one's opinion of his or her quali ications,
3) if it cuts off the low of media reporting, and
4) if the regulatory measure bears no clear and reasonable
nexus with the constitutionally sanctioned objective.
Here, the posting of decals and stickers in mobile places like cars and
other moving vehicles does not endanger any substantial government
interest. There is no clear public interest threatened by such activity
so as to justify the curtailment of the cherished citizen's right of free
speech and expression.
The right to property may be subject to a greater degree of
regulation but when this right is joined by a "liberty" interest,
the burden of justi ication on the part of the Government must
be exceptionally convincing and irrefutable. The burden is not
met in this case.
Speech regulation in relation to media
David v. Arroyo
The search and seizure of materials for publication, the stationing of
policemen in the vicinity of the The Daily Tribune of ices, and the
arrogant warning of government of icials to media, are plain
censorship. It is that of icious functionary of the repressive
government who tells the citizen that he may speak only if allowed to
do so, and no more and no less than what he is permitted to say on
pain of punishment should he be so rash as to disobey. It is the duty
of the courts to be watchful for the constitutional rights of the citizen,
and against any stealthy encroachments thereon. The motto should
always be obsta principiis.
Judicial analysis, presumptions and levels and types of
scrutiny
Gonzales v. Katigbak
The power to exercise prior restraint is not to be presumed, rather
the presumption is against its validity.
Nicolas-Lewis v. Comelec 2019 En Banc
Special topics in free expression cases
Hate speech
At issue are Section 36.8 of R.A. 9189, as amended by R.A. 10590 and
Section 74(II)(8) of the COMELEC Resolution No. 10035, which
prohibit the engagement of any person in partisan political
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
activities abroad during the 30-day overseas voting period.
The allowance of a review of a law or statute on its face in free speech
cases is justi ied by the aim to avert the "chilling effect" on protected
speech, the exercise of which should not at all times be abridged.
Restraints on freedom of expression are also evaluated by either or a
combination of the following theoretical tests, to wit:
a) the dangerous tendency doctrine;
b) the clear and present danger rule; and
c) the balancing of interests test.
When the speech restraints take the form of a content-neutral
regulation, only a substantial governmental interest is required
for its validity. They are not subject to the strictest form of judicial
scrutiny but an intermediate approach — somewhere between
the mere rationality that is required of any other law and the
compelling interest standard applied to content-based restrictions.
As explained in Chavez,
1) a content-based regulation is evaluated using the clear
and present danger rule,
2) while courts will subject content-neutral restraints to
intermediate scrutiny.
By banning partisan political activities or campaigning even during
the campaign period within embassies, consulates, and other foreign
service establishments, regardless of whether it applies only to
candidates or whether the prohibition extends to private persons, it
goes beyond the objective of maintaining order during the voting
period and ensuring a credible election.
Section 36.8 of R.A. No. 9189 should be struck down for being
overbroad as it does not provide for well-de ined standards,
resulting to the ambiguity of its application, which produces a
chilling effect on the exercise of free speech and expression, and
ultimately, resulting to the unnecessary invasion of the area of
protected freedoms.
De ined as speech intended to degrade, intimidate, or incite
violence or prejudicial action against certain social groupings.
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Laws against hate speech can be divided into
1) Those intended to preserve public order; and
2) Those intended to protect human dignity.
Defamation and libel
⭐Belo-Henares v. Guevarra 2018
The freedom of speech and of expression, like all constitutional
freedoms, is not absolute. As such, the constitutional right of
freedom of expression may not be availed of to broadcast lies or
half-truths, insult others, destroy their name or reputation or
bring them into disrepute.
Sedition and speech in relation to rebellion
⭐Pita v. CA
When a ictitious suicide photo and letter were published in
newspapers of general circulation expressing disappointment in the
Roxas administration and instructing a ictitious wife to teach their
children to burn photos of the President, the Court held that such
act constitutes inciting to sedition.
Such utterance suggests or incites rebellious conspiracies or riots
and tends to turn the people against the constituted authorities, or
to provoke violence from opposition groups who may seek to
silence the writer, which is the sum and substance of the offense
under consideration. (Espuelas v. People)
Obscenity/pornography
Gonzales v. Katigbak
The test is whether to the average person, applying
contemporary community standards, the dominant theme of
the material taken as a whole appeals to prurient interest. To
avoid an unconstitutional taint on its creation, the power of
respondent Board is limited to the classi ication of ilms. It can, to
safeguard other constitutional objections, determine what motion
pictures are for general patronage and what may require either
parental guidance or be limited to adults only. That is to abide by the
principle that freedom of expression is the rule and restrictions
the exemption.
The test, to repeat, to determine whether freedom of expression may
be limited is the clear and present danger of an evil of a
substantive character that the State has a right to prevent.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
The law, however, frowns on obscenity. In the applicable law, EO No.
876, reference was made to respondent Board "applying
contemporary Filipino cultural values as standard," words
which can be construed in an analogous manner.
The ruling is to be limited to the concept of obscenity
applicable to motion pictures. Where television is concerned, a
less liberal approach calls for observance. This is so because unlike
motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely be
among the avid viewers of the programs therein shown. It cannot be
denied though that the State as parens patriae is called upon to
manifest an attitude of caring for the welfare of the young.
When does a publication have a corrupting tendency, or when can it
be said to be offensive to human sensibilities?
It was People v. Padan y Alova that introduced to Philippine
jurisprudence the "redeeming" element that should accompany
the work, to save it from a valid prosecution.
Kalaw-Katigbak represented a marked departure from Kottinger in
the sense that it measured obscenity in terms of the "dominant
theme" of the work, rather than isolated passages, which were
central to Kottinger. Kalaw-Katigbak undertook moreover to make
the determination of obscenity essentially a judicial question and as
a consequence, to temper the wide discretion Kottinger had given
unto law enforcers.
Miller v. California, which expressly abandoned Massachusetts,
established "basic guidelines," to wit:
a) whether 'the average person, applying contemporary
standards' would ind the work, taken as a whole, appeals to
the prurient interest;
b) whether the work depicts or describes, in a patently
offensive way, sexual conduct speci ically de ined by the
applicable state law; and
c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scienti ic value.
We make this resume.
1. The authorities must apply for the issuance of a search
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
warrant from a judge, if an obscenity rap is in order;
2. The authorities must convince the court that the materials
sought to be seized are "obscene”, and pose a clear and
present danger of an evil substantive enough to warrant
State interference and action;
3. The judge must determine whether or not the same are
indeed "obscene" upon His Honor's sound discretion.
4. If, in the opinion of the court, probable cause exists, it may
issue the search warrant prayed for;
5. The proper suit is then brought in the court under Article
201 of the RPC;
6. Any conviction is subject to appeal. The appellate court may
assess whether or not the properties seized are indeed
"obscene".
⭐Madrilejos v. Gatdula 2019 En Banc
SC dismissed the petition on the ground that Ordinance No. 7780, an
anti-obscenity law, cannot be facially attacked on the ground of
overbreadth because obscenity is unprotected speech.
The overbreadth and vagueness doctrines have special application
only to free speech cases. They are inapt for testing the validity of
penal statutes. The doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on their faces"
statutes in free speech cases.
It has been established in this jurisdiction that unprotected
speech or low-value expression refers to
1) libelous statements,
2) obscenity or pornography,
3) false or misleading advertisement,
4) insulting or " ighting words," i.e., those which by their very
utterance in lict injury or tend to incite an immediate breach
of peace and
5) expression endangering national security.
A litigant who stands charged under a law that regulates unprotected
speech can still mount a challenge that a statute is unconstitutional
as it is applied to him or her. If the litigant prevails, the courts carve
away the unconstitutional aspects of the law by invalidating its
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improper applications on a case to case basis.
Commercial speech
⭐The Diocese of Bacolod v. Comelec 2015 En Banc Leonen, J
Not all speech is treated the same. In Chavez v. Gonzales, this
court discussed that some types of speech may be subject to
regulation:
In the United States, false or deceptive commercial speech is
categorized as unprotected expression that may be subject to
prior restraint.
We distinguish between political and commercial speech. Political
speech refers to speech “both intended and received as a
contribution to public deliberation about some issue,” “fostering
informed and civic-minded deliberation.” On the other hand,
commercial speech has been de ined as speech that does “no more
than propose a commercial transaction.”
The expression resulting from the content of the tarpaulin is,
however, de initely political speech.
National emergencies
The government may impose certain restrictions to protect itself
against utterances intended to weaken its power of self defense.
Speech of public officers
Vasquez v. CA
Even if the defamatory statement is false, no liability can attach if it
relates to of icial conduct, unless the public of icial concerned
proves that the statement was made with actual malice — that is,
with knowledge that it was false or with reckless disregard of
whether it was false or not.
This is the gist of the ruling in the landmark case of New York Times
v. Sullivan, which this Court has cited with approval in several of its
own decisions. This is the rule of “actual malice.”
Cognate rights
Freedom of assembly
Jacinto v. CA
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PRE-WEEK NOTES
Although the Constitution vests in public school teachers the right to
organize, to assemble peaceably and to petition the
government for a redress of grievances, there is no like express
provision granting them the right to strike. Rather, the
constitutional grant of the right to strike is restrained by the proviso
that its exercise shall be done in accordance with law.
EO 180 “enjoins under pain of administrative sanctions, all
government of icers and employees from staging strikes,
demonstrations, mass leaves, walkouts and other forms of mass
action which will result in temporary stoppage or disruption of
public service.” It is also settled in jurisprudence that, in general,
workers in the public sector do not enjoy the right to strike.
BM Employees v. PBM
Property and property rights can be lost thru prescription; but
human rights are imprescriptible.
Bayan v. Ermita on the Public Assembly Act or BP 880
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions.
The superiority of these freedoms over property rights is
underscored by the fact that a mere reasonable or rational
relation between the means employed by the law and its object
or purpose — that the law is neither arbitrary nor discriminatory
nor oppressive — would suf ice to validate a law which restricts or
impairs property rights. On the other hand, a constitutional or valid
infringement of human rights requires a more stringent criterion,
namely the existence of a grave and immediate danger of a
IBP v. Atienza 2010
substantive evil which the State has the right to prevent.
The demonstration held by petitioners was purely and completely an
exercise of their freedom of expression in general and of their right
of assembly and of petition for redress of grievances in
particular before the appropriate governmental agency, the Chief
Executive, against the police of icers of the municipality of Pasig.
David v. Arroyo
"Assembly" means a right on the part of the citizens to meet
peaceably for consultation in respect to public affairs. As in the case
of freedom of expression, this right is not to be limited, much less
denied, except on a showing of a clear and present danger of a
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
substantive evil that Congress has a right to prevent. In other words,
like other rights embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if
the assembly is intended to be held in a public place, a permit for the
use of such place, and not for the assembly itself, may be validly
required.
The Court considers the dispersal and arrest of the members of KMU
et al. unwarranted. Their dispersal was done merely on the basis of
Malacañ ang's directive canceling all permits previously issued by
local government units. This is arbitrary. Tolerance is the rule and
limitation is the exception.
Moreover, under BP 880, the authority to regulate assemblies
and rallies is lodged with the LGUs.
Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public
concern.
B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the
assemblies. This was adverted to in Osmeña v. Comelec, where the
Court referred to it as a "content-neutral" regulation of the time,
place, and manner of holding public assemblies.
In modifying the permit outright, respondent gravely abused his
discretion when he did not immediately inform the IBP who should
have been heard irst on the matter of his perceived imminent and
grave danger of a substantive evil that may warrant the changing of
the venue. The opportunity to be heard precedes the action on
the permit, since the applicant may directly go to court after an
unfavorable action on the permit.
While prudence requires that there be a realistic appraisal not of what
may possibly occur but of what may probably occur, given all the
relevant circumstances, still the assumption - especially so where the
assembly is scheduled for a speci ic public place - is that the permit
must be for the assembly being held there.
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Freedom of association
Art IX-B Sec 2(5). The right to self-organization shall not be
denied to government employees.
Art XIII Sec 3 par 2. It shall guarantee the rights of all workers to
self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in
accordance with law. xxxx
Ang Ladlad LGBT Party v. Comelec
Under our system of laws, every group has the right to promote its
agenda and attempt to persuade society of the validity of its position
through normal democratic means. Absent any compelling state
interest, it is not for the COMELEC or this Court to impose its views
on the populace. Otherwise stated, the COMELEC is certainly not free
to interfere with speech for no better reason than promoting an
approved message or discouraging a disfavored one.
To the extent, therefore, that the petitioner has been precluded,
because of COMELEC's action, from publicly expressing its views as
a political party and participating on an equal basis in the political
process with other equally-quali ied party-list candidates, we ind
that there has, indeed, been a transgression of petitioner's
fundamental rights.
In Re Marcial Edillon
To compel a lawyer to be a member of the Integrated Bar is not
violative of his constitutional freedom to associate. Integration
does not make a lawyer a member of any group of which he is not
already a member. He became a member of the Bar when he passed
the Bar examinations.
Bar integration does not compel the lawyer to associate with
anyone. He is free to attend or not attend the meetings of his
Integrated Bar Chapter or vote or refuse to vote in its elections as he
chooses. The only compulsion to which he is subjected is the
payment of annual dues.
Freedom of information
Sec 7. The right of the people to information on matters of public
concern shall be recognized. Access to of icial records, and to
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documents, and papers pertaining to of icial acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
The right to information is subject to certain recognized
restrictions:
1) National security matters and intelligence information;
2) Trade secrets and banking transactions;
3) Criminal matters; and
4) Other con idential information.
Adiong v. Comelec
Freedom to distribute information to every citizen wherever he
desires to receive it is so clearly vital to the preservation of a free
society that, putting aside reasonable police and health regulations of
time and manner of distribution, it must be fully preserved. The
danger of distribution can so easily be controlled by traditional legal
methods leaving to each householder the full right to decide whether
he will receive strangers as visitors, that stringent prohibition can
serve no purpose but that forbidden by the constitution, the naked
restriction of the dissemination of ideas.
The Province of North Cotabato v. GRP
Matters of public concern covered by the right to information include
steps and negotiations leading to the consummation of the contract.
The right to information "contemplates inclusion of negotiations
leading to the consummation of the transaction." Certainly, a
consummated contract is not a requirement for the exercise of the
right to information.
Intended as a "splendid symmetry" to the right to information under
the Bill of Rights is the policy of public disclosure under Section 28,
Article II of the Constitution. The right to information guarantees the
right of the people to demand information, while Section 28
recognizes the duty of of icialdom to give information even if nobody
demands. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such
policy.
In ine, E.O. No. 3 establishes petitioners' right to be consulted on the
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peace agenda, as a corollary to the constitutional right to information
and disclosure.
Initiatives for Dialogue and Empowerment through Alternative
Legal Services v. PSALM 2012 En Banc
Unlike the disclosure of information which is mandatory under the
Constitution, the other aspect of the people’s right to know requires a
demand or request for one to gain access to documents and paper of
the particular agency. Moreover, the duty to disclose covers only
transactions involving public interest, while the duty to allow
access has a broader scope of information which embraces not only
transactions involving public interest, but any matter contained in
of icial communications and public documents of the government
agency.
Belgica v. Executive Secretary 2013 En Banc
Case law instructs that the proper remedy to invoke the right to
information is to ile a petition for mandamus.
Privatization and Management Of ice v. Strategic Development
2013
The right to information allows the public to hold public of icials
accountable to the people and aids them in engaging in public
discussions leading to the formulation of government policies and
their effective implementation. By itself, it does not extend to causing
the award of the sale of government assets in failed public biddings.
Thus, assuming that Dong-A Consortium may access the records for
the purpose of validating the indicative price under the right to
information, it does not follow that respondent is entitled to the
award.
Sereno v. Committee on Trade and Related Matters of NEDA 2016
The constitutional guarantee to information does not open every
door to any and all information, but is rather con ined to matters of
public concern. It is subject to such limitations as may be provided
by law. The State's policy of full public disclosure is restricted to
transactions involving public interest, and is tempered by reasonable
conditions prescribed by law.
Two requisites must concur before the right to information may be
compelled by writ of mandamus.
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Firstly, the information sought must be in relation to matters of
public concern or public interest.
And, secondly, it must not be exempt by law from the operation
of the constitutional guarantee.
The constitutional guarantee of the people's right to information does
NOT cover national security matters and intelligence
information, trade secrets and banking transactions and
criminal matters. Equally excluded from coverage of the
constitutional guarantee are diplomatic correspondence,
closed-door Cabinet meeting and executive sessions of either
house of Congress, as well as the internal deliberations of the
Supreme Court.
Every claim of exemption, being a limitation on a right
constitutionally granted to the people, is liberally construed in favor
of disclosure and strictly against the claim of con identiality.
However, the claim of privilege as a cause for exemption from the
obligation to disclose information must be clearly asserted by
specifying the grounds for the exemption.
DFA v. BCA International 2016
This case is one of irst impression involving the production of
evidence in an arbitration case where the deliberative process
privilege is invoked.
Deliberative process privilege is one kind of privileged
information, which is within the exceptions of the constitutional
right to information. U.S. courts have established two fundamental
requirements for the deliberative process privilege to be invoked.
1. First, the communication must be predecisional, i.e.,
"antecedent to the adoption of an agency policy."
2. Second, the communication must be deliberative, i.e., "a
direct part of the deliberative process in that it makes
recommendations or expresses opinions on legal or policy
matters."
The deliberative process privilege can also be invoked in arbitration
proceedings under RA 9285. It contains three policy bases:
irst, the privilege protects candid discussions within an agency;
second, it prevents public confusion from premature disclosure
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of agency opinions before the agency establishes inal policy;
and
third, it protects the integrity of an agency's decision; the public
should not judge of icials based on information they considered
prior to issuing their inal decisions.
Rights cannot be waived if it is contrary to law, public order, public
policy, morals, or good customs, or prejudicial to a third person with
a right recognized by law. There is a public policy involved in a claim
of deliberative process privilege — "the policy of open, frank
discussion between subordinate and chief concerning administrative
action." Thus, the deliberative process privilege cannot be
waived.
As a quali ied privilege, the burden falls upon the government
agency asserting the deliberative process privilege to prove that the
information in question satis ies both requirements — predecisional
and deliberative.
Records of Police Drug Operations Almora v. Dela Rosa 2018 En Banc
The Court is mandated to protect and enforce the people's right to
information. The undeniable fact that thousands of ordinary citizens
have been killed, and continue to be killed, during police drug
operations certainly is a matter of grave public concern.
Contrary to the claim of the Solicitor General, the requested
information and documents do not obviously involve state secrets
affecting national security.
Right to Information and Con identiality of Disbarment Proceedings in
Roque, Jr. v. AFP Chief of Staff 2017 Leonen, J
Disbarment proceedings are covered by what is known as the
con identiality rule. The con identiality rule is intended, in part, to
prevent the use of disbarment proceedings as a tool to damage a
lawyer's reputation in the public sphere.
As a general rule, disciplinary proceedings are con idential in nature
until their inal resolution and the inal decision of this Court. The
con identiality rule requires only that "proceedings against
attorneys" be kept private and con idential. It is the proceedings
against attorneys that must be kept private and con idential. This
would necessarily prohibit the distribution of actual disbarment
complaints to the press. However, the rule does not extend so far
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For WEEK 1 of the 2020_21 #BestBarEver
that it covers the mere existence or pendency of disciplinary
actions.
Vitangcol III v. Comelec 2016 En Banc Separate Opinion of Leonen, J
When the subject of the petition for mandamus relates to a public
right such as the right to information on matters of public concern,
and when the object of the petition is to compel the performance of a
public duty, the petitioner need not show that its interest on the
result is exclusive. It may be shared by the public in general.
Without a doubt, information on the conduct of elections is a matter
of public concern as it directly affects the lives of the People. The
Commission on Elections may be compelled, through mandamus, to
make an inventory of and disclose the MAC and IP addresses and
IMSI and IMEI numbers of all electronic devices used during
elections to the public. It is mandated to enforce and administer all
laws and regulations relative to the conduct of an election.
I-Popefrancis v. DBM 2016
It is not disputed that PDAF disbursements and the recipients of the
same constitute a matter of public concern or public interest, which
are not exempt from the operation of the constitutional guarantee of
the right to information. Nevertheless, it is not proper to issue a writ
of mandamus in the present case.
Here, petitioners fail to establish that respondent actually neglected
or refused to provide the information they requested. While
respondent has the duty to give the public access to the information,
it has the discretion to ascertain the best way to disseminate, publish,
or otherwise make available the said information.
The information petitioners seek are already posted on its website.
There is also no clear legal mandate for respondents to identify
familial relations and/or determine nepotism or political
dynasties among the recipients of the PDAF disbursements. In
fact, as of yet, there is even no law that particularly de ines and
governs political dynasty.
_
G. Freedom of Religion
Sec 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
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F. Monopolies, restraint of trade, and unfair competition
A. Exploration, development, and utilization of
natural resources
Cruz v. SENR re Constitutionality of IPRA and its IRR
Ancestral Domains and Ancestral Lands are the Private
Property of Indigenous Peoples and Do Not Constitute Part of
the Land of the Public Domain.
The private character of ancestral lands and domains as laid down in
the IPRA is further strengthened by the option given to individual
ICCs/IPs over their individually-owned ancestral lands.
Section 3 of Article XII on National Economy and Patrimony of the
1987 Constitution classi ies lands of the public domain into four
categories: (a) agricultural, (b) forest or timber, (c) mineral lands,
and (d) national parks. Section 5 mentions ancestral lands and
ancestral domains but it does not classify them under any of the said
four categories. To classify them as public lands under any one
of the four classes will render the entire IPRA law a nullity.
Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the
Regalian Doctrine Enshrined in Section 2, Article XII
The Constitution provides that in the exploration, development
and utilization of natural resources, the State exercises full
control and supervision, and may undertake the same in four (4)
modes:
1. The State may directly undertake such activities; or
2. The State may enter into co-production, joint venture or
production-sharing agreements with Filipino citizens or
quali ied corporations;
3. Congress may, by law, allow small-scale utilization of
natural resources by Filipino citizens;
4. For the large-scale exploration, development and
utilization of minerals, petroleum and other mineral oils,
the President may enter into agreements with foreign-owned
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corporations involving technical or inancial assistance.
Examining the IPRA, there is nothing in the law that grants to the
ICCs/IPs ownership over the natural resources within their
ancestral domains. The right of ICCs/IPs in their ancestral domains
includes ownership, but this "ownership" is expressly de ined and
limited in Section 7 (a).
The Small-Scale Utilization of Natural Resources Is Allowed
Under Paragraph 3, Section 2 of Article XII
Ownership over the natural resources in the ancestral domains
remains with the State and the ICCs/IPs are merely granted the right
to
1. "manage and conserve" them for future generations,
2. "bene it and share" the pro its from their allocation and
utilization, and
3. "negotiate the terms and conditions for their exploration" for
the purpose of "ensuring ecological and environmental
protection and conservation measures."
Simply stated, the ICCs/IPs' rights over the natural resources
take the form of management or stewardship.
The Large-Scale Utilization of Natural Resources Is Allowed
Under Paragraphs 1 and 4, Section 2, Article XII
Interpreting Section 2, Article XII of the 1987 Constitution in relation
to Section 57 of IPRA, the State, as owner of these natural resources,
may directly undertake the development and exploitation of the
natural resources by itself, or in the alternative, it may recognize the
priority rights of the ICCs/IPs as owners of the land on which the
natural resources are found by entering into a co-production, joint
venture, or production-sharing agreement with them.
Shuley Mine v. DENR 2019
The Regalian Doctrine espouses that all lands of the public domain
belong to the State, and that, as a consequence thereof, any asserted
right of ownership over land necessarily traces back to the State.
The mineral agreements entered into by the State with private
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persons and entities partake of two natures:
a) a permit; and
b) a contract.
Consistent with the Regalian Doctrine, all unexplored or
unextracted mineral resources belong to every. Issues regarding the
exploration, extraction and utilization of mineral resources are
imbued with public interest. This striking constitutional
realization justi ies a strict interpretation in favor of preserving
the possession of mineral resources in favor of the State and in
trust for its citizens pending controversies regarding their
exploration, extraction, transportation or exportation.
Thus, the CA is correct in declaring that the RTC erred in enjoining the
DENR-MGB in suspending petitioner's mining operations as well as
withholding the issuance of its OTPs and MOEPs.
B. Franchises, authorities, and certificates for public
utilities
Section 11. No franchise, certi icate, or any other form of
authorization for the operation of a public utility shall be granted
except
a) to citizens of the Philippines or
b) to corporations or associations organized under the laws
of the Philippines, at least 60% of whose capital is owned
by such citizens;
nor shall such franchise, certi icate, or authorization be exclusive in
character or for a longer period than 50 years.
The State shall encourage equity participation in public utilities
by the general public.
Section 17. In times of national emergency, when the public
interest so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately-owned public utility or
business affected with public interest.
Section 18. The State may, in the interest of national welfare or
defense, establish and operate vital industries and, upon payment
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of just compensation, transfer to public ownership utilities and
other private enterprises to be operated by the Government.
Albano v. Reyes
Art. XII, Sec. 11 does not necessarily imply that only Congress has
the power to grant such authorization. Our statute books are
replete with laws granting speci ied agencies in the Executive Branch
the power to issue such authorization for certain classes of public
utilities.
In the instant case, the PPA, in the exercise of the option granted it by
P.D. No. 857, chose to contract out the operation and management of
the MICP to a private corporation. This is clearly within its power to
do. The contract between the PPA and ICTSI, coupled with the
President's written approval, constitute the necessary authorization
for ICTSI's operation and management of the MICP.
Republic v. PLDT
There is no reason why the State may not require a public utility to
render services in the general interest, provided just compensation is
paid therefor. Ultimately, the bene iciary of the interconnecting
service would be the users of both telephone systems, so that the
condemnation would be for public use.
C. Acquisition, ownership, and transfer of public and
private lands
Godinez v. Pak Luen
The vendor or his heirs cannot rely on an argument based on
imprescriptibility because the land sold in 1941 is now in the
hands of a Filipino citizen against whom the constitutional
prescription was never intended to apply. Fong Pak Luen, the
disquali ied alien vendee later sold the same property to Trinidad S.
Navata, a Filipino citizen quali ied to acquire real property.
Tejido v. Zamacoma
The litigated property is now in the hands of Filipino citizens.
Zamacoma, who owns the bigger portions of subject properties,
became a Filipino citizen as of 1936. The other defendants are all
Filipino citizens. Therefore, there would be no more public policy to
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be served in allowing plaintiffs-appellants to recover the land as it is
already in the hands of quali ied persons.
Ramírez v. Vda de Ramirez
The Constitutional provision which enables aliens to acquire
private lands does not extend to testamentary succession.
Matthews v. Taylor
Benjamin has no right to nullify the Agreement of Lease
between Joselyn and petitioner. Benjamin, being an alien, is
absolutely prohibited from acquiring private and public lands
in the Philippines. This is true even if we sustain Benjamin's claim
that he provided the funds for such acquisition.
D. Practice of professions
Section 14. The sustained development of a reservoir of national
talents consisting of Filipino scientists, entrepreneurs,
professionals, managers, high-level technical manpower and skilled
workers and craftsmen in all ields shall be promoted by the State.
The State shall encourage appropriate technology and regulate
its transfer for the national bene it. The practice of all
professions in the Philippines shall be limited to Filipino citizens,
save in cases prescribed by law.
E. Organization and regulation of private and public
corporations
Section 16. The Congress shall not, except by general law, provide
for the formation, organization, or regulation of private
corporations. GOCCs may be created or established by special
charters in the interest of the common good and subject to the
test of economic viability.
NADECO v. PVB
The interests of the public are not suf iciently involved to warrant the
interference of the government with the private contracts of AGRIX. It
would appear that the decree was issued only to favor a special group
of investors who have been preferred to the legitimate creditors of
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AGRIX.
Also, the means employed to rehabilitate AGRIX fall far short of the
requirement that they shall not be unduly oppressive. The right to
property in all mortgages, liens, interests, penalties and charges
owing to the creditors of AGRIX is arbitrarily destroyed. There is
discrimination as well. In extinguishing the mortgage and other liens,
the decree lumps the secured creditors with the unsecured creditors
and places them on the same level in the prosecution of their
respective claims. In this respect, all of them are considered
unsecured creditors violative of the equal protection clause.
On top of all this, New Agrix, Inc. was created by special decree
notwithstanding the provision of Article XIV, Section 4 of the 1973
Constitution proscribing the formation, organization, or regulation of
private corporations by the government.
The decree also impairs the obligation of the contract between
AGRIX and the private respondent without justi ication. While it is
true that the police power is superior to the impairment clause, the
principle will apply only where the contract is so related to the
public welfare that it will be considered congenitally susceptible to
change by the legislature in the interest of the greater number.
Liban v. Gordon 2011 En Banc
The structure of the PNRC is sui generis, being neither strictly private
nor public in nature. R.A. No. 95 remains valid and constitutional in
its entirety.
F. Monopolies, restraint of trade, and unfair
competition
Section 19. The State shall regulate or prohibit monopolies when
the public interest so requires. No combinations in restraint of
trade or unfair competition shall be allowed.
Lagman v. Torres Decision and Resolution
A monopoly is a privilege or peculiar advantage vested in one or
more persons or companies, consisting in the exclusive right or
power to carry on a particular business or trade, manufacture a
particular article, or control the sale or the whole supply of a
particular commodity.
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On the other hand, a combination in restraint of trade is an
agreement or understanding between two or more persons, in the
form of a contract, trust, pool, holding company, or other form of
association, for the purpose of unduly restricting competition,
✓
monopolizing trade and commerce in a certain commodity,
controlling its production, distribution and price, or otherwise
interfering with freedom of trade without statutory authority.
Combination in restraint of trade refers to the means while
monopoly refers to the end.
Competition is the underlying principle of Section 19, Article
XII of our Constitution which cannot be violated by R.A. No. 8180.
The offending provisions of R.A. No. 8180 so permeate its essence
that the entire law has to be struck down. The provisions on tariff
differential, inventory and predatory pricing are among the
principal props of R.A. No. 8180. Congress could not have
deregulated the downstream oil industry without these provisions.
R.A. No. 8180 is declared unconstitutional and E.O. No. 372
void.
To recapitulate, the Decision declared R.A. No. 8180 unconstitutional
for three reasons:
1) it gave more power to an already powerful oil oligopoly;
2) it blocked the entry of effective competitors; and
3) it will sire an even more powerful oligopoly whose
unchecked power will prejudice the interest of the
consumers and compromise the general welfare.
XV. SOCIAL JUSTICE AND HUMAN RIGHTS
A. Concept of Social Justice
B. Economic, Social, and Cultural Rights
C. Commission on Human Rights
A. Concept of Social Justice
Sec 1. The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to
human dignity, reduce social, economic, and political inequalities,
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and remove cultural inequities by equitably diffusing wealth and
political power for the common good.
Sec 2. The promotion of social justice shall include the
commitment to create economic opportunities based on freedom of
initiative and self-reliance.
Sec 10 Art II. The State shall promote social justice in all phases
of national development.
The aims of the policy to promote social justice are:
1) To protect and enhance the right of all the people to human
dignity;
2) To reduce social, economic, and political inequalities; and
3) To remove cultural inequities.
Calalang v. Williams
Social justice is "neither communism, nor despotism, nor
atomism, nor anarchy," but the humanization of laws and the
equalization of social and economic forces by the State so that
justice in its rational and objectively secular conception may at least
be approximated. Social justice means the promotion of the welfare of
all the people, the adoption by the Government of measures
calculated to insure economic stability of all the competent elements
of society, through the maintenance of a proper economic and social
equilibrium in the interrelations of the members of the community,
constitutionally, through the adoption of measures legally justi iable,
or extra-constitutionally, through the exercise of powers underlying
the existence of all governments on the time-honored principle of
salus populi est suprema lex.
Dalton-Reyes v. CA
Under the policy of social justice, the law bends over backward to
accommodate the interests of the working class on the humane
justi ication that those with less privilege in life should have more in
law; more so in the case of one who pursues her case even without
the assistance of counsel. Social justice would be a meaningless term
if an element of rigidity would be af ixed to the procedural precepts.
BFAR Employees Union v. COA
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Time and again, we have ruled that the social justice provisions of the
Constitution are not self-executing principles ready for
enforcement through the courts. They are merely statements of
principles and policies. To give them effect, legislative enactment is
required.
B. Economic, Social, and Cultural Rights
Economic, social, and cultural rights include the human right to
work, the right to an adequate standard of living, including food,
clothing, and housing, the right to physical and mental health, the
right to social security, the right to a healthy environment, and the
right to education.
International School Alliance of Educators v. Quisumbing
The Constitution speci ically provides that labor is entitled to
"humane conditions of work." These conditions are not restricted to
the physical workplace - the factory, the of ice or the ield - but
include as well the manner by which employers treat their
employees.
The Constitution also directs the State to promote "equality of
employment opportunities for all." It would be an affront to both the
spirit and letter of these provisions if the State, in spite of its
primordial obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and discriminatory terms
and conditions of employment.
Article 7 of the International Covenant on Economic, Social, and
Cultural Rights impregnably institutionalized in this jurisdiction the
long honored legal truism of "equal pay for equal work." Persons who
work with substantially equal quali ications, skill, effort and
responsibility, under similar conditions, should be paid similar
salaries.
C. Commission on Human Rights
Powers
1. Investigate, on its own or on complaint by any party, all forms
of human rights violations involving civil and political rights;
2. Adopt its operational guidelines and rules of procedure, and
cite for contempt for violations thereof in accordance with
the Rules of Court;
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G. Nationality and Statelessness

1. who may teach; Likewise, in imposing that only those with a basic degree in law may
2. what may be taught, be admitted to graduate programs in law encroaches upon the law H. General Principles of Treaty Law

V
school's right to determine who may be admitted.
3. how it shall be taught and I. Doctrine of State Responsibility
3. Minimum quali ications of faculty members
4. who to admit,
As worded, the assailed clauses of Section 7(c) and 7(e) insofar as J. Refugees
being part of their academic freedom. The State, in the exercise of
they give LEB the power to prescribe the minimum quali ications of
its reasonable supervision and regulation over education, can only K. Treatment of aliens
faculty members are in tune with the reasonable supervision and
impose minimum regulations. The right to receive education is not
regulation clause and do not infringe upon the academic L. International Human Rights Law
and should not be taken to mean as a right to be admitted to
freedom of law schools. University of the East v. Pepanio held that
educational institutions.
the requirement of a masteral degree, albeit for tertiary education M. International Humanitarian Law
By case law, the Court already upheld the validity of administering an teachers, is not unreasonable.
aptitude test as a reasonable police power measure in the Categories of armed con licts
However, it is the manner by which the LEB had exercised this
context of admission standards into institutions of higher learning.
power through its various issuances that prove to be Core international obligations of States
Pursuant to its power under Section 7(e), the Court af irms the LEB's
unreasonable. The LEB-imposed period of compliance is
authority to initiate and administer an aptitude test, such as the
unreasonable given the logistical and inancial obstacles. Principles of international humanitarian law
PhiLSAT, as a minimum standard for law admission. Thus, the
PhiLSAT, insofar as it functions as an aptitude exam that 4. Legal apprenticeship and legal internship
Law on neutrality
measures the academic potential of the examinee to pursue
The provisions unduly interfere with the discretion of a law school
the study of law to the end that the quality of legal education is N. Law of the Sea
regarding its curriculum, particularly its apprenticeship program.
improved, is not per se unconstitutional.
Plainly, these issuances are beyond mere supervision and regulation.
However, there are certain provisions of the PhiLSAT that render its Baselines
operation exclusionary, restrictive, and qualifying which is contrary
XVII. PUBLIC INTERNATIONAL LAW Archipelagic States
to its design as an aptitude exam.
LEB's Powers vis-a-vis Institutional Academic Freedom and the Internal waters
A. Concepts
Right to Education
Territorial sea
1. PhiLSAT B. Relationship between International and Philippine
Contiguous zone
The Court takes a calibrated approach and partially nulli ies LEBMO domestic law
No. 7-2016 insofar as it absolutely prescribes the passing of the Exclusive economic zone
PhiLSAT and the taking thereof within two years as a prerequisite for C. Sources of international law
admission to any law school which, on its face, run directly counter Continental shelf
D. Subjects of international law
to institutional academic freedom.
International Tribunal for the Law of the Sea
2. Other LEB issuances on law admission E. Jurisdiction of States

The requirement that an applicant obtain a speci ic number of units O. International Environmental Law
Basis of Jurisdiction
in English, Mathematics, and Social Science subjects affects a law
Principle 21 of Stockholm Declaration
school's admission policies leaving the latter totally without Exemptions from Jurisdiction
discretion to admit applicants who are de icient in these subjects or Precautionary principle
to allow such applicant to complete these requirements at a later Act of State doctrine
time.
F. Diplomatic and Consular Law

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A. Concepts
1. Public International Law is the system of law that regulates
the interrelationship of sovereign states and duties with regard
to one another.
2. Comitas gentium. — or international comity, refers to rules
of politeness, convenience and goodwill observed by States in
their mutual intercourse without being legally bound by them.
3. Hard law refers to binding international legal norms or those
which have coercive character.
Soft law refers to norms that are non-binding in character but
still have legal relevance.
B. Relationship between International and Philippine
domestic law
Government of Hong Kong SAR v. Olalia, Jr.
The modern trend in public international law is the primacy
placed on the worth of the individual person and the sanctity of
human rights. Slowly, the recognition that the individual person
may properly be a subject of international law is now taking
root. The vulnerable doctrine that the subjects of international
law are limited only to states was dramatically eroded towards the
second half of the past century.
Please refer to Adherence to International Law for more cases.
C. Sources of international law
Article 38, International Court of Justice Statute
The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
b. international custom, as evidence of a general practice
accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly quali ied publicists of the
various nations, as subsidiary means for the determination of
rules of law.
This provision shall not prejudice the power of the Court to decide a
case ex aequo et bono, if the parties agree thereto.
Notes
1. There are 2 instances where equity may be applied:
a. Ex Aequo et Bono — there is the requirement of
agreement by the parties by permitting the ICJ to
resolve the case on the basis of equity instead of the
applicable rules of international law.
b. Non liquet. — “it is not clear,” refers to a situation
where there is no applicable law and the parties have
not agreed to have their case decided ex aequo et bono.
2. Equity can perform three functions
a. Equity infra legem — to adapt to the facts of
individual cases;
b. Equity praeter legem — to ill gaps in the law;
c. Equity contra legem — as a reason for refusing to
apply unjust laws.
3. How is PIL formed?
a. Through state practice — 2 elements:
i. objective element (general state practice);
ii. subjective element (opinio juris sive
necessitatis)
b. Through agreement by the states — Through
conventions or treaties.
4. Lotus Doctrine. — A state is barred to do an act only when it is
so prohibited under a treaty or CIL because restriction to state
sovereignty is not presumed.
Bayan Muna v. Romulo 2011 En Banc re Executive Agreements
5. Relevant State Practice Doctrine. — Practice of those states
whose interests are specially affected.
6. What is the Persistent Objector Doctrine (POD)?
The important elements to consider in this case are:
a. The objection by the dissenter must have been done
before the norm has ripened to CIL or at the outset.
b. The objection must be consistent.
c. The objection must be categorical, clear and
equivocal dissent must be shown.
7. What is the value of the POD? Since it is a CIL, all states must
comply because all states are bound by it. However, when the
state quali ies as a persistent objector, it may not be compelled
to follow the CIL.
8. There is no stare decisis on ICJ decisions because Art 59
provides that decisions of ICJ shall apply only between the
parties and only in a particular case.
9. Obligations Erga Omnes. — Obligations of a state to the
international community. Obligations for which all states have
a legal interest in the ful illment by reason of the importance of
their subject matter to the international community. Whether
such duty addresses a jus cogens norm in order to protect,
promote and preserve a jus cogens norm.
10. Unilateral Declaration of State Doctrine. — A unilateral
declaration binds the state internationally when:
a. Publicly made and manifesting will to be bound;
b. Made by an authority vested with the power to do so;
c. Made orally or in writing;
d. Addressed to the international community or to
speci ic state or entity;
e. Stated in clear and speci ic terms;
f. Consistent with jus cogens;
g. Will not bind third states who do not accept it;
h. Not validly revoked.
International agreements may be in the form of
1) treaties that require legislative concurrence after executive

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 POLxLAB
rati ication; or
2) executive agreements that are similar to treaties, except
v
that they do not require legislative concurrence and are
usually less formal and deal with a narrower range of subject
matters than treaties.
Under international law, there is no difference between treaties
and executive agreements in terms of their binding effects.
Saguisag v. Executive Secretary 2016 En Banc re EDCA
Executive agreements may dispense with the requirement of Senate
concurrence because of the legal mandate with which they are
concluded. They merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements. They
are concluded
1) to adjust the details of a treaty;
2) pursuant to or upon con irmation by an act of the
Legislature;
3) in the exercise of the President's independent powers under
the Constitution.
The raison d'etre of executive agreements hinges on prior
constitutional or legislative authorizations.
Customary International Law
11. CIL consists of rules of law derived from the consistent
conduct of States acting out of the belief that the law required
them to act that way.
12. The elements of customary norms are:
a. Duration or long State practice;
b. Consistency of the State practice or the widespread
repetition by States of similar international acts over
time;
c. Generality of the State practice or that the acts are
taken by a signi icant number of States and not
rejected by a signi icant number of States; and
d. Opinio Juris Sive Necessitatis or the requirement
that the acts must occur out of a sense of obligation.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
General Principles of Law
13. Are those which are recognized by civilized nations to be so
fundamental that they are a basic tenet in virtually every major
legal system. They are derived from domestic law. They ind
relevance in illing gaps left by treaties and CIL.
14. In the Corfu Channel Case, the ICJ held that the obligation of
Albania to notify the UK of the existence of mine ield in its
territory is based on certain general and well-recognized
principles of IL:
a. Elementary considerations of humanity, even more
exacting in peace than in war;
b. Principle of freedom of maritime communication; and
c. Every State has an obligation not to allow knowingly
its territory to be used for acts contrary to the rights of
other States.
15. The Aramco Arbitration Case declared the principle of respect
for acquired rights as one of the fundamental principles of
both PIL and of the municipal law of most civilized States.
16. The principle of estoppel is also considered a general
principle of law as applied in the Case Concerning the Temple
of Preah Vihear.
17. Our own SC in Kuroda v. Jalandoni has declared that the rules
and regulations of the Hague Conventions are generally
accepted principles of law. Therefore, they form part of our
laws even if the Philippines was not a signatory to the
conventions.
Effect of UN Declarations, Security Council Resolutions
18. Resolutions of the UN General Assembly are mere
recommendations on questions or matters within the scope
of the present UN Charter.
The resolutions, however, may constitute evidence of the
existence of international customs.
19. Under Art 25 of the UN Charter, all members agree to accept and
carry out the decisions of the Security Council. While other
organs of the UN make recommendations to Governments, the
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Council alone has the power to make decisions which Member
States are obligated under the Charter to carry out.
Effect of actions of organs of international organizations
created by treaty
20. Art 2(a) of the 2011 Draft Articles on the Responsibility of
International Organizations, an “international organization”
is one established by a treaty or other instrument governed by
international law and possessing its own international legal
personality. International organizations may include as
members, in addition to States, other entities.
21. Every internationally wrongful act of an international
organization entails the international responsibility of that
organization.
22. There is an internationally wrongful act of an international
organization when conduct consisting of an action or omission:
a) is attributable to that organization under IL; and
b) constitutes a breach of an international obligation.
23. The conduct of an organ or agent of an international
organization in the performance of functions of that organ or
agent shall be considered an act of that organization under
international law, whatever position the organ or agent
holds in respect of the organization.
24. The conduct of an organ of a State or an organ or agent of an
international organization that is placed at the disposal of
another international organization shall be considered under
international law an act of the latter organization if the
organization exercises effective control over that conduct.
D. Subjects of international law
1. A subject of IL is one to whom the rules of IL are immediately
addressed.
On the other hand, an object is a person or entity for which
the subjects of IL hold rights and obligations in the
international legal order.
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b. Actual or impending emergencies due to calamities; b. Worker has died, in which case, paid to heirs without need 3. Discharging him from employment; or
c. Employer provides free transportation back and forth; and of intestate proceedings, only af idavit of heirship. 4. Discriminate against him in any manner. (Art
d. Other analogous circumstance, provided Time and Frequency 118)

Time spent collecting wages is considered compensable GR: At least every 2 weeks or twice a month at intervals not iv) False reporting (Art 119)
hours worked. exceeding 16 days. c) Non-interference in the disposal of wages. — Art 112. No
e. Prohibited places: bar, club, drinking establishment, EXC: Force majeure. employer is allowed to limit or otherwise interfere with how
similar places where games are played with stakes of an employee should dispose or make use of the latter’s wages.
5. Prohibitions Regarding Wages
money, except if employee employed in such He shall not in any manner force, compel, or oblige his
establishment. a) From the Civil Code employees to purchase merchandise, commodities or any other
Payment thru Banks allowed (RA 6727) provided i) Art 1705. The laborer's wages shall be paid in legal property.
currency.
a. With written permission of majority of employees; Wage Deduction
ii) Art 1706. Withholding of the wages, except for a debt
b. In all private establishments of at least 25 EEs; GR: No employer, in his own behalf or in behalf of any person,
due, shall not be made by the employer.
shall make any deduction from the wages of his
c. Located within 1KM radius to a bank;
iii) Art 1707. The laborer's wages shall be a lien on the employees.
d. Within the period of payment of wages ixed by the LC. goods manufactured or the work done.
EXC:
Payment thru ATM allowed provided: iv) Art 1708. The laborer's wages shall NOT be subject
a) Facilities;
a. With written consent of employees concerned; to execution or attachment, except for debts
incurred for food, shelter, clothing and medical b) Amount paid by ER as premiums on insurance,
b. Given reasonable time to withdraw during working hours consented to by EE;
attendance.
and is considered compensable;
v) Art 1709. The employer shall neither seize nor retain c) For union dues, where the right of EE or his union to
c. Within period of payment of wages ixed by LC; checkoff has been recognized by the ER or authorized in
any tool or other articles belonging to the laborer.
d. There is a bank or ATM within 1KM radius; writing by the EE concerned;
b) Other prohibitions
e. Payslip be provided, upon request; d) Where ER is authorized by law or regulations issued by
i) Kickbacks — induce a worker to give up any part of SOLE;
f. No additional expenses and diminution of bene its
his wages by force, stealth, intimidation, threat;
resulting from the scheme; e) For loss or damage under Art 114 LC; DOLE LA 11-14,
ii) Deduction to ensure employment (Art 117); Private Security Agencies:
g. Employer shall assume responsibility in case the wage
protection provisions of law and regulations are not iii) Retaliate against an employee who has i) Following must be observed:
complied with under the arrangement. 1) Filed any complaint, or 1) EE is clearly responsible for the loss or damage;
Payee 2) Instituted proceedings, or 2) He is given reasonable opportunity to show cause
GR: Direct to Employee; 3) Has testi ied or is about to testify in said why deductions should not be made;
proceedings; 3) Deduction is fair and reasonable and should not
EXC:
by: exceed the actual loss or damage; and
a. Force majeure, in which case worker may be paid through
1. Refusing to pay the wages; or 4) Does not exceed 20% of EE’s wages in a week.
another person under written authority for such purpose;
or 2. Reducing such wages; or

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 POLxLAB PRE-WEEK NOTES For WEEK 1 of the 2020_21 #BestBarEver

ii) Cash Deposit — must not exceed one month's basic
salary of EE. May be deducted from wages in an
amount not to exceed 20% of EE’s wages in a week.
iii) Refund — within 10 days from separation from
service.
Jardin v. NLRC
With regard to the amount deducted daily by private respondent from
l) Under the PH Cooperative Act of 2008. RA 9520 - A
member of a cooperative may execute an instrument in
favor of the cooperative authorizing his employer to
deduct from his wages and remit such to the cooperative to
satisfy any incurred debt or other demands.
m) DO No. 195, S. 2018, Amending Sec. 10, Rule VIII, Book
III, IRR.
⭐SECTION 10. Wages deduction. — Deductions from the
b) New business enterprises (NBEs) — refers to
establishments, including non-pro it institutions,
established within two (2) years from effectivity of
the Wage Order based on the latest registration with
the appropriate government agency such as SEC, DTI,
CDA and Mayor's Of ice.
c) Retail/Service establishments employing not
more than ten (10) workers.

v
petitioners for washing of the taxi units, we view the same as not
wages of the employees may be made by the employer in any i) Retail establishment refers to an entity
illegal in the context of the law.
of the following cases: principally engaged in the sale of goods to
Niña Jewelry Manufacturing of Metal Arts v. Montecillo 2011 (b) When the deductions are with the written authorization of end users for personal or household use. A
the employees for payment to the EMPLOYER or a third person retail establishment that regularly engages in
Employers should irst establish that the making of deductions from wholesale activities loses its retail character.
the salaries is authorized by law, or regulations. Further, the posting and the employer agrees to do so; Provided, That the latter does
not receive any pecuniary bene it, directly or indirectly, from ii) Service Establishment refers to an entity
of cash bonds should be proven as a recognized practice in the
jewelry manufacturing business, or alternatively, the employer the transaction. principally engaged in the sale of services to
should seek for the determination by the SOLE that the policy the individuals for their own or household use
6. Wage Determination
former seeks to implement is necessary or desirable in the conduct and is generally recognized as such.
Two Methods of Determining Wages
of business. d) Establishments adversely affected by natural
a. Floor Wage Method which involves the ixing of a calamities.
f) For Agency Fees from non-union members who accept the determinate amount to be added to the prevailing statutory
i) The establishment must be located in an area
bene its under the CBA negotiated by the bargaining union. minimum wage rates.
declared by a competent authority as
Does not need authorization from concerned member;
b. Salary Ceiling Method wherein the wage adjustment was under a state of calamity.
g) Premiums for SSS, PhilHealth, employee’s compensation to be applied to employees receiving a certain
ii) The natural calamities, such as earthquakes,
and Pag-IBIG; denominated salary ceiling. Used in RA 6727.
lahar low, typhoons, volcanic eruptions, ire,
h) Withholding tax; See Employers Confederation of PH v. NWPC loods and similar occurrences, must have
i) Where EE is indebted to ER that has become due and occurred within 6 months prior to the
a. Wage Order
demandable (Art 1706 CC); effectivity of the Order. However, if based
1) See 2020 DOLE Handbook on Workers’ Statutory on the assessment by a competent authority,
j) Pursuant to a court judgment where wages may be the
Monetary Bene its. the damage to properties is at least 50%
subject of attachment or execution but only for debts
2) In Pag-asa Steel Works v. CA, there is no right to a wage and the period of recovery will exceed 1
incurred for
increase from a wage order if the employees have been year, the 6-month period may be extended to
i) food, 1 year. (As amended by NWPC Resolution No
receiving salaries above the minimum wage.
ii) clothing, 01-14)
3) Exemptions from Wage Orders as provided in NWPC
iii) shelter and Guidelines 02-07, aab NWPC Resolution No. 1, S. 2014. iii) Losses suffered by the establishment as a
Categories of Exemptible Establishments: result of the calamity that exceed the
iv) medical attendance;
insurance coverage should amount to 20% or
k) Ordered by the court. a) Distressed establishments;
more of the stockholders' equity.

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POLxLAB
Wage distortion presupposes an increase in the compensation of the
lower ranks in an of ice hierarchy without a corresponding raise for
e-
higher-tiered employees in the same region of the country, resulting
in the elimination or the severe diminution of the distinction
between the two groups.
Such distortion does not arise when a wage order gives employees in
one branch of a bank higher compensation than that given to their
counterparts in other regions occupying the same pay scale, who are
not covered by said wage order. In short, the implementation of wage
orders in one region but not in others does not in itself necessarily
result in wage distortion.
3) Wage Distortion Resolution
4) Possible causes
a) Government decreed increase through WOs;
b) Merger of establishments;
c) Increase granted by employers;
d) Passage of RA 6727.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
5) In Bankard Employees Union v. NLRC, the unilateral
adoption by an employer of an upgraded salary scale that
increased the hiring rates of new employees without
increasing the salary rates of old employees DOES NOT
RESULT in wage distortion within the contemplation of
Article 124 of the Labor Code, as the increase in the
wages and salaries of the newly-hired was not due to a
prescribed law or wage order.
C. Leaves
1. Labor Code
a. Service incentive leave. — Every employee who has
rendered at least one (1) year of service is entitled to
Service Incentive Leave (SIL) of ive (5) days with
pay.
The phrase “one year of service” of the employee means
service within twelve (12) months, whether continuous
or broken, reckoned from the date the employee started
working. The period includes authorized absences,
unworked weekly rest days, and paid regular holidays.
Tan v. Lagrama
If a piece worker is supervised, there is an employer-employee
relationship. However, such an employee is not entitled to service
incentive leave pay since, as pointed out in Makati Haberdashery v.
NLRC and Mark Roche International v. NLRC, he is paid a ixed
amount for work done, regardless of the time he spent in
accomplishing such work.
2. Special laws
a. Parental leave for solo parents. — See RA 8972.
Solo Parent Welfare Act and its IRR.
1) In addition to leave privileges under existing laws,
parental leave of not more than seven (7) working
days every year shall be granted to any solo parent
employee who has rendered service of at least one (1)
year.
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2) The seven-day parental leave shall be non-cumulative.
3) In the event that the parental leave is not availed of,
said leave shall not be convertible to cash unless
speci ically agreed upon previously.
b. Expanded maternity leave. — See 105-Day
Expanded Maternity Leave Law
1) Increased maternity leave with full pay;
a) 105 days for natural or cesarean delivery;
b) 60 days for miscarriage or emergency
termination of pregnancy.
2) Option to extend maternity leave for additional
thirty (30) days without pay;
Notify ER at least 45 days before end of maternity
leave to avail of extension.
3) Additional ifteen (15) days with full pay for solo
parents;
4) Combinations of prenatal and postnatal leave;
Compulsory postnatal at least 60 days.
5) Maternity leave regardless of frequency;
6) Allocation of maternity leave credits;
a) allocate up to seven (7) days of said bene its to
the child's father, whether or not the same is
married to the female worker.
b) alternate caregiver who may be a relative within
the fourth degree of consanguinity or the current
partner of the female worker sharing the same
household.
c) In the event the bene iciary female worker dies or
is permanently incapacitated, the balance of her
maternity leave bene its shall accrue to the father
of the child or to a quali ied caregiver.
7) Maternity leave after termination of service;
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POLxLAB
a) occurs not more than ifteen (15) calendar
days after the termination of an employee's
service, as her right thereto has already accrued.
b) such period is not applicable when the
employment of the pregnant woman worker has
been terminated without just cause.
8) Voluntary working arrangement during the maternity
leave period.
c. Paternity leave. — RA 8187. Is granted to all married
male employees in the private sector, regardless of their
employment status.
Government employees are also entitled to the paternity
leave bene it.
Entitled to full pay, consisting of basic salary, for the 7
days of paternity leave, for up to the irst four (4)
deliveries.
1) A married male employee;
2) Cohabiting with spouse;
3) Has applied for PL;
4) Legitimate spouse gave birth or had a miscarriage.
In the event that the paternity leave is not availed of, it
shall not be convertible to cash and shall not be
cumulative.
d. Gynecological leave. — Any female employee in the
public and private sector regardless of age and civil status
shall be entitled to a special leave of two (2) months
with full pay based on her gross monthly compensation
subject to existing laws, rules and regulations due to
surgery caused by gynecological disorders under such
terms and conditions:
1) She has rendered at least six (6) months continuous
aggregate employment service for the last twelve (12)
months prior to surgery;
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
2) In the event that an extended leave is necessary, the
female employee may use her earned leave credits;
and
3) This special leave shall be non-cumulative and non-
it
convertible to cash.
e. Battered woman leave. — See RA 9262 or the
Anti-VAWC Law. The quali ied victim-employee shall be
entitled to a leave of up to ten (10) days with full pay,
consisting of basic salary and mandatory allowances ixed
by RTWPB.
Requirement. — To be entitled to the leave bene it, the
only requirement is for the victim-employee to present to
her employer a certi ication from the
1) barangay chairman or
2) barangay councilor or
3) prosecutor or
4) the Clerk of Court, as the case may be,
that an action relative to the matter is pending.
D. Sexual harassment in the work environment
1. De inition. — Under the Anti-Sexual Harassment Act of 1995, it
is committed by an employer, employee, manager, supervisor,
agent of the employer, xxx, or any other person who, having
authority, in luence or moral ascendancy over another in a
work environment, demands, requests or otherwise requires
any sexual favor from the other, regardless of whether the
demand, request or requirement for submission is accepted by
the object of said act.
2. Duties and liabilities of employers. — Employers or other
persons of authority, in luence or moral ascendancy in a
workplace shall have the duty to prevent, deter, or punish the
performance of acts of gender-based sexual harassment in the
workplace.
The employer or head of of ice shall be solidarily liable for
damages arising from the acts of sexual harassment committed
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in the employment if the employer or head of of ice is
informed of such acts by the offended party and no immediate
action is taken.
3. Applicable laws
a. Sexual Harassment Act. — Sexual harassment is
committed when:
1) The sexual favor is made as a condition
a) in the hiring or in the employment,
re-employment or continued employment of said
individual, or
b) in granting said individual favorable
compensation, terms of conditions, promotions,
or privileges; or
the refusal to grant the sexual favor results
c) in limiting, segregating or classifying the
employee which in any way would discriminate,
deprive or diminish employment opportunities or
otherwise adversely affect said employee;
2) The above acts would impair the employee's rights
or privileges under existing labor laws; or
3) The above acts would result in an intimidating,
hostile, or offensive environment for the employee.
b. Safe Spaces Act. — The crime of gender-based sexual
harassment in the workplace includes the following:
1) An act or series of acts involving
a) any unwelcome sexual advances, requests or
demand for sexual favors or
b) any act of sexual nature, whether done verbally,
physically or through the use of technology,
that has or could have a detrimental effect on the
conditions of an individual's employment or
education, job performance or opportunities;
2) A conduct of sexual nature and other conduct-based on
sex affecting the dignity of a person, which is
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disability and the seafarer is still unable to resume
his regular seafaring duties (Sec 2[b], Rule VII
AREC; Kestrel Shipping Co., Inc. v. Munar 2013,
Alpha Ship Management Corporation v. Calo
2013).
6) Need for De inite Assessment within 120/240 days.
Belchem Philippines, Inc. v. Zafra 2015
Failure to do so and the seafarer’s condition remain unresolved,
the latter shall be deemed totally and permanently disabled.
7) Third-doctor Referral
Carcedo v. Maine Marine Philippines, Inc. 2015
Despite the binding effect of the third doctor's assessment,
a dissatis ied party may institute a complaint with the LA
to contest the same on the ground of
a) evident partiality,
b) corruption of the third doctor,
c) fraud, other undue means,
d) lack of basis to support the assessment, or
e) being contrary to law or settled jurisprudence.
(Sunit v. OSM Maritime Services 2017)
8) Seafarer’s Death Bene it: Death Need Not Have
Occurred During Term of Employment
C.F. Sharp Crew Management, Inc. v. Heirs of Repiso 2016
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PRE-WEEK NOTES
The phrase “death of seafarer during the term of his contract” in
Section 20(A)(1) of the 1996 POEA-SEC should not be strictly and
literally construed to mean that the seafarer’s death should have
occurred during the term of his employment; it is enough that the
work-related injury or illness which eventually caused his
death occurred during the term of his employment.
9) Seafarer’s Protection; RA No 10706 or the Seafarers
Protection Act declares ambulance chasing a criminal
offense. Elements are:
a) A person or his agent solicits from a seafarer or
his heirs, the pursuit of a claim against the
employer of the seafarer;
b) Such claim is for the purpose of recovery of
monetary award or bene its arising from accident,
illness or death, including interest; and
c) The pursuit is in exchange of an amount or fee
which shall be retained or deducted from the
awarded or granted bene it.
10) Invalid Side Agreement. An agreement that diminishes
the employee’s pay and bene its is VOID, unless such
subsequent agreement is approved by the POEA. (Chavez v.
Bonto-Perez, Rayala, et al)
11) Period to File OFW Claims. Art 291 of the Labor Code
provides for 3 years from the date of the seafarer’s return
to the point of hire.
12) Sec 17 of POEA-SEC. Disciplinary procedures. The
following shall be complied by the Master against an
erring seafarer:
a) There shall be a written notice containing the
following:
i) Grounds for the charges;
ii) Date, time and place for a formal
investigation.
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b) An investigation or hearing shall be conducted
that must be duly documented and entered into
the ship’s logbook.
c) Should a penalty be justi ied, the Master shall
issue a written notice of penalty and its reason
to the seafarer.
d) Dismissal without notice may be justi ied if there
is clear and existing danger to the ship and
crew.
Maersk-Filipinas Crewing, et al. v. Avestruz 2015
A chief cook and the vessel’s captain had a heated argument. On the
same day, the cook was dismissed from service. Two days later, he
disembarked to return to the PH.
The cook was not afforded procedural due process for not observing
the two notice rule.
13) Employment-at-will (EAW) may be valid in Overseas
Employment. EAW is a contract of employment that may
be terminated with or without cause. This is binding if
freely and expressly stipulated in writing between the
foreign employer and the OFW. Termination should be in
good faith. (GBMLT Manpower Services v. Malinao 2015)
14) EAW NOT valid in Local Employment. In local
employment, the governing law is the security of tenure
principle inscribed in the Constitution and in the Labor
Code. One’s job is property and no employee can be
dismissed without valid cause allowed by law.
15) Pre-termination of Employment; Relief. Sec 10 RA No
8042 entitled the employee to:
a) Full reimbursement of his placement fee with
12% interest per annum;
b) His salaries for the unexpired portion of his
employment contract xxxx.
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leave with pay least 1 year already cash if not used. Summary of Special Benefits (30) days without uninterrupted pay.
service; enjoying pay manner, not
bene it; VL Bene iciaries, exceeding one Adoptive parents, if the
Part time with pay of Provision How to avail Exemptions and hundred ive (105) adoptee is below 7 years
workers may at least 5 Exclusions days old as of date he is placed
bene it. days; less in Pre-Adoptive
than 10 13th month pay [PD 851 as amended] Placement Authority
EEs
Equivalent to Worked for at least 1. Rank-and- ile Retirement Pay
Holiday Pay 1/12 of the total 1 month during a employees;
basic salary calendar year 2. Domestic helpers; 1. All employees in
Jan 1, Maundy earned within a 3. Piece-rate employees; private sector;
Thursday, Good calendar year, to 4. Government; 2. Part-timers;
Art 82 + One-half month Generally
■ 100% of Friday, Eidul Fitr, be paid not later 5. Already paying 13th 3. Employees of service
May be availed those of salary for every 1. Optional Age:
regular pay Eidul Adha, Apr than Dec 24. month pay or its and other job
of regardless retail and year of service that 60; Compulsory:
even if 9, May 1, Jun 12, equivalent; contractors;
of whether service includes: 65
unworked; National Heroes 6. In the personal 4. Kasambahays or
worked or with less 1.15 days latest 2. 5 year
■ 200% if Day, Nov 1, Nov service of another; persons in the personal
unworked. than 10 salary rate; and minimum
worked 30, Dec 25, Dec 7. Commission- based, service of another;
EEs if entitled to service;
30, Dec 31, boundary or task 5. Underground mine
2. Cash equivalent 3. Eligible for
Election Day basis, paid by result. workers;
of service retirement;
incentive leave 6. Employees in GOCCs
Night- shift Differential Paternity Leave [RA 8187. Paternity Leave Act of 1996 and its IRR] organized under Corp
= 5 days; Surface Mine
3.1/12 of the Code.
Art 82 + Entitled to full pay, 1. An employee; Married male employee, Workers
13th month pay 7. National Gov, LGCs,
Employees those of consisting of basic 2. Cohabiting with provided he is, during Optional: 50;
= 2.5 days; GOCCs under Civil
working retail and Not waivable, salary, for the 7 spouse; delivery or miscarriage: Compulsory: 60.
Service Law;
■ 110% of BHR between 10 service of founded on days of paternity 3. Has applied for 8. Retail, service, agri
1/2MS = Racehorse
PM - 6 AM of NOT more public policy leave, for up to the PL; establishments
irst four (4) 4. Legitimate 15+5+2.5 = 22.5 Jockeys
the next day than 5 regularly employ not
EEs. deliveries. spouse gave days Compulsory: 55.
more than 10.
birth or had a 9. Dismissed from work
Service Charges miscarriage. due to just cause.

Employees Maternity Leave [RA 11210. 105-Day Expanded Maternity Leave Parental Leave [RA 8972. Solo Parent Welfare Act and its IRR]
working in Service charges Law and its IRR]
establishments are not in the Parental leave of 1. Has rendered Solo parent, or other
collecting nature of pro it one hundred ive Cannot be deferred Female employee; not more than 7 service for at person who solely
■ 100% (105) days but should be in case the worker
service Art 82 share and, days every year. least 1 year; provides parental care
rank-and- ile maternity leave availed of either quali ies as a solo parent
charges, i.e. therefore, cannot 2. Noti ied and support to a child or
hotels, clubs, be deducted with full pay and before or after the the worker shall be Flexible work employer; children.
bars, casinos, from wage. an option to actual period of granted an additional schedule; 3. Presented a Solo
restaurants extend for an delivery in a ifteen (15) days Parent ID.
additional thirty continuous and maternity leave with full

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Protection from Termination by Employer Economic Reality or the Two-Tiered Test

work Requisites for validity This test is used when there is no existing employment
discrimination.
Substantive due process contract.
Battered Woman’s Leave 1) The putative employer’s power to control the
Just causes
employee with respect to the manner and methods by
10 days of paid Certi ication from Victims of abuse under Authorized causes which the work is to be accomplished; and
leave, which is Punong brgy, VAWC
extendible. Prosecutor or Procedural due process 2) The underlying economic realities of the activity or
Clerk of Court. Preventive suspension relationship, i.e. employee’s economic dependence
on the employer.
Gynecological Leave [RA 9710. Magna Carta of Women] Illegal dismissal
Depends upon the circumstances of the whole economic
Termination by Employee activity:
Special leave of 2 Continuous Female employee
months with full aggregate service undergoing gynecological Retirement 1) The broad extent to which the services performed are
pay based on of at least 6 surgery.
an integral part of the employer’s business.
gross monthly months for the A. Employer-employee relationship
compensation. last 12 months. 2) The limited extent of the worker’s investment in the
It is in personam and involves the rendition of personal service by
equipment and facilities.
the employee, and partakes of master and servant relationship.
IV. POST-EMPLOYMENT Its existence is a question of law and fact. In the 2016 Century
3) The nature and high degree of control by the employer;

Properties case, SC said that the employment status of a person is 4) The worker’s limited opportunities for pro it and
Employer-employee relationship
de ined and prescribed by law and not by what the parties say it growth;
Tests to determine existence
should be. It can not be negated by expressly repudiating it in a 5) The small amount of initiative, skill, judgment or
The Four-Fold Test contract. foresight required for the success of the claimed
Economic Reality or the Two-Tiered Test In the 2011 Tongko case, SC aptly described the primary and independent enterprise;
controlling test in determining the existence of an ER-EE 6) The high degree of permanency and duration of
Legitimate subcontracting vs labor-only contracting
relationship as the control over the performance of the task of relationship;
Kinds of employment the one providing the service.
7) The degree of dependency of the worker upon the
Regular 1. Tests to determine existence employer for his continued employment.
Casual The Four-Fold Test Lu v. Enopia 2017
Contractual 1) Selection and Engagement of employees; The fact that petitioner had registered the respondents with SSS is
Project proof that they were indeed his employees. The coverage of the Social
2) Payment of Wages;
Security Law is predicated on the existence of an EER.
Seasonal 3) Power of Dismissal;
It was established that petitioner exercised control over respondents.
Fixed-term 4) ⭐ Power of Control over employee’s conduct and The control test merely calls for the existence of the right to
Probationary over the means, manner and method by which the control, and not necessarily the exercise thereof.
work is to be accomplished. The payment of respondents' wages based on the percentage share of
Private school teachers
the ish catch would not be suf icient to negate the EER existing

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between them.
Petitioner wielded the power of dismissal over respondents when he
dismissed them after they refused to sign the joint ishing venture
agreement.
Reyes v. Doctolero 2017
In Mamaril v. The Boy Scout of the Philippines, there was no EER
between BSP and the security guards assigned to it by an agency
pursuant to a Guard Service Contract. In the absence of such
relationship, vicarious liability under Article 2180 of the Civil Code
cannot apply as against BSP. Similarly, we ind no EER between MCS
and respondent guards. The guards were merely assigned by
Grandeur to secure MCS' premises pursuant to their Contract of Guard
Services. Thus, MCS cannot be held vicariously liable for damages
caused by these guards' acts or omissions.
Loreche-Amit v. Cagayan De Oro Medical Center 2019
ECONOMIC REALITY TEST. The benchmark of economic reality is
the economic dependence of the worker on his employer.
WON Loreche-Amit was an employee of CDMC.
NO. CDMC does not exercise the power of control over petitioner.
Petitioner was working for two other hospitals aside from CDMC, not
to mention those other hospitals which she caters to when her
services are needed. Such fact evinces that petitioner controls her
working hours. On this note, relevant is the economic reality test.
Thus, the fact that petitioner continued to work for other hospitals
strengthens the proposition that petitioner was not wholly dependent
on CDMC.
Petitioner likewise admitted that she receives in full her 4% share in
the Clinical Section of the hospital regardless of the number of hours
she worked therein. The rule is that
a. where a person who works for another
b. performs his job more or less at his own pleasure,
c. in the manner he sees it,
d. not subject to de inite hours or conditions of work, and
e. is compensated according to the result of his efforts and not
the amount thereof,
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no employer-employee relationship exists.
Fernandez v. Kalookan Slaughterhouse 2019
WON Fernandez was an employee of Kalookan Slaughterhouse.
YES. The Court in Masonic Contractor, Inc. v. Madjos ruled that the
fact that the company provided identi ication cards and
uniforms and the vague af idavit of the purported employer were
suf icient evidence to prove the existence of EER.
Kalookan Slaughterhouse, through Tablit, was the one who engaged
petitioner, paid for his salaries, and in effect had the power to
dismiss him. Further, Kalookan Slaughterhouse exercised control
over petitioner's conduct through De Guzman. To the mind of the
Court, Kalookan Slaughterhouse was petitioner's employer and it
exercised its rights as an employer through Tablit and De Guzman,
who were its employees.
American Power Conversion Corp v. Lim 2018 re Quasi-Contract
3) "Substantial capital" — refers to paid-up capital
We have this unique situation where respondent was hired directly
by APCC of the USA, but was being paid his remuneration by a
separate entity — APCP BV of the Philippines, and is supervised and
controlled by APCS from Singapore and APC Japan - all in furtherance
of APCC's objective of doing business here unfettered by government
4) Contracting or subcontracting shall only be ALLOWED if
regulation. For all legal purposes, APCC is respondent's employer.
2. Legitimate subcontracting vs labor-only contracting
see DO No. 174 s. 2017
a. Elements
1) There is "labor-only" contracting where the person
supplying workers to an employer
a) does not have substantial capital or investment in
the form of tools, equipment, machineries, work
premises, among others, and
b) the workers recruited and placed by such person are
performing activities which are directly related to
the principal business of such employer.
2) Labor-only contracting, which is totally prohibited,
refers to:
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a) an arrangement where
i) The contractor or subcontractor does not
have substantial capital, OR
ii) The contractor or subcontractor does not
have investments in the form of tools,
equipment, machineries, supervision, work
premises, among others, AND
iii) The contractor's or subcontractor's
employees recruited and placed are
performing activities which are directly
related to the main business operation of
the principal; OR
b) The contractor or subcontractor does not exercise
the right to control over the performance of the work
of the employee.
stock/shares at least P5M in the case of corporations,
partnerships and cooperatives; in the case of single
proprietorship, a net worth of at least P5M.
all the following circumstances concur:
a) The contractor or subcontractor is engaged in a
distinct and independent business and undertakes
to perform the job or work on its own responsibility,
according to its own manner and method;
b) The contractor or subcontractor has substantial
capital to carry out the job farmed out by the principal
on his account, manner and method, investment in the
form of tools, equipment, machinery and supervision;
c) In performing the work farmed out, the contractor or
subcontractor is free from the control and/or
direction of the principal in all matters connected
with the performance of the work except as to the
result thereto; and
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d) The Service Agreement ensures compliance with
all the rights and bene its for all the employees of the
contractor or subcontractor under the labor laws.
b. Trilateral relationship. — In legitimate contracting, there
exists a trilateral relationship under which there is a contract
for a speci ic job, work or service between the principal and the
contractor or subcontractor, and a contract of employment
between the contractor or subcontractor and its workers.
Hence, there are three parties involved in these arrangements,
1) the principal which decides to farm out a job or service to
a contractor or subcontractor,
2) the contractor or subcontractor which has the capacity
to independently undertake the performance of the job,
work or service, and
3) the contractual workers engaged by the contractor or
subcontractor to accomplish the job work or service.
c. Liabilities. — Effects of Labor-only Contracting
i. Principal is deemed direct employer of
contractor’s employees;
ii. Contractor will be treated as agent of principal;
iii. Principal’s liability is comprehensive — all
liabilities under labor laws, not only to unpaid wages.
Nestle Philippines Inc. v. Puedan, Jr 2017
WON ODSI is a labor-only contractor of NPI, and consequently, NPI is
respondents' true employer and, thus, deemed jointly and severally
liable with ODSI for respondents' monetary claims.
NO. A closer examination of the Distributorship Agreement reveals
that the relationship of NPI and ODSI is not that of a principal and a
contractor, but that of a seller and a buyer/re-seller.
The stipulations in the Distributorship Agreement do not operate to
control or ix the methodology on how ODSI should do its business
as a distributor of NPI products, but merely provide rules of conduct
or guidelines towards the achievement of a mutually desired result
— which in this case is the sale of NPI products to the end consumer.
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Thus, the foregoing circumstances show that ODSI was not a labor
only contractor of NPI.
Valencia v. Classique Vinyl Products Corp 2017
WON Valencia is an employee of CMS and not Classique Vinyl.
YES. Valencia's selection and engagement was undertaken by CMS
and conversely, this negates the existence of such element insofar as
Classique Vinyl is concerned.
Here, Classique Vinyl presented the CMS’s Certi icate of Registration
with the DTI and license as a private recruitment and placement
agency from the DOLE. Indeed, these documents are not conclusive
evidence of the status of CMS as a contractor. However, such fact of
registration of CMS prevented the legal presumption of it being a
mere labor-only contractor from arising.
The facts failed to establish that there is any circumvention of labor
laws as to call for the creation by the statute of an EER between
Classique Vinyl and Valencia.
Mago et al. v. Sunpower Manufacturing Ltd. 2018
A contractor is presumed to be a labor-only contractor, unless the
contractor is able to discharge the burden of overcoming this
presumption.
WON Jobcrest is a legitimate and independent contractor.
YES. Since the petitioners do not dispute that Jobcrest was a
duly-registered contractor under Section 11 of DOLE DO No.
18-02, there is no operative presumption that Jobcrest is a labor-only
contractor.
Conversely, the fact of registration with DOLE does not necessarily
create a presumption that Jobcrest is a legitimate and independent
contractor. The petitioners must overcome the presumption of
regularity accorded to the of icial act of DOLE.
Jobcrest has substantial capital.
Jobcrest had substantial capital to perform the business process
services it provided Sunpower. It has its own of ice, to which the
petitioners admittedly reported to, possessed numerous assets for
the conduct of its business, and even continuously earned pro it as a
result.
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Sunpower does not control the manner by which the petitioners
accomplished their work.
The fact that the petitioners were working within the premises of
Sunpower, by itself, does not negate Jobcrest's control over the
means, method, and result of the petitioners' work. The petitioners,
despite working in Sunpower's plant for most of the time, admit that
whenever they ile their leave application, or whenever required by
their supervisors in Jobcrest, they report to the Jobcrest of ice.
Designated on-site supervisors from Jobcrest were the ones who
oversaw the performance of the employees' work within the
premises of Sunpower.
Abuda et al. v. L. Natividad Poultry Farms 2018 Leonen, J
WON the maintenance personnel in L. Natividad Poultry Farms can
be considered as its regular employees.
YES. San Mateo and petitioner Del Remedios were not independent
contractors but labor-only contractors since they did not have
substantial investment in the form of tools, equipment, or work
premises. As labor-only contractors, they were considered to be
agents of L. Natividad.
Phil. Pizza Inc. v. Porras 2018
Although not a conclusive proof of legitimacy, the certi ication by the
DOLE nonetheless prevents the presumption of labor-only
contracting from arising. It gives rise to a disputable presumption
that the contractor's operations are legitimate.
CBMI is a legitimate job contractor, and consequently, the
employer of respondents. CBMI retained control over
respondents, as shown by the deployment of at least one (1) CBMI
supervisor in each Pizza Hut branch to regularly oversee, monitor,
and supervise the employees' attendance and performance.
Respondents applied for work with CBMI and were consequently
selected and hired by the latter.
Lingnam Restaurant v. Skills & Talent Employment 2018
The legitimate job contractor provides services, while the labor-only
contractor provides only manpower. The legitimate job contractor
undertakes to perform a speci ic job for the principal employer,
while the labor-only contractor merely provides the personnel to
work for the principal employer.
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WON STEP is engaged in labor-only contracting.
YES. STEP merely acted as a placement agency providing manpower
to Lingnam Restaurant. The service rendered by STEP in favor of
Lingnam Restaurant was not the performance of a speci ic job, but the
supply of personnel.
Lingat v. Coca-Cola Bottlers Phils, Inc. 2018
To determine whether one is an independent contractor, the
possession of substantial capital is only one element. It is necessary
to prove not only substantial capital or investment in tools,
equipment, work premises, among others, but ALSO that the work of
the employee is directly related to the work that contractor is
required to perform for the principal.
WON petitioners were regular employees of CCBPI.
YES. Petitioners' duties were reasonably connected to the very
business of CCBPI. They were indispensable to such business
because without them the products of CCBPI would not reach its
customers.
In Pacquing v. Coca-Cola Philippines, Inc., the Court ruled that the
sales route helpers of CCBPI were its regular employees. In this case,
petitioners had similarly undertook to bring CCBPI's products to its
customers at their delivery points.
WON MDTC is an independent contractor and employers of
petitioners.
NO. CCBPI's contention that MDTC was a legitimate labor contractor
and was the actual employer of petitioners does not hold water.
3. Kinds of employment
ARTICLE 295. Regular and Casual Employment. — The provisions
of written agreement to the contrary notwithstanding and regardless
of the oral agreement of the parties, an employment shall be deemed
to be regular where the employee has been engaged to perform
activities which are usually necessary or desirable in the usual
business or trade of the employer, except
a) where the employment has been ixed for a speci ic project
or undertaking the completion or termination of which has
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PRE-WEEK NOTES
been determined at the time of the engagement of the
employee or
b) where the work or service to be performed is seasonal in
nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by
the preceding paragraph:
Provided, That any employee who has rendered at least one year of
service, whether such service is continuous or broken, shall be
considered a regular employee with respect to the activity in which
he is employed and his employment shall continue while such
activity exists.
a. Regular
1) Employment is regular where the employee has been
engaged to perform activities which are usually necessary
or desirable in the usual business or trade of the
employer.
2) A regular employee may either be:
a) Permanent. One who has an inde inite employment,
whether passing the probationary stage or not; or
b) Probationary.
3) Two kinds of regular employees
a) By the nature of their work. Usually necessary or
desirable in the usual trade or business of an
employer.
b) By the length of service. Have rendered at least 1
year of service whether continuous or not.
4) TEST of regularity. Reasonable connection between the
particular activity performed by the employee in relation
to the employer.
5) Repeated rehiring of a job for a ixed period and the
continuing need for an employee’s service are suf icient
evidence of the necessity and indispensability of an EE’s
service to the ER’s trade or business.
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6) Exceptions to regular employment
a) Project;
b) Seasonal; and
c) Fixed Term.
Lu v. Enopia 2017
The primary standard for determining regular employment is the
reasonable connection between the particular activity performed by
the employee in relation to the usual trade or business of the
employer. Respondents' jobs as ishermen-crew members of F/B MG
28 were directly related and necessary to petitioner's deep-sea
ishing business and they had been performing their job for more
than one year.
UST v. Samahang Manggagawa ng UST 2017
WON the CA correctly ruled that Pontesor, et al. are regular
employees and, consequently, were illegally dismissed by petitioner.
YES. Petitioner repeatedly rehired respondents for various positions
in the nature of maintenance workers, for various periods spanning
the years 1990-1999. Pontesor, et al. fall under the second
category of regular employees. Accordingly, they should be deemed
as regular employees but only with respect to the activities for which
they were hired and for as long as such activities exist.
Pontesor, et al. were not project employees of petitioner. The
speci ic undertakings or projects for which they were employed were
not clearly delineated. This is evidenced by the vagueness of the
project descriptions set forth in their respective CEAs, which states
that they were tasked "to assist" in various carpentry, electrical, and
masonry work.
Expedition Construction Corp. v. Africa 2017
First, respondents were engaged/hired by Expedition as garbage truck
drivers. Second, respondents received compensation from Expedition
for the services that they rendered to the latter. The fact that
respondents were paid on a per trip basis is irrelevant in determining
the existence of an employer-employee relationship because this was
merely the method of computing the proper compensation due to
respondents. Third, Expedition's power to dismiss was apparent
when work was withheld from respondents as a result of the
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termination of the contracts with LGUs. Finally, Expedition has the
power of control over respondents in the performance of their work.
Therefore, respondents should be accorded the presumption of
regular employment.
Gerardo v. Bill Sender Corp. 2018
WON Geraldo was a regular employee of respondent.
YES. Geraldo was performing activities necessary or desirable in its
usual business or trade for without his services, its fundamental
purpose of delivering bills cannot be accomplished. He has been
delivering mail matters for the company for more than fourteen (14)
years.
In Gamboa, Jr. v. Villegas, We held that the payment on a piece-rate
basis does not negate regular employment. Payment by the piece is
just a method of compensation and does not de ine the essence
of the relations.
b. Casual
1) An employee is considered casual if:
a) Employed to perform work merely incidental to the
trade or business of employer;
b) Employment is for a de inite period;
c) Employment status was made known at the time of
engagement.
2) If employed for a continuous or broken period of at
least 1 year, he is deemed regular but only with respect
to the activity he is employed and as long as such activity
exists. The status of being regular casual is coterminous
to the existence of the activity.
3) There is no security of tenure for casual employees.
Paragele v. GMA 2020 Leonen, J
Only casual employees performing work that is neither necessary
nor desirable to the usual business and trade of the employer are
required to render at least one (1) year of service to attain regular
status. Employees who perform functions which are necessary and
desirable to the usual business and trade of the employer attain
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
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regular status from the time of engagement.
c. Contractual
Millares v. NLRC clarifying that seafarers are contractual EEs
Seafarers are considered contractual employees. They can not be
considered as regular employees under Article 280 of the Labor Code.
Their employment is governed by the contracts they sign everytime
they are rehired and their employment is terminated when the
contract expires.
It is an accepted maritime industry practice that employment of
seafarers are for a ixed period only. Constrained by the nature of
their employment which is quite peculiar and unique in itself, it is
for the mutual interest of both the seafarer and the employer why the
employment status must be contractual only or for a certain period
of time.
Unica v. ANSCOR Swire Ship Management 2014
It is a settled rule that seafarers are considered contractual
employees.
However, petitioner is entitled to be paid his wages after the
expiration of his contract until the vessel's arrival at a convenient
E. Ganzon Inc. v. Ando, Jr. 2017 Special En Banc
port. Section 19 of the Standard Terms and Conditions Governing the
Employment of Filipino Seafarers On-Board Ocean-Going Vessels is
clear on this.
d. Project
1) Where employment has been ixed for a speci ic project
or undertaking, the completion of which has been
determined at the time of engagement of EE. Elements are
as follows:
a) employment has been ixed for a speci ic project or
undertaking; AND
b) the completion or termination of which has been
determined at the time of engagement of EE.
2) Speci ic project or undertaking is an activity which is
NOT commonly or habitually performed or such type of
work which is not done on a daily basis, but only for a
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speci ic duration of time until the completion of the
project.
3) When project EE deemed regular?
a) When there is continuous rehiring even after
cessation of a project;
b) When the tasks performed by the alleged project EE
are vital, necessary and indispensable to the usual
business or trade of ER.
4) While there was repeated re-hiring, the hiring was NOT,
however, continuous, as in fact there was a lapse of 33
months after the next project, the employee is a project
and not regular. (Alcatel PH v. Relos)
5) However, if the employee is successively re-engaged to
perform the same kind of work not intermittently, but
continuously, contract after contract, month after
month involving the same task indicates the necessity and
desirability of the work in the usual business of the
company. (Manalo v. TNS Phil. 2014)
The decisive determinant in project employment is the activity
that the employee is called upon to perform. Prior notice of
termination is not part of procedural due process if the termination is
brought about by the completion of the contract or phase thereof for
which the project employee was engaged.
WON Ando was a regular employee and was thereby illegally
dismissed by EGI.
NO. The activities of project employees may or may not be usually
necessary or desirable in the usual business or trade of the employer.
In ALU-TUCP v. NLRC, two (2) categories of project employees were
distinguished:
Firstly, a project could refer to a particular job or undertaking
that is within the regular or usual business of the employer
company, but which is distinct and separate, and identi iable as
such, from the other undertakings of the company. Such job or
undertaking begins and ends at determined or determinable
times. The typical example of this irst type of project is a
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particular construction job or project of a construction company.
Secondly, a particular job or undertaking that is not within the
regular business of the corporation. Such a job or undertaking
must also be identi iably separate and distinct from the ordinary
or regular business operations of the employer.
In this case, the three project employment contracts signed by Ando
explicitly stipulated the agreement "to engage his services as a Project
Worker."
The fact that Ando was required to render services necessary or
desirable in the operation of EGI's business for more than a year does
not in any way impair the validity of his project employment
contracts. The rehiring of construction workers on a
project-to-project basis does not confer upon them regular
employment status as it is only dictated by the practical
consideration that experienced construction workers are more
preferred.
Herma Shipyard Inc. v. Oliveros 2017
The principal test in determining whether particular employees were
engaged as project-based employees, as distinguished from regular
employees, is whether they were assigned to carry out a speci ic
project or undertaking, the duration and scope of which was speci ied
at, and made known to them, at the time of their engagement.
Repeated rehiring of project employees to different projects
does NOT ipso facto make them regular employees.
WON respondents are regular employees of petitioner and not
project employees.
NO. Here, for each and every project respondents were hired, they
were adequately informed of their employment status as
project-based employees at least at the time they signed their
employment contract. While the tasks assigned to the respondents
were indeed necessary and desirable in the usual business of Herma
Shipyard, the same were distinct, separate, and identi iable from
the other projects or contract services.
The rule that employees initially hired on a temporary basis may
become permanent employees by reason of their length of service is
not applicable to project-based employees.
In Mercado Sr. v. NLRC, this court ruled that the proviso in the
second paragraph of Article 280, providing that an employee who has
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PRE-WEEK NOTES
served for at least one year, shall be considered a regular employee,
relates only to casual employees and not to project employees.
Innodata Knowledge Services v. Inting 2017
In order to safeguard the rights of workers against the arbitrary use of
the word "project" which prevents them from attaining regular status,
employers claiming that their workers are project employees have
the burden of showing that:
a) the duration and scope of the employment was speci ied at
the time they were engaged; and
b) there was indeed a project.
WON respondent employees, as mere project employees, were validly
placed on loating status and, therefore, were validly dismissed.
NO. While IKSI was able to show the presence of a speci ic project,
the ACT Project, in the contract and the alleged duration of the same,
it failed to prove, however, that respondents were in reality made to
work only for that speci ic project indicated in their employment
documents and that it adequately informed them of the duration and
scope of said project at the time their services were engaged.
The fact is IKSI actually hired respondents to work, not only on the
ACT Project, but on other similar projects such as the Bloomberg.
When respondents were required to work on the Bloomberg project,
without signing a new contract for that purpose, it was already
outside of the scope of the particular undertaking for which they
were hired; it was beyond the scope of their employment contracts.
This act by IKSI indubitably brought respondents outside the realm
of the project employees category.
e. Seasonal
1) Employment is for the duration of a certain season.
a) They are considered regular EEs if called to work from
time to time, during off-season and are merely
considered as on leave of absence without pay until
they are reemployed.
b) If EE has worked only for 1 season, he is not regular.
c) Enjoys security of tenure within the duration of the
season.
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d) Their employment is never terminated but merely
suspended.
2) Requisites for SEASONAL undertaking
a) Dependent on climatic or natural causes.
Operations must be limited to a regular, annual, or
recurring part/s of each year and regularly closes
during the remainder of the year.
b) Activity is agricultural where the crops are available
only at certain times of the year.
3) Deep sea ishing business is not a seasonal undertaking.
Catching ish is not seasonal especially where the boat
crew, although employed on a per trip basis, has been
working for 12 years. (Poseidon Fishing v. NLRC)
Universal Robina Sugar Milling Corp v. Nagkahiusang Mamumuo
sa Ursumco-NFL 2018
Notwithstanding the stipulations in an employment contract or a
duly negotiated CBA, the employment status of an employee is
ultimately determined by law.
WON URSUMCO's regular seasonal employees are regular employees.
YES. Seasonal employment becomes regular seasonal employment
when the employees are called to work from time to time. On the
other hand, those who are employed only for a single season remain
as seasonal employees. As a consequence of regular seasonal
employment, the employees are not considered separated from
service during the off-milling season, but are only temporarily laid
off or on leave until re-employed. Nonetheless, in both regular
seasonal employment and seasonal employment, the employee
performs no work during the off-milling season.
Here, the concerned URSUMCO employees are performing work for
URSUMCO even during the off-milling season as they are repeatedly
engaged to conduct repairs on the machineries and equipment.
f. Fixed-term
1) EE performing work that is usually necessary and
desirable in the business of ER wherein the employment
contract stipulates the duration or term of employment.
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2) Not permanent, but EE still enjoys security of tenure
during the pre-determined term.
3) Term employment should not circumvent security of
tenure. This is shown by the criteria laid by the BRENT
DOCTRINE:
a) Must not be entered merely to circumvent the EE’s
right to security of tenure;
b) The ixed period was knowingly and voluntarily
agreed upon without any force, duress or improper
pressure and absent any other circumstances vitiating
consent;
c) Must satisfactorily appear that the ER and EE dealt
with each other on more or less equal terms with no
moral dominance exercised by the former to the latter.
4) Why allow ixed term employment? It is an essential and
natural appurtenance recognized by SC. i.e.
a) Overseas workers;
b) College Deans and Department Heads.
5) What determines term employment? The decisive
determinant should not be the activities the EE is called
upon to perform, but the day certain agreed upon for the
commencement and termination of the employment
relationship.
E. Ganzon Inc. v. Ando, Jr. 2017 Special En Banc
Project employment should not be confused and interchanged with
ixed-term employment: While the former requires a project as
restrictively de ined above, the duration of a ixed-term employment
agreed upon by the parties may be any day certain, which is
understood to be "that which must necessarily come although it may
not be known when."
g. Probationary
1) A probationary employee is one, who, for a given period
of time, is being observed and evaluated to determine
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
whether or not he is quali ied for a permanent position
(Pasamba v. NLRC)
2) One who is placed in a trial period whose performance is
assessed whether satisfactory or not. Duration is generally
6 months except
a) Covered by an apprenticeship agreement stipulating
a longer period;
b) Manual of regulations of private schools which
provide for a longer period.
i) Elementary and Secondary. Not more than 3
years of satisfactory service;
ii) Tertiary. Not more than 6 semesters or 9
trimesters of satisfactory service.
3) If the employee is not apprised of the STANDARDS that he
must meet in order to hurdle probation, then he is deemed
regular after 6 months.
4) When probationary EE considered regular?
a) Allowed to continue work beyond probationary
period;
b) NO evaluation conducted and no basis for termination;
presumed to have been satisfactorily complied;
c) Proby NOT informed of the standards required to
qualify as regular EE;
d) EE successfully passes the period of probation.
5) The adequate performance of such duties
responsibilities constitute the inherent and implied
standard for regularization. (Abbott Laboratories v.
Alcaraz 2014 En Banc)
6) When probationer informed of required standards. —
Ideally, employers should immediately inform a
probationary employee of the standards for his
regularization from day one. However strict compliance is
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not required. The true test of compliance is one of
reasonableness. As long as he is given a reasonable time
and opportunity to be made fully aware of what is expected
of him during the early phases of the period, the law is
met. (Enchanted Kingdom v. Verzo 2015)
7) When probation may exceed 6 months. — When the
parties agree otherwise, such as when the same is
established by company policy or when the same is
required by the nature of work as where one must learn a
particular kind of work such as selling, or when the job
requires certain quali ications, skills, experience or
training.
Where the extension of employee’s probation was ex
gratia, an act of liberality on the part of his employer to
afford the employee a second chance to make good after
having initially failed to prove his worth as an employee.
(Mariwasa v. Leogardo, Jr.)
Umali v. Hobbywing Solutions Inc. 2018
The general rule remains that an employee who was suffered to work
for more than the legal period of six (6) months of probationary
employment or less shall, by operation of law, become a regular
employee.
WON Umali was terminated without cause when she was informed
that the period of her probationary employment had already ended
and her services were no longer needed.
YES. Petitioner commenced working for the respondent on June 19,
2012 until February 18, 2013. By that time, however, she has already
become a regular employee.
and
8) RA 10869 (JobStart Trainee). — A JobStart trainee shall
no longer be required to undergo a probationary period
at the end of the internship phase should the trainee be
hired in the same establishment upon completion of the
program. Three (3) Phases
a) JobStart Life Skills Training. 10 days with one life
skill taught each day;
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b) JobStart Technical Training. Up to 3 months and is
optional.
c) JobStart Internship. Up to 3 months or 600 hours.
9) RA 10917 amending RA 9547, 7323 or SPES Act. —
Period of employment shall be from twenty (20) to
seventy-eight (78) working days only, except that during
Christmas vacation, employment shall be from ten (10) to
ifteen (15) days which may be counted as part of the
students’ probationary period should they apply in
the same company or agency after graduation.
h. Private school teachers
1) CHED MC 40-2008 or the Manual of Regulations for
Private Higher Education of 2008;
2) DepEd Order 88-2010 or the 2010 Revised Manual of
Regulations for Private Schools in Basic Education.
3) Legal REQUISITES for a Teacher to be Permanent
a) Full time;
b) Must have rendered 3 consecutive years of service;
c) Such service must be satisfactory.
4) A FULL TIME academic personnel or technology teacher
meets ALL the following:
a) Possesses at least the minimum
quali ications;
b) Paid monthly or hourly, based on regular teaching
loads;
c) Total working day of not more than 8 hours a day is
devoted to the school;
d) No other remunerative occupation elsewhere requiring
regular hours of work that will con lict with the
working hours in the school;
e) Not teaching full-time in other educational
institutions.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
5) Absent one requirement, considered PART TIME. Only a
FULL TIME teacher can acquire REGULAR status.
Son v. UST 2018
In University of the East v. Pepanio, the requirement of a masteral
degree for tertiary education teachers was held to be not
unreasonable but rather in accord with the public interest.
Petitioners cannot insist on being employed by UST since they still
do not possess the required master's degrees; the fact that UST
continues to hire and maintain professors without the necessary
master's degrees is not a ground for claiming illegal dismissal, or
even reinstatement.
B. Termination by Employer
1. Requisites for validity
a. Substantive due process
i. Just causes
ARTICLE 297. Termination by Employer. — An employer may
terminate an employment for any of the following causes:
a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work;
b) Gross and habitual neglect by the employee of his
academic duties;
c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative;
d) Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized representatives;
and
e) Other causes analogous to the foregoing.
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1) Serious Misconduct. — Misconduct is improper or
wrong conduct. It is a transgression of some established and
de inite rule of action, a forbidden act, a dereliction of duty,
willful in character and implies wrongful intent and not merely
error in judgment. It must be in connection with the EE’s
work to constitute just cause for his separation.
a) There must be misconduct;
b) The misconduct must be of such grave and
aggravated character;
c) It must relate to the performance of the employee's
duties; AND
d) There must be showing that the employee becomes
un it to continue working for the employer.
2) Willful Disobedience or Insubordination. —
a) There must be disobedience or insubordination;
b) The disobedience or insubordination must be willful
or intentional characterized by a wrongful and
perverse attitude;
c) The order violated must be reasonable, lawful, and
made known to the employee; and
d) The order must pertain to the duties which he has
been engaged to discharge.
3) Gross and Habitual Neglect of Duty. —
a) Gross Neglect refers to the absence of that diligence
that an ordinary prudent man would use in his/her
own affairs.
b) Habitual Neglect refers to repeated failure to perform
one's duties over a period of time, depending upon the
circumstances.
GR: Neglect of duty must be BOTH Gross and
Habitual.
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EXC: Even if NOT habitual, but there is ii) The act, omission or concealment justi ies the b) Sexual Harassment. — The gravamen of the offense
SUBSTANTIAL DAMAGE or injury to the ER. loss of trust and con idence of the employer to the is not the mere violation of one’s sexuality, but the
4) Fraud or Willful Breach of Trust. — employee; abuse of power by the employer who has a duty to
iii) The employee concerned must be holding a protect his employee against over-sex.
a) There are two (2) classes of positions of trust.
position of trust and con idence; c) Gross Inef iciency or poor performance. —
i) The irst class consists of managerial i) Employer has set standards of performance;
iv) The loss of trust and con idence should not be
employees, or those vested with the power to lay ii) Standards are reasonable and in connection with
down management policies; and simulated;
employee’s work; AND
ii) The second class consists of cashiers, auditors, v) It should not be used as a subterfuge for causes
iii) Proof that EE failed to meet the standards despite
property custodians or those who, in the normal which are improper, illegal, or unjusti ied; and
given reasonable opportunity to meet the same.
and routine exercise of their functions, regularly vi) It must be genuine and not a mere afterthought to
d) Drug use or abuse. — the law speci ies that the
handle signi icant amounts of money or justify an earlier action taken in bad faith.
procedure shall employ two testing methods, i.e., the
property.
5) Commission of a Crime. — By the employee against the screening test and the con irmatory test. (Nacague v.
b) Requisites of Fraud
person of his employer or his immediate family or authorized Sulpicio Lines 2010)
i) There must be an act, omission, or representatives. e) Attitude Problem. — An employee who cannot get
concealment;
a) There must be an act or omission along with his co-employees is detrimental to the
ii) The act, omission or concealment involves a punishable/prohibited by law; and company for he can upset and strain the working
breach of legal duty, trust, or con idence justly environment. It is a situation analogous to loss of
b) The act or omission was committed by the employee
reposed;
against the person of trust and con idence that must be duly proved by the
iii) It must be committed against the employer or employer. (Heavylift Manila v. CA)
his/her representative; and i) employer,
f) Enforcement of union security clause. —
iv) It must be in connection with the employees' ii) any immediate member of his/her family, or
i) The union security clause is applicable;
work. iii) his/her duly authorized representative.
c) Requisites of Breach of Trust ii) The bargaining union is requesting for the
6) Analogous Causes. — No act or omission shall be
termination of employment due to enforcement of
i) The employee holds a position of trust and considered as analogous cause unless expressly speci ied in
the clause in the CBA; AND
con idence; the company rules and regulations or policies.
iii) There is suf icient evidence to support the union’s
ii) There exists an act justifying the loss of trust and a) Abandonment is the deliberate and unjusti ied
decision to expel the employee from the union.
con idence; refusal of an employee to resume his employment.
(Slord Development v. Noya 2019)
iii) The employee’s breach must be willful; Two factors should be present:
g) Commission of prohibited acts during strike. —
i) the failure to report for work or absence without
iv) The act must be in relation to his work which
valid or justi iable reason; and i) A worker merely participating in an illegal strike
would render him un it to continue. may not be terminated from employment. It is
ii) a clear intention to sever EER — manifested by
d) Requisites of Loss of Con idence only when he commits illegal acts during a
overt acts from which it may be deduced that the strike that he may be declared to have lost
i) There must be an act, omission or concealment;
employees have no more intention to work. employment status. (Solidbank v. Gamier 2010)

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ii) A union of icer who knowingly participates in an
illegal strike is deemed to have lost his
employment status, but a union member who is
merely instigated or induced to participate in the
illegal strike is more benignly treated. (Escario v.
NLRC 2010)
Sterling Paper Products Enterprises v. KMM-Katipunan 2017
The utterance of obscene, insulting or offensive words against a
superior is not only destructive of the morale of his co-employees
and a violation of the company rules and regulations, but also
constitutes gross misconduct.
WON Esponga was validly dismissed for serious misconduct.
YES. In de La Cruz v. NLRC, the dismissed employee shouted,
"Sayang ang pagka-professional mo!" and "Putang ina mo" at the
company physician when the latter refused to give him a referral slip.
Likewise, in Autobus Workers' Union (AWU) v. NLRC, the
dismissed employee told his supervisor "Gago ka" and taunted the
latter by saying, "Bakit anong gusto mo, tang ina mo."
Moreover, in Asian Design and Manufacturing Corporation v.
Deputy Minister of Labor, the dismissed employee made false and
malicious statements against the foreman (his superior).
In Reynolds Philippines Corporation v. Eslava, the dismissed
employee circulated several letters to the members of the company's
board of directors calling the executive vice-president and general
manager a "big fool," "anti-Filipino".
Hence, it is well-settled that accusatory and in lammatory
language used by an employee towards his employer or
superior can be a ground for dismissal or termination.
Transglobal Maritime Agency v. Chua 2017
There must be reasonable proportionality between, on the one hand,
the willful disobedience by the employee and, on the other hand, the
penalty imposed therefor.
WON Chua was validly dismissed for insubordination.
NO. By virtue of the POEA-SEC, Chua is indeed bound to obey the
lawful commands of the captain of the ship, but only as long as these
pertain to his duties.There is no relevance to the order to sign the
documents in Chua's performance of his duty as a seaman.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
To amount to a valid dismissal, an erring seafarer must be handed a
written notice of the charge against him and must be given the
opportunity to explain himself — unless, of course, there is a clear
and existing danger against the safety of the crew or the vessel in
which case notice may be dispensed with.
Mamaril v. Red System Company 2018
WON Mamaril was illegally dismissed by Red System, and is
consequently entitled to reinstatement and full backwages; and
NO. Mamaril was validly dismissed on account of his willful
disobedience of the lawful orders of Red System.
Red System was not remiss in reminding its drivers of the
importance of abiding by their safety regulations. Notably, Mamaril
violated Red System's safety rules twice, and caused damage
amounting to over Php 40,000.00. To make matters worse, he even
deliberately and willfully concealed his transgressions.
Alaska Milk v. Ponce 2017
WON Ponce was guilty of gross and habitual neglect of duties.
NO. Fault cannot rest upon Ponce's shoulders alone, inasmuch as
satisfactory completion of the assigned tasks was subject to an
interplay of factors beyond his sole control. The fact that Ponce
admitted to having been delayed in some of the tasks assigned to him
does not establish gross and habitual neglect of duties.
WON Ponce can be terminated for loss of trust and con idence.
YES. As regards a managerial employee, the mere existence of a basis
for believing that such employee has breached the trust of his
employer would suf ice for his dismissal.
Ponce held the position of Director for Engineering Services and that
he was in charge of managing AMC's Engineering Department. Hence,
he belongs to the irst class of employees who occupy a position of
trust and con idence.
The Court rules that his dismissal from employment is justi ied.
First, The opening sentence of Ponce's R/A e-mail readily exposes the
attendant willfulness in his act. Second, the act of soliciting receipts
from colleagues constitutes dishonesty, inimical to AMC's interests,
for the simple reason that Ponce would be collecting receipted
allowance from expenses he did not actually incur. Third, the R/A
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e-mail betrays a truly sinister purpose which AMC had a right to
guard against.
Bravo v. Urios College 2017 Leonen, J
WON Bravo was properly dismissed for a just cause.
YES. Petitioner's act in assigning to himself a higher salary rate
without proper authorization is a clear breach of the trust and
con idence reposed in him. In addition, there was no reason for the
Comptroller's Of ice to undertake the preparation of its own
summary table because this was a function that exclusively pertained
to the Human Resources Department.
Panaligan v. Phyvita Enterprises 2017
WON there exists just and valid cause for the termination of
PANALIGAN, et al.'s, employment by PHYVITA.
NO. No direct evidence was presented to link PANALIGAN, et al., to
the theft that they allegedly committed.
Taking into consideration the fact that the DOLE-NCR conducted an
inspection of the respondent's premises on as a result of the labor
complaint iled by PANALIGAN, et al., and they were implicated in the
alleged theft incident only thereafter, a reasonable inference can be
made that PANALIGAN, et al.'s, termination of employment may have
been indeed a retaliatory measure designed to coerce them into
withdrawing their complaint for underpayment of wages and
nonpayment of other labor standard bene its. Such an act is
proscribed by Article 118 of the Labor Code.
Aluag v. BIR Multi-Purpose Cooperative 2017
WON BIRMPC had just cause to terminate Aluag's employment.
YES. One of the infractions that BIRMPC cited in justifying Aluag's
dismissal is her failure to deposit checks on due dates, pursuant to a
member/debtor's request. The task of depositing checks on due dates
de initely falls within Aluag's scope of responsibilities.
BIRMPC had ample reason to lose the trust and con idence it
reposed upon her and thereby, terminate her employment.
Gaite v. Filipino Society of Composers 2018
WON Gaite was validly dismissed due to loss of trust and
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con idence.
YES. Gaite's actuations constitute serious misconduct. First, not
only is the amount involved herein a staggering amount of P17.7M,
the alleged reallocation violated an express provision of the
company's Distribution Rules. Second, Gaite committed said transfer
in the performance of her duties as General Manager of FILSCAP.
Third, because of this grave infraction causing the depletion of the
company's Special Accounts held in trust for the rightful copyright
owners, Gaite's ability to duly perform and accomplish her duties
and responsibilities as General Manager has been seriously put into
question.
On the second ground for termination, the Court inds that FILSCAP
validly terminated Gaite's employment on the ground of loss of trust
and con idence.
Maria De Leon Transportation Inc., et al. v. Macuray 2018
Claudia’s Kitchen Inc. v. Tanguin 2017
In abandonment, absence must be accompanied by overt acts
unerringly pointing to the fact that the employee simply does not
want to work anymore. Mere absence or failure to report for work,
even after a notice to return to work has been served, is not enough to
amount to an abandonment of employment.
Here, there was no abandonment on the part of respondent. Records
are bereft of any indication that Tanguin's failure to report for work
was with a clear intent to sever her employment relationship with the
petitioners. Moreover, Tanguin's act of iling a complaint for illegal
dismissal with prayer for reinstatement negates any intention to
abandon her employment.
Mehitabel Inc v. Alcuizar 2017
The iling of a complaint for illegal dismissal does not ipso facto
foreclose the possibility of abandonment. It is not the sole indicator
in determining whether or not there was desertion. Other
circumstances surrounding the case must be taken into account in
resolving the issue of whether or not there was abandonment.
WON Alcuizar was dismissed by Mehitabel.
NO. The publications were made through sheer inadvertence, and
that the vacancy is actually for the position of Purchasing Of icer,
rather than Purchasing Manager.
Alcuizar was informed of the error committed, and that it was made
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
clear to him that he was never terminated from service at that time in
spite of his poor performance.
WON Alcuizar abandoned his employment.
YES. Respondent's non-compliance with the directive in the Return to
Work to Our mind, signi ies his intention to sever the employment
relation with petitioner, and gives credence to the latter's claim that it
was respondent who abandoned his job.
It can be gathered that respondent's departure was merely a precursor
to his scheme to turn the table against petitioner. Realizing that his
employment was at serious risk due to his habitual neglect of his
duties, respondent jumped the gun on petitioner by lodging a
baseless complaint for illegal dismissal even though it was he who
abandoned his employment.
An employee can not be said to have abandoned his employment
when he merely availed of a company practice of taking sabbaticals
in order to afford them the opportunity to recover from the stresses
of driving the same long and monotonous bus routes by accepting
jobs elsewhere.
WON there was just cause for dismissing Macuray due to
abandonment.
NO. Macuray was not dismissed from work and he did not abandon
his employment.
Even assuming that respondent was indeed told by respondent's bus
dispatcher Roger Pasion that he was AWOL, this was not tantamount
to dismissal, actual or constructive. An ordinary bus dispatcher
has no power to dismiss an employee.
ii. Authorized causes
ARTICLE 298. Closure of Establishment and Reduction of Personnel.
— The employer may also terminate the employment of any
employee due to
1. the installation of labor-saving devices,
2. redundancy,
3. retrenchment to prevent losses or
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4. the closing or cessation of operation of the
establishment or undertaking
unless the closing is for the purpose of circumventing the provisions
of this Title, by serving a written notice on the workers and the DOLE
at least one (1) month before the intended date thereof.
In case of termination due to the installation of labor-saving
devices or redundancy, the worker affected thereby shall be entitled
to a separation pay equivalent to at least his one (1) month pay or to
at least one (1) month pay for every year of service, whichever is
higher.
In case of retrenchment to prevent losses and in cases of closures or
cessation of operations of establishment or undertaking not due to
serious business losses or inancial reverses, the separation pay
shall be equivalent to one (1) month pay or at least one-half (1/2)
month pay for every year of service, whichever is higher.
A fraction of at least six (6) months shall be considered one (1)
whole year.
Common Requisites
a) Good faith;
b) Termination is matter of last resort;
c) Two (2) Separate notices served on the affected EE and
DOLE ONE MONTH prior to intended date of termination;
d) Separation pay;
i) Installation of labor saving Device or Redundancy — 1
month pay or at least 1 month pay for every year of
service whichever is higher;
ii) Retrenchment or closure not due to serious losses —
1 month pay or at least 1/2 month pay for every year
of service whichever is higher;
iii) Closure due to serious losses — NONE.
iv) CBA provision shall prevail.
e) Fair and reasonable criteria.
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1) Installation of labor-saving devices. — refers to the
reduction of the number of workers in any workplace made
necessary by the introduction of labor-saving machinery or
devices.
a) There must be introduction of machinery, equipment
or other devices;
b) The introduction must be done in good faith;
c) The purpose for such introduction must be valid such
as to save on cost, enhance ef iciency and other
justi iable economic reasons;
d) There is no other option available to the employer
than the introduction of machinery, equipment or
device and the consequent termination of employment
of those affected thereby; and
e) There must be fair and reasonable criteria in selecting
employees to be terminated.
2) Redundancy. — exists when "the services of an employee
are in excess of what is reasonably demanded by the actual
requirements of the enterprise."
a) written notice served on both the employees and the
DOLE at least one month prior to the intended date
of retrenchment;
b) payment of separation pay equivalent to at least one
month pay or at least one month pay for every year of
service, whichever is higher;
c) good faith in abolishing the redundant positions; and
d) fair and reasonable criteria in ascertaining what
positions are to be declared redundant and accordingly
abolished.
3) Retrenchment. — or downsizing is a mode of terminating
employment initiated by the employer through no fault of the
employee and without prejudice to the latter, resorted to by
management during periods of business recession, industrial
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
depression or seasonal luctuations or during lulls over
shortage of materials.
a) The retrenchment must be reasonably necessary and
likely to prevent business losses;
b) The losses, if already incurred, are not merely de
minimis, but substantial, serious, actual and real, or,
if only expected, are reasonably imminent;
c) The expected or actual losses must be proved by
suf icient and convincing evidence;
d) The retrenchment must be in good faith for the
advancement of its interest and not to defeat or
circumvent the employees' right to security of tenure;
and
e) There must be fair and reasonable criteria in
ascertaining who would be dismissed and who would
be retained among the employees, such as status,
ef iciency, seniority, physical itness, age, and
inancial hardship for certain workers.
4) Closing or cessation of operation. — Refers to the
complete or partial cessation of the operations and/or
shut-down of the establishment of the employer.
a) There must be a decision to close or cease operation
of the enterprise by the management;
b) The decision was made in good faith; and
c) There is no other option available to the employer
except to close or cease operations.
5) Disease. — To be a valid ground for termination, the
following must be present:
a) The employee must be suffering from any disease;
b) The continued employment of the employee is
prohibited by law or prejudicial to his/her health
as well as to the health of his/her co-employees;
and
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For WEEK 1 of the 2020_21 #BestBarEver
c) There must be certi ication by a competent public
health authority that the disease is incurable
within a period of six (6) months even with proper
medical treatment.
d) As to procedural due process. — The employer must
furnish the employee two written notices in
terminations due to disease, namely:
i) the notice to apprise the employee of the
ground for which his dismissal is sought; and
ii) the notice informing the employee of his
dismissal, to be issued after the employee has
been given reasonable opportunity to answer
and to be heard on his defense.
Manggagawa ng Komunikasyon sa Pilipinas v. PLDT 2017 Leonen
An order of reinstatement is different from a return-to-work order.
1. The award of reinstatement, including backwages, is
awarded by a Labor Arbiter to an illegally dismissed
employee pursuant to Article 294.
2. On the other hand, a return-to-work order is issued by the
SOLE when he or she assumes jurisdiction over a labor
dispute in an industry that is considered indispensable to
the national interest.
WON the 2002 redundancy program of PLDT was valid.
YES. To establish good faith, the company must provide substantial
proof that the services of the employees are in excess of what is
required of the company, and that fair and reasonable criteria were
used to determine the redundant positions.
PLDT's declaration of redundancy was backed by substantial
evidence showing a consistent decline for operator-assisted calls for
both local and international calls because of cheaper alternatives.
Aquino v. NLRC differentiated between separation pay and retirement
bene its:
1. Separation pay is required in the cases enumerated in
Articles 283 and 284. We have held that it is a statutory right
designed to provide the employee with the wherewithal
during the period that he is looking for another employment.
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2. Retirement bene its, where not mandated by law, may be
granted by agreement of the employees and their employer
or as a voluntary act on the part of the employer. Retirement
bene its are intended to help the employee enjoy the
remaining years of his life.
Acosta v. Matiere SAS 2019 Leonen, J
In redundancy, an employer must show that it applied fair and
reasonable criteria in determining what positions have to be declared
redundant. Otherwise, it will be held liable for illegally dismissing
the employee affected by the redundancy.
WON Acosta was validly dismissed from employment on the ground
of redundancy.
NO. Respondents' only basis for declaring petitioner's position
redundant was that his function, which was to monitor the delivery
of supplies, became unnecessary upon completion of the shipments.
However, there was no mention of monitoring shipments as part of
petitioner's tasks. If his work pertains mainly to the delivery of
supplies, it should have been speci ically stated in his job
description. There was, hence no basis for respondents to consider
his position irrelevant when the shipments had been completed.
Likewise, respondents failed to show that they used fair and
reasonable criteria in determining what positions should be
declared redundant.
In Panlilio v. NLRC, this Court held that fair and reasonable criteria
may take into account the preferred status, ef iciency, and
seniority of employees to be dismissed due to redundancy.
Read-Rite Phils v. Francisco, et al. 2017
Given the diametrical nature of an involuntary and a voluntary
separation from service, one necessarily excludes the other. For sure,
an employee's termination from service cannot be voluntary
and involuntary at the same time.
Flight Attendants and Stewards Association of the Phils. v. PAL
2018 En Banc
In determining the validity of a retrenchment, judicial notice may be
taken of the inancial losses incurred by an employer undergoing
corporate rehabilitation. In such a case, the presentation of audited
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
inancial statements may not be necessary to establish that the
employer is suffering from severe inancial losses.
La Consolacion College of Manila, et al. v. Pascua 2018 Leonen, J
When termination of employment is occasioned by retrenchment to
prevent losses, an employer must declare a reasonable cause or
criterion for retrenching an employee. Retrenchment that
disregards an employee's record and length of service is an
illegal termination of employment.
WON Pascua's retrenchment was valid based on the criteria that she
had the highest rate of pay.
NO. Jurisprudence requires that the necessity of retrenchment to
stave off genuine and signi icant business losses or reverses be
demonstrated by an employer's independently audited
inancial statements. Documents that have not been the subject
of an independent audit may very well be self-serving.
The records indicate that La Consolacion suffered serious business
reverses or an aberrant drop in its revenue and income, thus,
compelling it to retrench employees.
La Consolacion's failure was non-compliance with using fair and
reasonable criteria that considered the status and seniority of the
retrenched employee.
La Consolacion's disregard of respondent's seniority and preferred
status relative to a part-time employee indicates its resort to an
unfair and unreasonable criterion for retrenchment.
Employees who have earned their keep by demonstrating exemplary
performance and securing roles in their respective organizations
cannot be summarily disregarded by nakedly pecuniary
considerations.
Fuji Television v. Espiritu 2014 Leonen, J
There is no evidence showing that Arlene was accorded due process.
After informing her employer of her lung cancer, she was not given
the chance to present medical certi icates. Fuji immediately
concluded that Arlene could no longer perform her duties because of
chemotherapy. It did not ask her how her condition would affect her
work. Neither did it suggest for her to take a leave, even though she
was entitled to sick leaves. Worse, it did not present any certi icate
from a competent public health authority. What Fuji did was to
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
inform her that her contract would no longer be renewed, and when
she did not agree, her salary was withheld. Thus, the Court of Appeals
correctly upheld the inding of the NLRC that for failure of Fuji to
comply with due process, Arlene was illegally dismissed.
b. Procedural due process
Termination of Employment Based on Just Causes. As de ined in
Article 297, the requirement of two written notices served on the
employee shall observe the following:
a) The irst written notice should contain:
1. The speci ic causes or grounds for termination;
2. Detailed narration of the facts and circumstances that will
serve as basis for the charge against the employee. A
general description of the charge will not suf ice; and
3. A directive that the employee is given opportunity to
submit a written explanation within a reasonable period.
"Reasonable period" should be construed as a period of at
least ive (5) calendar days from receipt of the notice.
b) After serving the irst notice, the employer should afford the
employee ample opportunity to be heard and to
defend himself with the assistance of his representative if he
so desires.
"Ample opportunity to be heard" means any meaningful
opportunity given to the employee to answer the charges
against him and submit evidence in support of his defense,
whether in a hearing, conference or some other fair, just and
reasonable way. A formal hearing or conference becomes
mandatory only
1. when requested by the employee in writing or
2. substantial evidentiary disputes exist or a company
rule or
3. practice requires it, or
4. when similar circumstances justify it.
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c) After determining that termination of employment is justi ied,
the employer shall serve the employee a written notice of
termination indicating that:
i) all circumstances involving the charge against the
employee have been considered; and
Mamaril v. Red System Company 2018
ii) the grounds have been established to justify the
severance of their employment.
The foregoing notices shall be served personally to the
employee or to the employee's last known address.
2. Preventive suspension
1) May be de ined as the temporary removal of an EE charged
for violation of company rules from his present status or
position. It is not a disciplinary measure and should not be
confused with suspension imposed as a penalty. It shall
not last longer than thirty (30) days.
2) This may be imposed while an investigation is ongoing.
3) The notice of preventive suspension cannot be
considered as adequate notice to explain. (Tanala v.
a. No just or authorized cause
NLRC)
Maula v. Ximex Delivery Express 2017
4) Reassignment or transfer as remedial measure. —
The purpose of reassignments is no different from that of
preventive suspension which management could validly
impose as a disciplinary measure for the protection of the
company's property pending investigation of any alleged
malfeasance or misfeasance committed by the employee.
(Ruiz v. Wendel Osaka Realty 2012)
Maula v. Ximex Delivery Express 2017
Preventive suspension may be legally imposed against an employee
whose alleged violation is the subject of an investigation. Preventive
suspension is justi ied where the employee's continued employment
poses a serious and imminent threat to the life or property of the
employer or of the employee's co-workers. Without this kind of
threat, preventive suspension is not proper.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
Here, it cannot be said that petitioner posed a danger on the lives of
the of icers or employees of respondent or their properties. Being
one of the Operation Staff, which was a rank and ile position, he
could not and would not be able to sabotage the operations of
respondent.
WON Red System was guilty of imposing a double penalty against
Mamaril.
NO. Mamaril's preventive suspension and subsequent dismissal
from the service do not partake of a double penalty; neither may his
dismissal be regarded as harsh and excessive.
Mamaril's initial suspension was a preventive suspension that was
necessary to protect Red System's equipment and personnel. Mamaril
was placed under preventive suspension considering that during the
pendency of the administrative hearings, he was noticed to have
several near-accident misses and he had exhibited a lack of concern
for his work. His inattentiveness posed a serious threat to the safety
of the company equipment and personnel.
3. Illegal dismissal
Dismissal from employment has two facets: irst, the legality of the
act of dismissal, which constitutes substantive due process; and,
second, the legality of the manner of dismissal, which constitutes
procedural due process.
ON SERIOUS MISCONDUCT
While this Court held in past decisions that accusatory and
in lammatory language used by an employee to the employer or
superior can be a ground for dismissal or termination, the
circumstances peculiar to this case ind the previous rulings
inapplicable. The admittedly insulting and unbecoming language
uttered by petitioner to the HR Manager should be viewed with
reasonable leniency in light of the fact that it was committed under
an emotionally charged state. Indeed, there was only lapse in
judgment rather than a premeditated de iance of authority.
ON TOTALITY OF INFRACTIONS
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In Merin v. NLRC, this Court expounded on the principle of totality of
infractions as follows:
The totality of infractions or the number of violations committed
during the period of employment shall be considered in
determining the penalty to be imposed upon an erring employee.
The offenses committed by petitioner should not be taken singly
and separately.
Here, respondent cannot invoke the principle of totality of infractions
considering that petitioner's alleged previous acts of misconduct
were not established in accordance with the requirements of
procedural due process.
Distribution & Control Products Inc. v. Santos 2017
WON Santos was validly dismissed for just cause.
NO. Termination without a just or authorized cause renders the
dismissal invalid, and entitles the employee to reinstatement
without loss of seniority rights and other privileges and full
backwages, inclusive of allowances, and other bene its or their
monetary equivalent computed from the time the compensation was
not paid up to the time of actual reinstatement.
An employee's removal for just or authorized cause but without
complying with the proper procedure, on the other hand, does not
invalidate the dismissal. It obligates the erring employer to pay
nominal damages to the employee, as penalty for not complying
with the procedural requirements of due process.
It is true that respondent may indeed be considered as one who
occupies a position of trust and con idence. However, petitioners
failed to present substantial evidence to support their allegations that
respondent had, in any way, participated in the theft of the company's
stolen items and that after his preventive suspension he no longer
reported for work.
Evic Human Resource Management Inc. v. Panahon 2017
WON there was just cause in dismissing Panahon.
NO. The Court inds the Crew Behavior Report sorely inadequate in
meeting the required quantum of proof to discharge petitioners'
burden. For one, the statements contained therein were
uncorroborated and self-serving. No other evidence was presented to
support the statements of the Captain. In Skippers United Paci ic,
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Inc. v. NLRC, the Court did not give weight and credence to the
uncorroborated Chief Engineer's Report which purportedly speci ied
the causes for the seafarer's dismissal. In Maersk-Filipinas
Crewing, Inc. v. Avestruz, the Court likewise disregarded the
uncorroborated and self-serving electronic mails of the ship captain
as proof of the seafarer's supposed neglect of duty and perverse and
wrongful attitude.
Here, while the report was signed by four (4) crew members, the
statements contained therein were, as correctly observed by the CA,
based on acts witnessed only by Captain Buton.
Incompetence or inef iciency, as a ground for dismissal, is
understood to mean the failure to attain work goals or work quotas,
either by failing to complete the same within the allotted reasonable
period, or by producing unsatisfactory results.
Petitioners failed to show that respondent willfully or deliberately
caused the alleged accident during the mooring operations or that
respondent repeatedly committed mistakes or repeatedly failed to
perform his duties. As regards the charge of intoxication, Section
33(6) of the POEA SEC provides that drunkenness must be
committed while on duty to merit dismissal from employment.
Here, respondent was admittedly off duty when he was allegedly
caught by the master drinking on board.
Malcaba et al. v. Prohealth Pharma Phils. 2018 Leonen, J
While this Court recognizes the inherent right of employers to
discipline their employees, the penalties imposed must be
commensurate with the infractions committed. Dismissal of
employees for minor and negligible offenses may be considered as
illegal dismissal.
WON Nepomuceno and Palit-Ang were illegally dismissed.
YES. For an act to be considered a loss of trust and con idence, it
must be irst, work-related, and second, founded on clearly
established facts.
The breach of trust must likewise be willful. Nepomuceno alleges
that he was illegally dismissed merely for his failure to inform his
superiors of the actual dates of his vacation leave.
Nepomuceno turned over all of his pending work to a reliever before
he left for Malaysia. He was able to reach his sales quota and surpass
his sales target even before taking his vacation leave. Respondents
did not suffer any inancial damage as a result of his absence. This
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PRE-WEEK NOTES
was also petitioner Nepomuceno's irst infraction in his nine (9)
years of service with respondents. None of these circumstances
constitutes a willful breach of trust on his part. The penalty of
dismissal, thus, was too severe for this kind of infraction.
Palit-Ang's failure to immediately give the money to Gamboa was not
the result of a perverse mental attitude but was merely because she
was busy at the time. Neither did she pro it from her failure to
immediately give the cash advance for the car tune-up nor did
respondents suffer inancial damage by her failure to comply. The
severe penalty of dismissal was not commensurate to her infraction.
b. Constructive dismissal
1) Occurs when an employee quits because continued employment is
rendered impossible, unreasonable or unlikely as in the case of
an offer of demotion in rank and a diminution in pay.
2) The TEST of constructive dismissal is whether a reasonable
person in the position of the EE would have felt compelled to give
up his position under the circumstances. It is an act amounting to
dismissal but made to appear it is not. It is therefore a dismissal in
disguise.
3) Constructive dismissal is distinguished from illegal dismissal in
that in the latter, intent to dismiss is clearly expressed by the ER.
In the former however, ER NEVER indicates that he is terminating
the EE.
4) The unilateral and arbitrary reduction of the work day scheme that
signi icantly reduced employees’ salaries is a form of constructive
dismissal. (Intec Cebu v. CA 2016)
5) A college professor that was later appointed as a laboratory
custodian, divesting him of his teaching load, was constructively
dismissed. (Divine Word College of Laoag v. Mina 2016)
Diwa Asia Publishing et al. v. De Leon 2018
WON the issuance of communications to reprimand and/or correct
an erring employee forms part of the employer's management
prerogatives and is not tantamount to harassment, let alone illegal
dismissal.
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For WEEK 1 of the 2020_21 #BestBarEver
NO. Respondent was excluded from important HR decisions which
she was expected not only to be privy to, but also to have a say in, by
virtue of her position in the company.
There is constructive dismissal when an employee's functions,
which were originally supervisory in nature, were reduced; and such
reduction is not grounded on valid grounds such as genuine business
necessity.
The reduction in respondent's duties and responsibilities as HR
Manager amounted to a demotion that was tantamount to
constructive dismissal.
The above-cited circumstances indubitably present a hostile and
unbearable working environment that reasonably compelled
respondent to leave her employment. Respondent, therefore, was
constructively dismissed.
a) Burden of proof
1. In illegal dismissal cases, the fundamental rule is that
when an employer interposes the defense of resignation,
the burden to prove that the employee indeed voluntarily
resigned necessarily rests upon the employer.
2. The employer bears the burden of proof to prove that the
termination was for a valid or authorized cause.
a. Failure to discharge this burden means that the
dismissal is illegal.
b. But before the employer must bear the burden of
proving that the dismissal was legal, the employees
must irst establish by substantial evidence that
indeed they were dismissed.
c. If there is no dismissal, then there can be no question
as to the legality or illegality thereof.
3. The burden of proving compliance with the requirements
of notice and hearing prior to respondent's dismissal from
employment falls on the employer.
b) Liability of officers
GR: Of icers of a corporation are not liable for their of icial acts
unless it is shown they have exceeded their authority.
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EXC: Where the incorporators and directors belong to a single g. strained relations between the employer and was no longer feasible. Fuji did not allege that it ceased operations or
family. employee that Arlene’s position was no longer available. Nothing in the records
c) Reliefs from illegal dismissal 3. Award When Reinstatement not Viable shows that Arlene’s reinstatement would cause an atmosphere of
antagonism in the workplace.
1. Effect or Consequences of Dismissal. — An employee a. Backwages from date of dismissal until inality of
decision; Moral Damages
who is unjustly dismissed from work shall be entitled to
b. Separation pay from date of employment until Quitclaims in labor cases do not bar illegally dismissed employees
a. reinstatement without loss of seniority rights
inality of decision (not date of dismissal); from iling labor complaints and money claims.
and other privileges and to his
c. 10% attorney’s fees based on the awards Moral damages are awarded “when the dismissal is attended by bad
b. full backwages, inclusive of allowances, and to
computed; and faith or fraud or constitutes an act oppressive to labor, or is done in a
his
manner contrary to good morals, good customs or public policy.” On
c. other bene its or their monetary equivalent d. Interest on the awards computed from date of
the other hand, exemplary damages may be awarded when the
inality of decision until they are paid, these
computed from the time his compensation was withheld dismissal was effected “in a wanton, oppressive or malevolent
monetary claims being equivalent to a forbearance
from him up to the time of his actual reinstatement. manner.”
of credit (Javellana, Jr v. Belen 2010)
GR: When an EE is validly dismissed, NO Apart from Arlene’s illegal dismissal, the manner of her dismissal
4. Backwages in general are granted on grounds of equity for
separation pay is given. was effected in an oppressive approach with her salary and other
earnings which a worker or employee has lost due to his
bene its being withheld, when she had no other choice but to sign the
EXC: Such cause does not constitute serious illegal dismissal. It is not private compensation or
non-renewal contract.
misconduct nor re lect on the EE’s moral damages but is awarded in furtherance and effectuation of
character, separation pay MAY be validly the public objective of the Labor Code. Attorney’s Fees
awarded. This is the DISCERNING 5. The rule in Bustamante is controlling that the dismissed Article 111 of the Labor Code states that “in cases of unlawful
COMPASSION doctrine. employee is to be paid backwages for the entire period that withholding of wages, the culpable party may be assessed attorney’s
2. Reinstatement. — Separation pay is made an alternative he was without work, without deduction and without fees equivalent to ten percent of the amount of wages recovered.”
relief in lieu of reinstatement in certain circumstances, quali ication Likewise, this court has recognized that “in actions for recovery of
like: wages or where an employee was forced to litigate and, thus, incur
6. The base igure is the wage rate at time of dismissal
expenses to protect his rights and interest, the award of attorney’s
a. when reinstatement can no longer be effected in inclusive of “allowances”, excluding salary increases.
fees is legally and morally justi iable.” Due to her illegal dismissal,
view of the passage of a long period of time or Salary increases are not akin to allowances or
Arlene was forced to litigate.
because of the realities of the situation; bene its, and cannot be confused with either. (Equitable
b. reinstatement is inimical to the employer’s Banking v. Sadac)
5. When not deemed dismissed; employee on floating
interest; 4. Money claims arising from EER status
c. reinstatement is no longer feasible; Ibon v. Genghis Khan Security Services Inc. 2017
Fuji Television v. Espiritu 2014 Leonen, J
d. reinstatement does not serve the best interests of
Well-entrenched is the rule that an illegally dismissed employee is An employer must assign the security guard to another posting
the parties involved; within six (6) months from his last deployment, otherwise, he would
entitled to reinstatement as a matter of right. The doctrine of
e. the employer is prejudiced by the workers’ be considered constructively dismissed; and the security guard must
“strained relations” should be strictly applied so as not to deprive an
continued employment; be assigned to a speci ic or particular client. A general
illegally dismissed employee of his right to reinstatement. return-to-work order does not suf ice.
f. facts that make execution unjust or inequitable Here, no evidence was presented by Fuji to prove that reinstatement
have supervened; or Superior Maintenance Services v. Bermeo 2018

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Article 301 of the Labor Code was applied only by analogy to prevent
the loating status of employees hired by agencies from becoming
inde inite. This temporary off-detail of employees is not a result of
suspension of business operations but is merely a consequence of
lack of available posts with the agency's subsisting clients.
WON Bermeo was constructively dismissed from work.
NO. In Salvaloza v. NLRC, temporary off-detail or loating status was
de ined as that "period of time when security guards are in between
assignments or when they are made to wait after being relieved from
a previous post until they are transferred to a new one."
Here, when Bermeo iled his complaint for constructive dismissal on
September 5, 2008, it was only a week after his unsuccessful
assignment in French Baker on August 28, 2008. Even if the
reckoning date would be his last assignment at Trinoma Mall, which
ended on March 30, 2008, it is still less than the six-month period
allowed by Article 301 for employees to be placed on loating status.
Thus, the iling of his complaint for constructive dismissal is
premature. Besides, it is unrebutted that the petitioners contacted
Bermeo for a new assignment even after the latter has iled a
complaint for constructive dismissal.
IMPORTANT DOCTRINES
a. Doctrine of Strained Relations. — The payment of separation
pay is considered an acceptable alternative to reinstatement
when the latter option is no longer desirable or viable.
Strained relations must be demonstrated as a fact, however, to
be adequately supported by evidence — substantial evidence to
show that the relationship between the employer and the
employee is indeed strained as a necessary consequence of the
judicial controversy.
b. Totality of Infractions/Conduct. — The totality of infractions
or number of violations committed during the period of
employment shall be considered in determining the penalty to
be imposed on the erring employee. The offenses committed
by him should not be taken singly and separately but in their
totality. Fitness for continued employment cannot be
compartmentalized into tight little cubicles of aspects of
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
character, conduct and ability separate and independent of each
other. (Alvarez v. Golden Tri Bloc 2013)
c. Hobson Doctrine. — All that the private respondents were
offered was a choice on the means or method of terminating
their services but never as to the status of their employment. In
short, they were never asked if they still wanted to work for
petitioner. Hobson's Choice means no choice at all; a choice
between accepting what is offered or having nothing at all.
d. Past Infraction Rule. — The number of same nature of
violations committed shall be considered in determining the
penalty to be imposed.
e. Wenphil Doctrine. — Where the employer had a valid reason
to dismiss an employee but did not follow the due process
requirement, the dismissal may be upheld but the employer
will be penalized to pay an indemnity to the employee.
f. Bona Fide Occupational Quali ication Rule. — Employment
in particular jobs may not be limited to persons of a particular
sex, religion, or national origin unless the employer can show
that sex, religion, or national origin is an actual quali ication
for performing the job.
g. Successor Employer Doctrine. — The successor-employer is
deemed to have absorbed the employees and is held liable for
the transgression of his predecessor when such change is made
in bad faith or used to defeat the rights of labor.
h. Doctrine of Discerning Compassion or Compassionate
Justice. — Separation pay shall be allowed as a measure of
social justice only in those instances where the employee is
validly dismissed for causes other than serious
misconduct or those re lecting on his moral character.
Where the reason for the valid dismissal is, for example,
habitual intoxication or an offense involving moral turpitude,
like theft or illicit sexual relations with a fellow worker, the
employer may not be required to give the dismissed employee
separation pay, or inancial assistance, or whatever other name
it is called, on the ground of social justice. (San Miguel v. Lao)
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For WEEK 1 of the 2020_21 #BestBarEver
i. Discretionary Justice. — Where a penalty less punitive would
suf ice, whatever missteps may be committed by labor ought
not to be visited with a consequence so severe. It must be
commensurate with the act, conduct or omission imputed
to the employee (RCPI v. NLRC), and must consider the
employee’s length of service in the company, and his previous
infractions (Bonotan v. NLRC), if any.
j. Theory of Automatic Assumption. — BPI is deemed to have
assumed the employment contracts of FEBTC employees upon
effectivity of the merger without break in the continuity of their
employment even without express stipulation in the Articles of
Merger. (BPI v. BPI Employees Union 2011 En Banc)
C. Termination by Employee
1. With notice to the employer
ARTICLE 300. Termination by Employee. — (a) An employee may
terminate without just cause the employee-employer relationship by
serving a written notice on the employer at least one (1) month in
advance. The employer upon whom no such notice was served may
hold the employee liable for damages.
a) Resignation is the VOLUNTARY act of an employee
dissociating from his employment in the belief that
personal reason cannot be sacri iced in favor of the
exigency of the service. Personal reasons may be due to
health concerns.
b) The law requires the EE to submit an advance notice to the
ER known as a RESIGNATION NOTICE.
i) It is to be given at least 1 month before effectivity
date of resignation.
ii) The notice is for the bene it of the ER.
iii) ER has discretion to shorten the period.
iv) Failure to ile notice will hold EE liable for
damages for losses.
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c) Acceptance of resignation is not necessary. Resignation
may however be withdrawn even if EE called it
irrevocable. If the ER has accepted and approved the
tendered resignation, withdrawal thereafter requires the
ER’s consent.
d) Generally, an EE who voluntarily resigns is NOT entitled
to separation pay. There are however two exceptions:
i) When stipulated in CBA;
ii) Sanctioned by established ER practice or policy.
Del Rio v. DPO Phils. 2018
WON the CA is correct in deleting the award of separation pay in
favor of petitioner.
YES. There was no employment contract, much less a CBA, which
contained the stipulation that would grant separation pay to resigning
employees. Neither was there a company practice or policy that was
proven to exist in the instant case.
2. Without notice to the employer
ARTICLE 300. Termination by Employee. — xxx
(b) An employee may put an end to the relationship without serving
any notice on the employer for any of the following just causes:
1. Serious insult by the employer or his representative on the
honor and person of the employee;
2. Inhuman and unbearable treatment accorded the
employee by the employer or his representative;
3. Commission of a crime or offense by the employer or his
representative against the person of the employee or any of
the immediate members of his family; and
4. Other causes analogous to any of the foregoing.
3. Distinguish voluntary resignation and constructive
dismissal
Doble, Jr. v. ABB Inc. 2017
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
Constructive dismissal is de ined as quitting or cessation of
work because continued employment is rendered impossible,
unreasonable or unlikely. There is involuntary resignation due to
the harsh, hostile, and unfavorable conditions set by the employer.
On the other hand, resignation is the voluntary act of an employee
who is in a situation where one believes that personal reasons cannot
v
be sacri iced in favor of the exigency of the service, and one has no
other choice but to dissociate oneself from employment. It is a
formal pronouncement or relinquishment of an of ice, with the
intention of relinquishing the of ice accompanied by the act of
relinquishment.
D. Retirement
GR: Employees dismissed for just cause are generally entitled
due to vested rights
EXC: Where just cause termination proscribes the claim of
retirement pay as cited in the retirement plan.
1) Retirement has been de ined as a withdrawal from of ice,
public station, business, occupation, or public duty. It is the
result of a bilateral act of the parties, a voluntary agreement
between the employer and the employee whereby the latter,
after reaching a certain age, agrees and/or consents to sever his
employment with the former.
2) Under the Labor Code, only unjustly dismissed employees are
entitled to retirement bene its and other privileges including
reinstatement and backwages. Since petitioner’s dismissal was
for a just cause, he is not entitled to any retirement bene it. (Sy
v. Metrobank)
3) ⭐An employee in the private sector who did not expressly
agree to the terms of an early retirement plan cannot be
separated from the service before he reaches the age of 65
years. The employer who retires the employee
prematurely is guilty of illegal dismissal, and is liable to
pay his back wages and to reinstate him without loss of
seniority and other bene its, unless the employee has
meanwhile reached the mandatory retirement age, in which
case he is entitled to separation pay pursuant to the terms of
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For WEEK 1 of the 2020_21 #BestBarEver
the plan, with legal interest on the backwages and separation
pay reckoned from the inality of the decision. (Laya, Jr v. CA
2018 En Banc)
4) However, where the employee has been informed and had
consented, as when in accepting the employment offer, he has
assented to all existing rules, regulations and policy of the
employer in the employment contract, and furthermore, he did
not object to the compulsory age of retirement in the
Retirement Plan, he is deemed bound thereto. (Banco de Oro
Unibank v. Sagaysay 2015)
5) Jurisprudence is replete with cases discussing the employer's
prerogative to lower the compulsory retirement age subject to
the consent of its employees.
6) In Pantranco North Express, Inc. v. NLRC, the Court upheld
the retirement of the private respondent therein pursuant to a
CBA allowing the employer to compulsorily retire employees
upon completing 25 years of service to the company.
7) In Progressive Development Corporation v. NLRC, the
retirement plan, which allowed the employer to retire
employees who had rendered more than 20 years of service,
was declared valid and enforceable even though it was not
embodied in a CBA. In that case, the Court concluded that the
employees, who were hired before the execution of the
employer's retirement plan, were bound by it because the
retirement plan was expressly made known and accepted
by them.
8) In contrast, the case of Jaculbe v. Silliman University did not
allow the application of a lower retirement age. The petitioner
in the said case was employed sometime in 1958 while the
retirement plan, which automatically retired its members upon
reaching the age of 65 or after 35 years of uninterrupted service
to the university, came into being in 1970. The said retirement
plan was not applied to the petitioner because there was no
agreement to which the latter assented.
9) Similarly, the case of Cercado v. UNIPROM Inc., involved a
non-contributory retirement plan which provided that any
employee with twenty (20) years of service, regardless of age,
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may be retired at his option or at the option of the company.
X
The said plan was adopted while the petitioner therein was
employed earlier. There was no voluntary acquiescence to
UNIPROM's early retirement age option on her part.
PAL v. Hassaram 2017
10) On the other hand, in Obusan v. PNB, the petitioner, who was
hired by PNB in 1979, was deemed covered by its retirement
plan adopted in 2000. Considering that on February 21, 2001,
PNB had informed all of its of icers and employees about the
Barroga v. Quezon Colleges of the North 2018
said retirement plan, the said plan was then registered with the
BIR and was later recognized by the Philnabank Employees
Association in its CBA. Despite the proper dissemination of
information, no one questioned the retirement plan. Hence,
the Court deemed it valid and effective as due notice of the
employer's decision to retire an employee was adequately
provided.
11) ⭐Retirement of Part-time Faculty. Under the rule of
statutory construction of expressio unius est exclusio alterius,
Bernardo's claim for retirement bene its cannot be denied on
the ground that he was a part-time employee as part-time
employees are not among those speci ically exempted
under RA No. 7641 or its Implementing Rules. (Dela Salle
Araneta U v. Bernardo 2017)
Catotocan v. Lourdes School of Quezon City 2017
RETIREMENT PLAN. Acceptance by the employees of an early
retirement age option must be explicit, voluntary, free, and
uncompelled.
WON Catotocan's receipt of her retirement bene its will not stop her
from pursuing an illegal dismissal complaint against LSQC.
NO. LSQC did not illegally dismiss Catotocan from service. While it
may be true that Catotocan was initially opposed to the idea of her
retirement at an age below 60 years, it must be stressed that
Catotocan's subsequent actions after her "retirement" are actually
tantamount to her consent to the addendum to the LSQC's retirement
policy of retiring her from service upon serving the school for at
least thirty (30) continuous years. Catotocan performed all the acts to
ratify her retirement in accordance with LSQC's retirement policy.
Catotocan's repeated application and availment of the re-hiring
program of LSQC for quali ied retirees for 3 consecutive years is a
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
supervening event that would reveal that she has already voluntarily
and freely signi ied her consent to the retirement policy despite her
initial opposition to it.
The determining factor in choosing which retirement scheme to
apply is still superiority in terms of bene its provided.
While retirement from service is similar to termination of
employment insofar as they are common modes of ending
employment, they are mutually exclusive, with varying juridical
bases and resulting bene its. Retirement from service is
contractual, while termination of employment is statutory.
WON the CA correctly ruled that petitioner was not illegally
dismissed by respondents, but rather, retired from his employment
with the latter.
YES. The Court is inclined to hold that petitioner retired from
service, but nonetheless, pursued the iling of the instant illegal
dismissal case in order to recover the proper bene its due to him. In
fact, it is telling that he never asked to be reinstated as he only
sought the payment of his retirement bene its. In view of the
foregoing, respondents must duly pay petitioner not only his
retirement bene its, but also his other monetary claims.
On this note, case law instructs that in labor cases where the
concerned employee is entitled to the wages/bene its prayed for, said
employee is also entitled to attorney's fees amounting to ten
percent (10%) of the total monetary award due him.
V. LABOR RELATIONS
Right to self-organization
Bargaining unit
Bargaining representative
Determination of representation status
Request for SEBA Certi ication
Certi ication election
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Bar Rules
Rights of labor organizations
Check off, assessment, agency fees
Collective bargaining
Unfair labor practices
Peaceful concerted activities
By labor organization
Strike
Picket
By employer
Lockout
Assumption of jurisdiction by SOLE
A. Right to self-organization
ARTICLE 253. Coverage and Employees' Right to Self-Organization.
— All persons employed in commercial, industrial and agricultural
enterprises and in religious, charitable, medical, or educational
institutions, whether operating for pro it or not, shall have the right
to self-organization and to form, join, or assist labor organizations of
their own choosing for purposes of collective bargaining.
Ambulant, intermittent and itinerant workers, self-employed people,
rural workers and those without any de inite employers may form
labor organizations for their mutual aid and protection.
ARTICLE 254. Right of Employees in the Public Service. —
Employees of government corporations established under the
Corporation Code shall have the right to organize and to bargain
collectively with their respective employers. All other employees in
the civil service shall have the right to form associations for
purposes not contrary to law.
1. Who may or may not exercise the right
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Quali ied
✔ Those employed in
commercial, industrial and
agricultural enterprises;
✔ EEs of GOCCs WITHOUT
original charters (Corpo Code);
✔ EEs of religious, charitable,
medical or educational
institutions, for pro it or not;
✔ Alien EEs
1. Working in the country;
2. With valid working permits
issued by DOLE;
3. Nationals of countries
granting same rights to
Filipinoworkers
(RECIPROCITY rule); and
4. Country of origin has rati ied
ILO 87 and 98 as certi ied by
DFA.
✔ All other workers FOR mutual
aid and protection and NOT for
collective bargaining;
✔ Security guards;
✔ Workers in EPZs.
a. Doctrine of necessary implication
1) Con idential employees, by Doctrine of Necessary
Implication, are also disquali ied for union
membership. They are those who
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
Disquali ied
✘ EEs of GOCCs under Special
charters;
✘ Managerial EEs;
★ They are those who are
vested with powers or
prerogatives to lay down and
execute management
policies and/or hire,
transfer, suspend, lay-off,
recall, discharge, assign or
discipline employees.
★ Supervisory EEs are
RELATIVELY prohibited in
that they are not allowed to
join unions of rank and ile
by virtue of separation of
unions doctrine.
✘ Con idential EEs
✘ Members of a Cooperative;
★ Owners cannot bargain with
themselves.
✘ Members of International
Orgs;
★ By doctrine
incorporation, they are
immune from suit.
PRE-WEEK NOTES
a) assist or act in a con idential capacity in
regard
b) to persons who formulate, determine, and
effectuate management policies, speci ically
in the ield of labor relations.
2) For the disquali ication to apply
a) He must be in a iduciary relationship with
another to whom he reports or whom he
assists;
b) The latter possesses labor-management
relations information; and
c) He has access to that information by reason
of his position.
3) The disquali ication will NOT apply if
a) The information is business information; and
b) The information may be labor-management
relations in nature but the employee’s access
thereto is accidental only.
2. Commingling or mixture of membership
1) Mixed-membership is NOT a ground for the
cancellation of a union’s certi icate of registration. The
grounds are limited to the following:
a) Fraud in the rati ication of Constitution and
Bylaws;
b) Fraud in election of of icers;
c) Voluntary dissolution
of
i) By ⅔ of members;
ii) In a meeting called for the purpose;
iii) An application to cancel submitted
by the board attested to by the
president;
iv) Filed in the RO which issued the
Certi icate of Registration.
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3. Rights and conditions of membership
1) POLITICAL Rights — 5 YEAR term for of icers.
2) Right to INFORMATION;
3) Deliberative and Decision-Making Right;
4) Rights over MONEY matters;
Non-abridgment of right to self-organization
GR: The right of any person to join an organization also
includes the right to leave that organization and join
another one.
EXC: The right to refrain from joining labor organizations is,
however, limited. It is withdrawn by operation of law,
where the parties have agreed on a closed shop.
EXC TO THE EXC
a) Members of the religious sect which prohibit
af iliation of their members in such labor organization
(1974 Basa);
b) Employees who are already members of another union
at the time of the signing of the CBA (Art 248 [e]);
c) Con idential employees who are excluded from the
bargaining unit (2010 Bank of Phil Islands);
d) Employees excluded by express terms of the
agreement.
a. Nature of relationship
i. Member-Labor union. — Principal-Client
Relationship. — Thus, a union cannot waive the
personal rights of a member.
ii. Labor union federation. — Principal-Client
Relationship. — Thus, a federation cannot sequester
the assets of a local to punish it.
a) Disaf iliation. — Two scenarios when union
disaf iliates from a federation. If union created
through:
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i) charter certi icate — union loses
personality;
ii) independent registration — maintains
personality.
b) Substitutionary doctrine in Benguet
Consolidated v. BCI Employees & W
Union-PAFLU
w
This principle merely states that even during the effectivity of a
collective bargaining agreement executed between employer and
employees thru their agent, the employees can change said agent but
the contract continues to bind them up to its expiration date. They
may bargain however for the shortening of said expiration date.
The “substitutionary” doctrine only provides that the employees
cannot revoke the validly executed collective bargaining
contract with their employer by the simple expedient of
changing their bargaining agent.
The “substitutionary” doctrine, therefore, cannot be invoked to
support the contention that a newly certi ied collective bargaining
agent automatically assumes all the personal undertakings — like the
no-strike stipulation here — in the collective bargaining agreement
made by the deposed union. When BBWU bound itself and its of icers
not to strike, it could not have validly bound also all the other rival
unions existing in the bargaining units in question. BBWU was the
agent of the employees, not of the other unions which possess
distinct personalities. To consider UNION contractually bound to the
no-strike stipulation would therefore violate the legal maxim that res
inter alios acta alios nec prodest nec nocet.
B. Bargaining unit
1) A "bargaining unit" has been de ined as a group of
employees of a given employer, comprised of all or less than
all of the entire body of employees, which the collective
interest of all the employees, consistent with equity to the
employer, indicate to be the best suited to serve the reciprocal
rights and duties of the parties under the collective bargaining
provisions of the law. (UP v. Ferrer-Calleja)
2) The factors in determining the appropriate collective
bargaining unit are
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
a) the will of the employees (Globe Doctrine);
b) af inity and unity of the employees' interest, such as
substantial similarity of work and duties, or similarity
of compensation and working conditions (Substantial
Mutual Interests Rule);
c) prior collective bargaining history; and
d) similarity of employment status.
3) The basic test of an asserted bargaining unit's acceptability is
whether or not it is fundamentally the combination which will
best assure to all employees the exercise of their collective
bargaining rights. (ISAE v. Quisumbing)
C. Bargaining representative
Exclusive bargaining agent. — Refers to any legitimate labor
organization duly recognized or certi ied as the sole and exclusive
bargaining agent of all the employees in a bargaining unit.
1. Determination of representation status
Four (4) ways of determining a bargaining agent:
a) Request for SEBA certi ication;
b) Certi ication election;
c) Run-off election; OR
d) Consent election.
b. Certification election
a. Request for SEBA Certification
1) See DO 40-I-2015 on SEBA Certi ication
2) In an unorganized establishment with 1 LLO. — the
RD shall call a conference within ive (5) work days for the
submission of the following:
a) the names of employees in the covered bargaining unit
who signify their support for the certi ication,
provided that said employees comprise at least
majority of the covered BU; and
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b) certi ication under oath by the president of the
requesting union or local that all documents
submitted are true and correct.
If the requesting union or local fails to complete the
requirements for SEBA certi ication during the
conference, the request for SEBA certi ication shall be
referred to the election of icer for the conduct of
election.
Action On The Submission. — RD shall issue during the
conference a certi ication as SEBA.
Effect Of Certi ication. — Upon the issuance of the
certi ication as SEBA, the certi ied union or local shall
enjoy all the rights and privileges of an exclusive
bargaining agent of all the employees in the covered
bargaining unit
3) In an unorganized establishment with > 1 LLO. — RD
shall refer the same to the election of icer for the conduct
of certi ication election.
4) In an organized establishment. — RD shall refer the
same to the mediator-arbiter for the determination of the
propriety of conducting a certi ication election.
1) Who may ile?
a) LLO. —
i) Independent union;
ii) National union or federation;
iii) Local chapter.
b) Employer, when requested to bargain collectively, and
the majority status of the requesting party is in doubt.
c) If in an organized establishment, the signature of at
least 25% of all employees in the bargaining unit is
required.
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its members are managerial employees and for this reason, its
registration is thus a patent nullity for being an absolute violation of
v
Article 245 of the Labor Code which declares that managerial
employees are ineligible to join any labor organization — is, in a
sense, an accusation that respondent is guilty of misrepresentation
for registering under the claim that its members are not managerial
employees.
c. Run-off election
1) Refers to an election between the labor unions receiving
the two (2) highest number of votes when a certi ication
election which provides for three (3) or more choices
results in no choice receiving a majority of the valid votes
cast; provided, that the total number of votes for all
contending unions is at least ifty percent (50%) of the
number of votes cast.
d. Consent election
1) Refers to the election voluntarily agreed upon by the
parties, with or without the intervention of the DOLE, to
determine the issue of majority representation of all the
workers in the appropriate collective bargaining unit.
e. Valid election
1) The union should be legitimate;
2) In case of organized establishments, the petition is iled
DURING the 60-day freedom period of a duly registered
CBA;
3) In case of organized establishments, the written support
of at least 25% of the members of the bargaining unit;
4) None of the bar rules is violated.
f. Double Majority Rule
1) There should be at least a majority of all eligible voters in
the appropriate bargaining unit who have cast their votes;
AND
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
2) The certi ied agent attained at least a majority of all valid
votes cast.
g. Failure of election
1) Where the number of votes cast is less than the majority
of the number of eligible voters and there are no
material challenged votes.
2) It shall not bar the iling of a motion for the immediate
holding of another certi ication or consent election
within six (6) months from date of declaration of failure
of election.
3) A re-run election is then called.
h. Re-run election
Refers to an election conducted
1) to break a tie between contending unions, including
between "no union" and one of the unions.
2) after a failure of election has been declared by the election
of icer and/or af irmed by the mediator-arbiter.
3) When the certi ication election is nulli ied.
i. Bar Rules
1) Contract Bar rule. — BLR shall not entertain any petition
for certi ication election or any other action which may
disturb the administration of duly registered existing
collective bargaining agreements affecting the parties. The
exceptions are as follows:
a) during the 60-day freedom period;
b) when the CBA is not registered with the BLR or
DOLE Regional Of ices;
c) when the CBA, although registered, contains
provisions lower than the standards ixed by law;
d) when the documents supporting its registration are
falsi ied, fraudulent or tainted with misrepresentation;
e) when the CBA is not complete;
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For WEEK 1 of the 2020_21 #BestBarEver
f) when the CBA was entered into prior to the 60-day
freedom period;
g) when there is a schism in the union resulting in an
industrial dispute wherein the CBA can no longer
foster industrial peace.
2) Deadlock Bar rule. — neither may a representation
question be entertained if:
a) before the iling of a petition for certi ication election,
the duly recognized or certi ied union has
commenced negotiations with the employer within
the one-year period; or
b) a bargaining deadlock had been submitted to
conciliation or arbitration or had become the subject
of valid notice of strike or lockout.
3) Certi ication Year Bar rule. — A certi ication election
petition may not be iled within one (1) year:
a) from the date of a valid certi ication, consent or
run-off election; or
b) from the date of SEBA certi ication.
D. Rights of labor organizations
1. Check off, assessment, agency fees
ARTICLE 113. Wage Deduction. — No employer, in his own behalf
or in behalf of any person, shall make any deduction from the wages
of his employees, except:
xxxx
(b) For union dues, in cases where the right of the worker or his
union to check-off has been recognized by the employer or
authorized in writing by the individual worker concerned;
1) There may be some SPECIAL ASSESSMENTS:
a) Authorized by a written resolution of majority of all
members; AND
b) Purpose is stated.
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2) Union Dues vs. Agency Fees. — Assessment of agency
fees from non-union employees and deduction thereof
from the employees’ salaries (Art. 248 [e]) even in the
absence of individual written authorization if the
non-union employees accept the bene its under the CBA.
3) The union’s right to agency fees is neither contractual nor
statutory but quasi-contractual.
4) Requisites for validity of union dues and special
assessments
a) Authorization by a written resolution of the majority
of all the members at a general membership meeting
duly called for the purpose;
b) Secretary’s record of the minutes of said meeting;
c) Individual written authorization (IWA) for check-off
duly signed by the employees concerned.
5) When not to require IWA
a) Assessment from non-members of SEBA of agency
fees;
b) Deductions for fees from mandatory activities such
as labor relations seminars;
c) Withholding tax;
d) EE’s debt to ER which is already due and demandable;
e) Judgment against the worker where wages may be
subject of attachment or execution but only for debts
incurred for food, clothing, shelter, and medical
attendance.
f) Via court order;
g) Authorized by law such as premiums for SSS,
PhilHealth, Pag-ibig.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
2. Collective bargaining
ARTICLE 261. Procedure in Collective Bargaining. — The following
procedures shall be observed in collective bargaining:
a. When a party desires to negotiate an agreement, it shall
serve a written notice upon the other party with a
statement of its proposals.
The other party shall make a reply thereto not later than ten
(10) calendar days from receipt of such notice;
b. Should differences arise, either party may request for a
conference which shall begin not later than ten (10)
calendar days from the date of request.
c. If the dispute is not settled, the Board shall intervene and
immediately call the parties to conciliation meetings;
d. xxx and
e. The Board shall exert all efforts to settle disputes amicably
and encourage the parties to submit their case to a
voluntary arbitrator.
a. Duty to bargain collectively
i.
ARTICLE 263. Meaning of Duty to Bargain Collectively. — The duty
to bargain collectively means
1. the performance of a mutual obligation to meet and convene
promptly and expeditiously in good faith
2. for the purpose of negotiating an agreement with respect to
wages, hours of work and all other terms and conditions of
employment including proposals for adjusting any
grievances or questions arising under such agreement and
3. executing a contract incorporating such agreements if
requested by either party but such duty does not compel any
party to agree to a proposal or to make any concession.
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b. Collective Bargaining Agreement
A collective bargaining agreement or CBA is the
negotiated contract between a legitimate labor organization
and the employer concerning wages, hours of work and all
other terms and conditions of employment in a bargaining
unit.
Thus, where the CBA is clear and unambiguous, it becomes
the law between the parties and compliance therewith is
mandated by the express policy of the law.
ARTICLE 264. Duty to Bargain Collectively When There Exists a
CBA. — When there is a CBA, the duty to bargain collectively shall
also mean that neither party shall terminate nor modify such
agreement during its lifetime.
Freedom period. — However, either party can serve a written notice
to terminate or modify the agreement at least sixty (60) days
prior to its expiration date. It shall be the duty of both parties
to keep the status quo and to continue in full force and effect the
terms and conditions of the existing agreement during the 60-day
period and/or until a new agreement is reached by the parties.
Mandatory provisions in a CBA
1) Grievance Procedure. — They shall establish a machinery for
the adjustment and resolution of grievances arising from
a) the interpretation or implementation of their CBA and
b) the interpretation or enforcement of company personnel
policies.
2) Voluntary Arbitration. — All grievances submitted to the
grievance machinery which are not settled within seven (7)
calendar days from the date of its submission shall
automatically be referred to voluntary arbitration prescribed
in the CBA.
3) “No Strike, No Lockout” Clause. — No strike or lockout shall
occur during the effectivity of the CBA. However, this only
applies if the ground relied upon is economic in nature. The “No
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Strike, No Lockout” clause is inapplicable to prevent a strike or
lockout which is grounded on ULP.
4) Provision on wage increases.
5) Other provisions. — A “union security clause” is a
stipulation in the CBA whereby the management recognizes that
the membership of employees in the union which negotiated
said agreement should be maintained and continued as a
condition for employment or retention of employment.
6) What are the remedies in case of CBA deadlock? In case of a
deadlock in the negotiation or renegotiation of the collective
bargaining agreement, the parties may exercise the following
rights under the Labor Code:
a) Conciliation and mediation by the NCMB, DOLE.
b) Declaration of a strike or lockout, as the case may be.
c) Referral of case to compulsory or voluntary arbitration.
ARTICLE 265. Terms of a Collective Bargaining Agreement. — Any
CBA that the parties may enter into shall, insofar as the
representation aspect is concerned, be for a term of ive (5) years.
No petition questioning the majority status of the incumbent
bargaining agent shall be entertained and no certi ication election
shall be conducted by the DOLE outside of the sixty (60) day period
immediately before the date of expiry of such ive-year term of the
CBA.
All other provisions of the CBA shall be renegotiated not later
than three (3) years after its execution.
Any agreement on such other provisions of the CBA entered into
within six (6) months from the date of expiry of the term of such
other provisions as ixed in such CBA, shall retroact to the day
immediately following such date.
If any such agreement is entered into beyond six months, the parties
shall agree on the duration of retroactivity thereof. In case of a
deadlock in the renegotiation of the CBA, the parties may exercise
their rights under this Code.
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PRE-WEEK NOTES
Hongkong Bank Independent Labor Union v. HSBC 2018
WON HSBC could validly enforce the credit-checking requirement
under its BSP-approved Plan in processing the salary loan
applications of covered employees even when the said requirement is
not recognized under the CBA.
NO. The Plan was never made part of the CBA. Tolerating HSBC's
conduct would be tantamount to allowing a blatant circumvention of
Article 253. It would contravene the express prohibition against the
unilateral modi ication of a CBA during its subsistence and even
thereafter until a new agreement is reached.
HSBC's enforcement of credit checking on salary loans under the CBA
invalidly modi ied the latter's provisions thereon through the
imposition of additional requirements which cannot be found
anywhere in the CBA.
Societe Internationale De Telecommunications v. Huliganga 2018
Managerial employees are not eligible to join, assist or form any
labor organization. An exception to this prohibition is when the
employer extends the CBA bene its to the managerial employee as a
matter of policy or established practice.
WON Huliganga, as a managerial employee, is entitled to the same
retirement bene its as those of rank-and- ile employees.
NO. Complainant failed to present evidence to justify his claim. He
failed to suf iciently establish that there is an established company
practice of extending the CBA concessions to managerial employees.
To be considered as a company practice, the act of extending the
bene its of the CBA to managerial employees must have been
practiced for a long period of time and must be shown to be
consistent and deliberate.
Mitsubishi Motors Phils Salaried Employees Union v. Mitsubishi
Motors Phils Corp. 2013
WON member-employees are entitled to full reimbursement of
medical expenses incurred by their dependents regardless of any
amounts paid by the latter’s health insurance provider.
NO. The conditions set forth in the CBA provision indicate an
intention to limit MMPC’s liability only to actual expenses incurred
by the employees’ dependents, that is, excluding the amounts paid by
dependents’ other health insurance providers.
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Since the subject CBA provision is an insurance contract, the rights
and obligations of the parties must be determined in accordance with
the general principles of insurance law. Being in the nature of a
non-life insurance contract and essentially a contract of indemnity,
the CBA provision obligates MMPC to indemnify the covered
employees’ medical expenses incurred by their dependents but only
up to the extent of the expenses actually incurred. This is consistent
with the principle of indemnity which proscribes the insured from
recovering greater than the loss.
E. Unfair labor practices
1. Nature, aspects
ARTICLE 258. Concept of Unfair Labor Practice and Procedure for
Prosecution Thereof. — Unfair labor practices violate the
constitutional right of workers and employees to
self-organization, are inimical to the legitimate interests of both
labor and management, including their right to bargain collectively
and otherwise deal with each other in an atmosphere of freedom and
mutual respect, disrupt industrial peace and hinder the promotion of
healthy and stable labor-management relations.
Consequently, unfair labor practices are not only violations of the
civil rights of both labor and management but are also criminal
offenses against the State.
Subject to the exercise by the President or by the SOLE of the powers
vested in them by Articles 263 and 264 of this Code, the civil
aspects of all cases involving unfair labor practices, which may
include claims for actual, moral, exemplary and other forms of
damages, attorney's fees and other af irmative relief, shall be
under the jurisdiction of the Labor Arbiters.
The Labor Arbiters shall resolve such cases within thirty (30)
calendar days from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings
shall bar recovery under the Civil Code.
No criminal prosecution may be instituted without a inal
judgment inding that an unfair labor practice was committed,
having been irst obtained. The inal judgment in the administrative
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proceedings shall not be binding in the criminal case nor be
considered as evidence of guilt but merely as proof of compliance
of the requirements therein set forth.
2. By employers
1) To interfere with, restrain or coerce employees in the
exercise of their right to self-organization;
2) Yellow Dog Contract. To require as a condition of
employment that a person or an employee shall not join a
labor organization or shall withdraw from one to which he
belongs;
3) To contract out services or functions being performed by
union members when such will interfere with, restrain or
coerce employees in the exercise of their right to
self-organization;
4) To initiate, dominate, assist or otherwise interfere
with the formation or administration of any labor
organization, including the giving of inancial or other
support to it or its organizers or supporters;
5) To discriminate in regard to wages, hours of work and
other terms and conditions of employment in order to
encourage or discourage membership in any labor
organization.
6) To dismiss, discharge or otherwise prejudice or
discriminate against an employee for having given or
being about to give testimony under this Code;
7) To violate the duty to bargain collectively;
8) To pay negotiation or attorney's fees to the union or its
of icers or agents as part of the settlement of any issue in
collective bargaining or any other dispute; or
9) To violate a collective bargaining agreement.
10) NOTES
a) As to violation of CBA. — It is ULP if what is violated
is an ECONOMIC provision of the CBA and that the
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
violation is gross and lagrant; otherwise, it is not
ULP.
b) As to jurisdiction
i) LA → NLRC → CA. — gross and lagrant violation
of an economic provision, a ULP;
ii) Grievance Machinery → VA → CA. — violation of
1. a political provision; or
2. an economic provision that is NOT gross and
lagrant.
c) Totality of Conduct Doctrine. — Expressions of
opinion by an employer which, though innocent in
themselves, frequently were held to be culpable
because of the circumstances under which they were
uttered, the history of the particular employer's labor
relations or anti-union bias or because of their
connection with an established collateral plan of
coercion or interference.
d) An employer who refuses to bargain with the union
and tries to restrict its bargaining power is guilty of
unfair labor practice. In determining whether an
employer has not bargained in good faith, the totality
of all the acts of the employer at the time of
negotiations must be taken into account. (SONEDCO v.
Universal Robina 2016 Leonen, J)
e) Petitioner's dismissal, which was brought about by his
personal acts, does not constitute unfair labor practice
as provided under the Labor Code. Dismissing him
Examples of ULPs
was not meant to violate the right of the university
employees to self-organize. Neither was it meant to
interfere with the Union's activities. Likewise,
petitioner failed to prove that the proceedings were
done with haste and bias. Finally, petitioner cannot
raise the defense that he was the Union's president;
this does not make him immune from liability for his
acts of misconduct. (Adamson Univ Faculty and
Employees Union v. Adamson Univ 2020 Leonen, J)
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3. By labor organizations
1) To restrain or coerce employees in the exercise of their
right to self-organization. However, a labor organization
shall have the right to prescribe its own rules with respect
to the acquisition or retention of membership;
2) To cause or attempt to cause an employer to
discriminate against an employee, including
discrimination against an employee with respect to whom
membership in such organization has been denied or to
terminate an employee on any ground other than the usual
terms and conditions under which membership or
continuation of membership is made available to other
members;
3) To violate the duty, or refuse to bargain collectively with
the employer, provided it is the representative of the
employees;
4) Featherbedding. To cause or attempt to cause an
employer to pay or deliver or agree to pay or deliver any
money or other things of value, in the nature of an
exaction, for services which are not performed or not to be
performed, including the demand for fee for union
negotiations;
5) To ask for or accept negotiation or attorney's fees from
employers as part of the settlement of any issue in
collective bargaining or any other dispute; or
6) To violate a collective bargaining agreement.
1) Surface bargaining. — De ined as “going through the motions
of negotiating” without any legal intent to reach an agreement.
It involves the question of whether an employer’s conduct
demonstrates an unwillingness to bargain in good faith or is
merely hard bargaining.
2) Blue sky bargaining. — Making exaggerated or unreasonable
proposals.
3) Featherbedding. — see above.
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4) Yellow dog contract. — An agreement which exacts from
workers as a condition of employment, that they shall not join
or belong to a labor organization, or attempt to organize one,
during their period of employment or that they shall withdraw
therefrom, in case they are already members of a labor
organization.
5) Runaway shop. — Is an industrial plant that is moved by its
WON Pinuela was illegally dismissed as the charges of
misappropriation against him were unsubstantiated.
YES. Respondent's expulsion from PORFA is grounded on the union's
Constitution. However, these provisions refer to impeachment and
recall of union of icers, and not expulsion from union
membership. In short, any of icer found guilty of violating these
provisions shall simply be removed, impeached or recalled, from
of ice, but not expelled or stripped of union membership.
4) Who may ile? Any certi ied bargaining agent;
If none, any LLO on the ground of ULP only.
i. Valid strikes as distinguished from illegal strikes
1) Requisites of a Valid Strike
a) Based on a valid and factual ground;
b) A notice of strike iled with the NCMB;

owners from one location to another to escape union labor
regulations or state laws. It may also be a relocation motivated
by anti-union animus rather than for business reasons.
6) Contracting out. — It is only when the contracting out of a
job, work or service being performed by union members will
interfere with, restrain or coerce employees in the exercise of
their right to self-organization that it shall be unlawful and
shall constitute ULP.
7) Company Union. — To initiate, dominate, assist or otherwise
interfere with the formation or administration of any labor
organization, including the giving of inancial or other support
to it or its organizers or supporters.
8) Boulwarism. — the tactic of making a "take-it-or-leave-it" offer
in a negotiation, with no further concessions or discussion.
Reliefs against ULP
1) Cease and Desist Order. From such ULP.
2) Af irmative Order. Order to reinstate employee with backpay
from date of discrimination.
3) Order to Bargain; Mandated CBA.
4) Disestablishment. Directing the employer to withdraw all
recognition from the dominated labor union and to disestablish
the same.
5) Labor and Criminal Complaints for ULP. A criminal
complaint can not be iled unless there is a inal judgment of
ULP.
United Polyresins, Inc. v. Pinuela 2017
I
It was therefore an error on the part of PORFA and petitioners to c) Notice of strike vote to the NCMB, at least 24
terminate respondent's employment based on said provision of the
union's Constitution. Such a ground does not constitute just cause for hours before such vote;
termination. d) Strike vote wherein at least a majority of the
A review of the PORFA Constitution itself reveals that the only members of the union approve the holding of
provision authorizing removal from the union is found in Article X, strike through secret balloting in a meeting called
Section 6, that is, on the ground of failure to pay union dues,
for the purpose;
special assessments, ines, and other mandatory charges.
The matter of respondent's alleged failure to return petitioners' e) Strike vote report submitted at least 7 days
before intended date of strike;
P300K which was lent to PORFA is immaterial as well. It may not be
used as a ground to terminate respondent's employment; under the f) Cooling off period.
Labor Code, such a contribution by petitioners to PORFA is illegal
and constitutes unfair labor practice. i) Union busting = NONE;
- ii) ULP = 15 days;
F. Peaceful concerted activities
iii) CBD = 30 days;
1. By labor organization
From date of notice of strike is iled.
a. Strike
g) 7 day waiting period or strike ban after
1) "Strike" refers to any temporary stoppage of work by submission of strike vote report.
the concerted action of employees as a result of a
2) "Preventive Mediation Cases" refer to labor disputes
labor or industrial dispute. Elements:
which are the subject of a formal or informal request
a) Temporary stoppage of work; for conciliation and mediation assistance sought by
either or both parties or upon the initiative of the
b) Concerted activity;
Board.
c) Labor dispute.
3) When a strike is ILLEGAL
2) There are only TWO strikeable grounds:
a) Doesn’t comply with procedural requirements;
a) Collective bargaining deadlock; AND
b) For an unlawful purpose;
b) ULP.
c) Based on non-strikeable grounds;
3) Where to ile? Regional branch of the NCMB having
jurisdiction over the workplace. d) Didn’t bargain collectively irst;

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e) Violated the no strike no lockout clause; 2. By employer

When at least a majority of the union members vote to accept the
f) Failure to submit issues to grievance procedure improved offer the striking workers shall immediately return to work a. Lockout
and exhaust the steps therein; and the employer shall thereupon readmit them upon the signing of
1) refers to the temporary refusal of an employer to
g) While C-M is ongoing at NCMB; the agreement.
furnish work as a result of a labor or industrial
In case of a lockout, the DOLE shall also conduct a referendum by
h) Based on issues already brought to arbitration; dispute.
secret balloting on the reduced offer of the union on or before the
i) Pending case involving same ground in the notice 30th day of the lockout. 3. Assumption of jurisdiction by SOLE
of strike;
When at least a majority of the board of directors or trustees or the When, in his opinion, there exists a labor dispute causing or likely to
j) In de iance of an assumption or certi ication or partners holding the controlling interest in the case of a partnership cause a strike or lockout in an industry indispensable to the national
return-to-work order; vote to accept the reduced offer, the workers shall immediately return interest, the SOLE may
k) In violation of a TRO or an injunction order; to work and the employer shall thereupon readmit them upon the
1. assume jurisdiction over the dispute and decide it or
signing of the agreement.
l) After notice of strike converted to preventive 2. certify the same to the NLRC for compulsory arbitration.
mediation case;
Prohibition against arrest and detention of union
In labor disputes adversely affecting the continued operation of such
m) Against prohibition by law; members
hospitals, clinics or medical institutions, it shall be the duty of the
n) By a minority union; ARTICLE 281. Requirement for Arrest and Detention. — Except on striking union or locking-out employer to provide and maintain an
o) By an illegitimate union; grounds of national security and public peace or in case of effective skeletal workforce for the duration of the strike or lockout.
commission of a crime, no union members or union organizers may The President of the Philippines shall not be precluded from
p) By dismissed EEs;
be arrested or detained for union activities without previous determining the industries that, in his opinion, are indispensable to
q) In violation of company code of conduct; consultations with the Secretary of Labor. the national interest, and from intervening at any time and
r) As protest rallies in front of government of ices; assuming jurisdiction over any such labor dispute in order to settle
Anti-Injunction Ban or terminate the same.
s) As welga ng bayan.
GR: No injunction order growing out of labor disputes.
Liabilities in Illegal Strike a. Industry indispensable to the national interest. — Sec
EXC:
Knowingly Committed Illegal 16, Rule XXII, Book V, as created by DOLE Department
Participated Acts 1. Commission of prohibited activities; Order No. 040-H-13
2. Prospect of irreparable damage; i. hospital sector;
Union Of icer DISMISSED DISMISSED
3. National interest case. ii. electric power industry;
Union Member — DISMISSED
b. Picket iii. water supply services, to exclude small water supply
Improved offer and reduced offer balloting services such as bottling and re illing stations;
1) Marching to-and-fro with placards that make known
the issues between the establishment and the workers. iv. air traf ic control; and
ARTICLE 280. Improved Offer Balloting. — In an effort to settle a
strike, the DOLE shall conduct a referendum by secret balloting on 2) Picketing is limited to harmless marching by v. such other industries as may be recommended by the
the improved offer of the employer on or before the 30th day of employees who carry placards or use speech to attract National Tripartite Industrial Peace Council (TIPC).
the strike. the public to their cause. b. Effects of assumption of jurisdiction.

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i. On intended or impending strike or lockout — Bona ide occupational quali ications b) Must not inconvenient the welfare of the EE;
automatically enjoined even if a Motion for Post-employment restrictions c) Not prejudicial to the EE;
Reconsideration is iled.
Marriage between employees of competitor-employers
ii. On actual strike or lockout — strikers or locked out d) Not involve a demotion of rank or status;
employees should immediately return to work and A. Discipline e) Not be motivated by discrimination;
employer should readmit them back. 1) The right or prerogative to discipline covers the following f) Not made in bad faith;
iii. On cases iled or may be iled — All shall be rights to:
g) Not be effected as a form of punishment without
subsumed/absorbed by the assumed or certi ied case a) Discipline;
suf icient cause.
except when the order speci ied otherwise. The parties
b) Dismiss;
to the case should inform the DOLE Secretary of 4) Failure to observe these requisites, the transfer is deemed
pendency thereof. c) Determine who to punish; CONSTRUCTIVE DISMISSAL. Same reliefs as that of illegal
Manggagawa ng Komunikasyon sa Pilipinas v. PLDT 2017 Leonen d) Promulgate rules and regulations; demotion.
e) Impose penalty (proportionality rule) 5) An EE who refuses to be transferred when such is valid, is
WON the return-to-work order of the SOLE was rendered moot when
the NLRC upheld the validity of the redundancy program. f) Choose which penalty to impose; AND guilty of insubordination or willful disobedience of a lawful
YES. When petitioner iled its Motion for Execution on pursuant to order of an ER under Art 297[282] of the LC.
g) Impose heavier penalties than what the company rules
this Court's ruling there was no longer any existing basis for the
prescribe. 6) Refusal to be transferred is VALID in the following cases
return-to-work order. This was because the SOLE's return-to-work
order had been superseded by the NLRC's Resolution. Hence, the 2) The proportionality rule means that the penalty to be a) Overseas assignment;
SOLE did not err in dismissing the motion for execution on the imposed must be commensurate with the offense committed.
ground of mootness. b) Consequent to promotion;
Garcia v. Philippine Airlines upholds the prevailing doctrine that B. Transfer or employees This is a scalar transfer. The EE may refuse as this
even if a Labor Arbiter's order of reinstatement is reversed on appeal, entails additional responsibilities.
1) The lateral movement from one position to another of
the employer is obligated "to reinstate and pay the wages of the
dismissed employee during the period of appeal until reversal by the equivalent rank, level or salary. Could be a movement: c) To avoid con lict of interest;
higher court." a) From one position to another; or d) Occasioned by the abolition of the position.
There is no order of reinstatement from a Labor Arbiter in the case at
bar, instead, what is at issue is the return-to-work order from the b) From one of ice to another within the same business 7) Refusal is INVALID
SOLE. establishment.
a) Due to parental obligations;
2) This is an inherent right to control or manage by the ER.
VI. MANAGEMENT PREROGATIVE Consent of EE NOT required. b) Additional expenses;

Discipline 3) This is exercised by the ER in the best interest of the company c) Inconvenience;

Transfer or employees to see where a particular EE can be best maximized. For a d) Hardship and anguish.
transfer to be valid, the following REQUISITES must be
Productivity standards Peckson v. Robinsons Supermarket 2013
observed:
Bonus Concerning the transfer of employees, these are the following
a) Must be reasonable or have a sound purpose; jurisprudential guidelines:
Change of working hours

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a) a transfer is a movement from one position to another of
equivalent rank, level or salary without break in the service
or a lateral movement from one position to another of
equivalent rank or salary;
b) the employer has the inherent right to transfer or reassign an
employee for legitimate business purposes;
c) a transfer becomes unlawful where it is motivated by
discrimination or bad faith or is effected as a form of
punishment or is a demotion without suf icient cause;
d) the employer must be able to show that the transfer is not
unreasonable, inconvenient, or prejudicial to the employee
Chateau Royale Sports & Country Club v. Balba, et al. 2017
The burden of proof lies in the employer to prove that the transfer
of the employee from one area of operation to another was for a valid
and legitimate ground, like genuine business necessity.
The right of the employee to security of tenure does not give her a
vested right to her position as to deprive management of its authority
to transfer or re-assign her where she will be most useful.
WON the transfer of respondents to petitioner's Manila of ice was a
valid exercise of management prerogative.
YES. The transfer could not be validly assailed as a form of
constructive dismissal, for, as held in Benguet Electric Cooperative
v. Fianza, management had the prerogative to determine the place
where the employee is best quali ied to serve the interests of the
business given the quali ications, training and performance of the
affected employee.
According to Abbot Laboratories (Phils.), Inc. v. NLRC, the
employee who has consented to the company's policy of hiring sales
staff willing to be assigned anywhere in the Philippines as demanded
by the employer's business has no reason to disobey the transfer
order of management. Verily, the right of the employee to security of
tenure does not give her a vested right to her position as to deprive
management of its authority to transfer or re-assign her where she
will be most useful.
C. Productivity standards
Aliling v. Feliciano 2012
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PRE-WEEK NOTES
An employer is entitled to impose productivity standards for its
workers, and in fact, non-compliance may be visited with a penalty
even more severe than demotion.
Failure to observe prescribed standards of work, or to ful ill
reasonable work assignments due to inef iciency may constitute just
cause for dismissal. Such inef iciency is understood to mean failure
to attain work goals or work quotas, either by failing to complete the
same within the allotted reasonable period, or by producing
unsatisfactory results. This management prerogative of
requiring standards may be availed of so long as they are
exercised in good faith for the advancement of the employer's
interest.
D. Bonus
Mega Magazine Publications v. Defensor 2014
The grant of a bonus or special incentive, being a management
prerogative, is not a demandable and enforceable obligation, except
when the bonus or special incentive
1. is made part of the wage, salary or compensation of the
employee, or
2. is promised by the employer and expressly agreed upon by
the parties.
Bonus is a gratuity or act of liberality of the giver, and cannot be
considered part of an employee’s wages if it is paid only when pro its
are realized or a certain amount of productivity is achieved. If the
desired goal of production or actual work is not accomplished, the
bonus does not accrue.
E. Change of working hours
CCBPI v. Iloilo Coca-Cola Plant Employees Union 2018
WON scheduling Saturday work has ripened into a company
practice, the removal of which constituted a diminution of bene its.
NO. In Royal Plant Workers Union v. Coca-Cola Bottlers Philippines,
Inc.-Cebu Plant, the Court had the occasion to rule that the term
"bene its" mentioned in the non-diminution rule refers to
monetary bene its or privileges given to the employee with
monetary equivalents. Stated otherwise, the employee bene its
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contemplated by Article 100 are those which are capable of being
measured in terms of money.
CCBPI withdrew the Saturday work itself, pursuant, as already held,
to its management prerogative. In fact, this management
prerogative highlights the fact that the scheduling of the Saturday
work was actually made subject to a condition, i.e., the prerogative to
provide the company's employees with Saturday work based on the
existence of operational necessity.
In the case at bar, CCBPI's employees were not illegally prevented
from working on Saturdays. The company was simply exercising
its option not to schedule work pursuant to the CBA provision
which gave it the prerogative to do so. It therefore follows that the
principle of "no work, no pay" inds application in the instant case.
F. Bona fide occupational qualifications
1) To be considered a bona ide occupational quali ication, the
policy must
a) Serve a legitimate business purpose;
b) Be speci ic to the occupation at issue; and
c) Re lect an inherent quality that would reasonably
guarantee work ef iciency.
2) Employment may not be limited to persons of a particular sex,
religion, or national origin unless the employer cas show that
such quali ications are necessary in the performance of the job
involved. Exceptions to BFOQ:
a) Employment quali ication is reasonably related to
the essential operation of the job involved; and
b) There is a factual basis for believing that all or
substantially all persons meeting the quali ication
would be unable to properly perform the duties of the
job.
G. Post-employment restrictions
1) An EE is prohibited after separation from joining a competitor.
VALID, subject to limitations as to duration and place.
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2) Restrictive covenant clauses. — In determining whether the
contract is reasonable or not, the following factors should be
considered:
a) whether the covenant protects a legitimate business
interest of the employer;
b) whether the covenant creates an undue burden on
the employee;
c) whether the covenant is injurious to the public
welfare;
d) whether the time and territorial limitations contained
in the covenant are reasonable; and
e) whether the restraint is reasonable from the
standpoint of public policy.
H. Marriage between employees of
competitor-employers
1) A policy prohibiting spouses from being employed in the same
company. There must be compelling business necessity for
which no alternative exists other than the discriminatory
practice for it to be VALID.
2) Theories on Employment Discrimination
a) Disparate Treatment — Plaintiff must prove that an
employment policy is discriminating on its face;
b) Disparate Impact — Plaintiff must prove that a
facially neutral policy has a disproportionate effect on
a part of the class.
Duncan Assoc. of Detailman-PTGWO v. Glaxo Wellcome Phils.
No reversible error can be ascribed to the Court of Appeals when it
ruled that Glaxo’s policy prohibiting an employee from having a
relationship with an employee of a competitor company is a valid
exercise of management prerogative.
Glaxo has a right to guard its trade secrets, manufacturing formulas,
marketing strategies and other con idential programs and
information from competitors, especially so that it and Astra are rival
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
companies in the highly competitive pharmaceutical industry.
Coca-Cola Bottlers Phils Inc. v. CCBPI Sta Rosa Plant Employees
Union 2019
The employer does not have the prerogative to impose other
conditions on the amount of loan to be taken which does not
involve its duty to collect and remit amortizations.
In carrying out the 50% cap policy, petitioner effectively limits its
employees on the utilization of their salaries when it is apparent that
as long as the employee is quali ied to avail the same, he/she may
apply for an SSS loan. This is in contravention with the
prohibition on interfering with the disposal of wages under
2. Dependents and beneficiaries
Article 112 of the Labor Code.
VII. SOCIAL LEGISLATION
v
Social Security System Law
Government Service Insurance System Law
Limited Portability Law
Disability and Death bene its
Solo Parents
Kasambahay
Agrarian Relations
Universal Health Care
A. Social Security System Law
1. Coverage and exclusions
1) The SS Law mandates that all employees including
kasambahays or domestic workers not over sixty (60)
years of age shall be members of the SSS (Sec 9). The law
also mandates compulsory coverage of the Self-Employed
as stated in Sec 9-A which provides that self-employed
includes, but not limited to, the following:
a) All self-employed professionals;
b) Partners and single proprietors of businesses;
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c) Actors and actresses, directors, scriptwriters and
news correspondents who do not fall within the
de inition of the term “employee” in Sec 8 (d) of this
Act;
d) Professional athletes, coaches, trainers and jockeys;
and
e) Individual farmers and ishermen.
2) OFWs, sea-based or land-based, are compulsory members
as provided for under Sec 9-B.
1) The dependents shall be the following:
a) The legal spouse entitled by law to receive support
from the member;
b) The legitimate, legitimated or legally adopted, and
illegitimate child who is unmarried, not gainfully
employed, and has not reached twenty-one (21) years
of age, or if over twenty-one (21) years of age, he is
congenitally or while still a minor has been
permanently incapacitated and incapable of
self-support, physically or mentally; and
c) The parent who is receiving regular support from the
member.
2) Primary Bene iciaries
a) The dependent spouse until he or she remarries;
b) the dependent legitimate, legitimated or legally
adopted, and illegitimate children, In their absence,
3) Secondary Bene iciaries
a) the dependent parents;
b) In the absence of all the foregoing, any other person
designated by the member as his/her secondary
bene iciary.
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b) not exceeding one and one-half percent (1.5%) for and raises issues supported by documentary proofs which
were not considered in the course of inspection.
self-earning, professional practitioners, and migrant
workers. d. Under Art 233[227] of LC. — Enforcement of
compromise agreements when there is non-compliance
by any of the parties thereto.
VIII. JURISDICTION AND REMEDIES
e. Under Art 276[262-A] of LC. — Issuance of writ of
Labor Arbiter
execution to enforce decisions of VA or panel of VAs, in
National Labor Relations Commission case of their absence or incapacity.
Court of Appeals f. Under Sec 10 of RA 8042. — Money claims of OFWs
arising out of EER by virtue of any law or contract,
Supreme Court
including claims of death and disability bene its and for
Bureau of Labor Relations damages.
National Conciliation and Mediation Board g. Other cases as may be provided by law.
DOLE Regional Directors
Pepsi-Cola v. Gal-lang
DOLE Secretary
The case involves a complaint for damages for malicious
Voluntary Arbitrator prosecution which was iled with the RTC by the employees of the
Prescription of Actions defendant company. It does not appear that there is a
"reasonable causal connection" between the complaint and the
A. Labor Arbiter relations of the parties as employer and employees. The
complaint did not arise from such relations and in fact could have
1. Jurisdiction of the Labor Arbiter as distinguished arisen independently of an employment relationship between the
from the Regional Director parties. This is a matter which the labor arbiter has no
competence to resolve as the applicable law is not the Labor
a. Under Art 224[217] of LC Code but the Revised Penal Code.
i. Unfair labor practice cases; San Miguel v. Etcuban
ii. Illegal dismissal; In the present case, while respondents insist that their action is for
iii. Money claims > P5K; the declaration of nullity of their "contract of termination," what is
inescapable is the fact that it is, in reality, an action for damages
iv. Claims for damages arising from ER-EE relations; emanating from employer-employee relations.
and
Respondents' claim for damages is intertwined with their having
v. Legality of strikes and lockouts.
been separated from their employment without just cause and,
b. Under Art 124 of LC. — Disputes involving legislated consequently, has a reasonable causal connection with their
employer-employee relations with SMC. Accordingly, it cannot be
wage increases and wage distortion in unorganized
denied that respondents' claim falls under the jurisdiction of the
establishments not voluntarily settled.
labor arbiter as provided in paragraph 4 of Article 217.
c. Under Art 128(b) of LC. — Where the ER contests the
Indophil Textile Mills v. Adviento 2014
indings of the labor employment and enforcement of icer
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena By RGL
For WEEK 1 of the 2020_21 #BestBarEver
It is obvious from the complaint that the plaintiffs have not alleged
any unfair labor practice. Theirs is a simple action for damages for
tortious acts allegedly committed by the defendants. Such being the
case, the governing statute is the Civil Code and not the Labor Code.
Century Properties v. Babiano 2016
The CA erred in limiting the "Con identiality of Documents and
Non-Compete Clause" only to acts done after the cessation of the
employer-employee relationship or to the "post-employment"
relations of the parties. As clearly stipulated, the parties wanted to
apply said clause during the pendency of Babiano's employment, and
CPI correctly invoked the same before the labor tribunals.
PAL v. ALPAP 2018
PAL's cause of action is not grounded on mere acts of quasi-delict.
The claimed damages arose from the illegal strike and acts
committed during the same which were in turn closely related and
intertwined with the respondents' allegations of unfair labor
practices against PAL.
The question of damages becomes a labor controversy and is
therefore an employment relationship dispute.
Perpetual Help Credit Coop v. Faburada
There is no evidence that private respondents are members of
petitioner PHCCI and even if they are, the dispute is about
payment of wages, overtime pay, rest day and termination of
employment. Under Art. 217 of the Labor Code, these disputes are
within the original and exclusive jurisdiction of the Labor
Arbiter.
Austria v. NLRC
The grounds invoked for petitioner's dismissal, namely:
misappropriation of denominational funds, willful breach of
trust, serious misconduct, gross and habitual neglect of duties
and commission of an offense against the person of his
employer's duly authorized representative, are all based on
Article 282 of the Labor Code which enumerates the just causes
for termination of employment. By this alone, it is palpable that
the reason for petitioner's dismissal from the service is not religious
in nature.
The SDA cannot hide behind the mantle of protection of the doctrine
of separation of church and state to avoid its responsibilities as an
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employer under the Labor Code.
Silva v. NLRC
For a ULP case to be cognizable by the Labor Arbiter, and the NLRC
to exercise its appellate jurisdiction, the allegations in the complaint
should show prima facie the concurrence of two things, namely:
1) gross violation of the CBA; AND
2) the violation pertains to the economic provisions of the
CBA.
Sim v. NLRC
Section 62 of the Omnibus Rules and Regulations provides that the
Labor Arbiters of the NLRC shall have the original and exclusive
jurisdiction to hear and decide all claims arising out of EER or
by virtue of any law or contract involving Filipino workers for
overseas deployment including claims for actual, moral, exemplary
and other forms of damages, subject to the rules and procedures of
the NLRC.
International Management Services v. Logarta 2012
In the case at bar, despite the fact that respondent was employed by
Petrocon as an OFW in Saudi Arabia, still both he and his employer
are subject to the provisions of the Labor Code when applicable. The
basic policy in this jurisdiction is that all Filipino workers, whether
employed locally or overseas, enjoy the protective mantle of
Philippine labor and social legislations.
Action for damages by employer against employee who resigned
short of 30 day prior notice. Eviota v. CA
Petitioner does not ask for any relief under the Labor Code of the
Philippines. It seeks to recover damages agreed upon in the contract
as redress for private respondent’s breach of his contractual
obligation to its "damage and prejudice". Such cause of action is
within the realm of Civil Law, and jurisdiction over the controversy
belongs to the regular courts. More so when we consider that the
stipulation refers to the post-employment relations of the parties.
Replevin case by ER against EE in Smart v. Astorga
SMART’s demand for payment of the market value of the car or, in the
alternative, the surrender of the car, is not a labor, but a civil dispute.
It involves the relationship of debtor and creditor rather than
employee-employer relations. As such, the dispute falls within the
jurisdiction of the regular courts.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
Action by employer to recover unpaid loans of employees who were
dismissed. HSBC Ltd. Staff Retirement Plan v. Sps Broqueza 2010
The enforcement of a loan agreement involves "debtor-creditor
relations founded on contract and does not in any way concern
employee relations. As such it should be enforced through a separate
civil action in the regular courts and not before the Labor Arbiter."
Action for declaratory relief iled by female light attendants to
question the constitutionality of their compulsory age of retirement
at 55 compared to male workers. Halaguena v. PAL
Here, the petitioners' primary relief is the annulment of Section 144,
Part A of the PAL-FASAP CBA, which allegedly discriminates against
them for being female light attendants. The subject of litigation is
incapable of pecuniary estimation, exclusively cognizable by
the RTC. Being an ordinary civil action, the same is beyond the
jurisdiction of labor tribunals.
The said issue cannot be resolved solely by applying the
Labor Code. Rather, it requires the application of the Constitution,
labor statutes, law on contracts and the CEDAW, and the power to
apply and interpret the constitution and CEDAW is within the
jurisdiction of trial courts, a court of general jurisdiction.
Intracorporate vs Labor Dispute. Okol v. Slimmers World
Section 25 of the Corporation Code enumerates corporate of icers as
the president, secretary, treasurer and such other of icers as may be
provided for in the by-laws. In Tabang v. NLRC, we held that an
"of ice" is created by the charter of the corporation and the of icer is
elected by the directors or stockholders. On the other hand, an
"employee" usually occupies no of ice and generally is employed
not by action of the directors or stockholders but by the managing
of icer of the corporation who also determines the compensation to
be paid to such employee.
Here, petitioner was a director and of icer of Slimmers World. The
charges of illegal suspension, illegal dismissal, unpaid commissions,
reinstatement and back wages imputed by petitioner against
respondents fall squarely within the ambit of intra-corporate
disputes.
Corporate Of icers. Matling Industrial and Commercial Corp v.
Coros 2010
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
Conformably with Section 25 of the Corporation Code, a position
must be expressly mentioned in the By-Laws in order to be
considered as a corporate of ice. Thus, the creation of an of ice
pursuant to or under a By-Law enabling provision is not enough to
make a position a corporate of ice.
Whoever are the corporate of icers enumerated in the by-laws are the
exclusive Of icers of the corporation and the Board has no power to
create other Of ices without amending irst the corporate By-laws.
Real v. Sangu Phil 2011
The better policy to be followed in determining jurisdiction over a
case should be to consider concurrent factors such as the status or
relationship of the parties or the nature of the question that is subject
of their controversy. In the absence of any one of these factors, the
SEC (RTC) will not have jurisdiction.
When petitioner sought for reinstatement, he wanted to
recover his position as Manager, a position which has been
declared to be not a corporate position. The case is thus a
termination dispute and, consequently, falls under the jurisdiction
of the Labor Arbiter pursuant to Section 217 of the Labor Code.
Cacho v. Balagtas 2018
Under the nature of the controversy test, the disagreement must
not only be rooted in the existence of an intra-corporate relationship,
but must as well pertain to the enforcement of the parties' correlative
rights and obligations under the Corporation Code and the internal
and intra-corporate regulatory rules of the corporation.
It is clear that the termination complained of is intimately and
inevitably linked to Balagtas's role as North Star's EVP. Balagtas's
dismissal is an intra-corporate controversy, not a mere labor
dispute.
Ellao v. BATELEC 2018
Here, the position of General Manager is expressly provided for under
Article VI, Section 10 of BATELEC I's By-laws. It is therefore beyond
cavil that Ellao's position as General Manager is a cooperative of ice.
Accordingly, his complaint for illegal dismissal partakes of the nature
of an intra-cooperative controversy.
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2. Requirements to perfect appeal to NLRC
1) Decisions, awards or order of LA shall be F&E unless
appealed to NLRC within 10 cal days from receipt thereof.
2) In case of decisions or resolutions of RD pursuant to Art
129, within 5 cal days.
3) If last day falls on a weekend or holiday, move to the next
working day.
9) Appeal from Decision involving monetary award may be
4) No motion or request for extension shall be allowed.
5) Grounds for appeal:
a) Prima facie evidence of abuse of discretion on the
part of LA or RD;
b) Decision, award or order secured through fraud or
coercion, including graft and corruption;
c) If made purely on questions of law; and/or
d) If serious errors in the indings of facts are raised
which may cause grave and irreparable damage or
injury to appellant.
6) To be iled with the Regional Arbitration Branch of the
Regional Of ice where the case was heard and decided.
7) No appeal from interlocutory order shall be entertained.
(Sec 10 Rule VI, supra).
8) REQUISITES (Sec 4):
a) Filed within the reglementary period;
b) Veri ied by the appellant in accordance to Sec 4 Rule 7
of RoC;
c) In the form of a memorandum of appeal which shall
i) State the grounds relied upon and
ii) The arguments in support thereof,
iii) The relief prayed for, and
iv) With a statement of the date the appellant
received the appealed decision, award or
order;
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
d) In 3 legibly typewritten or printed copies; and
accompanied by:
i) Proof of payment of the required appeal fee
and legal research fee;
ii) Posting of a cash or surety bond as
provided in Sec 6; and
iii) Proof of service upon the other parties
perfected only upon the posting of a bond (Sec 6) which
shall either be in the form of
a) Cash deposit; or
b) Surety bond
Equivalent in amount to the monetary award exclusive of
damages and attorney’s fees.
In case of surety bond, the same shall be issued by a
reputable bonding company duly accredited by the
3. Reinstatement and/or execution pending appeal
Commission, and shall be accompanied by original or
certi ied true copies of the following:
a) a joint declaration under oath by the employer,
his/her counsel, and the bonding company, attesting
that the bond posted is genuine, and shall be effective
until inal disposition of the case;
b) an indemnity agreement between the
employer-appellant and bonding company;
c) proof of security deposit or collateral securing the
bond: provided, that a check shall not be considered as
an acceptable security; and,
d) notarized board resolution or secretary’s
certi icate from the bonding company showing its
authorized signatories and their specimen signatures.
NO motion to reduce bond shall be entertained
except on meritorious grounds, and only upon the posting
of a bond in a reasonable amount in relation to the
monetary award.
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
The mere iling of a motion to reduce bond without
complying with the requisites in the preceding paragraphs
shall not stop the running of the period to perfect an
appeal.
10) Prohibited appeals:
a) Appeal from any interlocutory order of the LA
denying a motion:
i) To dismiss;
ii) To inhibit;
iii) For issuance of writ or execution, or
iv) To quash writ of execution;
b) Appeal from the issuance of a certi icate of inality
of decision by LA;
c) Appeal from orders issued by LA in the course of
execution proceedings.
1) Sec 12 Rule XI, supra. — In case the decision includes an
order of reinstatement, and the employer disobeys the
directive under the second paragraph of Section 19 of Rule
V or refuses to reinstate the dismissed employee, the Labor
Arbiter shall immediately issue writ of execution, even
pending appeal, directing the employer
a) to immediately reinstate the dismissed employee
either physically or in the payroll, and
b) to pay the accrued salaries as a consequence of such
non-reinstatement in the amount speci ied in the
decision.
2) The Labor Arbiter shall motu proprio issue a
corresponding writ to satisfy the reinstatement wages as
they accrue until actual reinstatement or reversal of the
order of reinstatement. (En Banc Resolution No. 11-12,
Series of 2012)
3) The Sheriff shall serve the writ of execution upon the
employer or any other person required by law to obey the
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same. If he/she disobeys the writ, such employer or
person may be cited for contempt in accordance with Rule
IX.
4) Sec 19(2) Rule V. In case the decision of the Labor Arbiter
includes an order of reinstatement, it shall likewise
contain:
a) a statement that the reinstatement aspect is
immediately executory; and
b) a directive for the employer to submit a report of
compliance within ten (10) calendar days from receipt
of the said decision.
Malcaba et al. v. Prohealth Pharma Phils. 2018 Leonen, J
Before any labor tribunal takes cognizance of termination disputes, it
must irst have jurisdiction over the action. The Labor Arbiter and the
NLRC only exercise jurisdiction over termination disputes between
an employer and an employee. They do not exercise jurisdiction over
termination disputes between a corporation and a corporate of icer.
B. National Labor Relations Commission
1) Original and Exclusive Jurisdiction (OEJ)
a) Petition for Injunction in ordinary labor disputes
C.I.C.M Mission Seminaries School of Theology Inc. v. Perez 2017
b) Petition for Injunction on strikes or lockouts (Art 279)
c) Certi ied cases which refer to labor disputes causing or
likely to cause a strike or lockout in an industry
indispensable to the national interest, certi ied to it by
the SOLE for compulsory arbitration pursuant to Art
278(g).
d) Petition to annul or modify the order or resolution of the
LA.
2) Exclusive Appellate Jurisdiction (EAJ)
a) All cases decided by the LA;
b) Cases decided by DOLE RD or hearing of icers involving
small money claims under Art 129
3) The NLRC is a quasi-judicial body tasked to promote and
maintain industrial peace by resolving labor and management
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
disputes involving both local and overseas workers through
compulsory arbitration and alternative modes of dispute
resolution.
4) Extraordinary Remedies. —
a) Petition to annul or modify order or resolution, with the
following grounds:
i) Prima facie evidence of abuse of discretion;
ii) Serious errors in the indings of facts;
iii) A party, by fraud, accident, mistake or excusable
negligence has been prevented from taking an
appeal;
iv) Purely on Questions of law; or
v) Order or resolution will cause injustice if not
recti ied.
★ Not later than 10 cal days from receipt of order of LA,
aggrieved party may ile the petition before the NLRC,
furnishing a copy to the adverse party.
b) Injunctive relief — writ of preliminary injunction;
c) Temporary restraining order.
In the event the aspect of reinstatement is disputed, backwages,
including separation pay, shall be computed from the time of
dismissal until the inality of the decision ordering the separation
pay.
The rule is, if the LA's decision, which granted separation pay in lieu
of reinstatement, is appealed by any party, the employer-employee
relationship subsists and until such time when decision becomes
inal and executory, the employee is entitled to all the monetary
awards awarded by the LA.
It has been settled that no essential change is made by a
recomputation as this step is a necessary consequence that
lows from the nature of the illegality of dismissal declared in
that decision. By the nature of an illegal dismissal case, the
reliefs continue to add on until full satisfaction thereof.
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
Turks Shawarma Company v. Pajaron, et al. 2017
re Reduction of Appeal Bond
The liberal interpretation of the rules applies only to justi iable
causes and meritorious circumstances.
The posting of cash or surety bond is mandatory and
jurisdictional; failure to comply with this requirement renders the
decision of the Labor Arbiter inal and executory.
WON CA erred in af irming the NLRC's dismissal of petitioners'
appeal.
NO. It is clear from both the Labor Code and the NLRC Rules of
Procedure that there is legislative and administrative intent to strictly
apply the appeal bond requirement, and the Court should give utmost
regard to this intention. However, the Court, in special and justi ied
circumstances, has relaxed the requirement of posting a supersedeas
bond.
The reduction of the appeal bond is allowed, subject to the
following conditions:
1. the motion to reduce the bond shall be based on meritorious
grounds; and
2. a reasonable amount in relation to the monetary award is
posted by the appellant.
Here, petitioners' motion to reduce bond was not predicated on
meritorious and reasonable grounds and the amount tendered is not
reasonable in relation to the award.
In the case of McBurnie v. Ganzon, the Court has set a provisional
percentage of 10% of the monetary award (exclusive of
damages and attorney's fees) as reasonable amount of bond that an
appellant should post pending resolution by the NLRC of a motion for
a bond's reduction. Only after the posting of this required percentage
shall an appellant's period to perfect an appeal be suspended.
Dutch Movers Inc. v. Lequin, et al. 2017
WON petitioners are personally liable to pay the judgment awards in
favor of respondents.
YES. Valderrama v. NLRC, and David v. Court of Appeals are
applicable here. In said cases, the Court held that the principle of
immutability of judgment, or the rule that once a judgment has
become inal and executory, the same can no longer be altered or
modi ied and the court's duty is only to order its execution, is not
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absolute. One of its exceptions is when there is a supervening
event occurring after the judgment becomes inal and executory,
which renders the decision unenforceable.
Doble, Jr. v. ABB Inc. 2017
The provision states that either a legible duplicate original or
certi ied true copy thereof shall be submitted. If what is submitted is
a copy, then it is required that the same is certi ied by the proper
of icer of the court, tribunal, agency or of ice involved or his
duly-authorized representative. The purpose for this requirement is
not dif icult to see. It is to assure that such copy is a faithful
reproduction of the judgment, order, resolution or ruling subject of
the petition.
Genpact Services Inc. v. Santos-Falceso 2017
The 2011 NLRC Rules of Procedure, as amended, provides, among
others, that the remedy of iling a motion for reconsideration may be
availed of once by EACH party.
Malcaba et al. v. Prohealth Pharma Phils. 2018 Leonen, J
In appeals of illegal dismissal cases, employers are strictly mandated
to ile an appeal bond to perfect their appeals. Substantial
compliance, however, may merit liberality in its application.
WON CA should have dismissed outright the Petition for Certiorari
since respondents failed to post a genuine appeal bond before the
NLRC.
NO. In labor cases, an appeal by an employer is perfected only by
iling a bond equivalent to the monetary award.
Procedural rules require that the appeal bond iled be "genuine." An
appeal bond determined by the NLRC to be "irregular or not genuine"
shall cause the immediate dismissal of the appeal.
In Quiambao v. NLRC, this Court held that the mandatory and
jurisdictional requirement of the iling of an appeal bond could be
relaxed if there was substantial compliance. Quiambao proceeded
to outline situations that could be considered as substantial
compliance, such as
1. late payment,
2. failure of the LA to state the exact amount of money
judgment due, and
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
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Pacios et al., v. Tahanang Walang Hagdanan 2018 Leonen, J
3. reliance on a notice of judgment that failed to state that a
bond must irst be iled in order to appeal. In authorizing execution pending appeal of the reinstatement
Rosewood Processing v. NLRC likewise enumerated other instances aspect of a decision of the Labor Arbiter reinstating a dismissed or
where there would be a liberal application of the procedural rules: separated employee, the law itself has laid down a compassionate
policy.
Some of these cases include:
WON the Court of Appeals erred in af irming the suspension of the
1. counsel's reliance on the footnote of the notice of the
execution proceedings.
decision of the labor arbiter that the aggrieved party may
appeal within ten (10) working days; YES. The more relevant rule in this case is Rule XI, Section 3 of the
NLRC Rules, which provides:
2. fundamental consideration of substantial justice;
Section 3. Effect of Perfection of Appeal on Execution. —
3. prevention of miscarriage of justice or of unjust enrichment;
The perfection of an appeal shall stay the execution of the
and
decision of the Labor Arbiter except execution for
4. special circumstances of the case combined with its legal reinstatement pending appeal.
merits or the amount and the issue involved.
Execution may be authorized even pending appeal. This Court
Despite their failure to collect on the appeal bond, petitioners do not inds that the principles allowing execution pending appeal invoked
deny that they were eventually able to garnish the amount from in Aris are equally applicable here as petitioners are poor employees,
respondents' bank deposits. Respondents are considered to have deprived of their only source of livelihood for years and reduced to
substantially complied with the requirements on the posting of an begging on the streets. In view of their dire straits and since the NLRC
appeal bond. has already ruled twice on the case in a way that supports the release
of the supersedeas bond, it is proper to continue with execution
Consolidated Distillers of Far East v. Zaragoza 2018
proceedings in this case despite a pending motion for
reconsideration.
When there is a supervening event that renders reinstatement
impossible, backwages is computed from the time of dismissal until
the inality of the decision ordering separation pay. C. Court of Appeals
WON Court of Appeals committed reversible error in reckoning the Bugaoisan v. Owi Group et al. 2018
period of back wages and separation pay until inality of the decision
of this case and not until the time, the supervening event and legal The CA is only tasked to determine whether or not the NLRC
impossibility to reinstate arose in this case. committed grave abuse of discretion in its appreciation of factual
issues presented before it by any parties. The CA is not given
NO. The Court agrees with the CA that Condis is liable for backwages
unbridled discretion to modify factual indings of the NLRC and LA,
and separation pay until the inality of the decision awarding
especially when such matters have not been assigned as errors nor
separation pay as ruled in Bani.
raised in the pleadings.
Here, the award of separation pay in lieu of reinstatement was made
subsequent to the inality of the Decision in the Illegal Dismissal
Case. Condis cannot therefore evade its liability to Rogel for
backwages and separation pay computed until the inality of this
Decision which af irms the order granting separation pay.
For Olympia Housing v. Lapastora to apply, the employer must
prove the closure of its business in full and complete compliance
with all statutory requirements prior to the date of the inality of the
award of backwages and separation pay.
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D. Supreme Court
E. Bureau of Labor Relations
1) ARTICLE 232. The Bureau of Labor Relations and the Labor
Relations Divisions in the regional of ices of the Department of
Labor shall have original and exclusive authority to act, at
their own initiative or upon request of either or both parties,
on all inter-union and intra-union con licts, and all
disputes, grievances or problems arising from or
affecting labor-management relations in all
workplaces, whether agricultural or non-agricultural,
except those arising from the implementation or
interpretation of collective bargaining agreements which shall
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena By RGL
For WEEK 1 of the 2020_21 #BestBarEver
be the subject of grievance procedure and/or voluntary
arbitration.
2) The Bureau shall have ifteen (15) working days to act on
labor cases before it, subject to extension by agreement of the
parties.
3) ARTICLE 245. Cancellation of Registration. — The
certi icate of registration of any legitimate labor organization,
whether national or local, may be cancelled by the Bureau.
4) The BLR and the labor relations divisions in the regional
of ices have original and exclusive authority to act motu
proprio or upon request on:
a) Inter-union disputes or representation disputes
— refer to cases involving petition for certi ication
election iled by a duly registered labor org which
seeks to be the sole and exclusive bargaining agent in
an establishment.
b) Intra-union disputes or internal union disputes —
disputes or grievances arising from any violation of or
disagreement over any provision of the constitution
and by-laws of the union, including violations on
conditions of union membership as per LC.
c) All disputes, grievances arising from or affecting
labor-management relations; except those arising
from interpretation or implementation of CBA which
are subject to grievance procedure and/or
voluntary arbitration.
F. National Conciliation and Mediation Board
1. Jurisdiction
1) The agency attached to DOLE principally in-charge of the
settlement of labor disputes through conciliation,
mediation, and promotion of voluntary approaches to
labor dispute prevention and settlement.
2) Salient Points of RA 10396
a) LA or the appropriate DOLE Agency that has
jurisdiction over the dispute shall only entertain only
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endorsed or referred cases by the duly authorized
of icer.
b) Any or both parties to the dispute may pre-terminate
the C-M and request referral to the appropriate DOLE
Agency, or if both agree, refer the unresolved issue
for VA.
3) Salient Provisions of SEnA IRR or DOLE DO No 151-16
a) All issues arising from labor and employment shall be
subject to the 30-day mandatory conciliation-
mediation. EXC:
i) Notices of strike/lockout or preventive
mediation cases with the National Conciliation
and Mediation Board (NCMB);
ii) Issues arising from the interpretation or
implementation of the collective bargaining
agreement and those arising from
interpretation or enforcement of company
personnel policies which should be processed
through the grievance machinery.
iii) Applications for exemption from Wage Orders
with the National Wages and Productivity
Commission (NWPC)
iv) Violations of POEA Rules and Regulations
4) Co-conciliation-mediation. — Coordinated C-M by two or
more SEADs shall be observed if the RFA is iled with the
SEAD most convenient to the requesting party but outside
the region where the employer principally operates, the
SEADO shall entertain the same and co-conciliate-mediate
with the SEAD of the region where the employer
principally operates.
5) Consolidation of RFA. — Where two or more RFAs
involving the same responding party and issues are
iled before different SEADs within the same
region/of ice/unit, the RFAs shall be consolidated before
the irst SEAD taking cognizance of the RFAs, when
practicable.
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
6) Cognizance over referred RFAs — LA or appropriate
DOLE agency.
7) For enforcement of settlement agreements through
DOLE RO, the requesting party may request for the
issuance of a writ of execution or the conduct of
compliance visit.
2. Conciliation as distinguished from mediation
1) Conciliation — is a mild form of intervention by a neutral
third party, the Conciliator-Mediator, who relying on his
persuasive expertise, takes an active role in assisting
parties by trying to keep disputants talking, facilitating
other procedural niceties, carrying messages back and
forth between the parties, and generally being a good
fellow who tries to keep things calm and forward-looking
in a tense situation.
2) Mediation — is a mild intervention by a neutral third G. DOLE Regional Directors
party, the Conciliator-Mediator, who advises the parties or
offers solutions or alternatives to the problems with the
end in view of assisting them towards voluntarily reaching Of ice
their own mutually acceptable settlement of the dispute.
DOLE
3. Preventive mediation RD
1) Preventive Mediation Cases refer to labor disputes VA
which are the subject of a formal or informal request for
conciliation and mediation assistance sought by either or
both parties or upon the initiative of the Board.
2) Who may ile a request for Preventive Mediation,
Notice of Strike or Lockout. — the following may ile a
request for preventive mediation, notice of strike or
lockout:
a) The president or any authorized representative of SOLE
a certi ied or duly recognized bargaining
representative in cases of bargaining deadlocks
and unfair labor practices.
b) In the absence of a certi ied or duly recognized
bargaining representative, the president or any
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
authorized representative of a legitimate labor
organization in the establishment on grounds of
unfair labor practice.
c) The employer or any authorized representative in
cases of bargaining deadlocks and unfair labor
practices.
3) Where to ile. — A request for preventive mediation,
notice of strike or lockout shall be iled through personal
service or by registered mail/private couriers with the
Regional Branch having jurisdiction over the workplace of
the union members.
4) Conversion of Notice Strike/Lockout to Preventive
Mediation — in converting a notice of strike or lockout to
a preventive mediation case, the guidelines shall be
observed.
1. Jurisdiction
Basis Jurisdiction
Art Recovery of wages, simple money claims and
129 other bene its
Art All unresolved grievances arising from the
261 interpretation and implementation of the CBA
except those gross in character;
Cases arising from interpretation or enforcement
of company personnel policies
Art All other labor disputes including ULP and
262 bargaining deadlocks, upon agreement of the
parties
Art Within 24 hours from knowledge of an occurrence
263(g) of a labor dispute causing or likely to cause a
strike or lockout in an industry indispensable to
the national interest, SOLE may assume
jurisdiction, decide on the dispute or certify the
same to NLRC for compulsory arbitration.
212 of 216
POLxLAB PRE-WEEK NOTES For WEEK 1 of the 2020_21 #BestBarEver

Police power - Inspection and Quasi-judicial - Adjudication 8. ER may appeal with the NLRC within 5 calendar days from
1) Art 129. The RD or any of the duly authorized hearing
issuance of orders to compel through summary proceedings receipt of decision. Appeal must be with cash or security bond.
of icers of DOLE have jurisdiction over claims for
compliance
recovery of wages, simple money claims and other 9. ER may the ile MR from an adverse decision of the NLRC;
bene its, provided that: Enforcement of labor legislation Monetary claims which only 10. Petition for Certiorari under Rule 65 to the CA not later than 60
a) Claim arises from ER-EE Relationship; in general involve labor standards law days from notice;
b) Claimant does not seek reinstatement; Offshoots of inspections done by Sworn complaints by interested 11. Appeal by certiorari under Rule 45 to the SC within 15 days
labor of icers or safety engineers party from notice on pure questions of law.
c) Aggregate money claim of each <=P5K.
2) ARTICLE 268. Representation Issue in Organized Involves employees still in Present or past employees at the Enforcement Power on Health and Safety of Workers
Establishments. — In organized establishments, when a service time of complaint provided there 1. An inspection is made via Art 128;
veri ied petition questioning the majority status of is no demand for reinstatement
2. Non-compliance was discovered that poses grave and
the incumbent bargaining agent is iled, the
No maximum monetary amount Claim per claimant not to exceed imminent danger to the health and safety of workers in
Med-Arbiter shall automatically order an election by P5K the workplace.
secret ballot.
Exercised by SOLE or any of his RD or any duly authorized 3. SOLE may order stoppage of work or suspension of operations
3) ARTICLE 269. Petitions in Unorganized
duly authorized representatives, hearing of icer of DOLE of unit or department concerned;
Establishments. — In any establishment where there is
i.e. the RD 4. Within 24 hours, a hearing shall be conducted to determine
no certi ied bargaining agent, a CERTIFICATION
ELECTION shall automatically be conducted by the whether said stoppage order shall be lifted or not.
Appealable to SOLE, then to CA Appealable to NLRC
Med-Arbiter. a. If violation is attributable to ER, he shall pay the
4) Appeal to NLRC within 5 cal days from receipt of copy of
Recovery of Wages and Simple Money Claims wages of EEs during the period of stoppage or
decision. 1. Requisites: suspension of operations.

5) NLRC to resolve within 10 cal days from submission of a. Claimant is an employee or domestic worker; b. Suspension should not exceed 6 months.
last pleading. b. Claim does not exceed P5K; 5. see RA 11058, Strengthening Compliance with
6) Grounds for appeal (Art 229) Occupational Safety & Health Standards;
c. No claim of reinstatement;
a) Prima facie evidence of abuse of discretion; 6. SEC. 23. Payment of Workers During Work Stoppage Due to
d. Claim arose from ER-EE relationship.
Imminent Danger. — If stoppage of work due to imminent
b) Decision, order or award secured through fraud or 2. Employee iles a pro-forma complaint with the RD; danger occurs as a result of the employer's violation or
coercion, including graft and corruption; fault, the employer shall pay the workers concerned their
3. RD dockets the complaint as simple money claim;
c) Made purely on questions of law; wages during the period of such stoppage of work or
4. RD issues summons served upon employer as respondent,
d) Serious errors in the indings of facts. suspension of operations.
together with the copy of complaint;
7. In National Mines and Allied Workers Union v. Marcopper
2. Recovery and adjudicatory power 5. ER is given 5 calendar days to answer;
Mining, if the suspension of operations was ordered by a
Visitorial and Enforcement 6. After receiving the answer, RD calls for a summary hearing; government agency other than the DOLE, the general "no work,
Simple Money Claim
Power no pay" rule should prevail with respect to employees' wages
7. RD decides within 30 calendar days from date of iling of the
complaint; during the suspension period, subject to existing CBA terms on
Art 128 Art 129
leave credits and similar bene its of employees.

Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena By RGL 213 of 216
 POLxLAB
8. DOLE D.O. No. 198, S. 2018, distinguished from Bona ide
suspension of operations (Art 301).
Closure of Business under RA 9231
DOLE DC 03-09
SOLE or RD may order closure of business found to have violated
any provisions of RA 9231 more than 3 times.
GR: Prior notice and hearing is required before issuance of
such Closure Order, unless:
EX:
a. Violation resulted to death, insanity, or serious physical
injury to a child employed;
b. Prostitution or obscene or lewd shows; or
c. There is imminent danger in the life and limb of a child.
Under any such circumstance, SOLE or RD must, within 5 working
days from receipt of complaint, order immediate closure.
A close-now-hear-later process is to be adhered to, which shall be
summary in nature.
H. DOLE Secretary
1. Jurisdiction
ARTICLE 278. Strikes, Picketing, and Lockouts. xxxx
(g) When, in his opinion, there exists a labor dispute causing or
likely to cause a strike or lockout in an industry indispensable
to the national interest, the SOLE may assume jurisdiction over
the dispute and decide it or certify the same to the Commission for
compulsory arbitration. xxxx
(h) Before or at any stage of the compulsory arbitration process, the
parties may opt to submit their dispute to voluntary arbitration.
(i) The SOLE, the Commission or the voluntary arbitrator or panel of
voluntary arbitrators shall decide or resolve the dispute within
thirty (30) calendar days from the date of the assumption of
jurisdiction or the certi ication or submission of the dispute, as
the case may be. The decision of the President, the SOLE, the
Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena
PRE-WEEK NOTES
Commission or the voluntary arbitrator shall be inal and executory
ten (10) calendar days after receipt thereof by the parties.
2. Visitorial and enforcement powers
1) There is a report on non-compliance of employer;
2) Upon receipt by SOLE or RD, there will be an ORDER OF
INSPECTION;
3) The inspection will be implemented by a Labor and
Employment Of icer who will then visit the employer’s
premises and conduct inspection.
4) Inspector will make an INSPECTION REPORT should
there be violation or non-compliance.
a) Embodied in a NOTICE OF INSPECTION RESULTS;
b) All violations will be enumerated therein.
5) Employer is then informed of the results of the inspection;
6) Employer is given the opportunity to comply within 7
days; OR
7) Employer may contest the NIR and raise issues which
cannot be resolved without considering DOCUMENTARY
PROOFS that are not veri iable in the normal course of the
inspection;
8) Should the employer fail to contest, as well as fails to
comply to the NIR, RD will then issue an ORDER OF
COMPLIANCE;
9) Employer has the following remedies from said order:
a) Appeal to SOLE within 10 calendar days, with bond;
b) Motion for reconsideration with the RD within 7
calendar days;
c) If beyond 7 but not beyond 10 days, considered an
appeal from RD to SOLE.
10) Failure to ile MR within reglementary period will make
order FINAL AND EXECUTORY.
By RGL
For WEEK 1 of the 2020_21 #BestBarEver
11) Should employer be able to validly contest NIR, the
proceeding becomes adversarial:
a) RD will endorse the case to RAB of NLRC;
b) Endorsed to LA;
c) May be appealed to NLRC within 10 days from receipt
of Decision; MR allowed within 10 days;
d) Petition for Certiorari under Rule 65 to the CA not later
than 60 days from notice;
e) Appeal by certiorari under Rule 45 to the SC within 15
days from notice on pure questions of law.
12) see DOLE D.O. No. 183, S. 2017
13) In People’s Broadcasting Service v. SOLE 2012 En Banc,
the issue was WON the SOLE, in exercising his visitorial
power, can determine the existence of ER-EE relationship.
YES.
14) In Balladares v. Peak Ventures, the worker need not
litigate to get what legally belongs to him, for the whole
enforcement machinery of the DOLE exists to insure its
expeditious delivery to him free of charge.
15) Exception clause of Art 128. — In Meteoro v. Creative
Creatures, respondent contested the indings of the labor
inspector during and after the inspection and raised issues
the resolution of which necessitated the examination of
evidentiary matters not veri iable in the normal course of
inspection. Hence, the Regional Director was divested of
jurisdiction and should have endorsed the case to the
appropriate Arbitration Branch of the NLRC.
3. Power to suspend effects of termination
ARTICLE 292. Miscellaneous Provisions. — xxxx
(b) xxxx The Secretary of the Department of Labor and Employment
may suspend the effects of the termination pending resolution of
the dispute in the event of a prima facie inding by the appropriate
of icial of the DOLE before whom such dispute is pending that the
termination
214 of 216
POLxLAB PRE-WEEK NOTES For WEEK 1 of the 2020_21 #BestBarEver

Appeal to NLRC, who merely reviews for errors of fact or law. b) those arising from the interpretation or
1. may cause a serious labor dispute or
enforcement of company personnel policies
2. is in implementation of a mass lay-off.
1. Jurisdiction c) wage distortion issues arising from the application
of any wage orders in organized establishments,
4. Remedies ARTICLE 274. Jurisdiction of Voluntary Arbitrators and Panel of
Voluntary Arbitrators. — The Voluntary Arbitrator or panel of d) unresolved grievances arising from the interpretation
1) The indings of the DOLE, may still be questioned and implementation of the productivity incentive
Voluntary Arbitrators shall have original and exclusive
through a petition for certiorari under Rule 65 of the programs under R.A. 6971
jurisdiction to hear and decide
Rules of Court. NOT to the NLRC, but to the CA.
2) Concurrent. — All other labor disputes including ULP and
1. all unresolved grievances arising from the
I. Voluntary Arbitrator bargaining deadlocks, upon agreement of the parties.
interpretation or implementation of the CBA and
Before or at any stage of compulsory arbitration, parties
Compulsory Voluntary 2. those arising from the interpretation or enforcement of may opt to submit to VA instead.
company personnel policies.
De inition The law declares the Contractual proceeding 3) Voluntary arbitration. — a mode of settling labor
dispute subject to wherein the parties, to obtain a Accordingly, violations of a CBA, except those which are gross in management disputes by which the parties select a
arbitration, speedy and inexpensive inal competent, trained and impartial person who shall decide
character, shall no longer be treated as unfair labor practice and shall
regardless of consent disposition of the matter,
be resolved as grievances under the CBA. on the merits of the case and whose decision is inal,
select a judge of their own
of the parties. executory and binding.
choice and by consent, submit For purposes of this article, gross violations of CBA shall mean
their controversy to him. lagrant and/or malicious refusal to comply with the economic 4) Grievance handling
provisions of such agreement. a) An employee shall present this grievance or complaint
Done by Labor Arbiter, Voluntary Arbitrator, an
clothed with original impartial 3rd person named by The Commission, its Regional Of ices and the Regional Directors of orally or in writing to the shop steward.
and exclusive both parties the DOLE shall not entertain disputes, grievances or matters under b) If the grievance is valid, the shop steward shall
jurisdiction (Art the exclusive and original jurisdiction of the Voluntary Arbitrator or
immediately bring the complaint to the employee's
217) panel of Voluntary Arbitrators and shall immediately dispose and
immediate supervisor.
refer the same to the Grievance Machinery or Voluntary Arbitration
Nature Adversarial; initiated May be done prior to or during c) If no settlement is reached, the grievance shall be
provided in the CBA.
by a complaint. compulsory arbitration; referred to the grievance committee which shall have
(B5-R19-S5)
ten (10) days to decide the case.
Settlement of labor
disputes by a Private judicial system; ARTICLE 275. Jurisdiction over Other Labor Disputes. — The 5) Grievance; Concept and Scope. — Refers to any question
government Voluntary Arbitrator or panel of Voluntary Arbitrators, upon by either the employer or the union regarding
agency. Non-litigious, not governed by agreement of the parties, shall also hear and decide all other labor
a) the interpretation or implementation of any provision
technical ROC, but still disputes including unfair labor practices and bargaining deadlocks.
observes due process. of the collective bargaining agreement or
1) Exclusive and original. — b) interpretation or enforcement of company personnel
Initiated Complaint; to be a) Submission agreement;
a) all unresolved grievances arising from the policies or
by answered by other b) Demand or Notice,
party. invoking a CBA clause; implementation or interpretation of the collective c) any claim by either party that the other party is
c) Or both bargaining agreements and violating any provision of the CBA or company
personnel policies.

Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena By RGL 215 of 216
 POLxLAB PRE-WEEK NOTES For WEEK 1 of the 2020_21 #BestBarEver

6) Grievance machinery; Unresolved grievances. — Refers The 10-day period stated in Article 276 should be understood as the
to the internal rules of procedures established by the period within which the party adversely affected by the ruling of the
parties in their CBA with voluntary arbitration as the Voluntary Arbitrators or Panel of Arbitrators may ile a motion for
terminal step, which are intended to resolve all issues reconsideration. Only after the resolution of the motion for
arising from the implementation and interpretation of their reconsideration may the aggrieved party appeal to the CA by iling the
petition for review under Rule 43 of the Rules of Court within 15
collective agreement and the company personnel policies
days from notice pursuant to Section 4 of Rule 43.
or company rules and regulations.
7) Company Personnel Policies. — are guiding principles J. Prescription of Actions
stated in broad, long-range terms that express the
1. Illegal dismissal — In illegal dismissal cases, the EE is given
philosophy or beliefs of an organization’s top authority
a period of FOUR (4) YEARS from the time of his illegal
regarding personnel matters. They deal with matters
dismissal within which to institute the complaint (Art 1146,
a) Affecting ef iciency and well-being of employees and NCC);
b) Include the procedures in the administration of 2. Money claims — THREE (3) YEARS from the time the action
i) Wages, accrued;
ii) Bene its, 3. Unfair Labor Practice — ONE (1) YEAR from accrual;
iii) Promotions, 4. Penal provisions under LC — THREE (3) YEARS;
iv) Transfer and other personnel movement. 5. Illegal Recruitment. — FIVE (5) years:
Which are not spelled out in the CBA.
If involving economic sabotage shall prescribe in twenty
8) Nature of proceedings. — The proceedings before a
(20) years.
voluntary arbitrator are non-litigious in nature. They are
not governed by technical rules applicable to court or 6. Execution of Judgment — FIVE (5) YEARS.
judicial proceedings, but they must, at all times, comply 7. For complaint of illegal dismissal with money claims, the
with the requirements of due process. action for money claim shall still prescribe in 3 years, although
9) Decision of voluntary arbitrator, and prohibited it is only an accessory to the principal complaint of illegal
motion. — THE decision of THE voluntary arbitrator dismissal which prescribes in 4 years.
SHALL BE inal and executory after ten (10) calendar
8. Backwages as a relief for illegal dismissal is
days from receipt of the copy of the decision by the
IMPRESCRIPTIBLE.
parties.
9. Separation pay and retirement bene its is akin to money
2. Remedies
claims.
1) The petition for review shall be iled within 15 days
pursuant to Section 4, Rules 43 of the Rules of Court;
2) Rule 45, procedure before the SC.
Guagua National Colleges v. CA 2018 En Banc

Based on the Books of Cruz, Bernas, Largo, Gujilde, Sarmiento, Kato, Azucena By RGL 216 of 216
CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

b. In quasi-delicts Quick Survey of Latest Jurisprudence d. Sps Batalla v. Prudential Bank 2019
e. Sps Mañas v. Nicolasora 2020 Leonen, J re Tacita
Actual damages include all the natural and probable consequences 1. Persons and Family Relations reconduccion vis-a-vis Right of First Refusal
of the act or omission complained of.
a. Nullada v. Civil Registrar of Manila 2019 f. International Exchange Bank v. Sps Briones 2017
The contributory negligence of the plaintiff shall reduce the
b. Arreza v. Toyo 2019 Leonen, J Leonen, J
damages that he may recover.
c. Go-Yu v. Yu 2019 6. Credit Transactions
c. In contracts and quasi-contracts
d. Tan-Andal v. Andal 2021 En Banc Leonen, J a. Sps Yulo v. BPI 2019 Leonen, J
The damages for which the obligor who acted in good faith is liable
shall be those that are the natural and probable consequences of the e. De Guzman y Jumaquio v. People 2019 Leonen, J b. Sps Batolinio v. Yap-Rosas 2019
breach of the obligation, and which the parties have foreseen or f. Simundac-Keppel v. Keppel 2019 c. Pineda v. Vda De Vega 2019 supra
could have reasonably foreseen at the time the obligation was
constituted. g. Santos v. Santos 2019 d. Chavez v. Maybank PH 2019

In case of fraud, bad faith, malice or wanton attitude, the obligor h. Heirs of Fabillar v. Paller 2019 e. Sps Bernardo v. Union Bank 2019
shall be responsible for all damages which may be reasonably i. In re Adoption of Bulayo 2019 7. Torts and Damages
attributed to the non-performance of the obligation. (Art 2201)
2. Property a. VDM Trading v. Carungcong 2019
In contracts, quasi-contracts, and quasi-delicts, the court may
equitably mitigate the damages under circumstances other than the a. Eversley Childs Sanitarium v. Sps Barbarona 2018 b. Heirs of Asis, Jr. v. G.G. Sportswear Manufacturing
case referred to in the preceding article, as in the following Leonen, J 2019
instances: b. Republic v. Sps Llamas 2017 Leonen, J c. BNL Management v. Uy 2019 Leonen, J
1) That the plaintiff himself has contravened the terms of the 3. Succession d. Guy v. Tulfo 2019 Leonen, J
contract;
a. Sps Salitico v. Heirs of Felix 2019 e. Meralco v. Nordec PH 2018 Leonen, J
2) That the plaintiff has derived some bene it as a result of
the contract; b. In re Probate of Will of Santiago Garcia 2020 References and Sources:
3) In cases where exemplary damages are to be awarded, that 4. Obligations and Contracts
1. Law on Sales Outline by Dean Villanueva, 2017-18;
the defendant acted upon the advice of counsel; a. Pineda v. Vda De Vega 2019
2. Agency & Trusts, Partnerships & Joint Ventures Outline by
4) That the loss would have resulted in any event; b. San Miguel Foods v. Magtuto 2019
Dean Villanueva, et al, 2018;
5) That since the iling of the action, the defendant has done c. Arco Pulp and Paper v. Lim 2014 Leonen, J
his best to lessen the plaintiff's loss or injury. 3. Notes and Case Updates in Land Titles and Deeds by Atty.
d. Domestic Petroleum Retailer v. MIAA 2019 Gimarino, 2017-18;
d. Liquidated damages e. Camp John Hay Development v. Charter Chemical
and Coating 2019 Leonen, J 4. Torts and Damages by Aquino, 2013;
Liquidated damages, whether intended as an indemnity or a penalty,
shall be equitably reduced if they are iniquitous or unconscionable. f. Henson, Jr v. UCPB General Insurance 2019 En banc 5. Civil Code Annotated Vol 1-5 by Paras, 2016.
e. Compromise 5. Sales and Lease END OF CIVIL LAW
A release or compromise for personal injury sustained by a. Uy v. Heirs of Uy-Renales 2019 TAXATION LAW
negligence was held a bar to an action for the recovery of further
b. Sps Orozco v. Lozano, Sr 2019
damages. General Principles
c. Sps Manlan v. Sps Beltran 2019

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 178 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

NIRC, as amended by TRAIN 1) Taxes can be imposed even in the absence of a constitutional 2) Promotion of General Welfare — as an implement of police
provision. power for the purpose of promoting general welfare.
A. CONCEPT AND PURPOSE OF TAXATION
2) The state can select the object and subject matter of taxation. 3) Reduction of Social Inequalities — progressive system
B. INHERENT POWERS DISTINGUISHED Thus, unlimited. based on one’s ability to pay.
C. THEORY AND BASIS OF TAXATION 3) No injunction in the collection of taxes. 4) Encourage Economic Growth — exemptions and incentives
EXC: There is a pending case iled in the CTA to enjoin the to entice investments.
D. JURISDICTION OVER SUBJECT AND OBJECTS
collection of tax. 3. Distinguish: tax and other forms of exactions
E. PRINCIPLES OF A SOUND TAX SYSTEM
4) Taxation is not subject to set-off.
If they are not considered taxes, the requirements for a valid tax
F. INHERENT AND CONSTITUTIONAL LIMITATIONS ON
EXC: When both debts are due and demandable and have (PUJ-DL) need not be complied with.
TAXATION been fully liquidated.
1) License is in the nature of a special privilege, or authority to
G. STAGES OR ASPECTS OF TAXATION TN: There can be no compensation as the Government and do what is within its terms. It makes lawful an act which would
the people are not principal debtors and creditors of otherwise be unlawful. A license granted by the State is always
H. REQUISITES OF A VALID TAX each other. revocable. Primary purpose test (To be considered a license
I. KINDS OF TAXES LEGISLATIVE IN CHARACTER fee)
a. must relate to an occupation or activity that so
J. GENERAL CONCEPTS IN TAXATION GR: The power to tax is essentially a legislative function and
engages the public interest in health, morals,
which the central legislative body cannot delegate to other
K. CONSTRUCTION AND INTERPRETATION OF TAX LAWS, development and safety, as to require regulation for
branches.
RULES AND REGULATIONS the protection and promotion of such public interest.
EXC: Permissive delegation of the power to tax b. must bear a reasonable relation to the probable
expenses of regulation, taking into account not only
A. CONCEPT AND PURPOSE OF TAXATION 1) Local governments in respect to matters of local concern;
the costs of direct regulation but also its incidental
2) The President with respect to tariff rates, import and export consequences as well.
1. Definition
quotas, lexible tariff clause, etc;
2) Toll is a sum of money for the use of something, generally
Taxation is the
3) Administrative regulations (Assessment and Collection). applied to the consideration which is paid for the use of a road,
a) inherent power of the State exercised by the legislature bridge or the like, of a public nature.
2. Purpose
b) to demand enforced contributions from the people to raise 3) Compromise penalty is the amount collected by the BIR in
Primary
revenue lieu of criminal prosecution for violations committed by
A. Revenue; taxpayers.
c) in order to defray the necessary expenses of the
Secondary 4) Special assessment is a charge imposed on lands
Government.
B. Redistribution; especially bene ited by public works or improvements
inanced by the government. It is not a personal liability of the
INHERENT ATTRIBUTE OF SOVEREIGNTY C. Repricing;
person assessed. His liability is limited only to the land
Such inherent power of the State anchors on its "social contract” with its D. Representation. involved. It is based wholly on bene its and not necessity.
citizens which obliges it to promote public interest and common good. Non-Revenue Raising — Sumptuary Purpose
Manifestations 1) Regulation — to curtail or improve a particular industry.

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 179 of 269
CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

5) Revenue refers to all funds or income derived by the C. THEORY AND BASIS OF TAXATION in determining the taxability of non-resident aliens is the income's
government, whether from tax or from whatever source and "source."
whatever manner. 1. Lifeblood theory
The important factor which determines the source of income of
6) Customs Duties is a tax levied on imports (and, sometimes, Taxes are the lifeblood of the government and their prompt and personal services is the place where the services were actually
on exports) by the customs authorities of a country to raise certain availability is an imperious need. Without taxes, the rendered. "Source of income" relates to the property, activity or
state revenue, and/or to protect domestic industries from more government would be paralyzed for lack of motive power to service that produced the income.
ef icient or predatory competitors from abroad. activate and operate it.
CIR v. American Express
7) Tariff is a tax imposed on imported goods and services. 2. Necessity theory
Tariffs are used to restrict trade, as they increase the price of As a general rule, the VAT system uses the destination principle.
The existence of a government is a necessity. No sovereign State can However, our VAT law itself provides for a clear exception, under
imported goods and services, making them more expensive to
continue to exist without the means to pay its expenses, and for which the supply of service shall be zero-rated when the following
consumers. They are one of several tools available to shape
those means, it has the right to compel all citizens and property requirements are met:
trade policy.
within its limit to contribute.
1) the service is performed in the Philippines;
B. INHERENT POWERS DISTINGUISHED
3. Benefits-received theory 2) the service falls under any of the categories provided in
Police Eminent Section 102(b) of the Tax Code; and
As to TAXATION The basis of taxation, and is founded on the reciprocal duties of
Power Domain
protection and support between the State and its inhabitants. 3) it is paid for in acceptable foreign currency that is
Promote General Public accounted for in accordance with the regulations of the BSP.
Purpose REVENUE D. JURISDICTION OVER SUBJECT AND OBJECTS
Welfare convenience
Scope of Taxation E. PRINCIPLES OF A SOUND TAX SYSTEM
Limited to cost
Amount UNLIMITED No exaction 1) Fiscal adequacy — revenues generated should be suf icient to
of regulation 1) Comprehensive;
meet the demands of public expenditure.
Non- 2) Unlimited — in force and so searching in extent, that the
Inferior to NIC Superior to NIC Superior to NIC
impairment courts scarcely venture to declare that it is subject to any 2) Theoretical justice or equity ⭐ — Similarly situated
restrictions whatever, except such as rest at the discretion of taxpayers should pay equal taxes, while those who have more
Property and
Scope Property Rights Property Rights the authority which exercises it. should pay more.
Liberty Rights
3) Plenary — the legislative body has the power to impose taxes 3) Administrative feasibility — can be easily implemented.
Altruistic feeling as they may deem expedient
Enjoyment of Just
Bene its
govt services
of contributing to
compensation 4) Economic ef iciency/elasticity — cost of collecting taxes
society‘s welfare 4) Supreme. should not be higher than the bene its derived from it.
Property Generally,
Any Any CIR v. Baier-Nickel F. INHERENT AND CONSTITUTIONAL
Taken money
LIMITATIONS ON TAXATION
WON respondent's sales commission income is taxable in the
State and Philippines. INHERENT LIMITATIONS
Who
State and LGU State and LGU quasi-public
exercises
entities YES. Non-resident aliens, whether or not engaged in trade or 1) Public Purpose. — has now evolved to include social
business, are subject to Philippine income taxation on their income
justice.
received from all sources within the Philippines. Thus, the keyword

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 180 of 269
 CIVxTAX
Determination that the tax is for public purpose
a. Used for the support of the government, speci ically
on its governmental functions;
b. For any of the recognized objects of the government;
c. Promotes the welfare of the community.
d. Public purpose is determined at the time of the
enactment of the tax law and not at the time of its
implementation.
Planters Products, Inc. v. Fertiphil
Public purpose is the heart of a tax law. When a tax law is only a
mask to exact funds from the public when its true intent is to give
undue bene it and advantage to a private enterprise, that law will not
satisfy the requirement of “public purpose.”
The purpose of a law is evident from its text or inferable from other
secondary sources. Here, the levy imposed under LOI No. 1465 was
not for a public purpose.
Requisites of a Valid Taxpayer’s Suit
1. The tax money is being extracted and spent in violation of
speci ic constitutional protection against abuses of
legislative power;
2. Public money is being de lected to any improper purpose;
3. Petitioner seeks to restrain wastage of public funds
through enforcement of an invalid law.
Important Concepts Regarding Taxpayer’s Suit
1. The public funds must be derived from taxation;
2. Does not apply to donations and contributions made by
public individuals or private entities;
3. Taxpayer is not relieved from the obligation to pay tax just
because of his belief that it is being misappropriated;
Abakada Guro Party List v. Ermita
4. A taxpayer has no legal standing to question acts
which do not involve the use of public funds.
2) Exemption from taxation of Government entities
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES For the 2020/21 #BestBarEver
Refers only to real property tax.
1) Delegation of tariff powers to the President under Section 28
GR: Agencies and instrumentalities of the government (2) of Article VI of the Constitution;
performing governmental functions are tax exempt. If 2) Delegation of emergency powers to the President under
performing proprietary functions, taxable. Section 23 (2) of Article VI of the Constitution;
EXC: Even if performing proprietary functions, if the 3) Delegation to the people at large;
franchise or law creating them exempts them — tax 4) Delegation to local governments; and
exempt. 5) Delegation to administrative bodies.
If taxing authority is LGU
The case before the Court is not a delegation of legislative power. It is
a. TAX EXEMPT — GOCCs with original charter; attached simply a delegation of ascertainment of facts upon which
to the government; unincorporated; enforcement and administration of the increase rate under the law is
contingent.
Exempt from Income Tax
1. GSIS It is the ministerial duty of the President to immediately impose the
12% rate upon the existence of any of the conditions speci ied by
2. SSS Congress. This is a duty which cannot be evaded by the President.
3. PHIC There is no undue delegation of legislative power but only of the
discretion as to the execution of a law. This is constitutionally
4. PCSO permissible.
5. PAGCOR (but not exempted from business
Delegation to LGU
tax)
Only provinces and cities are allowed to impose a tax on the
b. TAXABLE — GOCCs with special charter; personality
transfer of ownership of real property.
distinct from the government; incorporated
3) Non-delegation NPC v. City of Cabanatuan
Matters which cannot be delegated The power to tax is no longer vested exclusively on Congress; local
1. Nature of taxation; legislative bodies are now given direct authority to levy taxes,
fees and other charges pursuant to Art X Sec 5 of the 1987
2. Object and purpose; Constitution.
3. Subject or coverage; To determine whether the petitioner is covered by the franchise tax
4. Amount or rate of tax; in question, the following requisites should concur:
5. Manner, means and agencies of collection; 1) that petitioner has a “franchise” in the sense of a secondary
or special franchise; and
6. Situs.
2) that it is exercising its rights or privileges under this
franchise within the territory of the respondent city
government.
The general rule barring delegation of legislative powers is subject to
the following recognized limitations or exceptions: Ful illing both requisites, petitioner is, and ought to be, subject of the
franchise tax in question. To stress, a franchise tax is imposed
By RGL 181 of 269
 CIVxTAX
based not on the ownership but on the exercise by the
corporation of a privilege to do business.
Delegation to the President
The authority of the President, upon the recommendation of NEDA,
to ix tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts. [Sec 28(2) Art VI, 1987
Constitution]
Delegation to Administrative Bodies
DIRECT CONSTITUTIONAL LIMITATIONS
1. Power to value property for purposes of taxation;
2. Power to assess and collect taxes;
3. Power to perform an innumerable details of computation,
appraisal and adjustment.
Southern Cross Cement Corporation v. CMAP
Abakada Guro Party List v. Ermita
The Court recognizes that the authority delegated to the President
under Section 28(2), Article VI may be exercised, in accordance
with legislative sanction, by the alter egos of the President, such
as department secretaries.
There is only one viable ground for challenging the legality of the
limitations and restrictions imposed by Congress under Section
28(2) Article VI, and that is such limitations and restrictions are
themselves violative of the Constitution. Thus, no matter how
distasteful or noxious these limitations and restrictions may seem,
the Court has no choice but to uphold their validity unless their
constitutional in irmity can be demonstrated.
4) International Comity
1. Doctrine of sovereign equality among states — as
between equals, there is no sovereign. One state cannot
exercise its sovereign powers over another.
2. Non-suability of States — under international law, a
foreign government may not be sued without its consent.
Hence, it is useless to impose a tax which could not be
collected.
3. Usage among states — when a foreign sovereign enters
the territorial jurisdiction of another, there is an implied
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
understanding that the former does not intend to degrade
its dignity by placing itself under the jurisdiction of
another.
5) Situs
GR: Taxation may be exercised only within the territorial
jurisdiction of the taxing authority.
EXC: Where privity of relationship exists.
Abakada Guro Party List v. Ermita
1. Revenue bill must originate exclusively in the House of
Representatives but the Senate may propose
amendments. (Sec 24(4) Art VI)
It is not the statute that must originate in the HREP but the bill.
Article VI, Section 24 of the Constitution does not contain any
prohibition or limitation on the extent of the amendments that may
be introduced by the Senate to the House revenue bill.
Likewise, the Court inds the sections referring to other percentage
and excise taxes germane to the reforms to the VAT system, as
these sections would cushion the effects of VAT on consumers.
2. Concurrence of a majority of all the members of Congress
for the passage of a law granting tax exemption (Sec 28(4)
Art VI)
Votes required
a. For the GRANT of tax exemption — absolute majority
of the members of Congress (50+1 of all the members
voting separately)
b. For WITHDRAWAL of tax exemption — relative
majority or majority of the quorum.
3. Rule of uniformity and equity in taxation
Valid Classi ication
a. It is based upon substantial distinctions which
make real differences;
By RGL
For the 2020/21 #BestBarEver
b. These are germane to the purpose of the legislation
or ordinance;
c. Applies, not only to present conditions, but, also, to
future conditions substantially identical to those of
the present;
d. Applies equally to all those who belong to the same
class.
4. Progressive system of taxation
Uniformity in taxation means that all taxable articles or kinds of
property of the same class shall be taxed at the same rate. Different
articles may be taxed at different amounts provided that the rate is
uniform on the same class everywhere with all people at all times.
In this case, the tax law is uniform as it provides a standard rate of
0% or 10% (or 12%) on all goods and services. The rule of uniform
taxation does not deprive Congress of the power to classify
subjects of taxation, and only demands uniformity within the
particular class.
Taxation is progressive when its rate goes up depending on the
resources of the person affected. The VAT is an antithesis of
progressive taxation. By its very nature, it is regressive.
Nevertheless, the Constitution does not really prohibit the imposition
of indirect taxes, like the VAT. What it simply provides is that
Congress shall "evolve a progressive system of taxation."
5. Exemption of religious, charitable and educational
entities, nonpro it cemeteries, and churches from
property taxation (Sec 28(3) Art VI)
Important Principles
a. The tax exemption of religious, charitable and
educational institutions covers real property tax
only.
b. The test is usage and not ownership. — Actual,
direct, and exclusive use for religious, charitable and
educational purposes.
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c. The exemption extends to facilities which are
incidental to or reasonably necessary for the
accomplishment of said purpose.
Scope of exemption. Real property taxes on facilities which
are:
a. Actual;
b. Incidental;
c. Reasonably necessary for the accomplishment of said
purpose.
6. Exemption of non-stock, non-pro it educational
institutions from taxation
a. Covers income, property, and donor‘s taxes, custom
duties, and other taxes imposed by either or both the
national government or political subdivisions on ALL
revenues, assets, property or donations, used actually,
directly and exclusively for educational purposes.
b. Does not cover revenues derived from, or assets used
in, unrelated activities or enterprise.
c. Lands, buildings, and improvements actually, directly
and exclusively used for educational purposes are
exempt from property tax (Sec 28 (3) Art VI), whether
the educational institution is proprietary or non-pro it.
d. The test is usage and not ownership.
otherwise, it will be subject to the 30% corporate income tax
rate.
The 10% preferential tax rate does not apply to the following:
a. The passive income derived by the educational
institution, which is subject to inal income tax, i.e.
rent income or interest in income;
b. Engaged in unrelated trade or business or other
activity where the gross income from such exceeds
50% of the total gross income.
When a non-stock, non-pro it educational institution proves that it
uses its revenues actually, directly, and exclusively for educational
purposes, it shall be exempted from income tax, VAT, and LBT. On
the other hand, when it also shows that it uses its assets in the form
of real property for educational purposes, it shall be exempted from
RPT.
The crucial point of inquiry then is on the use of the assets or on the
use of the revenues. So long as the assets or revenues are used
actually, directly and exclusively for educational purposes, they are
exempt from duties and taxes.
The tax exemption granted by the Constitution to non-stock,
non-pro it educational institutions, unlike the exemption that
may be availed of by proprietary educational institutions, is not
subject to limitations imposed by law. (CIR v. DLSU 2016)
are tax-exempt.
7. Non-imprisonment for non-payment of a poll tax (Sec 20
Art III)
Poll tax is a tax of a ixed amount ixed on persons residing
within a speci ied territory, whether resident or not, without
regard to their property or the occupation of business in which
they may be engaged.
8. Non-impairment of the jurisdiction of the SC in tax cases
(Sec 5(2) Art VIII)
The Supreme Court shall have the following powers: (2)
Review, revise, modify or af irm on appeal or certiorari, as the
laws or the Rules of Court may provide, inal judgments and
orders of lower courts in xxx (b) all cases involving the
legality of any tax, impost, assessment or toll or any
penalty imposed in relation thereto.
9. Prohibition on the use of special fund (Sec 29(3) Art VI)
All money collected on any tax levied for a special purpose
shall be treated as a special fund and paid out for such purpose
only. If the purpose for which a special fund was created has
been ful illed or abandoned, the balance, if any, shall be
transferred to the general funds of the Government.
PKSMMN, et al. v. Executive Secretary, et al. 2012 En Banc

e. Similar tax exemptions may be extended to proprietary Coco-levy funds are not only affected with public interest; they are,
Summary for Charitable, Religious and Educational Entities
educational institutions by law subject to such in fact, prima facie public funds. They were raised with the use of
limitations as it may provide, including restrictions Non-Stock, Non-Pro it the police and taxing powers of the State for the bene it of the coconut
Charitable or Religious
on dividends and provisions for reinvestment. Educational industry and its farmers in general.
Requisites for the application of the 10% preferential rate:
Real E.O. 313 runs counter to the constitutional provision which directs
Exempt from RPT If used ADE for intended purpose.
1. It must be private; Property
that all money collected on any tax levied for a special purpose shall
2. It has permit to operate as an educational institution; be treated as a special fund and paid out for such purpose only.
Income Exempt from Income Tax
3. It is non-pro it; AND Assisting other agriculturally-related programs is way off the
Income from properties Revenues from properties coco-fund’s objective of promoting the general interests of the
4. Its gross income from unrelated trade or business Income
or activities conducted or activities conducted coconut industry and its farmers.
must not exceed 50% of its total gross income from from
FOR pro it are taxable FOR pro it that are ADE
Property
all sources, regardless of disposition for educational purposes

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 CIVxTAX PRE-WEEK NOTES
10. Power of the President to veto any particular items in a 1. Compelling State Interest Test – State balances the
revenue or tariff bill public interest against religious freedom. The need to
advance the constitution and public interest. In case
GR: The President has to approve or disapprove a bill in its
there are less restrictive means to advance a right
entirety.
under the constitution.
EXC where partial or item veto is allowed 2. Rational Basis Test – The classi ication is valid if it
a. Appropriation bill; is rationally related to a constitutionally permissible
state interest. e.g. Senior Citizens Act
b. Revenue bill;
3. Quasi-Suspect Case – Available if needed. Based on
c. Tariff bill. gender/legitimacy. It points out a speci ic
constitutionally granted state interest such as
CIR v. CTA, Manila Golf & Country Club protection of women where there is a valid
classi ication between men and women.
An “item” in a revenue bill does NOT refer to an entire
3) Non-impairment of the obligations of contracts
section imposing a particular kind of tax, but rather to the subject of
the tax and the tax rate. In the portion of a revenue bill which actually a. If the exemption was granted for a valuable
imposes a tax, a section identi ies the tax and enumerates the persons consideration on the basis of a contract – it cannot be
liable therefor with the corresponding tax rate. revoked by passing another law. The non-impairment
To construe the word “item” as referring to the whole section would clause applies.
tie the President’s hand in choosing either to approve the whole b. If the exemption is granted by virtue of a contract between
section at the expense of also approving a provision therein which he a private corporation and the government – it cannot be
deems unacceptable or veto the entire section at the expense of revoked unilaterally by the government. The
foregoing the collection of the kind of tax altogether. non-impairment clause applies.
c. If the basis of the tax exemption is a mere franchise
INDIRECT CONSTITUTIONAL LIMITATIONS granted by Congress – it can be unilaterally revoked by the
government. NIC does not apply.
1) Due process of law
4) Non-infringement of religious freedom
a. The validity of a statute must be contested only by one
The free exercise of religion clause, however, does not prohibit
who sustained or stands to sustain direct injury in
imposing a generally applicable sales tax on the sale of
consequence of its performance EXC: Transcendental
religious materials by religious organizations. The sale of
importance, taxpayer‘s suit.
religious articles can be subject to VAT, what cannot be taxed is
2) Equal protection of the laws the exercise of religious worship or activity. The income of the
a. All persons, businesses, and properties should be taxed at priest from the exercise of a religious activity cannot also be
the same rate, so long as they belong to the same taxed. (Tolentino v. SOF)
classi ication. Equality among equals.
American Bible Society v. City of Manila
b. Does not require territorial uniformity of laws. (Tiu v CA)
TESTS TO DETERMINE VALID CLASSIFICATION
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL
For the 2020/21 #BestBarEver
We believe that the provisions of City of Manila Ordinance No.
2529, as amended, cannot be applied to appellant, for in doing
so it would impair its free exercise and enjoyment of its religious
profession and worship as well as its rights of dissemination of
religious beliefs.
With respect to Ordinance No. 3000, as amended, which requires the
obtention of the Mayor's permit before any person can engage in
any of the businesses, trades or occupations enumerated therein, We
do not ind that it imposes any charge upon the enjoyment of a right
granted by the Constitution, nor tax the exercise of religious practices.
5) No appropriation for religious purposes
GR: No appropriation is allowed in favor of any sect,
church, or any priest, minister, etc.
EXC: When such priest is assigned to the armed forces,
penal institution or government orphanage or
leprosarium.
6) Non-infringement of the freedom of the press
There is curtailment of press freedom and freedom of thought
and expression if a tax is levied in order to suppress this basic
right and impose prior restraint.
CREBA v. Romulo 2010 En Banc
Certainly, an income tax is arbitrary and con iscatory if it taxes
capital because capital is not income. In other words, it is income,
not capital, which is subject to income tax. However, the MCIT is not
a tax on capital.
The MCIT is imposed on gross income which is arrived at by
deducting the capital spent by a corporation in the sale of its goods,
i.e., the cost of goods and other direct expenses from gross sales.
Clearly, the capital is not being taxed.
No violation of Equal Protection
The taxing power has the authority to make reasonable
classi ications for purposes of taxation. Inequalities which result
from a singling out of one particular class for taxation, or exemption,
infringe no constitutional limitation. The real estate industry is, by
itself, a class and can be validly treated differently from other
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business enterprises. 4) The assessment and collection must be in consonance with the a. General, Fiscal or Revenue – tax levied for the general or
Due process clause; ordinary purposes of the government, i.e. raise revenue for
G. STAGES OR ASPECTS OF TAXATION governmental and public needs. These funds can be used for
5) The tax must not infringe the inherent and constitutional
whatever purpose. e.g. Income tax, VAT, and almost all taxes.
1) Levy - enactment of a law by Congress. Limitations of the power of taxation.
b. Special or Regulatory – tax levied for special purposes, i.e. to
2) Assessment - determination of how much tax is due. I. KINDS OF TAXES achieve some social or economic ends, irrespective of whether
3) Collection - implementing the tax laws. AS TO SUBJECT MATTER OR OBJECT revenue is actually raised or not. TN: These funds can be used
only for the speci ic purpose which the law creating it
Other aspects of taxation: a. Personal, Poll, or Capitation – tax imposed on persons
indicated.
1) Payment – involves the act of compliance by the taxpayer of residing within a speci ied territory, whether citizens or not,
without regard to their property or the occupation or business AS TO SCOPE OR AUTHORITY IMPOSING THE TAX
his tax obligation, as when he actually pays his taxes;
in which they may be engaged. e.g. Community tax a. National – taxes imposed by the national government e.g. NIR
2) Refund – Taxes paid will be returned to the taxpayers as when
b. Property – tax levied on property, real or personal, in taxes, customs duties, national taxes imposed by laws
there is an erroneous or illegal collection of taxes.
proportional to its value or in accordance with some rule of b. Municipal or Local – taxes provided in the LGC and imposed
H. REQUISITES OF A VALID TAX apportionment. e.g. Real estate tax by local governments. e.g. Business taxes imposed under the
ESSENTIAL CHARACTERISTICS AND ATTRIBUTES OF TAXES c. Excise – tax imposed upon the performance of an act, the LGC
enjoyment of a privilege, or the engagement in an occupation or AS TO GRADUATION
1) Enforced contribution - independent of the will of taxpayer;
business. E.g. Income tax, donor‘s tax, estate tax
a. Proportion – based on a ixed percentage of the amount of the
2) Generally payable in money;
AS TO BURDEN OR INCIDENCE property receipts or other basis to be taxed. e.g. Real estate tax,
EXC: corporate tax ( ixed at 30% regardless of how much income
a. Direct – tax demanded from the very person who, as intended
1. Tax credit certi icate or back pay certi icate; should pay the tax which he cannot shift to another. e.g. Income the corporation earns)
2. Tax liens. tax, estate tax, donor‘s tax, community tax b. Progressive – rate of which increases as the tax base or
b. Indirect – tax demanded in the irst instance from one person bracket increases. e.g. Income tax
3) Proportionate in character — ability to pay.
with the expectation that he can shift the burden to someone Digressive - started as progressive but becomes stagnant at
4) Levied on persons, property, exercise of a right or
else, not as taxes, but as part of the purchase price. e.g. VAT, some point.
privilege, act or transactions;
percentage tax, excise tax, customs duties
c. Regressive – tax rate decreases as the tax base or bracket
5) Levied by the State which has jurisdiction over the
AS TO TAX RATE increases. e.g. VAT (regressive as to its effect)
subject or object of taxation;
a. Speci ic – tax imposed by the head or number, or by some J. GENERAL CONCEPTS IN TAXATION
6) Levied by the lawmaking body of the State;
standard of weight or measurement. e.g. Wines, fermented
7) For public purpose. liquors, etc. 1. Prospectivity of tax laws
Requisites for a Valid Tax (PUJ-DL) b. Ad valorem – tax of a ixed proportion of the value of the APPLICATION OF TAX LAWS
It must be for a Public purpose; property with respect to which the tax is assessed. e.g. Income
1) GR: Tax laws are prospective in operation because the nature and
tax, real estate tax, excise tax on automobiles
2) The rule on taxation should be Uniform; amount of the tax could not be foreseen and understood by the
c. Mixed – Basis of the tax is the value of the article and weight. taxpayer at the time the transactions which the law seeks to tax
3) Subject taxed must be within the Jurisdiction of the taxing e.g. Customs duties were completed.
authority;
AS TO PURPOSE

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EXC: While it is not favored, a statute may nevertheless operate 1. Domiciliary Theory – the residence of the taxpayer is the
Poll Residence
retroactively provided it is expressly declared or is clearly the basis of the tax.
legislative intent. 2. Nationality Theory – the citizenship of the taxpayer is the 4. Double taxation
EXC to the EXC: basis of the tax. 1. Strict Sense — DIRECT
A tax law should not be given retroactive application when it 3. Source Theory – the source of the income of the taxpayer is Requisites
would be so harsh and oppressive, for in such case, the the basis of the tax.
a. Same subject/object taxed twice;
constitutional limitation of due process would be violated. Summary of Rules
b. For the same purpose;
Non-retroactivity of repeal of regulations or rulings
Kind of Tax Situs c. By the same taxing authority;
GR: No retroactivity if the repeal, revocation, modi ication or
reversal of regulations or rulings is prejudicial to the taxpayer. Property Real Property Location d. Within the same jurisdiction;

EXC: e. During the same period; AND

Tangible Location
1. Where the taxpayer deliberately misstates or omits material Personal Property f. Of the same kind or character.
facts from his return or in any document required of him by the 2. Broad Sense — INDIRECT
Intangibles e.g. GR: Domicile of owner
BIR; if any of the elements for direct duplicate taxation is absent.
credits, bills, Mobilia sequuntur
2. Where the facts subsequently gathered by the BIR are stocks, personam Not prohibited.
materially different from the facts on which the ruling is promissory notes EXC:
based; 1. Acquired business situs CIR v. Solidbank
elsewhere;
3. Where the taxpayer acted in bad faith. 2. The law provides so. Double taxation means taxing the same property twice when it
should be taxed only once; that is, "taxing the same person twice by
2. Imprescriptibility Excise Excise Where act performed or occupation the same jurisdiction for the same thing."
As a rule, taxes are imprescriptible as they are the lifeblood of the pursued
First, the taxes herein are imposed on two different subject
government. However, tax laws may provide for statute of
Income Source, nationality or residence of matters. The subject matter of the FWT is the passive income
limitations. earner generated in the form of interest on deposits and yield on deposit
3. Situs of taxation substitutes, while the subject matter of the GRT is the privilege of
Donor’s Location, nationality or residence of engaging in the business of banking.
FACTORS taxpayer
Estate Second, the taxing periods they affect are different. The FWT is
1. Nature of the tax;
deducted and withheld as soon as the income is earned, and is paid
2. Subject matter of the tax (person, property, act or activity); VAT Where transaction is made. after every calendar quarter in which it is earned. On the other hand,
Cross-border Doctrine or the GRT is neither deducted nor withheld, but is paid only after every
3. Possible protection and bene it that may accrue both to the
Destination Principle - where taxable quarter in which it is earned.
government and the taxpayer; consumed.
4. Citizenship of the taxpayer; Third, these two taxes are of different kinds or characters. The
Others Franchise Grantee State FWT is an income tax subject to withholding, while the GRT is a
5. Residence of the taxpayer; percentage tax not subject to withholding.
6. Source of income. Sales Where consummated
Domestic double taxation — arises when the taxes are imposed by
Factors in the Philippines for Purposes of Situs of Income Tax Business Place of business the local or the national government.

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 CIVxTAX
International double taxation — imposition of comparable taxes in
two or more states on the same taxpayer with respect to the same
subject matter and for an identical period.
HOW TO ELIMINATE?
1. Allowing reciprocal exemption either by law or by treaty
2. Allowance of tax credit for foreign taxes paid
Tax Credit – deduction from tax payable. It reduces the amount
payable directly. It is a full deduction of the amount paid
abroad. This is the best option.
3. Allowance of deduction for foreign taxes paid
Tax Credit – deduction from taxable income. The amount of
taxes paid abroad is used to reduce tax payable in the
Philippines. Here, the amount paid abroad is multiplied by the
tax rate in the Philippines.
4. Reduction of Philippine tax rate
MOST FAVORED NATION CLAUSE
★ A method of establishing equality of trading opportunity
among states by guaranteeing that if one country is given better
trade terms by another, then all other states must get the same
terms.
★ The iling of a tax treaty relief application is not a condition
precedent to the availment of a preferential tax rate. The denial
of the availment of tax relief for the failure of a taxpayer to
apply within the prescribed period under the administrative
issuance would impair the value of the tax treaty. At most, the
application for a tax treaty relief from the BIR should merely
operate to con irm the entitlement of the taxpayer to the relief.
(Deutsche Bank)
Tax Treaties as Relief from Double Taxation
CIR v. S.C. Johnson and Son
The RP-US Tax Treaty is just one of a number of bilateral treaties
which the Philippines has entered into for the avoidance of double
taxation. The purpose of these international agreements is to
reconcile the national iscal legislations of the contracting
parties in order to help the taxpayer avoid simultaneous
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
taxation in two different jurisdictions. More precisely, the tax
conventions are drafted with a view towards the elimination of
international juridical double taxation, which is de ined as the
imposition of comparable taxes in two or more states on the same
taxpayer in respect of the same subject matter and for identical
periods.
There are two methods of relief — the exemption method and the
credit method.
In the exemption method, the income or capital which is
taxable in the state of source or situs is exempted in the state of
residence, although in some instances it may be taken into
account in determining the rate of tax applicable to the taxpayer's
remaining income or capital.
On the other hand, in the credit method, although the income
or capital which is taxed in the state of source is still taxable in
the state of residence, the tax paid in the former is credited
against the tax levied in the latter.
The basic difference between the two methods is that in the
exemption method, the focus is on the income or capital itself,
whereas the credit method focuses upon the tax.
5. Escape from taxation
1) SHIFTING
a. Tax burden is transferred from the statutory taxpayer to another
without violation of law.
b. Statutory taxpayer. the original taxpayer required under the
law to pay the tax.
c. Impact of taxation. The point on which a tax is originally
imposed.
d. Incidence of taxation. That point on which the tax burden
inally rests or settles down.
3 Kinds:
a. Forward shifting – the transfer of the burden of tax
from the units of production to the units of
distribution to the consumer. E.g. VAT, percentage tax
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b. Backward shifting – The transfer of the burden of tax
from the consumer back to the units of distribution to
the units of production.
c. Onward shifting – When the tax is shifted two or
more times either forward or backward. More than one
shift.
2) CAPITALIZATION
a. The reduction in the price of the taxed object equal to the
capitalized value of future taxes which the purchaser expects to
be called upon to pay. It occurs when the tax falls on an
income-producing property, i.e. commercial building.
b. Special kind of backward shift.
3) AVOIDANCE
Exploitation by the taxpayer of legally permissible alternative tax
rates or methods of assessing taxable property or income in order
to avoid or reduce tax liability. e.g. estate planning.
4) EVASION
Elements of Tax Evasion (How to Establish Tax Evasion)
a. The end to be achieved is to lessen payment of taxes Example:
the payment of less than that known by the taxpayer to be
legally due, or in paying no tax when such is due.
b. An accompanying state of mind described as being “evil”, “in
bad faith”, “willful” or “deliberate and not accidental”
c. A course of action (or failure of action) which is unlawful. (CIR
v. Estate of Toda)
Indicia of Fraud
a. Failure to declare true and actual income derived from
business for 2 consecutive years; OR
b. Substantial under-declaration of ITR for 4 consecutive years
coupled with intentional overstatement of deductions.
5) ASSUMPTION
To "assume" means to take on, become bound as another is bound,
or put oneself in place of another as to an obligation or liability.”
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This means that the obligation or liability remains, although
the same is merely passed on to a different person. In this
light, the concept of an assumption is therefore different from an
exemption, the latter being the freedom from a duty, liability or
other requirement or a privilege given to a judgment debtor by law,
allowing the debtor to retain a certain property without liability.
Thus, the constitutional provisions on tax exemptions would not
apply. (Mitsubishi Corporation v. CIR)
6. Exemption from taxation
Broad Sense – Tax not applied on a particular property. Tax on
particular property or object within the same jurisdiction but not
taxed by the taxing authority. e.g. Tax on property used by the
Government when the other properties in the same area are subject
to tax.
Narrow Sense – Exemption of a particular class. An entire class of
the same conditions are exempted from taxes supposedly imposed
on a bigger class.
Important principles
a. It is an immunity or privilege that is personal in nature;
b. It is freedom from a inancial charge or burden to which others
are subjected;
c. Allowed only when there is a clear provision of the law;
d. Strictly construed against the taxpayer;
e. It is not necessarily discriminatory as long as there is a
reasonable foundation or rational basis.
DOUBLE NEXUS RULE. Person claiming exemption must prove:
1. The law granting the exemption; AND
2. That he falls within the law or is quali ied in the exemption.
GROUNDS FOR TAX EXEMPTION
a. It may be based on contract. When the charter provides for
such exemption.
TN: In such a case, the public which is represented by the
government is supposed to receive a full equivalent therefor.
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
b. It may be based on some ground of public policy. The
exemption is provided in the law itself or the constitution.
TN: To encourage new industries or to foster charitable
institutions. Here, the government need not receive any
consideration in return for the tax exemption
c. It may be created in a treaty on grounds of reciprocity or to
lessen the rigors of international or multiple taxation.
TN: Recognition of international comity.
CONSTRUCTION OF TAX EXEMPTION STATUTES
GR: Tax exemption statutes are construed strictly against the
taxpayer and liberally in favor of the government.
a. In the construction of tax statutes, in case of doubt, exemptions
are not favored and are construed strictissimi juris against the
taxpayer.
b. The fundamental theory is that all taxable property should bear
its share in the cost and expenses of the government.
c. Taxation is the rule and exemption the exception, and
therefore, he who claims exemption must be able to justify his
claim or right thereto, by a grant expressed in terms ― too plain
to be mistaken and too categorical to be misinterpreted.
d. Claims for an exemption must be able to point out some
provision of law creating the right, and cannot be allowed to
exist upon a mere vague implication or inference.
e. Refunds are in the nature of exemption, and must be
construed strictly against the grantee/taxpayer.
EXC:
a. When the law itself expressly provides for a liberal
construction, that is, in case of doubt, it shall be resolved in
favor of exemption.
b. When the exemption is in favor of the government itself or
its agencies, or of religious, charitable, and educational
institutions because the general rule is that they are exempt
from tax.
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c. When the exemption is granted under special circumstances to
special classes of persons.
d. If there is an express mention or if the taxpayer falls within
the purview of the exemption by clear legislative intent, the
rule on strict construction does not apply.
e. If exemption refers to public property (in case of public
property, the general rule is exemption and taxation is the
exception)
f. Solutio indebiti
RESTRICTIONS ON REVOCATION OF TAX EXEMPTION
a. Non-impairment clause – Applies in contractual tax
exemptions or those agreed to by the taxing authority in
contracts, such as those contained in government bonds or
debentures, lawfully entered into by them under enabling laws
in which the government, acting in its private capacity, sheds
its cloak of authority and waives its governmental immunity.
b. Adherence to form – If the exemption is granted by the
Constitution, it can only be revoked through a Constitutional
amendment. It cannot be revoked by mere passage of a law.
c. Tax-exempting grant is in the form of a special law – where
the grant is given through a special law and not by a general
law, even if the terms of the general act are broad enough to
include the intent to repeal or alter the special law, there would
still be no revocation.
CIR v. The Philippine American Accident Insurance Company
The rule that tax exemptions should be construed strictly against the
taxpayer presupposes that the taxpayer is clearly subject to the tax
being levied against him. Unless a statute imposes a tax clearly,
expressly and unambiguously, what applies is the equally
well-settled rule that the imposition of a tax cannot be presumed.
Where there is doubt, tax laws must be construed strictly against the
government and in favor of the taxpayer.
In this case, petitioner does not dispute that respondents are in the
insurance business. Petitioner merely alleges that the de inition of
lending investors under CA 466 is broad enough to encompass
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insurance companies. The question is whether the lending activities
of insurance companies make them lending investors for purposes of
taxation. We agree with the CTA and Court of Appeals that it does not.
PAGCOR v. BIR 2011 En Banc
WON PAGCOR is still exempt from corporate income tax and VAT with
the enactment of R.A. No. 9337. NO. Petitioner is no longer exempt
from corporate income tax as it has been effectively omitted from
the list of GOCCs that are exempt from it.
In Manila Electric Company v. Province of Laguna, the Court held
that a franchise partakes the nature of a grant, which is beyond the
purview of the non-impairment clause of the Constitution.
Anent the validity of RR No. 16-2005, the Court holds that the
provision subjecting PAGCOR to 10% VAT is invalid for being
contrary to R.A. No. 9337. Nowhere in R.A. No. 9337 is it provided
that petitioner can be subjected to VAT.
Lung Center of the Philippines v. Quezon City
Portions of the land leased to private entities as well as those parts of
the hospital leased to private individuals are NOT exempt from such
taxes. On the other hand, the portions of the land occupied by the
hospital and portions of the hospital used for its patients, whether
paying or non-paying, are exempt from real property taxes.
In order to be entitled to the exemption, the petitioner is burdened to
prove, by clear and unequivocal proof, that
a) it is a charitable institution; and
b) its real properties are ACTUALLY, DIRECTLY and
EXCLUSIVELY used for charitable purposes.
What is meant by actual, direct and exclusive use of the property for
charitable purposes is the direct and immediate and actual
application of the property itself to the purposes for which the
charitable institution is organized. It is not the use of the income
from the real property that is determinative of whether the property
is used for tax-exempt purposes.
John Hay People’s Alternative Coalition, et al. v. Lim, et al.
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
Under Section 12 of R.A. No. 7227, it is only the Subic SEZ which was
granted by Congress with tax exemption, investment incentives and
the like. There is no express extension of the aforesaid bene its to
other SEZs still to be created at the time via presidential
proclamation.
Smart Communications v. The City of Davao
WON Smart is liable to pay the franchise tax imposed by the City of
Davao.
YES. The uncertainty in the "in lieu of all taxes" clause in R.A. No.
7294 on whether Smart is exempted from both local and national
franchise tax must be construed strictly against Smart which
claims the exemption.
In this case, the doubt must be resolved in favor of the City of Davao.
The "in lieu of all taxes" clause applies only to national internal
revenue taxes and NOT to local taxes.
7. Equitable recoupment
Where the refund of a tax illegally or erroneously collected from or
overpaid by a taxpayer is barred by prescription, a tax presently being
assessed against a taxpayer may be recouped or set-off.
NB: INAPPLICABLE.
8. Prohibition on compensation and set-off
GR: Taxation is not subject to set-off.
EXC: When both debts are due and demandable and have been
fully liquidated, and the amount due the taxpayer has
already been appropriated by law, compensation follows
by operation of law.
TN: There can be no compensation as the Government and the
people are not principal debtors and creditors of each
other.
Air Canada v. CIR 2016 Leonen, J
The issue of petitioner's claim for tax refund is intertwined with the
issue of the proper taxes that are due from petitioner. A claim for tax
refund carries the assumption that the tax returns iled were correct.
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In South African Airways v. CIR, South African Airways claimed for
refund of its erroneously paid 2 1/2% taxes on its gross Philippine
billings. This court did not immediately grant South African's claim
for refund. This is because although this court found that South
African Airways was not subject to the 2 1/2% tax on its gross
Philippine billings, this court also found that it was subject to 32%
tax on its taxable income.
SMI-ED Philippines Technology v. CIR 2014 Leonen, J
In an action for the refund of taxes allegedly erroneously paid, the
Court of Tax Appeals may determine whether there are taxes that
should have been paid in lieu of the taxes paid. Determining the
proper category of tax that should have been paid is not an
assessment. It is incidental to determining whether there should be a
refund.
A PEZA-registered corporation that has never commenced
operations may not avail the tax incentives and preferential
rates given to PEZA-registered enterprises. Such corporation is
subject to ordinary tax rates.
The amount of the taxpayer’s liability should be computed and
deducted from the refundable amount. Any liability in excess of the
refundable amount, however, may not be collected in a case involving
solely the issue of the taxpayer’s entitlement to refund.
9. Compromise
Kepco Philippines v. CIR 2020
The CIR may compromise an assessment when a reasonable doubt
as to the validity of the claim against the taxpayer exists, or the
inancial position of the taxpayer demonstrates a clear inability to
pay the tax.
The general rule is that the authority of the CIR to compromise
is purely discretionary and the courts cannot interfere with his
exercise of discretionary functions, absent grave abuse of discretion.
Here, no grave abuse of discretion exists. Kepco complied with the
procedures prescribed under the BIR rules on the application and
approval of compromise settlement on the ground of doubtful
validity.
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RULES and REGULATIONS

A. TAXING AUTHORITY
1. Jurisdiction, Power, and Functions of the CIR
1) The BIR shall be under the supervision and control of the DOF
and its powers and duties shall comprehend
a) the assessment and collection of all national internal
revenue taxes, fees, and charges, and
b) the enforcement of all forfeitures, penalties, and ines
connected therewith,
c) including the execution of judgments in all cases decided
in its favor by the CTA and the ordinary courts.
2) Powers of the CIR include:
a) to interpret the provisions of the NIRC and other tax laws,
subject to review by the SOF; (Sec 4)
b) to obtain information, and to summon, examine, and take
testimony of persons; (Sec 5)
i) Examine any document which may be relevant or
material to an inquiry;
ii) Obtain information from a third party in relation to an
investigation or audit of a taxpayer;
iii) Summon the taxpayer or any person holding records of
the taxpayer to appear and produce the documents;
Correlate with Sec 266 for Failure to Obey Summons
which is penal in nature, subject to the following
requisites:
1. A person is duly summoned to appear to testify, or to
appear and produce books of accounts, records,
memoranda or other papers, or to furnish information;
and
2. The person neglected to do so.
c) to make assessments, prescribe additional requirements
for tax administration and enforcement; (Sec 6)
i) A decedent, to determine his gross estate;
ii) Any taxpayer who has iled an application for
compromise based on inancial incapacity; or
iii) Pursuant to an international convention or tax
agreement.
e) To delegate power, except
i) to recommend the promulgation of rules and
regulations by the SOF;
ii) to issue rulings of irst impression or to reverse,
revoke or modify any existing ruling of the BIR;
iii) to compromise or abate any tax liability, except
1) For tax liabilities P500K or less and
2) minor criminal violations — which
may be compromised by a Regional
Evaluation Board.
iv) to assign or reassign internal revenue of icers to
establishments where articles subject to excise tax are
produced or kept.
2. Rule-making Authority of the Secretary of Finance
Directory provisions — those designed merely for the information
or direction of of icers or to secure methodical and systematic
modes of proceedings. e.g. Revenue memorandum circulars issued
by BIR to guide personnel on matters of regulation.
Mandatory provisions — those intended for the security of the
citizens or which are designed to ensure equality of taxation or
certainty as to the nature and amount of each person‘s tax. e.g.
Remedies under the tax code (security); tax rate (equality)
The determination of the validity of these issuances clearly falls
within the exclusive appellate jurisdiction of the CTA under Section
7 (1) of RA No. 1125, as amended, subject to prior review by the
Secretary of Finance, as required under the NIRC. (Steel
Corporation of the Philippines v. BOC and BIR 2018)
a. Promulgation: Secretary of Finance;
b. Recommendation: CIR;
c. Administrative Rulings: CIR.
REVENUE REGULATIONS
GR: Revenue regulations are general interpretations of the BIR
issued by the CIR or by its delegate.
EXC: When it tramples novel issues or is intended to revoke or
amend or modify a previous ruling.
REQUISITES FOR VALIDITY & EFFECTIVITY OF REGULATIONS
a. It must be issued under authority of law;
b. It must be within the scope and purview of the law; not
contrary to law and the Constitution;
c. It must be published in the OG or newspaper of general
circulation;
d. Where the regulations impose penal sanctions, the law itself
must declare as punishable the violation of the administrative
rule or regulation and should ix or de ine the penalty thereof.
Kinds of Administrative Issuances
1. Legislative rules — rules in the nature of subordinate
legislation designed to implement a primary legislation by
providing the details thereof. Before it is adopted, there must be
a hearing under the AC of 1987.
2. Interpretative rules — are rules and regulations construing
or interpreting the provisions of a statute to be enforced and are
binding on all concerned until they are changed.
RMC 20-86 was issued to govern the drafting, issuance and
implementation of revenue tax issuances, including:
1. Revenue regulations;
2. Revenue audit memorandum orders;
3. Revenue memorandum circulars (external) and orders
(internal).

d) to examine bank deposits, in the following cases

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B. INCOME TAX a. RC, NRC, RA Feature Individual Corporate

b. NRA-ETB
➔ RR 08-18. Revenue Regulation Implementing the Income Tax Schedular Global
Provisions of TRAIN Act c. NRA-NETB 1) It classi ies income; 1) Generally provides
2) Provides for for uniform rules;
➔ RR 11-18. Revenue Regulation Implementing the Withholding of d. Special Aliens Tax
different tax rules; 2) Generally imposes
Treatment
Income Tax Provisions of TRAIN Act e. Individual taxpayers exempt from income tax 3) Imposes different uniform tax rate;
tax rates. 3) Does not generally
➔ RMC 50-18. 6. Income Tax on Corporations classify income.
1. De inition, Nature, and General Principles
a. Domestic corporations
1) RC; 1) DC;
2. Concept of Income
b. Resident foreign corporations Net Income 2) NRC; 2) RFC.
a. De inition Taxation 3) RA;
c. Non-resident foreign corporations (NRFC) 4) NRA-ETB.
b. When income is taxable
d. Corporations exempt from income tax
Gross Income NRA-NETB NRFC
c. Tests in determining whether income is earned for tax
e. Tax on other business entities Taxation
purposes
7. Filing of Returns and Payment 1) Residence — RA, 1) Residence — RFC;
d. Methods of accounting RC; 2) Place — NRFC;
8. Withholding Tax Situs
e. Situs of Income 2) Place — NRA, NRC; 3) Nationality — DC.
3) Citizenship — RC.
3. Gross Income
1. Definition, Nature, and General Principles
Common Features
a. De inition
INCOME TAX is a direct tax on all yearly pro its arising from property, 1) Pay as you ile system. —
b. Distinguish: gross, net, and taxable income professions, trades or of ices or a tax on a person's income,
emoluments, pro its, and the like. a) Individuals — upon iling of ITRs;
c. Sources of income subject to tax
a. Income Tax Systems b) Corporations — upon iling of quarterly corporate
d. Exclusions ITRs and inal adjustment corporate returns;
a) Schedular — The items are classi ied based on kind or
4. Deductions category of income and this is subject to different tax rates 2) Creditable Withholding Tax System
a. General Rule — Deductions based on the income classi ication. a) Withholding agent — withholds tax and remits to the
b) Global — lump all items of income and a single/ BIR;
b. Concept of Return of Capital
proportional/uniform income tax rate is imposed.
b) Tax withheld — creditable against income tax due.
c. Distinguish: Itemized Deductions and OSD c) Mixed (applicable in PH) — it is schedular in the sense that
3) Final Withholding Tax System
d. Requirements for deductible items we lump different items of income per type or category and it
is global in the sense that we subject all the items in this lump a) Withholding agent — withholds tax and remits to the
e. Items not deductible to one tax rate. BIR;
5. Income Tax on Individuals b. Features of the Philippine Income tax law

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b) Tax withheld — inal settlement of the tax liability on e) A domestic corporation is taxable on all income derived from RESIDENT CITIZEN
the income covered. sources within and without the Philippines; and
1) Those who are citizens of the Philippines at the time of the
c. Criteria in imposing Philippine income tax f) A foreign corporation, whether engaged or not in trade or adoption of this Constitution;
business in the Philippines, is taxable only on income derived
1. Citizenship or Nationality Principle — a citizen of the 2) Those whose fathers or mothers are citizens of the Philippines;
from sources within the Philippines. (Sec 23)
Philippines is subject to Philippine income tax 3) Those born before January 17, 1973, of Filipino mothers, who
In short… Only RESIDENT CITIZENS and DOMESTIC CORPORATIONS
a. On his worldwide income, if he resides in the Philippines, elect Philippine citizenship upon reaching the age of majority;
are taxable on income derived from ALL sources. All others are only
or and
taxable on income derived from sources within PH.
b. Only on his Philippine-source income, if he quali ies as a 4) Those who are naturalized in accordance with law.
e. Types of Philippine income taxes
non-resident citizen; hence, his foreign-source income A Resident Citizen is a Filipino citizen who stayed permanently in the
shall be exempt. 1. Personal Income Tax on Individuals (Secs 24-25);
Philippines or stayed outside the Philippines for less than 183 days
2. Residence or Domicile Principle — an alien is subject to 2. Regular Corporate Income Tax (Sec 27[A]); during the taxable year.
income tax because of his residence in the Philippines. 3. Minimum Corporate Income Tax (Sec 27[E]);
3. Source of Income Principle — an alien is subject to NON-RESIDENT CITIZEN
4. Capital Gains Tax;
Philippine income tax because he derives income from sources 1) A citizen of the Philippines who establishes to the satisfaction
5. Tax on passive investment income;
within the Philippines. of the Commissioner the fact of his physical presence abroad
6. Fringe Bene its Tax (Sec 33);
d. General principles of income taxation with a de inite intention to reside therein.
7. Branch Pro it Remittance Tax (Sec 27);
a) A citizen of the Philippines residing therein is taxable on all 2) A citizen of the Philippines who leaves the Philippines during
income derived from sources within and without the 8. Improperly Accumulated Earnings Tax (Sec 29); and the taxable year to reside abroad, either as an immigrant or for
Philippines; 9. Final Withholding Income Tax. employment on a permanent basis.
b) A nonresident citizen is taxable only on income derived from 3) A citizen of the Philippines who works and derives income
f. Kinds of taxpayers
sources within the Philippines; from abroad and whose employment thereat requires him to be
physically present abroad most of the time during the
c) An individual citizen of the Philippines who is working and
taxable year.
deriving income from abroad as an overseas contract worker is
taxable only on income derived from sources within the - At least 183 days.
Philippines: - Temporary employment
Provided, That a seaman who is a citizen of the Philippines and 4) Hybrid. — A citizen who has been previously considered as
who receives compensation for services rendered abroad as a non-resident citizen and who arrives in the Philippines at any
member of the complement of a vessel engaged exclusively in time during the taxable year to reside permanently in the
international trade shall be treated as an overseas contract Philippines shall likewise be treated as a non-resident citizen
worker; for the taxable year in which he arrives in the Philippines with
d) An alien individual, whether a resident or not of the respect to his income derived from sources abroad until the
Philippines, is taxable only on income derived from sources date of his arrival in the Philippines.
within the Philippines; Within and Without Within Final Tax Rate of 25% within 5) Receives compensation for services rendered abroad as a
seaman.

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a. He is a member of the complement of a vessel received or at a regular income tax rate (0%-35%) based on the
d) association, or
net taxable compensation income if his gross annual taxable
b. The vessel is engaged exclusively in international e) insurance companies,
compensation is at least P975,000 (whether or not actually
trade. received). but does not include
RESIDENT ALIEN TN: 15% preferential tax rate vetoed
a) general professional partnerships and
A resident alien is one who has a residence in the Philippines ESTATES AND TRUSTS
b) a joint venture or consortium formed for the purpose of
although he is not a Filipino citizen. He has no de inite period of
An ESTATE is composed of all properties, rights and obligations undertaking construction projects or engaging in
stay in the Philippines.
including those properties, earnings or obligations that have petroleum, coal, geothermal and other energy operations
He is not a mere transient or sojourner. His de inite purpose for accrued thereto since the opening of the succession. The estate is to pursuant to an operating consortium agreement under a
staying requires an extended stay and to that end, he makes his be transferred from the decedent to his successors. Its status is the service contract with the Government.
home temporarily in the Philippines. same as that of the decedent prior to his death.
'General professional partnerships' are partnerships formed by
NON-RESIDENT ALIEN It will only be taxable when it is under administration or persons for the sole purpose of exercising their common
settlement. profession, no part of the income of which is derived from engaging
The test to classify NRA is the length of stay in the Philippines, whether in any trade or business.
GR: An estate under judicial settlement is subject to income
he stays for more than 180 days or, 180 days or less.
tax. Domestic corporations are those created or organized in the
NRA-ETB
EXC: The distribution to the heirs during the taxable year of Philippines or under its laws. Otherwise, foreign corporations.
a. More than 180 days estate income is deductible from the taxable income of the g. Taxable period
b. 0-35% tax on net income estate. Such will form part of the taxable income of the
NRA-NETB heirs. 1) 'Taxable year' means the calendar year, or the iscal year
ending during such calendar year, upon the basis of which the
a. 180 days or less A TRUST is an obligation imposed or a right to administer over a
net income is computed.
b. 25% inal tax on gross income property given to a person for the bene it of another.
1. Where the income is accumulated or held for future 2. Concept of Income
SPECIAL EMPLOYEES
distribution by the trustee; a. Definition
Special employees are alien individuals or Filipino citizens who are 2. Where it is up to the iduciary whether there will be In the broad sense, INCOME refers to all wealth which lows into
subject to 15% tax based on their gross compensation income when: distribution or not; the taxpayer other than those that are mere return of capital. It is
1. They are employed occupying managerial and/or technical 3. Where the income is collected by a guardian of an infant return on capital or return above the capital as opposed to return of
positions with regional or area headquarters of which is to be held or distributed as the court may direct. capital.
a. multinational corporations, CAPITAL denotes the original investment or fund used in order to
CORPORATIONS generate earnings which is called income. It is the fund or property
b. petroleum service contractors and subcontractors, or
existing at one point in time.
c. offshore banking units. The term 'corporation' shall include
REVENUE refers to the amount received by the business from
2. If the special taxpayer is an alien, all of his gross a) partnerships, no matter how created or organized, selling main goods or services to its customers during the period.
compensation income received is subject to 15% inal tax.
b) joint-stock companies, b. When income is taxable
3. If the taxpayer is a Filipino citizen, he has the option to be
taxed at 15% inal tax based on his gross compensation income c) joint accounts (cuentas en participación), 1. There is gain or pro it;

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2. Gain or pro it is realized or received (actually or term "reasonable accuracy" implies something less than an exact or
iii. Economic benefit test or doctrine of proprietary interest
constructively); Constructive receipt: completely accurate amount.
Anything that bene its a person materially or economically. Note
a. Matured interest coupons; ii. Special method: installment, deferred payment, percentage
however that there must irst be actual realization, such as through
b. Interest on savings bank deposit; of completion (in long-term contracts)
sale or disposition.
c. Dividends applied to indebtedness of a shareholder; 1) 'Long-term contracts' means
Mere increase in the value of property is not income.
d. Share in the pro its of a partner in GPP. a) building, installation or construction contracts
iv. Severance test
3. Such gain or pro it is NOT exempted by any treaty or law. b) covering a period in excess of one (1) year.
Income is recognized when there is separation of something which
c. Tests in determining whether income is of exchangeable value. Persons whose gross income is derived in whole or in part
is earned for tax purposes from such contracts shall report such income upon the basis of
d. Methods of accounting
1) Flow of Wealth - whether any gain was derived from the percentage of completion.
transaction. An accounting method is a "set of rules for determining when and
how to report income and deductions." The return should be accompanied by a return certi icate of
2) Realization - Revenue is realized when architects or engineers showing the percentage of completion
i. Distinguish: cash and accrual method during the taxable year of the entire work performed under
a) The earning process is complete; AND
The accrual method relies upon the taxpayer’s right to receive contract.
b) An exchange has taken place.
amounts or its obligation to pay them, in opposition to actual 2) Installment Basis. —
3) Economic-Bene it - taxable to the extent the taxpayer is
receipt or payment, which characterizes the cash method of
economically bene ited. a) Sales of Dealers in Personal Property. — a person who
accounting.
4) Net Effect - substance of whole transaction. regularly sells or otherwise disposes of personal property
For a taxpayer using the accrual method, the determinative question on the installment plan may return as income therefrom in
5) Claim of Right - if there is control over the fund. is, when do the facts present themselves in such a manner that the any taxable year that proportion of the installment
6) Recovery of Capital Doctrine. taxpayer must recognize income or expense? payments actually received in that year, which the gross
7) All-events - right to collect income the amount of which is The accrual of income and expense is permitted when the pro it realized or to be realized when payment is
completed, bears to the total contract price.
liquidated or certain. all-events test has been met. This test requires:
b) Sales of Realty and Casual Sales of Personality. — In
i. Realization test 1) ixing of a right to income or liability to pay; and
the case
Income is recognized when both conditions are met: 2) the availability of the reasonable accurate determination of
i) of a casual sale or other casual disposition of
such income or liability.
a) The earning is complete or virtually complete; AND personal property, for a price exceeding P1K, or
The all-events test is satis ied
b) An exchange has taken place. ii) of a sale or other disposition of real property,
a) where computation remains uncertain, if its basis is
ii. Claim of right doctrine or doctrine of ownership, command or if in either case the initial payments do not exceed 25%
unchangeable;
control of the selling price, the income may be returned on the
b) where a computation may be unknown, but is not as much basis and in the manner above prescribed.
If the taxpayer receives earnings under a claim of right and without
as unknowable, within the taxable year.
restriction as to its disposition. 'Initial payments' means the payments received during
The amount of liability does not have to be determined exactly; it the taxable period in which the sale or other disposition is
must be determined with "reasonable accuracy." Accordingly, the made.

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 195 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

c) Sales of Real Property Considered as Capital Asset by 2. From Foreign Corp - if income derived from PH: c. Sources of income subject to tax
Individuals. — An individual who sells or disposes of a. > 85% = purely within; CG2IR2DAP3
real property, considered as capital asset, and is otherwise b. <50% = purely without;
1) Compensation for services in whatever form paid, including,
quali ied to report the gain therefrom under (B) may pay c. 50%-85% = allocation.
but not limited to fees, salaries, wages, commissions, and
the capital gains tax in installments.
Place of contract similar items;
Annuities
d) Change from Accrual to Installment Basis. — If a 2) Gross income derived from the conduct of trade or business or
taxpayer entitled to the bene its of (A) elects for any Prizes Either where services rendered or where given. the exercise of a profession;
taxable year to report his taxable income on the
installment basis, then in computing his income for the 3) Gains derived from dealings in property;
Pension Where given on account of services rendered.
year of change or any subsequent year, amounts actually 4) Interests;
received during any such year on account of sales or other Professional
5) Rents;
dispositions of property made in any prior year shall not income of Exercise of profession
be excluded. partners 6) Royalties;
7) Dividends;
e. Situs of Income 3. Gross Income
8) Annuities;
Source Situs a. Definition
9) Prizes and winnings;
Compensation Where service rendered In a narrow sense, gross income means all income derived from
10) Pensions; and
whatever source, including but not limited to CG2IR 2DAP3.
Merchandising, Farming, Mining 11) Partner's distributive share from the net income of the
- Where business undertaken. In a broad sense, it means all items of income less exclusions. It is general professional partnership.
Manufacturing the total income from all sources before deductions, exemptions or
other tax reductions. i. Compensation income
goods manufactured and sold
Business It refers to all remuneration for services rendered by an employee
a. Within PH - Purely within; b. Distinguish: gross income, net income, and taxable
b. Outside - Purely without; for his employer, unless speci ically excluded under the Tax Code.
income
c. Place of manufacture and selling different First Lepanto v. CIR 2013
- Proportionate. a) GROSS INCOME TAXATION — This is a system based on gross
The imposition of withholding tax on compensation hinges upon
income, which doesn‘t allow deductions but allows exclusions.
the nature of work performed by such individuals in the company.
From sale or 1. Personal - Place of sale; Applicable to passive income.
exchange of 2. Sale of transport documents - place where sold; In Kind:
property 3. Real - Location. GROSS IN COM E = Income – Exclusions a. Stock Options. Stock options are taxable as compensation
income taxed only if there is a bene it to the employee such
Interest Residence of debtor b) NET INCOME TAXATION — Certain deductions are allowed
as when he can buy the share at a more favorable price than the
and subtracted from the aggregate of incomes not subject to
public.
Rent Property located inal tax, and the tax computed based on the resulting net
income. The tax will be on the amount of the difference between the
Royalties Where intangible is used book value or the FMV of the stock, whichever is higher, and
N ET IN COM E = Gross Income – Deductions the exercise price. It is imposed whether or not the stock
Dividend 1. From Domestic Corp - income purely within; option is exercised.

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 196 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

b. Promissory Notes. Equivalent to the face value of the Conditions for FB to be taxable ii. In the name of ER; and
promissory note, unless it is discounted. For a discounted a. Given to managerial or supervisory employees; iii. Do not partake the nature of a personal expense;
promissory note, the cash discounted value.
b. Good, service furnished or granted in cash or in kind; b. Expenses paid for by EE, but reimbursed by ER are taxable,
c. Cancellation of Debt. Considered an income when you render
c. Must NOT be for the bene it or convenience of the employer. except when (same as a);
services and in exchange, your debt is forgiven.
HOUSING c. Personal expenses of EE paid for or reimbursed by ER are
d. Tax Liability. When the employer shoulders your tax on
taxable, regardless if they are receipted or not in the name of
compensation instead of you getting less than your gross ER;
Case Annual Value Monthly MV
monthly salary.
d. RATA are NOT taxable fringe bene its, but are taxable
COURAGE v. CIR 2018 En Banc 50% x Monthly
ER leases house for use of EE NA compensation income:
Rent
Withholding tax on compensation applies to the Government of the i. Fixed in amounts;
Philippines, including its agencies, instrumentalities, and political 50% x Monthly
5% of FMV, or ii. Regularly received by EE;
subdivisions. Value
ER owns house, assigns use Zonal Value,
iii. Part of Monthly compensation income.
Withholding shall be made by the of icer or employee having control to EE whichever is
Monthly Value =
of the payments or by any of icer or employee duly designated for higher
AV/12 MOTOR VEHICLES
such purpose.
ER purchases house on 5% of Case Monetary Value
ii. Fringe benefits 50% x Monthly
installment, assigns use to acquisition cost,
Value
Any good, service or other bene it furnished or granted in cash or in EE exc interest Purchases vehicle in the name of Acquisition Cost
kind by an employer to an individual employee (except rank and ile EE
ER purchases then transfers Acquisition cost
employees) HEVHIMEHEL NA
ownership to EE or FMV Provides EE with cash for Cash received by EE
1. Housing purchase
ER purchases then transfers Zonal Value or
2. Expense Account ownership to EE at a lower NA Assessed Value, Shoulders a portion of the Amount shouldered
price minus cost of EE purchase price
3. Vehicle of any kind
Exceptions (Not taxable): Purchases car on installment in Acquisition cost (excl interest) /
4. Household Personnel the name of EE 5 years.
1. AFP, Navy, Air Force;
5. Interest on loan
2. Housing unit inside or within a maximum of 50 meters from Owns a leet of vehicles for the Acquisition cost of all motor
6. Membership Fees perimeter of business; use of EEs vehicles not normally used in
business / 5 years x 50%
7. Expense for Foreign Travel 3. Temporary housing = 3 months or less;
4. Granted to rank and ile. Leases and maintains leet of Amount of rent x 50%
8. Holiday and Vacation Expense
vehicles
EXPENSE ACCOUNT
9. Educational Assistance
a. In general, expenses incurred by EE but are paid by his ER are Use of yacht Depreciation at 20 years of
10. Life or Health Insurance useful life.
taxable, except when:
TN: This list is NOT exclusive.
i. They are duly receipted;

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 197 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

HOUSEHOLD EXPENSES 2. There is a written contract to the effect that EE is obliged

Bene it Monthly Annual
to remain in the employ of ER for a mutually agreed period.
For household personnel, such as salaries of household help, personal To the Dependent of EE: Monetized unused VL not exceeding 10 days NA NA
driver of the employee, or other similar personal expenses.
GR: Taxable; Monetized value of VL and SL credits of Public NA NA
INTEREST ON LOAN at less than Market Rate employees
EXC: Assistance provided through a competitive scheme.

Market rate is at 12%. LIFE OR HEALTH INSURANCE Medical cash allowance 250 3,000

MEMBERSHIP FEES GR: Taxable; Rice subsidy 2,000 24,000

EXC:
a. Should not be pursuant to the nature of the business of ER; Uniform and Clothing 500 6,000
a) Pursuant to existing law, i.e. SSS, GSIS; AND
b. Should not be necessary for the position. Actual medical assistance 10,000
b) Cost of premiums borne by ER for the group insurance of
EXPENSES FOR FOREIGN TRAVEL
EEs. Laundry 300 3,600
a. Reasonable business expenses for the purpose of attending Bene iciary
business meetings or conventions are NOT taxable FBs. Awards 10,000
i. Heir — income of EE;
Inland travel expenses must not exceed 300 USD, not including Gifts during Christmas, etc 5,000
ii. If EE managerial or supervisory — FB subject to tax;
lodging cost.
iii. Company — NOT FB; Daily Meal Allowance for OT, night-shift < 25% of MW
b. Economy and business class NOT taxable. 30% of cost of First
class ticket taxable. iv. For Group of EEs — NOT FB.
By virtue of CBA, productivity incentive 10,000
c. There should be documentary evidence proving the travel was scheme
Exemption from FBT
in connection with a meeting or convention. Otherwise, taxable Threshold of P90,000
FB. 1) Authorized and exempted under the NIRC or special laws; The list of de minimis bene its is exclusive. The threshold now
d. If for the family members of EE, paid by ER, taxable. 2) For EE’s retirement, insurance and hospitalization (GROUP under the TRAIN Law is P90,000. The amount in excess of P90,000
HOLIDAY AND VACATION EXPENSES INSURANCE); will be subject to the normal income tax rate or fringe bene it tax, as
3) Given to Rank and File; the case may be.
Everything is considered as fringe bene it since it is not pursuant to the
purpose of the business of the employer. 4) Required by the nature of, or necessary to the trade, business iii. Professional income
or profession of ER; Professionals. — refer to persons who derive their income from
EDUCATIONAL ASSISTANCE
5) For the convenience of ER; the practice of their profession.
To the EE: 6) De minimis bene its iv. Income from business
GR: Taxable; DE MINIMIS 1) Self-employment income consists of the earnings derived by
EXC: the individual from the practice of profession or conduct of
Are of relatively small value and are offered or furnished merely as a
1. Directly connected with ER’s trade, business or profession; trade or business carried on by him as a sole proprietor or by a
means of promoting goodwill, contentment or ef iciency of his
AND partnership by which he is a member.
employees.

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 198 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

2) Business is any activity that entails the time, attention and a. Income from dealings in shares of stocks or domestic 50% — asset was held for more than
effort of an individual or group of individuals for livelihood or corporation WON through the stock exchange; 12 months
pro it. b. Income from dealings in real property located in PH;
CIR v. Ocier 2018
v. Income from dealings in property c. Income from dealings in other capital assets.
The taxpayer is liable to pay capital gains taxes for the sale, barter,
a) Distinguish ordinary asset and capital asset 2) ORDINARY GAINS
exchange or other disposition of shares of stock in a domestic
The term 'capital assets' means property held by the taxpayer Gains or income from the sale or exchange of properties which corporation except if the sale or disposition is through the stock
(whether or not connected with his trade or business), but does are not capital assets. exchange. For this purpose, the term disposition includes any act of
disposing, transferring or parting with, or alienation of, or giving up
not include (ordinary assets) a. Business income; of property to another.
1. stock in trade of the taxpayer; b. Compensation income;
Republic v. Sps Bunsay 2019
2. other property of a kind which would properly be included c. Passive income;
in the inventory of the taxpayer if on hand at the close of CGT, being a tax on passive income, is imposed by the NIRC on
d. Others.
the taxable year; the seller as a consequence of the latter's presumed income
c) Special rules pertaining to income or loss from dealings in from the sale or exchange of real property.
3. property held by the taxpayer primarily for sale to
capital asset In case of transfer by expropriation, the expropriating authority
customers in the ordinary course of his trade or business;
shall shoulder the CGT, other taxes and fees as part of the just
4. property used in the trade or business, of a character Rule Applies to compensation due to the affected owner of the property.
which is subject to the allowance for depreciation
Loss Capital losses are allowed only to the Individuals
provided in Subsection (F) of Section 34; or d) Tax-free exchanges
limitation extent of capital gains. and
5. real property used in trade or business of the taxpayer. a) Ordinary loss deductible from corporations GR: Upon the sale or exchange or property, the entire amount of the
For speci ic guidelines in determining WON real property is a ordinary gain; except trust gain or loss, as the case may be, shall be recognized.
capital or ordinary asset, please see RR 7-2003. b) Capital loss deductible from companies EXC: No gain or loss shall be recognized if in pursuance of a plan of
capital gain; and banks. merger or consolidation —
Main takeaway — a taxpayer habitually engaged in the real
c) Capital loss NOT deductible from
estate business is someone: 1. A corporation, which is a party to a merger or consolidation,
ordinary gain;
a. Registered with the HLURB or HUDCC as as a real estate d) Ordinary loss deductible from exchanges property solely for stock in a corporation, which is
dealer or developer; or capital gain. a party to the merger or consolidation; or
2. A shareholder exchanges stock in a corporation, which is a
b. If not registered with the above, having consummated
Loss Shall be treated in the succeeding Individuals party to the merger or consolidation, solely for the stock of
during the preceding year of at least six (6) taxable real
carry-over taxable year as loss from the sale or another corporation also a party to the merger or
estate sale transactions, regardless of amount; or exchange of capital asset held for not consolidation; or
c. Registered as habitually engaged in real estate business more than 12 months.
3. A security holder of a corporation, which is a party to the
with the LGU or BIR. Loss must be in an amount not in
merger or consolidation, exchanges his securities in such
excess of the net income of such year.
b) Types of gains corporation, solely for stock or securities in such corporation,
1) CAPITAL GAINS Holding 100% — asset was held for NOT Individuals a party to the merger or consolidation.
period more than 12 months; Also
Gains or income from the sale or exchange of capital assets,
including:

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 199 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

4. If property is transferred to a corporation by a person in
exchange for stock or unit of participation in such a
corporation of which as a result of such exchange said person,
alone or together with others, not exceeding four (4) persons,
gains control of said corporation. (Sec 40[c])
GR: NOT taxable since they are considered unrealized gain.
There is nothing in Section 40(C)(2) of the NIRC which requires the
taxpayer to irst secure a prior con irmatory ruling before the EXC:
transaction may be considered as a tax-free exchange.
a) Change in the stockholder’s equity, right or interest in
vi. Passive investment income the net assets of the corporation;

CIR v. Filinvest 2011 En Banc re Tax-free Exchange 1. It is an income subject to FWT. b) Recipient is other than the shareholder. Stock dividend
is taxable to the usufructuary.
The requisites for the non-recognition of gain or loss are as 2. The recipient is not required to include the income in his gross
follows: income nor in his taxable income. c) Cancellation or redemption of shares of stock;

3. Taxpayer is not required to ile ITR if his income consists solely of d) Distribution of treasury stocks;
a) the transferee is a corporation;
b) the transferee exchanges its shares of stock for property/ies income subject to inal tax. Examples of passive investment income: e) Dividends declared in the guise of treasury stock
of the transferor; a) Interest income from bank deposit; dividend to avoid income taxation;
c) the transfer is made by a person, acting alone or together f) Different classes of stocks were issued.
with others, not exceeding four persons; and, b) Royalties;
d) as a result of the exchange the transferor, alone or together c) Dividend received from DC by an individual or NRFC; 4) Liquidating dividend — one resulting from the
with others, not exceeding four, gains control of the distribution by a corporation of all its property or assets in
transferee. d) Prizes of > Php 10K; complete liquidation or dissolution.
e) Winnings except sweepstakes and lotto; Generally a return of capital, and hence, NOT income.
The exchange of property for stocks between FDC, FAI and FLI clearly
quali ies as a tax-free transaction. f) Partner’s share from the net income after tax of business However, it is taxable income with respect to the excess
partnership, joint account, joint venture or consortium. of amount received over cost of the share surrendered.
Bearing in mind the meaning of "gross income", it cannot be gainsaid,
even then, that a mere increase or appreciation in the value of a) Interest CIR v. Premium Leisure Corp 2019
said shares cannot be considered income for taxation purposes. The distribution of liquidating dividends on account of the
Amount of compensation paid for the use of money or forbearance
It "constitutes and can be treated merely as an increase of dissolution of a corporation is not to be treated as a sale for purposes
from such use. However, interest income which are already subject
capital." Hence, the CIR has no factual and legal basis in assessing of the imposition of capital gains tax. Under Section 73 (A) of the
to inal tax need not be included in the computation for a taxpayer’s
income tax on the increase in the value of FDC's shareholdings in FAC 1997 NIRC, receipt by a stockholder, whether corporate or individual,
until the same is actually sold at a pro it. annual ITR. of liquidating dividends is subject to ordinary income tax on the
b) Dividend part of the individual stockholder.
CIR v. Lucio Co 2020 further clarifying Filinvest
Any distribution made by a corporation to its shareholders out of
As regards the element of control, the Court, in Filinvest, clari ied its earnings or pro its and payable to its shareholders, whether in Giver Recipient Tax Rate
that it is not necessary that, after the exchange, each of the transferors
money or in other property. (Sec 73)
individually gains control of the transferee corporation. Domestic DC, RFC Exempt
It also does not prohibit instances when the transferor gains further 1) Cash dividend — paid in given sum of money;
control of the transferee corporation. The Court explained that the RC, NRC, RA 10%
2) Property dividend — one paid by a corporation in
element of control is satis ied even if one of the transferors is already
securities (not its own stock) or other property; NRA - ETB 20%
owning at least 51% of the shares of the transferee corporation, as
long as after the exchange, the transferors, not more than ive, 3) Stock dividend — one paid by a corporation with its OWN
collectively increase their equity in the transferee corporation by stock. NRA - NETB 25%
51% or more.

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 200 of 269
CIVxTAX
NRFC 15% subject to allowance for tax credit
or the tax sparing rule; otherwise, 30%
★ Dividend received from foreign corporation is subject to PH
income tax if at least 50% of the world income of the FC is
derived from PH for 3 years preceding the declaration of such
dividend.
Rules on redemption of share of stock
1) NOT taxable —
a) Shares are redeemed in the absence of the availability
of unrestricted earnings;
b) Not in the nature of a recurring return on stock;
c) The source of redemption is the original capital
subscription upon establishment of the corporation or
initial capital investment in an existing enterprise.
2) Taxable —
a) The redeemed shares are from stock dividend
declarations other than as initial capital investment.
b) There is redemption or cancellation; the transaction
involves stock dividends; and the “time and manner”
of the transaction makes it essentially equivalent to a
distribution of taxable dividends.
c) Royalty income
Any payment of any kind received as consideration for the use of or
right to use:
1) Any patent, trademark, design or model;
2) Secret formula or process;
3) Industrial, commercial or scienti ic equipment;
4) Information concerning industrial, commercial
scienti ic experience.
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
d) Rental income
Fixed sum either in cash or property equivalent, to be paid at a
de inite period for the use or enjoyment of a thing or right.
Value of permanent improvements made by lessee on leased
property that will become the property of the lessor upon the
expiration of the lease. The lessor shall report such an income
under any of the following methods:
1) Outright method — FMV of the completed building or
improvement shall be reported as additional rent income.
2) Spread out method — Allocate the depreciated value over
the remaining term of the lease contract.
How about advance rentals?
1) Prepaid rentals — taxable if so received under a claim of
right and without restriction as to use.
2) Security deposit — not taxable unless lessee violates
any provision of the contract.
3) Loan — not taxable.
vii. Annuities and proceeds from life insurance or other types of
insurance
Annuity is a sum of money payable yearly or at regular intervals.
Note however that life insurance annuities are excluded from gross
income.
viii. Prizes and awards
GR: Taxable.
EXC:
1) If the recipient was selected without any action on his part
to enter the contest and he was not required to render
substantial future services as a condition for receiving the
or prize or award;
2) Those granted to athletes in local and international sports
competitions sanctioned by their respective national
sports associations; and
By RGL
For the 2020/21 #BestBarEver
3) Those that are in the nature of gifts.
ix. Pension, retirement benefit, or separation pay
A pension is a gratuity granted as a favor or reward or one paid
under given conditions to a person following retirement from
service or to surviving dependents. Note however that pensions and
retirement bene its under RA 7641 are excluded from gross income.
x. Income from any source
a) Condonation of indebtedness
Cancellation or forgiveness of debt may amount to
a) Payment of income — taxable;
b) Payment of dividends — taxable;
c) Gift — exempt.
b) Recovery of accounts previously written o
Recovery of bad debts previously allowed as deduction in the
preceding years shall be included as part of the gross income in the
year of recovery to the extent of the income tax bene it of said
deduction. (Sec 34[e][1])
c) Receipt of tax refunds or credit
Taxes which were previously claimed and allowed as deductions
but were subsequently refunded or granted as tax credit should be
declared as part of gross income of that year. Except
a) Estate and donor’s tax;
b) Income, war-pro it and excess pro it taxes imposed by a
foreign country;
c) Taxes assessed against local bene its of a kind tending to
increase the value of the property assessed;
d) Stock transaction tax;
e) Taxes which are not allowable as deductions under the law.
d. Exclusions
LAGCIRM
201 of 269
CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

1) Life Insurance. — If the company insures its employee and b. Moral and exemplary damages awarded as a result of resident or nonresident citizens of the Philippines or
makes the latter’s estate the bene iciary, THE PREMIUM IS breach of contract; aliens who come to reside permanently in the Philippines
TAXABLE, while the proceeds NOT TAXABLE. from foreign government agencies and other institutions,
c. Interest for non-taxable damages above;
When taxable? private or public.
d. Damages as compensation for unrealized income. d) Payments of bene its due or to become due to any person
a. Insurer and insured agreed that the amount of the
5) Income Exempt under Treaty. — Income of any kind, to the residing in the Philippines under the laws of the US
proceeds shall be withheld by the insurer with the
obligation to pay interest in the same – the interest is extent required by any treaty obligation binding upon the administered by the US Veterans Administration.
the one subject to tax. Government of the Philippines. e) Bene its received from or enjoyed under the SSS.
b. There is transfer of the insurance policy. 6) Retirement Bene its, Pensions, Gratuities, etc. — f) Bene its received from the GSIS.
GR: NOT taxable regardless of the bene iciaries. a) Retirement bene its received under RA No. 7641 and those
Santos v. Servier Phil., Inc. on Retirement Bene its
Conditions: received by of icials and employees of private irms,
whether individual or corporate, in accordance with a ⭐For the retirement bene its to be exempt from the
1. Paid to heirs; withholding tax, the taxpayer is burdened to prove the concurrence
reasonable private bene it plan maintained by the
2. Paid upon death of the insured; employer: xxxx of the following elements:
1) a reasonable private bene it plan is maintained by the
3. Paid in a single sum or in installment. REQUISITES:
employer;
EXC: (When taxable) 1. At least 50 years old; 2) the retiring of icial or employee has been in the service of
1. Used to secure money obligation; 2. At least 10 years of service in same company the same employer for at least ten (10) years;

2. Transfer for valuable consideration.
I N COM E = P roceeds – (P urchase P rice + P remiums P aid)
2) Amount Received by Insured as Return of Premium. —
I N COM E = Endowment – P remiums P aid
3) Gifts, Bequests, and Devises. — However, income from such
property, as well as gift, bequest, devise or descent of income
from any property, in cases of transfers of divided interest,
shall be included in gross income.
4) Compensation for Injuries or Sickness. — amounts received
as compensation for personal injuries or sickness, plus the
amounts of any damages received, whether by suit or
agreement, on account of such injuries or sickness.
EXC (Taxable):
a. Actual damages for loss of anticipated pro its;
(aggregate, not necessarily continuous);
3. Reasonable private bene it plan;
4. In the nature of pension, plan, pro it sharing plan,
stock bonus or gratuity;
5. Approved by the BIR;
6. Employer must give contribution and must be
established for the common bene it of ALL.
7. Availed of only ONCE. (except if 2nd employer is
Government — still exempt)
b) Any amount received by an of icial or employee or by his
heirs from the employer as a consequence of separation
of such of icial or employee from the service of the
employer because of death sickness or other physical
disability or for any cause beyond the control of the
said of icial or employee.
c) The provisions of any existing law to the contrary
notwithstanding, social security bene its, retirement
gratuities, pensions and other similar bene its received by
3) the retiring of icial or employee is not less than ifty (50)
years of age at the time of his retirement; and
4) the bene it had been availed of only once.
Petitioner was quali ied for disability retirement. At the time of such
retirement, petitioner was only 41 years of age; and had been in the
service for more or less eight (8) years. As such, the above provision
is not applicable for failure to comply with the age and length of
service requirements. Therefore, respondent cannot be faulted for
deducting from petitioner's total retirement bene its the amount of
P362,386.87, for taxation purposes.
7) Miscellaneous Items. —
a) Income Derived by Foreign Government.
b) Income Derived by the Government or its Political
Subdivisions.
c) Prizes and Awards. — Prizes and awards made
primarily in recognition of religious, charitable,
scienti ic, educational, artistic, literary, or civic
achievement but only if:

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 202 of 269
CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

i. The recipient was selected without any
action on his part to enter the contest or
proceeding; and
ii. The recipient is not required to render
substantial future services as a condition to
receiving the prize or award.
i. Rationale Tax credits are directly deducted from tax liability.
Generally, they are excluded because they do not fall within the iii. Exclusions under the Constitution
de inition of income for income tax purposes or a provision of the
All revenues and assets of non-stock, non-pro it educational
Tax Code or special law exempts them from income tax.
institutions used actually, directly, and exclusively for educational
Exclusion Rationale purposes shall be exempt from taxes and duties. (Sec 4 Art XIV)

d) Prizes and Awards in Sports Competition. — Proceeds of Life Indemnity rather than as gain or pro it. 4. Deductions
sanctioned by their national sports associations. Insurance Who are not allowed to avail of the deductions under Sec 34?
e) 13th Month Pay and Other Bene its. — Provided,
Amount received as Return of capital Taxpayers earning compensation income arising from personal services
however, That the total exclusion under this
return of premium rendered under an employer-employee relationship.
subparagraph shall not exceed Ninety thousand
pesos (P90,000). 1. Citizens and Resident Aliens whose income is purely
Gifts, bequests and Not a product of capital or industry
f) GSIS, SSS, Medicare and Other Contributions. compensation income;
devises
g) Gains from the Sale of Bonds, Debentures or other 2. NRA-NETB;
Compensation for Compensatory; not gain or pro it
Certi icate of Indebtedness. — Gains realized from 3. NRFC.
injuries or sickness
the same or exchange or retirement of bonds,
debentures or other certi icate of indebtedness with a a. General Rule — Deductions
Income exempt under Adherence to generally accepted principles
maturity of more than ive (5) years. ExInTaLoBaChaRePenDepDep
treaty of international law
★ Debentures are used for bonds, backed by 1) Expenses;
general credit of the issuer rather than a Retirement bene its, Gratuity for years of service
particular asset. They are unsecured pensions, gratuities 2) Interest;
liabilities. This is like a bank letting someone
Income received by To lessen the burden of foreign loans 3) Taxes;
owe money without any collateral.
foreign governments inasmuch as the interest of these loans are, 4) Losses;
h) Gains from Redemption of Shares in Mutual Fund.
from their investments by contractual arrangement, borne by
i) Income Derived from the Sale of Gold Pursuant to in PH domestic borrowers. 5) Bad Debts;
RA No. 7076. — Income derived from the following
transactions: ii. Distinguish: exclusions, deductions, and tax credits 6) Charitable Contributions;
i. The sale of gold to the BSP by registered Exclusions from gross income refer to a low of wealth to the 7) Research and Development;
small-scale miners and accredited traders; taxpayer which are not treated as part of gross income, for purposes
and
8) Pension;
of computing the taxpayer’s taxable income either because it is
ii. The sale of gold by registered small-scale exempted by the constitution, by statute, or it does not come within 9) Depreciations;
miners to accredited traders for eventual sale the de inition of income.
10) Depletion.
to the BSP. (RA 11256) Deductions from gross income are the amounts which the law
allows to be deducted from gross income in order to arrive at net EXPENSES
income.

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 203 of 269
CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

KINDS [CARTERS] ii) In carrying or which are directly attributable to the it failed the two conditions:
development, management, operation and/or conduct 1. irst, “reasonableness” of the amount incurred and
a) Compensation;
of the trade, business or exercise of profession;
2. second, the amount incurred must not be a capital outlay to
1. Must be reasonable; iii) Supported by adequate invoices or receipts; create “goodwill” for the product and/or private
2. Payment for actual services rendered. respondent’s business.
iv) Not contrary to law, public policy or moral;
Additional for Bonuses: The right to a deduction depends on a number of factors such as but
v) Not a bribe; not limited to:
3. Made in good faith; vi) Properly withheld appropriate tax; 1. the type and size of business in which the taxpayer is
4. Consider: vii) Limitation: engaged;
a. Nature of Business; 2. the volume and amount of its net earnings;
1) Sale of goods = 0.5% of net sales;
b. Financial capacity of taxpayer; AND 3. the nature of the expenditure itself;
2) Service = 1% of net revenue.
4. the intention of the taxpayer and the general economic
c. Extent of services rendered;
f) Repair and Maintenance; conditions.
5. General economic condition The subject media advertising expense for “Tang” was almost double
i) Ordinary - cost of repair increases the life of an
b) Advertising and Promotional Expense; asset for a period not more than 1 year; the amount of respondent corporation’s general and administrative
expenses. We ind the subject expense for the advertisement of a
To be deductible outright: ii) Extraordinary - > 1 year; Capitalized, subject to single product to be inordinately large. Therefore, even if it is
i) Must be reasonable; AND depreciation. necessary, it cannot be considered an ordinary expense.

ii) Incurred to stimulate current sales and not establish g) Supplies and Materials. — Must be actually consumed Advertising is generally of two kinds:
goodwill or future sales. during the taxable year. 1) advertising to stimulate the current sale of merchandise
h) Litigation Expense. — If incurred in the defense or or use of services - DEDUCTIBLE;
c) Rent;
protection of title = capital in nature, NOT deductible. 2) advertising designed to stimulate the future sale of
i) Required as condition for continued use or merchandise or use of services - SPREAD OUT.
Option to Private Educational Institutions:
possession; The second type involves expenditures incurred, in whole or in part,
a) Outright Method; OR to create or maintain some form of goodwill for the taxpayer’s trade
ii) Purpose is for trade, business, profession;
b) Spread-out Method = subject to depreciation. or business or for the industry or profession of which the taxpayer is
iii) Taxpayer not owner of property leased; a member.
iv) Subject to withholding tax of 5%. CIR v. General Foods on Advertising Expense
INTEREST
d) Travelling Expense; To be deductible from gross income, the subject advertising expense
must comply with the following requisites: Arbitrage rule
i) Reasonable and necessary;
a) the expense must be ordinary and necessary; The taxpayer’s allowable deduction for interest expense shall be
ii) Incurred or paid while away from home - station
b) it must have been paid or incurred during the taxable year; reduced by an amount equal to 33% of the interest income earned by
assignment or principal place of business;
c) it must have been paid or incurred in carrying on the trade him which has been subjected to inal tax.
iii) In the conduct of trade or business. or business of the taxpayer; and
Theoretical interest
e) Entertainment, Amusement and Recreational; d) it must be supported by receipts, records or other pertinent
papers. An interest computed for the purposes of determining the opportunity
i) Paid or incurred during taxable year; cost of investing in a business. This is not paid or incurred. Theoretical
The subject advertising expense was not ordinary on the ground that
interest income and theoretical interest expense is no longer

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 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

applicable in our jurisdiction since the interest must be stipulated in 7) Excess electric consumption tax; Excess of deductions over gross Loss from sale or exchange of
writing to be demandable.
8) Foreign income tax, war pro its and excess pro its tax - if used income for any taxable year capital asset
Non-deductible interest expense
as tax credit;
Additional deductible item from Capital losses are allowed only
1. Interest expense on preferred stock; 9) Paid for commodities not connected with business. gross income similar to other to the extent of capital gains
2. When there is no agreement in writing to pay interest; allowable deductions
Who may claim tax credit for taxes of foreign countries
3. On loan entered into between related taxpayers; 1) Resident Citizens; Holding period is NOT Holding period is applicable in
a. Members of family applicable case of individual taxpayer
2) Domestic Corporations;
i. Spouses; 3) Members of GPPS; Can be carried over in the next 3 Treated in the succeeding year
ii. Siblings; consecutive years immediately as a deduction as short-term
4) Bene iciaries of estates and trusts.
following the year of such loss capital loss from the net capital
iii. Descendants and ascendants. Options of Taxpayer quali ied for a credit gains in case of individual
b. Between 2 corporations owned and controlled by 1 taxpayer
1) Deducting the foreign income tax from gross income; or
individual; LOSSES ARISING FROM SECURITIES. When the securities which
2) Claiming tax credit.
c. Between a corporation and its majority shareholder; can be in the form of shares of stocks or loan receivables be
Limitations on Credit considered as worthless, the losses can be deducted. It will be
d. Parties to a trust
a) Per Country; worthless when the company loses operations in which the shares
i. Grant or Fiduciary;
belong.
b) Global.
ii. One grantor, different iduciaries;
China Banking Corp. v. CA on Worthless Securities
iii. Bene iciary and Fiduciary. LOSSES
An equity investment is a capital, not ordinary, asset of the
4. Interest paid or calculated for cost-keeping purposes; investor the sale or exchange of which results in either a capital gain
NET OPERATING LOSS CARRY OVER (NOLCO). The net operating
5. Paid in advance through discount; loss of the business or enterprise for any taxable year immediately or a capital loss. When the shares held by such investor become
worthless, the loss is deemed to be a loss from the sale or exchange
6. On obligation to inance petroleum exploration; preceding the current taxable year, which had not been previously
of capital assets. A capital gain or a capital loss normally requires the
offset as deduction from gross income shall be carried over as a
7. On unclaimed salaries of employees; concurrence of two conditions for it to result:
deduction from gross income for the next three (3) consecutive
1) There is a sale or exchange; and
8. 33% of the interest income subject to inal tax. years immediately following the year of such loss.
2) The thing sold or exchanged is a capital asset.
When NOLCO is not deductible
TAXES
1. Incurred during tax holiday; When securities become worthless, there is strictly no sale or
Exceptions: exchange but the law deems the loss anyway to be "a loss from the
2. Tax is based on gross income or receipts; sale or exchange of capital assets.”
1) Special Assessment;
3. OSD is claimed;
2) Income Tax; The loss of petitioner bank in its equity investment in the
4. MCIT is imposed; Hongkong subsidiary cannot be deductible as a bad debt. The
3) Not connected with trade, business, profession; shares of stock in question do not constitute a loan extended by it to
5. Substantial change in ownership (75%).
4) Estate, Donor’s; its subsidiary (First CBC Capital) or a debt subject to obligatory
NOLCO NCLCO repayment by the latter, essential elements to constitute a bad debt,
5) VAT; but a long term investment made by CBC.
6) Final Taxes;

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 205 of 269
CIVxTAX
In sum —
a) The equity investment in shares of stock held by CBC of
approximately 53% in its Hongkong subsidiary is not an
indebtedness, and it is a capital, not an ordinary, asset.
b) Assuming that the equity investment of CBC has indeed
become "worthless," the loss sustained is a capital, not an
ordinary, loss.
c) The capital loss sustained by CBC can only be deducted
from capital gains if any derived by it during the same
taxable year that the securities have become "worthless."
LOSSES FROM SHARE TRANSACTIONS. Losses from share
transactions can be claimed as deduction upon realization of the
loss. Shrinkage in value of shares of stocks cannot be used to claim
for the deduction as loss because you haven't realized it yet. Only if
you sold it then if there is any loss, you can claim it as a deduction.
LOSSES FROM WASH SALES. A wash sale is the buying or selling
of the same type of stock or security at a loss within 30 days before
the date of sale or 30 days after date of sale. It cannot be claimed as
allowable deduction.
WAGERING LOSSES. Losses from wagering transactions shall be
allowed only to the extent of the gains from such transactions.
CASUALTY LOSSES. The loss is caused by fortuitous event or force
majeure. Requisites for deductibility
a. Report to taxing authorities within 45 days from
occurrence of the loss;
b. Related to trade and business;
c. Evidenced by a closed and completed transaction
(perfected sale;
d. Actually sustained during the taxable year;
e. Must not be compensated by insurance or other forms of
indemnity.
ABANDONMENT LOSSES. In the event a contract area where
petroleum operations are undertaken is partially or wholly
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES For the 2020/21 #BestBarEver
abandoned, all accumulated exploration and development or purposes, or to the state for public purpose ,or would be
expenditures shall be allowed as a deduction. distributed by a court to another organization to be used in
such manner as in the judgment of said court shall best
BAD DEBTS accomplish the general purpose for which the dissolved
When are bad debts ascertained to be worthless? A court order is organization was organized.
necessary and the regular procedure is as follows:
RESEARCH AND DEVELOPMENT
1. Creditor sends a statement of Account to the debtor which
The deduction shall NOT apply
states the maturity date and amount due;
2. If no payment is made, then the creditor sends a collection 1. Any expenditure or the acquisition or improvement of land, or
letter to the debtor; for the improvement of property to be used in connection with
research and development of a character which is subject to
3. Still no payment is made, then the creditor‘s lawyer will send a
depreciation and depletion; and
formal demand letter to the debtor;
2. Any expenditure paid or incurred for the purpose of
4. Still failed to pay, then an action is iled in court for collection;
ascertaining the existence, location, extent, or quality of any
5. No payment despite the order of court, then the account will be deposit of ore or other mineral, including oil or gas.
considered as bad debt. TYPES OF R&D
CHARITABLE CONTRIBUTIONS 1. Not chargeable to capital account — deducted outright, Ex.
Project feasibility study;
Kinds of Charitable Contributions
2. Chargeable to a capital account — spread out or amortized
1. Ordinary – those subject to limitations as to the amount
over a period of 60 months.
deductible from gross income
a. 5% for Corporations; PENSION
b. 10% for Individuals. Current Service Cost is the cost of the services rendered from the
2. Special – deductible in full from gross income time the pension trust is set up until its retirement.
Conditions if Recipient is an NGO Past Service Cost is the cost of the services relating to those prior
to the setting up of the pension trust.
a. Organized and operated exclusively for the aforementioned
purposes or a combination thereof, no part of the net income of DEPRECIATION
which inures to the bene it of any private individual;
Depreciable amount or cost is the cost of an asset or other
b. The donation must be utilized not later than the 15th day of
amount substituted for cost, less its residual value.
the 3rd month following the close of its taxable year.(taxable
Salvage value is the estimated net amount currently obtainable if
year of the NGO concerned not the taxpayer);
the asset is at the end of the useful life. It is the value of the asset at
c. The administrative expense must not exceed 30% of total
the end of its useful life.
expenses;
Useful life is either the period over which an asset is expected to be
d. Upon dissolution, assets would be distributed to another
available for use by the entity, or the number of production or
nonpro it domestic corporation organized for similar purpose similar units expected to be obtained from the asset by the entity.
By RGL 206 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

METHODS OF DEPRECIATION The depletable amount is equivalent to the cost of the asset less receipts (for individuals), or gross income (for corporations),
salvage value, if any. as the case may be, in lieu of the itemized deductions.
1. Straight line method
Essential Factors 2. It may be availed of by:
Acquisition Cost − Salvage V alue
Annual Depreciation = U sef ul Lif e 1. Basis of the property; a. A citizen;
2. Declining balance method; 2. Estimated total recoverable units; AND
b. Resident alien;
3. Sum of the years digit method. 3. Number of units recovered during the taxable year.
c. Domestic corporation;
Kepco Phil. Corp. v. CIR b. Concept of Return of Capital
d. Resident foreign corporation;
"Capital goods or properties" refer to goods or properties The amount representing return of capital should be deducted from
e. Partnership; and
1. with estimated useful life greater than one year and the proceeds from sales of assets and should NOT be subject to
income tax. f. Taxable estate and trust.
2. which are treated as depreciable assets under Section 29
(f), Costs of goods purchased for resale, with proper adjustment for In other words, NRAs and NRFCs cannot claim OSD.
3. used directly or indirectly in the production or sale of opening and closing inventories, is deducted from gross sales in 3. With the election of OSD, there is no more need to substantiate
taxable goods or services. computing gross income. with receipts.
From petitioner's evidence, the account vouchers speci ically Payment of principal by a debtor to a creditor is deducted from the 4. Those not allowed to use OSD are
indicate that the disallowed purchases were recorded under total amount received by the latter in order to determine his interest
inventory accounts, instead of depreciable accounts. income. a. those that are exempt, with no other taxable income; or

A general ledger is a record of a business entity's accounts which
make up its inancial statements. Information contained in a general
ledger is gathered from source documents such as account vouchers,
purchase orders and sales invoices. In case of variance between
the source document and the general ledger, the former is
preferred.
DEPLETION
The exhaustion of natural resources like mines and oil and gas as
well as the result of production or severance from such mines or
wells. These are non-replaceable assets. This is applicable to
wasting asset entities.
Cost Depletion Method. The method allowed under the tax code is
the cost depletion method. This is similar to the unit of production
method. The depletable amount of the wasting asset is divided by
the units estimated to be extracted to obtain a depletion rate per
unit. The depletion rate per unit is then multiplied by the units
extracted during the year to arrive at the depletion for the period.
1) Sale of inventory of goods by manufacturers and b. those with income subject to a special or preferential
dealers of properties — That portion of the receipt tax rate.
representing return of capital is not subject to income tax. c. those earning purely compensation income.
Thus, cost of goods manufactured and sold or cost of sales 5. The taxpayer must signify in his return his intention to elect
is deducted from gross sales and is re lected above the the OSD. Such election shall be irrevocable for the taxable year
gross income line in pro it and loss statement. for which the return is made.
2) Sale of stock in trade by a real estate dealer and 6. A general professional partnership and the partners comprising
dealer in securities. such partnership may avail of the OSD only once, either by the
3) Sale of services — Generally, the entire gross receipts of GPP or the partners comprising the partnership.
sellers of services are treated as part of income. However, d. Requirements for deductible items
some have cost of services that must be deducted from
their gross receipt in order to arrive at their gross income. Deduction Requisites for Deductibility
c. Distinguish: Itemized Deductions Expenses a. Ordinary and necessary;
and Optional Standard Deduction b. Paid or incurred during the taxable year;
(OSD)
c. Paid or incurred in carrying on or which are
1. Optional Standard Deduction or OSD is a standard directly attributable to the development,
deduction of an amount not exceeding 40% of gross sales or

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CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

management, operation and/or conduct of the f. In the case of casualty loss, taxpayer must ile a c. Contribution must be made by the employer to
trade, business or exercise of profession; sworn declaration of loss within 45 days after the pension fund;
d. Supported by adequate invoices or receipts; the date of discovery of the casualty or robbery, d. Funded by the employer;
e. Not contrary to law, public policy or moral; theft or embezzlement.
e. Amount contributed must no longer be subject
f. Tax required to be withheld on the expense paid Bad Debt a. Arise from a valid and subsisting obligation; to the control and disposition of the employer;
or payable is shown to have been remitted to f. Payment has not yet been allowed as
b. Ascertained to be worthless;
the BIR. deduction;
c. Charged off and uncollectible within the taxable
Interest a. There must be an indebtedness; year; g. Deduction is apportioned in equal parts over a
period of 10 consecutive years beginning with
b. Paid or incurred upon such indebtedness; d. Uncollectible in the near future;
the year in which the transfer or payment is
c. Must be that of the taxpayer; e. Arise from trade or business or profession of made.
d. Connected with the trade, business or taxpayer.
Depreciation a. Property must be used in trade, business or
profession;
Charitable a. Contribution or gift must actually be paid; profession of the taxpayer;
e. Paid or incurred during taxable year; Contribution
b. Given to organizations speci ied in the tax code; b. There must be depreciable properties;
s
f. Interest must have been stipulated in writing;
c. Net income of the institution must not inure to c. Allowance for depreciation must be
g. Legally due; the bene it of any private stockholder or reasonable;
h. Not between related taxpayers; individual;
d. Depreciation must be charged off during the
i. Not incurred to inance petroleum operations; d. Made within the taxable year; taxable year;
j. Not treated as capital expenditure. e. Evidenced by adequate records or receipts; e. Statement of the allowance must be attached
f. Not exceed 10% in the case of individuals and to the return;
Taxes a. Paid or incurred during taxable year; 5% in the case of a corporation, of the f. Method for computing the allowance for
b. In connection with trade, business, profession. taxpayer‘s taxable income (except where the depreciation must be in accordance with the
donation is deductible in full) to be determined method prescribed by the SOF upon the
Losses a. Must be incurred in the trade, business, or without the bene it of the contribution. recommendation of the CIR.
profession of the taxpayer;
b. Actually sustained and charged off within the Research and a. Incurred during taxable year; Depletion a. Depletible asset — natural resources, i.e.
Development mines, gas and oil wells;
taxable year and not mere anticipated losses; b. In connection with trade or business.
c. Evidenced by a closed and completed b. Charged off within taxable year;
Pension a. Employer must have established a pension or
transaction; c. Allowance for depletion is computed in
retirement plan to provide for the payments of
d. Not be compensated by insurance or other reasonable pensions to his employees; accordance with cost depletion method.
forms of indemnity;
b. Pension plan is reasonable and actuarially e. Items not deductible
e. IIf partly compensated, only the amount not sound;
compensated by insurance is deductible; In computing net income, no deduction shall in any case be allowed
in respect to —

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 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

1) Personal, living or family expenses; 5) Between the iduciary of and the iduciary of a trust and the
iduciary of another trust if the same person is a grantor with
2) Any amount paid out for new buildings or for permanent
respect to each trust; or
improvements, or betterments made to increase the value of
any property or estate; 6) Between a iduciary of a trust and bene iciary of such trust.
(Sec 36)
Does not apply to intangible drilling and development costs
incurred in petroleum operations which are deductible under 5. Income Tax on Individuals
Sec 34(g)(1).
a. RC, NRC, RA
3) Any amount expended in restoring property or in making
i. Coverage
good the exhaustion thereof for which an allowance is or has
been made; or Individual Source of Income Tax Base
4) Premiums paid on any life insurance policy covering the life
RC Within and without Taxable income
of any of icer or employee, or of any person inancially
interested in any trade or business carried on by the taxpayer, NRC within Taxable income
individual or corporate, when the taxpayer is directly or
indirectly a bene iciary under such policy. RA within Taxable income
Losses from Sales or Exchanges of Property. — In computing net
NRA-ETB within Taxable income
income, no deductions shall in any case be allowed in respect of
losses from sales or exchanges of property directly or indirectly —
NRA-NETB within Gross income
1) Between members of a family. — brothers and sisters,
spouse, ancestors, and lineal descendants; or ii. Taxation on compensation income
2) Except in the case of distributions in liquidation, between an a) Inclusions
individual and corporation more than ifty percent (50%) in All remuneration for services rendered by an employee for his
value of the outstanding stock of which is owned, directly or employer unless speci ically excluded. It includes
indirectly, by or for such individual; or
a) salaries, wages, emoluments,
3) Except in the case of distributions in liquidation, between two
corporations more than ifty percent (50%) in value of the b) honoraria,
outstanding stock of which is owned, directly or indirectly, by c) bonuses,
or for the same individual if either one of such corporations,
d) allowances,
with respect to the taxable year of the corporation preceding the
date of the sale of exchange was under the law applicable to e) fringe bene its including director’s fee,
such taxable year, a personal holding company or a foreign
f) taxable pensions and retirement pay and
personal holding company;
g) other income of similar nature including those paid in
4) Between the grantor and a iduciary of any trust; or
kind.
i) COLA, PERA, housing allowance, OT pay, Emergency
pay, Hazard pay, Rice and clothing allowance, Medical
allowance, grocery allowance.
b) Exclusions
a) Compensation for services rendered by an independent
contractor;
b) Amounts paid either as advances or reimbursement for
transportation, representation, and other bona ide
ordinary and necessary expenses incurred in the
performance of duties unless there is an excess over actual
expenses;
c) Income derived by partner from professional partnership.
d) Convenience of the Employer Rule. — bene its which are
given for the exclusive bene it or convenience of the
employer.
e) De minimis bene its.
iii. Taxation of business income/income from practice of
profession
a) Schedular
1. RC – 0-35% of net income within & without;
2. NRC – 0-35% on net income within;
3. RA – 0-35% of net income within;
4. NRA-ETB – 0-35% of net income within;
5. NRA-NETB – 25% of gross income within;
6. Estates & Trusts – 0-35% of net income;
7. Special Employees – 15% of gross compensation income.
b) 8% option
Self-employed individuals and/or professionals shall have the
option to avail of an eight percent (8%) tax on gross sales or
gross receipts and other non-operating income in excess of
Php250K in lieu of the graduated income tax rates and the
percentage tax. Rules on availing the 8% tax rate

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 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

a) The irst Php250K is not subject to tax; For RC, NRC, RA Gross amount of income within PH 25%
b) This is in lieu of the 3% percentage tax; Royalties, in general 20% BDO v. Republic 2015 Leonen En Banc
c) Taxpayer must signify intention to use this option in the 1st From the point of view of the inancial market, the phrase “at any one
- Books, literary and musical compositions 10%
quarter percentage or income tax return. Otherwise, graduated time” for purposes of determining the “20 or more lenders” would
rates apply. Prizes and Winnings - P10K or less 0-35% mean every transaction executed in the primary or secondary
market in connection with the purchase or sale of securities.
d) Mixed income earners are not entitled to the Php250K
- > P10K 20%
reduction. Where the inancial assets involved are government securities like
PCSO and Lotto winnings - P10K or less EXEMPT bonds, the reckoning of “20 or more lenders/investors” is made at
e) This option is NOT available to:
any transaction in connection with the purchase or sale of the
i) Purely compensation income earners; - > P10K 20% Government Bonds. Consequently, the seller is required to
withhold the 20% inal withholding tax on the imputed interest
ii) VAT-registered taxpayers, regardless of gross sales or income from the bonds.
Interest income from FCDU 15%
receipts;
Cash and Property Dividends - Individual to DC 10% It must be emphasized that debt instruments that do not qualify as
iii) Non-VAT taxpayers whose gross sale or receipts and other deposit substitutes under the 1997 NIRC are subject to the regular
non-operating income > Php3M; income tax. For discounted instruments, like the zero-coupon
- DC to DC 0%
bonds, the trading gain shall be the excess of the selling price over
iv) Taxpayers subject to OPT except those under Sec 116.
Interest on long-term deposit or investment in banks the book value or accreted value (original issue price plus
v) Partners of a GPP since their distributive share is already EXEMPT accumulated discount from the time of purchase up to the time of
(With maturity of at least 5 years)
net of costs and expenses; and sale) of the instruments.
Plus NRA-ETB
vi) Individuals enjoying income tax exemption, i.e. BMBEs. The BIR’s interpretation of “at any one time” to mean at the
Interest from currency deposits, trust funds and 20% point of origination alone is unduly restrictive.
iv. Taxation of partners in a general professional partnership
deposit substitutes
Tax treatment of income derived
1. A GPP is not a taxable entity for income tax purposes because it
from the PEACe Bonds
only acts as a pass-through entity where its income is Interest Income from long-term deposit or investment EXEMPT
ultimately passed to the partners. Should there have been a simultaneous sale to 20 or more
- Upon pre-termination with Holding period of 5%
lenders/investors, the PEACe Bonds are deemed deposit
2. The GPP may avail of itemized deductions or the 40% OSD. 4-5 years
substitutes. Under Section 24 of the 1997 NIRC, interest income
3. The GPP then distributes the net income to the partners. The received by individuals from long-term deposits or investments with
- 3-4 years 12%
share of the partner is taxable income of each partner. a holding period of not less than ive (5) years is exempt from the
inal tax.
- < 3 years 20%
4. The partners then cannot claim further deductions from their
distributive share. Thus, should the PEACe Bonds be found to be within the coverage of
ALL, including NRA-NETB
deposit substitutes, the proper procedure was for the Bureau of
5. The partners cannot also avail of the 8% income tax rate with Treasury to pay the face value of the PEACe Bonds to the bondholders
Capital gains 6%
regard to his share from the GPP. and for the BIR to collect the unpaid inal withholding tax
directly from RCBC Capital/CODE-NGO, or any lender or investor
v. Taxation of passive income Capital gains for shares of stock not traded 15%
if such be the case, as the withholding agents.
Passive Income Rate Only NRA-NETB

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 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

Provided, that such is automatically converted to CAPITAL Republic v. Sps Salvador 2017
vi. Taxation of capital gains
assets upon showing proof that they have not been used in 1. It is settled that the transfer of property through
a) Income from sale of shares of stock of a Philippine business for more than 2 years prior to the consummation of expropriation proceedings is a sale or exchange within
corporation — the following rules shall apply: the taxable transaction. the meaning of Sections 24(D) and 56(A)(3) of the NIRC,
a. For common shares of stock, the book value based on the b. Change of hands to recipient not engaged in real estate or to use and pro it from the transaction constitutes capital gain. Since
latest available inancial statements. in business: capital gains tax is a tax on passive income, it is the seller, or
i. Succession or donation - CAPITAL; respondents in this case, who are liable to shoulder the tax.
b. For preferred shares of stock, the liquidation value,
which is equal to the redemption price of the preferred ii. As dividend - CAPITAL; 2. As far as the government is concerned, the capital gains tax
shares. in expropriation proceedings remains a liability of the
iii. Exchange - ORDINARY; seller, as it is a tax on the seller's gain from the sale of real
c. The latest audited inancial statements shall be suf icient
iv. Involuntary Transfers - NO EFFECT. property.
in determining the fair market value of the shares of stock
subject of the sale, barter, exchange, or other disposition. CONDITIONALLY EXEMPT FROM CGT b. NRA-ETB
(RR 20-2020) a) Proceeds of sale of the principal residence have been fully Please see Taxation of Passive Income (5[a][v])
utilized in acquiring a new one within 18 months from date of
b) Income from sale of real property situated in the c. NRA-NETB
sale;
Philippines;
b) The historical cost or adjusted basis of RP sold will be carried Please see Taxation of Passive Income (5[a][v])
c) Income from sale, exchange, and other disposition of other
over to the new PR; a) 25% Gross Income Tax;
capital assets.
c) CIR has been duly noti ied, through a prescribed return, within
Type Rate Basis b) CGT on sale of shares of stock not traded in the LSE;
30 days, from date of sale of intention to avail of tax
exemption. c) CGT on sale of real property located in PH.
Sale of shares of stocks not 15% Net Capital Gains
traded d) Net of proceeds not utilized will be subject to CGT. d. Special Aliens

- Listed and Traded
Sale of real property located
in PH
Sale of other capital assets
0.6% Gross Selling Price e) Buyer of principal residence shall deduct 6%, deposit in cash 1. Aliens employed by regional headquarters, regional operating
or manager’s check in an interest-bearing account with an headquarters, offshore banking units, and petroleum service
6% GSP, FMV, higher Authorized Agent Bank under an Escrow Agreement. contractors.
EXEMPT ENTITIES FROM CGT 2. They are now subject to the regular income tax rate without
1) Dealer in securities; prejudice to preferential rates under existing tax treaties.

2) Exempt under special laws; e. Individual taxpayers exempt from income tax
- > 12 Months 0-35% 50% of CG
3) Exchange of real property solely for shares of stock resulting in i. Minimum wage earner
- 12 Months or less 0-35% 100% of CG corporate control;
Statutory minimum wage shall refer to the rate ixed by the
RULES 4) GOCC selling real property; RTWPB, as de ined by the Bureau of Labor and Employment
a. Real properties formerly forming part of the stock in trade of a 5) Disposition is gratuitous; Statistics (BLES) of DOLE.
taxpayer engaged in real estate or formerly used in trade or
business which were later on abandoned continue to be treated 6) Pursuant to CARP Law; Minimum wage earner shall refer to a worker in the private sector
as ORDINARY assets. 7) Requirements above have been met, reg. principal residence. paid the statutory minimum wage or to an employee in the public
sector with compensation income of not more than the statutory

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 211 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

minimum wage in the non-agricultural sector where he/she is

NRA- If greater than MCIT If greater than RCIT
assigned. 25% GIT on all income from PH sources (FINAL TAX)
NETB
Relief from the Minimum Corporate Income Tax Under Certain
The proper interpretation of R.A. 9504 is that it imposes taxes only
6. Income Tax on Corporations Conditions. — Imposition of MCIT is suspended on any
on the taxable income received in excess of the minimum wage, but
corporation
the MWEs will not lose their exemption as such. (Soriano v. a. Domestic corporations
Secretary of Finance 2017 En Banc) 1. which suffers losses on account of prolonged labor
i. Taxation - in general dispute, or
ii. Exemptions granted under international agreements
a) Regular Corporate Income Tax (RCIT) 2. because of force majeure, or
1. Of icers and staff of the ADB who are NOT PH nationals shall
Regular Corporate Income Tax — effective January 1, 2009, the rate 3. because of legitimate business reverses.
be exempt from PH income tax.
of income tax shall be thirty percent (30%). "Substantial losses from a prolonged labor dispute" means
2. Alien individual employees of foreign embassies or
b) Minimum Corporate Income Tax (MCIT) losses arising from a strike staged by the employees which lasted
international organizations in PH are exempt from our income
for more than six (6) months within a taxable period and which
tax based on the international agreements entered into by PH Under the MCIT scheme, a corporation,
has caused the temporary shutdown of business operations.
with said international organizations or under the Vienna
1. beginning on its fourth year of operation,
Convention. Gross Income De ined
2. is assessed an MCIT of 2% of its gross income
Resume of Individual Income Taxation 1. gross income = gross sales — sales returns, discounts and
3. when such MCIT is greater than the normal corporate income allowances and cost of goods sold.
Passive Income (FINAL TAX RATE) tax imposed under Section 27(A).
Kind of Ordinary 2. 'Cost of goods sold' shall include all business expenses
Individual Income Prizes & If the regular income tax is higher than the MCIT, the corporation does directly incurred to produce the merchandise to bring them to
Royalties Interest Dividend
Winning not pay the MCIT. Any excess of the MCIT over the normal tax shall be their present location and use.
carried forward and credited against the normal income tax for the
RC, NRC, RA GR: 20% GR: 20% 20% if From DC 3. In the case of taxpayers engaged in the sale of service,
three immediately succeeding taxable years.
>10K is 10% gross income = gross receipts — sales returns, allowances,
Purely Schedular 10% for 15% for Carry Forward of Excess Minimum Tax. — Any excess of the MCIT
Compensation discounts and cost of services.
books, EFCD; Part of GI From FC: over the normal income tax shall be carried forward and credited
Schedular literary exempt if 10K or against the normal income tax for the three (3) immediately succeeding 4. 'Cost of services' shall mean all direct costs and expenses
Business
and or 8% works for NRC < Part of GI taxable years. necessarily incurred to provide the services required by the
Professional GIT and for RC customers and clients including
music 5, 12, Lotto or RCIT MCIT
20% for PCSO is Exempt a. salaries and employee bene its of personnel,
Apply
pre- 20% exc for NRC Applicable to ALL corporate TPs DC and RFC only consultants and specialists directly rendering the
Mixed both
terminated 10K or < and RA service and
rules
long term Tax rate 30% 2%
b. cost of facilities directly utilized in providing the
From DC Tax base Taxable Income Gross Income service such as depreciation or rental of equipment
Same but is 20% used and cost of supplies.
NRA-
GITR Same exempt Same When Upon Beginning on the 4th taxable
ETB c. In the case of banks, 'cost of services' shall include
for EFCD From FC imposable commencement year following commencement
is exempt of business operation interest expense.
Exceptions to MCIT

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 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

Corporations subject to special tax rates are exempt from MCIT:
1. Proprietary Educational Institutions that are subject to the
preferential 10% rate;
2. Non-pro it Hospitals that are subject to the preferential 10%
rate;
For (1) and (2), the income derived from unrelated trade,
business, or activity should not exceed 50% of the gross
income.
3. PEZA-registered entities for registered activities that are
subject to 5% preferential rate;
4. Offshore Banking Units;
5. International Carriers subject to 2.5% of Gross Philippine
Billings.
Aegis PeopleSupport, Inc. v. CIR 2019
Section 4 of R.A. No. 7916 provides that enterprises located within
the recognized economic or trade zones "are granted preferential tax
treatment." Any income earned by a PEZA-registered enterprise
which is NOT related to its registered activities is NOT covered
by the incentives granted under R.A. No. 7916 and EO No. 226.
A hedge is an investment undertaken to reduce the risk of adverse
price movements in an asset. Simply put, it is a loose form of
insurance against value or price luctuations of a particular
asset. Any occurring luctuation in local currency value before the
conversion of foreign currency does not result in the realization of
any gain or loss.
In the instant case, petitioner may validly enter into a hedging
contract to manage its foreign currencies on-hand earned as gross
revenues. Consequently, the Court considers hedging to be very
much related to its registered activities and, hence, still subject
to a preferential tax treatment under RA 7916 and EO 226.
Manila Bankers' Life Insurance Corp. v. CIR 2019
"Gross income" as used in determining MCIT means "gross receipts
less sales returns, allowances, discounts and cost of services." "Cost
of services" means all DIRECT costs and expenses necessarily
incurred to provide the services required by the customers and
clients.
The claimed deduction should be a direct cost or expense. A
cost or expense is deemed "direct" when it is readily attributable to
the production of the goods or for the rendition of the service.
Premium taxes, though payable by MBLIC, are not direct costs
within the contemplation of the phrase "cost of services," incurred
as they are AFTER the sale of service had already transpired.
This cannot therefore be considered as the equivalent of raw
materials, labor, and manufacturing cost of deductible "cost of sales"
in the sale of goods.
Association of International Shipping Lines, Inc.et al. v. SOF 2020
WON demurrage and detention fees are subject to the preferential
tax rate of 2.5% of Gross PH Billings.
NO. They are properly regular income subject to regular income
tax rate. The GPB covers gross revenue derived from transportation
of passengers, cargo and/or mail originating from the Philippines up
to the inal destination. Any other income, therefore, is subject to the
regular income tax rate.
The exclusion of demurrage and detention fees from the preferential
rate of 2.5% is proper since they are not considered income
derived from transportation of persons, goods and/or mail, in
accordance with the rule expressio unios est exclusio alterius.
Demurrage and detention fees de initely form part of an international
sea carrier's gross income. For they are acquired in the normal
course of trade or business.
c) Taxation of passive income
Passive Income Rate
Interest under the expanded foreign currency deposit
15%
(EFCD) system
Royalty of all types within PH 20%
- From abroad 30%
Interest on any current bank deposit, yield or other 20%
monetary bene its from deposit substitute, trust fund
and similar arrangement
Intercorporate dividend from other DCs EXEMPT
Tax Rate of Banks on income derived under the EFCD System
Income derived by a depository bank from foreign
EXEMPT
currency transactions with nonresidents, OBUs
Interest income from foreign currency loans granted
10%
by a bank to residents other than OBUs
d) Taxation of capital gains
On sale of shares of stock of a DC NOT 15% of net capital
traded through a local stock exchange held gains
as a capital asset
On sale of real property in PH held as a 6% of GSP or current
capital asset MV whichever is higher
If shares of stock are listed and traded 6/10 of 1% of GSP or
through LSE gross value
If shares not traded through the LSE 15% of net capital
gains
e) Improperly accumulated earnings tax
a) In General. — In addition to other taxes imposed by this Title,
there is hereby imposed for each taxable year on the
improperly accumulated taxable income of each corporation an
improperly accumulated earnings tax equal to ten percent
(10%) of the improperly accumulated taxable income.
b) Tax on Corporations Subject to Improperly Accumulated
Earnings Tax. —
1) In General. - The IAET imposed shall apply to every
corporation formed or availed for the purpose of
avoiding the income tax with respect to its
shareholders or the shareholders of any other

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CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

corporation, by permitting earnings and pro its to hospitals from all sources, the tax prescribed in Subsection (A)
a. Allowance for the increase in the accumulation of
accumulate instead of being divided or distributed. hereof shall be imposed on the entire taxable income.
earnings up to 100% of the paid-up capital;
2) Exceptions. - The IAET shall not apply to: For purposes of this Subsection, the term 'unrelated trade, business
b. For de inite corporate expansion projects or programs
or other activity' means any trade, business or other activity, the
a. Publicly-held corporations; requiring considerable capital expenditure;
conduct of which is not substantially related to the exercise or
b. Banks and other nonbank inancial c. For building, plants, or equipment acquisition; performance by such educational institution or hospital of its
intermediaries; and primary purpose or function.
d. For compliance with any loan covenant or pre-existing
c. Insurance companies; obligation; A 'proprietary educational institution' is any private school
d. Taxable partnerships; e. Earnings required by law or regulations to be retained; maintained and administered by private individuals or groups with
an issued permit to operate from the DepEd, or CHED, or TESDA, as
e. Foreign corporations. f. In the case of subsidiaries of FCs in PH, all the case may be, in accordance with existing laws and regulations.
undistributed earnings intended for investments
c) Evidence of Purpose to Avoid Income Tax. —
within PH. CIR v. St. Luke’s Medical Center 2012
1) Prima Facie Evidence. - the fact that any corporation
Cyanamid Philippines, Inc. v. CA on IAET The Constitution exempts charitable institutions only from real
is a mere holding company or investment company
shall be prima facie evidence of a purpose to avoid the In order to determine whether pro its are accumulated for the property taxes. In the NIRC, Congress decided to extend the
reasonable needs of the business to avoid the surtax upon exemption to income taxes. Section 30(E) of the NIRC provides that a
tax upon its shareholders or members.
shareholders, it must be shown that the controlling intention of charitable institution must be:
2) Evidence Determinative of Purpose. - The fact that the taxpayer is manifested at the time of accumulation, not
the earnings or pro its of a corporation are permitted 1) A non-stock corporation or association;
intentions declared subsequently, which are mere afterthoughts.
to accumulate beyond the reasonable needs of the Furthermore, the accumulated pro its must be used within a 2) Organized exclusively for charitable purposes;
business shall be determinative of the purpose to reasonable time after the close of the taxable year. 3) Operated exclusively for charitable purposes; and
avoid the tax upon its shareholders or members unless 4) No part of its net income or asset shall belong to or inure to
To determine the ‘reasonable needs’ of the business in order to
the corporation, by the clear preponderance of the bene it of any member, organizer, of icer or any speci ic
justify an accumulation of earnings, the Courts of the United States
evidence, shall prove to the contrary. person.
have invented the so-called ‘Immediacy Test’ which construed the
d) Improperly Accumulated Taxable Income. — means taxable
words ‘reasonable needs of the business’ to mean the immediate Thus, both the organization and operations of the charitable
income adjusted by: needs of the business, and it was generally held that if the institution must be devoted “exclusively” for charitable purposes.
a. Income exempt from tax; corporation did not prove an immediate need for the accumulation of Likewise, to be exempt from income taxes, Section 30(G) of the NIRC
the earnings and pro its, the accumulation was not for the reasonable requires that the institution be “operated exclusively” for social
b. Income excluded from gross income; needs of the business, and the penalty tax would apply. welfare. However, the last paragraph of Section 30 of the NIRC
c. Income subject to inal tax; and quali ies the words “organized and operated exclusively.” In short,
ii. Proprietary educational institutions and non-profit hospitals the last paragraph of Section 30 provides that if a tax exempt
d. The amount of net operating loss carry-over deducted; charitable institution conducts “any” activity for pro it, such
Proprietary educational institutions and hospitals which are
activity is NOT tax exempt even as its not-for-pro it activities
And reduced by the sum of: nonpro it shall pay a tax of ten percent (10%) on their taxable remain tax exempt.
a. Dividends actually or constructively paid; and income except those covered by Subsection (D) hereof:
St. Luke’s fails to meet the requirements under Section 30(E) and (G)
b. Income tax paid for the taxable year. Provided, that if the gross income from 'unrelated trade, of the NIRC to be completely tax exempt from all its income.
business or other activity' exceeds ifty percent (50%) of the However, it remains a proprietary non-pro it hospital under Section
e) Reasonable Needs of the Business. — includes the total gross income derived by such educational institutions or 27(B) of the NIRC as long as it does not distribute any of its pro its to
reasonably anticipated needs of the business.

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 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

its members and such pro its are reinvested pursuant to its corporate
purposes. St. Luke’s, as a proprietary non-pro it hospital, is
entitled to the preferential tax rate of 10% on its net income
from its for-pro it activities.
La Sallian Educational Innovators Foundation v. CIR 2019
No less than the 1987 Constitution expressly exempt ALL revenues
and assets of non-stock, non-pro it educational institutions from
taxes provided that they are actually, directly and exclusively used for
educational purposes. This constitutional exemption is reiterated in
Section 30 (H) of the 1997 Tax Code, as amended.
Based on jurisprudence and tax rulings, a taxpayer shall be granted
with this tax exemption after proving that:
1) it falls under the classi ication of non-stock, non-pro it
educational institution; and
2) the income it seeks to be exempted from taxation is used
actually, directly and exclusively for educational
purposes.
Article XIV, Section 4(3) does not require that the revenues and
income must have also been earned from educational activities or
activities related to the purposes of an educational institution. The
phrase "all revenues" is unquali ied by any reference to the source of
revenues. Thus, so long as the revenues and income are USED
actually, directly and exclusively for educational purposes, then
said revenues and income shall be exempt from taxes and
duties.
iii. GOCCs, agencies, instrumentalities
1) The provisions of existing special or general laws to the
contrary notwithstanding, all corporations, agencies, or
instrumentalities owned or controlled by the Government,
SHALL PAY such rate of tax upon their taxable income as are
imposed by this Section upon corporations or associations
engaged in a similar business, industry, or activity
except
a) the Government Service Insurance System (GSIS),
b) the Social Security System (SSS),
c) the Philippine Health Insurance Corporation (PHIC), b. Resident foreign corporations
and
i. Taxation - in general
d) the local water districts.
PAGCOR v. BIR, 2014
We uphold our earlier ruling that Section 1 of R.A. No. 9337,
amending Section 27(c) of R.A. No. 8424, by excluding petitioner
from the enumeration of GOCCs exempted from corporate income tax,
is valid and constitutional. In addition, we hold that:
1. Petitioner’s tax privilege of paying ive percent (5%)
franchise tax in lieu of all other taxes with respect to its
income from gaming operations, pursuant to P.D. 1869, as
amended, is not repealed or amended by Section 1(c) of R.A.
No. 9337;
2. Petitioner’s income from gaming operations is subject to
the ive percent (5%) franchise tax only; and
3. Petitioner’s income from other related services is subject
to corporate income tax only.
iv. Foreign currency deposit units
Income derived by a depository bank under the expanded foreign
currency deposit system from foreign currency transactions with
non-residents, offshore banking units in the Philippines, local
commercial banks including branches of foreign banks that may be
authorized by the BSP to transact business with foreign currency
deposit system shall be EXEMPT from all taxes, except net income
from such transactions.
Interest income from foreign currency loans granted by such
depository banks under said expanded system to residents other
than offshore banking units in the Philippines or other depository
banks under the expanded system, shall be subject to a inal tax at
the rate of ten percent (10%).
Any income of nonresidents, whether individuals or corporations,
from transactions with depository banks under the expanded
system shall be EXEMPT from income tax.
a) Regular Corporate Income Tax (RCIT)
Same with DC
b) Minimum Corporate Income Tax (MCIT)
Same with DC
c) Branch Pro its Remittance Tax (BPRT)
Any pro it remitted by a branch to its head of ice shall be subject to
a tax of 15% which shall be based on the total pro its applied or
earmarked for remittance without any deduction for the tax
component thereof except those activities which are registered with
the PEZA.
Interests, dividends, rents, royalties, including remuneration for
technical services, salaries, wages premiums, annuities,
emoluments or other ixed or determinable annual, periodic or
casual gains, pro its, income and capital gains received by a foreign
corporation during each taxable year from all sources within the
Philippines shall not be treated as branch pro its unless the
same are effectively connected with the conduct of its trade or
business in the Philippines.
d) Taxation of passive income
Passive Income Rate
Interest under the expanded foreign currency deposit
7.5%
(EFCD) system
Royalty of all types within PH 20%
- From abroad EXEMPT
Interest on any current bank deposit, yield or other
monetary bene its from deposit substitute, trust fund 20%
and similar arrangement
Intercorporate dividend from DCs EXEMPT

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 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

offshore banking units, local commercial banks, including branches

e) Taxation of capital gains j) data processing and communications; and
of foreign banks that may be authorized by the BSP to transact
business with offshore banking units shall be EXEMPT from all k) business development.
On sale of shares of stock of a DC NOT traded through a local stock
exchange held as a capital asset taxes except net income from such transactions.
ROHQs are taxed 10% on taxable income.
Any interest income derived from foreign currency loans granted to
5% of net capital c. Non-resident foreign corporations (NRFC)
- Capital gains not over Php100K residents other than offshore banking units or local commercial
gains
banks, including local branches of foreign banks that may be i. Taxation of NRFC in general
10% of net capital authorized by the BSP to transact business with offshore banking
- Capital gains > Php100K NRFCs are subject to 30% income tax on gross income derived
gains units, shall be subject only to a inal tax at the rate of 10%.
during each taxable year from all sources within PH.
On sale of real property in PH 30% RCIT Any income of nonresidents, whether individuals or corporations, Passive Income Rate
from transactions with said offshore banking units shall be
ii. Resident foreign corporations subject to preferential tax rates EXEMPT from income tax. Interest on foreign loans, i.e. lending to DC 20%
a) International carriers c) Regional or area headquarters and regional operating
Intercorporate dividend from DC
headquarters - Subject to a condition that the country of
An international carrier doing business in the Philippines shall pay
a tax of 2.5% on its 'Gross Philippine Billings.' 1) RAHQ is a branch established by multinationals which domicile of the NRFC allows a credit against 15%
the tax due from the NRFC taxes deemed to
1. Under RA 10378, international carriers doing business in PH a) Do not earn or derive income from PH; and have been paid in PH equivalent to 15%.
may avail of a preferential rate or exemption from tax based on b) Acts as supervisory, communications and - Otherwise 30%
a) A treaty or international agreement; or coordinating center for their af iliates, subsidiaries or
branches in the Asia-Paci ic. ii. NRFCs subject to preferential tax rates
b) The basis of reciprocity.
RAHQs are EXEMPT from income tax. 1) Cinematographic Film Owner, Lessor or Distributor. —
2. GPB refers to
2) ROHQ is a branch engaged in any of the following services: 25%;
a) Gross revenue derived from carriage of persons,
excess baggage, cargo and mail; a) general administration and planning; 2) Owner or Lessor of Vessels Chartered by Philippine
Nationals. — 4% of gross rentals, lease or charter fees from
b) Originating from PH in a continuous and uninterrupted b) business planning and coordination;
leases or charters to Filipino citizens or corporations, as
light; c) sourcing and procurement of raw materials and approved by MARINA;
c) Irrespective of the place of sale or issue and the place components;
3) Owner or Lessor of Aircraft, Machineries and Other
of payment of the ticket. d) corporate inance advisory services; Equipment. — 7.5% of gross rental or fees.
3. Note that for international shippers, demurrage and detention e) marketing control and sales promotion; CIR v. Interpublic Group of Companies 2019
fees are NOT part of GPB as they are subject to the regular
income tax rate. (Association of International Shipping Lines v. f) training and personnel management; Can an NRFC which collects dividends from the Philippines sue here
SOF 2020 case) to claim tax refund?
g) logistic services;
b) Foreign currency deposit units and o shore banking units h) research and development services and product YES. Mere investment as a shareholder by a foreign
development; corporation in a duly registered domestic corporation shall
Income derived by offshore banking units authorized by the BSP,
NOT be deemed "doing business" in the Philippines. It is clear
from foreign currency transactions with non-residents, other i) technical support and maintenance;

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 216 of 269
CIVxTAX
then that the IGC's act of subscribing shares of stocks from McCann,
maintaining investments therein, and deriving dividend income
therefrom, does not qualify as "doing business" contemplated under
R.A. No. 7042. Hence, the IGC is not required to secure a license
before it can ile a claim for tax refund.
The general rule that a foreign corporation is the same juridical
entity as its branch of ice in the Philippines cannot apply here. When
the foreign corporation transacts business in the Philippines
independently of its branch, the principal-agent relationship is set
aside.
The RP-US Tax Treaty created a treaty obligation on the part of the US
that it "shall allow" to a US parent corporation receiving dividends
from its Philippine subsidiary "a tax credit for the appropriate
amount of taxes paid or accrued to the Philippines by the said
Philippine subsidiary. The IGC, being a non-resident US corporation
is quali ied to avail of the aforesaid 15% preferential tax rate on
the dividends it earned from the Philippines. It was proven that the
country which it was domiciled shall grant similar tax relief/credit
against the tax due upon the dividends earned from sources within
the Philippines. Clearly, the IGC has made an overpayment of its
tax due of FWT by using the 35% tax rate.
Since the RP-US Tax Treaty does not provide for any other
prerequisite for the availment of the bene its under the said treaty, to
impose additional requirements would negate the availment of the
reliefs provided for under international agreements.
d. Corporations exempt from income tax
a) Labor, agricultural or horticultural organization not organized
principally for pro it;
b) Mutual savings bank not having a capital stock represented by
shares, and cooperative bank without capital stock organized
and operated for mutual purposes and without pro it;
c) Bene iciary society, order or association, operating for the
exclusive bene it of the members such as a fraternal
organization operating under the lodge system, or mutual aid
association or a nonstock corporation organized by employees
providing for the payment of life, sickness, accident, or other
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES For the 2020/21 #BestBarEver
bene its exclusively to the members of such society, order, or GR: These entities are exempt from income tax because they
association, or nonstock corporation or their dependents; are not intended for pro it. They earn income to
d) Cemetery company owned and operated exclusively for the realize their purpose.
bene it of its members; EXC: They can still be subject to tax regardless of the
e) Nonstock corporation or association organized and operated disposition of income
exclusively 1. Earned income of whatever kind and character by using
their property, real or personal.
i) for religious, charitable, scienti ic, athletic, or cultural
purposes, or 2. Income from activities conducted for pro it.
ii) for the rehabilitation of veterans, EXC to EXC:
no part of its net income or asset shall belong to or inure to the Article XIV, Section 4 of the Constitution provides that: ―
bene it of any member, organizer, of icer or any speci ic person; All revenues and assets of non-stock, non-pro it
educational institutions used actually, directly, and
f) Business league chamber of commerce, or board of trade,
exclusively for educational purposes shall be exempt from
not organized for pro it and no part of the net income of
taxes and duties.
which inures to the bene it of any private stock-holder, or
individual; In short, to be exempt
g) Civic league or organization not organized for pro it but 1. The corporation passed the
operated exclusively for the promotion of social welfare;
a. Organizational Test — constitutive documents must
h) A nonstock and nonpro it educational institution; show that its primary purpose of incorporation fall
i) Government educational institution; under Sec 30 of the NIRC; and
j) Farmers' or other mutual typhoon or ire insurance b. Operational Test — the regular activities must be
company, mutual ditch or irrigation company, mutual or exclusively devoted to the accomplishment of such
purpose.
cooperative telephone company, or like organization of a purely
local character, the income of which consists solely of 2. Must be non-pro it — Non-inurement Rule. What are
assessments, dues, and fees collected from members for the considered as inurements:
sole purpose of meeting its expenses; and
a. Payment of compensation, salaries, or honorarium to
k) Farmers', fruit growers', or like association organized and
its trustees or organizers;
operated as a sales agent for the purpose of marketing the
products of its members and turning back to them the proceeds b. Payment of exorbitant or unreasonable compensation
of sales, less the necessary selling expenses on the basis of the to its employees;
quantity of produce inished by them; c. Provision of welfare aid and inancial assistance to its
The income of whatever kind and character of the foregoing members; except life, sickness, accident and other
organizations from any of their properties, real or personal, or from any bene its.
of their activities conducted for pro it regardless of the disposition
d. Donation to any person or entity;
made of such income, shall be subject to tax.
By RGL 217 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

e. Purchase of goods or services in excess of the FMV Partner’s distributive 4. The professional partners can no longer claim further
Will form part of
from an entity in which one or more trustees, of icers share in the net income deduction from their distributive share regardless of method
partner’s gross income
or iduciaries have an interest; and Distributive is subject to a 10% used in claiming deduction;
in the ITR subject to
share inal tax, except for
f. When upon dissolution and satisfaction of all graduated income tax 5. However, if the partner also derives other income outside the
NRA-ETB which is
rates
liabilities, its remaining assets are distributed to its subject to 20% GPP, then the deduction from the other income would either be
trustees, organizers, of icers or members. ID or OSD.
May be claimed as a
Requisites for the Tax Exemption under Sec 30 exc Non-Stock, Partner’s share NOT deductible since 7. Filing of Returns and Payment
deductible expense in
Non-Pro it Educational Institution (RMO 38-2019) in net loss subject to inal tax.
his personal ITR
a. Individual return
a) It is a non-stock, non-pro it corporation;
Still required to ile an i. Who are required to file; exceptions
b) No part of the corporation or association’s net income shall annual information
Deemed and treated as
inure to the bene it of any private individual; and How return on their incomes 1. Every Filipino citizen residing in the Philippines;
corporations subject to
partnership is and expenses for the
the corporate income 2. Every Filipino citizen residing outside the Philippines, on his
c) The trustees do not receive any compensation or remuneration. taxed purpose of ascertaining
tax rate. income from sources within the Philippines;
the partners’ taxable
d) In case of dissolution, assets shall be transferred to similar
shares. 3. Every alien residing in the Philippines, on income derived from
institutions or to the government.
sources within the Philippines; and
e. Tax on other business entities: general partnerships, Requisites for a Joint Venture not to be considered a taxable
general professional partnerships, co-ownerships, joint corporation 4. Every nonresident alien engaged in trade or business or in the
ventures, and consortia exercise of profession in the Philippines.
1) The JV should be for the undertaking of a construction
There are two kinds of partnerships for income tax purposes: project; The following individuals shall not be required to ile an income tax
return:
1) Those NOT subject to income tax 2) Should involve joining or pooling of resources by licensed
local contracts; 1. An individual whose taxable income does not exceed P250K.
a) GPPs;
3) The contractors are engaged in the construction business; Those individuals engaged in business or practice of
b) Joint venture or consortium agreement formed for the and profession within the Philippines shall ile an income tax
purpose of return, regardless of the amount of gross income;
4) The JV itself must be licensed under PCAB.
i) Undertaking construction projects; or 2. Purely compensation income earners.
Determination of OSD by the GPP and its Partners
ii) Engaging in petroleum, coal, geothermal and However, an individual deriving compensation concurrently
other energy operations pursuant to an 1. GPP and the professional partners may avail of OSD only
from two or more employers at any time during the taxable
operating or consortium agreement under a ONCE;
year shall ile an income tax return.
service contract with the government. 2. Distributable net income of GPP may be determined using ID or
3. An individual whose sole income has been subjected to FWT;
2) Those subject to tax — those that derive income from trade OSD;
and
or business and are considered as corporations under the 3. Share in the net income of the GPP shall be reported as taxable
Tax Code. 4. A minimum wage earner or an individual who is exempt
income of each partner;
from income tax. (Sec 51)
With regard to Nontaxable Taxable

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 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

ii. Substituted filing b. From the sale or disposition of real property shall ile a. Pay the balance of tax still due; or
a return within thirty (30) days following each sale
Who shall not be required to ile an annual income tax return? b. Carry-over the excess credit; or
or other disposition. (Sec 50[c])
1. Individual taxpayers c. Be credited or refunded with the excess amount paid,
Return of Parent to Include Income of Children. — The income of
as the case may be.
2. receiving purely compensation income, regardless of amount, unmarried minors derived from properly received from a living
parent shall be included in the return of the parent, except 3. Option shall be considered irrevocable for that taxable period.
3. from only one employer in the Philippines for the calendar
(Sec 76)
year, 1. when the donor's tax has been paid on such property, or
iii. When and where to file
4. the income tax of which has been withheld correctly by the 2. when the transfer of such property is exempt from donor's tax.
said employer (tax due equals tax withheld). (Sec 50[e]) Where to ile. — same as Individual.
The certi icate of withholding iled by the respective employers, duly b. Corporate returns When to File. —
stamped 'received' by the BIR, shall be tantamount to the substituted
Every corporation subject to the tax herein imposed, except foreign 1. The corporate quarterly declaration shall be iled within sixty
iling of income tax returns by said employees. (Sec 51-A)
corporations not engaged in trade or business in the Philippines, shall (60) days following the close of each of the irst three (3)
iii. When and where to file render, in duplicate, a true and accurate quarters of the taxable year.

Where to File. — The return shall be iled with 1. quarterly income tax return, on a cumulative basis for the 2. The inal adjustment return shall be iled on or before April
preceding quarters, and 15, or on or before the ifteenth (15th) day of the fourth (4th)
1. An authorized agent bank,
month following the close of the iscal year, as the case may be.
2. inal or adjustment return, on or before April 15.
2. Revenue District Of icer,
iv. Return of corporations contemplating dissolution or
i. Quarterly income tax
3. Collection Agent or reorganization
1. Every corporation shall ile in duplicate a quarterly summary
4. Duly authorized Treasurer of the city or municipality in which 1. Every corporation shall, within thirty (30) days after the
declaration of its gross income and deductions on a
such person has his legal residence or principal place of adoption by the corporation of a resolution or plan
cumulative basis for the preceding quarter or quarters.
business in the Philippines, or
a. for its dissolution, or
2. The tax so computed shall be decreased by the amount of tax
5. If there be no legal residence or place of business in the
previously paid or assessed during the preceding quarters and b. for the liquidation of the whole or any part of its
Philippines, with the Of ice of the Commissioner. (Sec 50[b])
shall be paid not later than sixty (60) days from the close of capital stock, including a corporation which has been
When to File. — each of the irst three (3) quarters of the taxable year, whether noti ied of possible involuntary dissolution by the
1. On or before April 15 of each year covering income for the calendar or iscal year. (Sec 75) SEC, or
preceding taxable year. ii. Final adjustment return c. for its reorganization,
2. Individuals subject to tax on capital gains; 1. Every corporation shall ile a inal adjustment return covering render a correct return to the Commissioner, veri ied under
a. From the sale or exchange of shares of stock not traded the total taxable income for the preceding calendar or iscal oath, setting forth the terms of such resolution or plan.
thru a local stock exchange shall ile a return within year.
2. The dissolving or reorganizing corporation shall, prior to the
thirty (30) days after each transaction and a inal 2. If the sum of the quarterly tax payments made during the said issuance by the SEC of the Certi icate of Dissolution or
consolidated return on or before April 15 of each year taxable year is not equal to the total tax due on the entire Reorganization, secure a certi icate of tax clearance from the
covering all stock transactions of the preceding taxable taxable income of that year, the corporation shall either: BIR which certi icate shall be submitted to the SEC. (Sec 52[c])
year; and

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 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

b) The liability for payment of b) Payee of income is required to credited against the income tax liability of the taxpayer for the
c. Return on capital gains realized from sale of shares of
the tax rests primarily on the report the income and/or pay the taxable year.
stock and real estate
payor as a withholding agent. difference between the tax 1. Creditable tax must be withheld at source, but should still be
withheld and the tax due on the included in the tax return of recipient.
Sale or exchange of stock NOT Within 30 days after each
traded through LSE transaction and inal income. The payee also has the
2. There are three types:
consolidated return on or before right to ask for a refund if the tax
April 15 withheld is more than the tax due. a) Expanded withholding tax on certain income payments
made by private persons to resident taxpayers;
Sale or disposition of real Within 30 days following each c) The payee is not required to c) The income recipient is still
property sale or other disposition ile an income tax return for the required to ile an income tax b) Withholding tax on compensation income in PH;
particular income. return, as prescribed in Sec. 51
c) Withholding tax on money payments of the
Gains received by installment Within 30 days from receipt of and Sec. 52 of the NIRC, as
each installment. government.
amended.
i. Expanded withholding tax
8. Withholding Tax b. Final withholding tax
When EWT will apply
a. Concept 1. Income subject to inal tax refers to income wherein tax due is
fully collected through the withholding tax system, wherein the 1. Expense is paid by the taxpayer, which is income to the
The types of income subject to withholding tax are divided into three recipient thereof subject to income tax;
payor of the income withholds the tax and then remits it to the
categories:
government. 2. Income is ixed or determinable at the time of payment;
a) withholding of inal tax on certain incomes;
2. Some principles of FWT 3. Income is one of the income payments listed in the regulations;
b) withholding of creditable tax at source and and
a) The amount of tax withheld is full and inal.
c) tax-free covenant bonds. 4. Income recipient is a RESIDENT of the PH liable to income tax.
b) The liability for payment rests primarily on the
The withholding tax system was devised for three primary reasons: withholding agent. If the recipient is a nonresident, then income payment is
1. to provide the taxpayer a convenient manner to meet his c) In case of failure to withhold, the agent is liable for the subject to FWT, not CWT.
probable income tax liability; de iciency. ii. Withholding tax on compensation
2. to ensure the collection of income tax which can otherwise be
d) The payee is not required to ile any ITR for the Income subject to CWT Rate
lost or substantially reduced through failure to ile the
particular income.
corresponding returns and
Professional fees, promotional and talent fees, referred by
e) The inality of withheld tax is limited on that
3. to improve the government's cash low. individuals, entertainers, and athletes
particular income and will not extend to the payee’s
FWT CWT other tax liability on said income. Individual payee
c. Creditable withholding tax
a) The amount of income tax a) Taxes withheld on certain - If gross income > P3M or VAT-registered 10%
withheld by the withholding income payments are intended to The Secretary of Finance may require the withholding of a tax on
agent is constituted as a full and equal or at least approximate the the items of income payable to natural or juridical persons, residing - If gross income did not exceed P3M 5%
inal payment of the income tax tax due of the payee on said in the Philippines, by payor-corporation/persons as provided for
Non-individual payee
due from the payee on the said income. by law, at the rate of not less than one percent (1%) but not more
income. than ifteen percent (15%) of the income payment, which shall be

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CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

25% for NRA-NETB

- If gross income > P720K
- If gross income did not exceed P720K
Rentals for continued use or possession of real
properties used in business, which the payor has not
taken title
Cinematographic ilm rentals and other payments
Income payments to certain contractors, general
engineering, general building, specialty and other
contractors
Income distributed to the bene iciaries of estates and
trusts
Income payments to certain brokers and agents
Real property which are NOT capital assets sold by a
person engaged in the real estate business
- If NOT engaged in real estate business
On additional payments by importers, shipping and
airline companies to government personnel for OT
services
15% - If gross income > P720K 15%
e. Duties of a withholding agent
10% - If it does not exceed P720K 10%
1. A withholding agent is one required to deduct and withhold any
Income payments made by political parties and tax.
5% candidates for all purchases of goods and services as
campaign expenditures, as well as income payments 2. He also has the legal interest to ile a claim for tax refund.
5%
made by individuals and juridical entities for all a. Considered a taxpayer under the NIRC as he is
5% purchases intended to be given as campaign
personally liable for the withholding tax; and
contribution
b. As agent of the taxpayer, he has the implied authority
2% Interest income from other instruments, i.e. not to ile a claim for refund and to bring an action for
15%
deposit substitutes recovery of such claim.
CIR v. Solidbank reiterated in CIR v. Citytrust Investment Phils. ING Bank v. CIR 2016 Resolution Leonen, J
15%
Whether the 20% FWT Forms Part of the Taxable Gross Receipts The liability of the withholding agent is independent from that of the
10% taxpayer.
YES. Although the 20% FWT on respondent's interest income was
1.5% or The withholding agent cannot be made liable for the tax due because
not actually received by respondent because it was remitted directly
3% or 5% it is the taxpayer who earned the income subject to withholding tax.
to the government, the fact that the amount redounded to the bank's
The withholding agent is liable only insofar as he failed to perform
bene it makes it part of the taxable gross receipts in computing the
6% his duty to withhold the tax and remit the same to the government.
5% GRT.
The liability for the tax, however, remains with the taxpayer because
In a withholding tax system, the payee is the taxpayer, the person the gain was realized and received by him.
15% on whom the tax is imposed; the payor, a separate entity, acts as no
more than an agent of the government for the collection of the tax in
C. ESTATE TAX

On the amount paid by any credit card company to any
business entity representing the sale of goods,
services made by them to cardholders
Payments made by any of the top withholding agents
to their local suppliers
\
order to ensure its payment. In our withholding tax system,
1% of ½ of possession is acquired by the payor as the withholding agent of the
gross government, because the taxpayer rati ies the very act of possession
RR 12-18 Consolidated Revenue Regulations on Estate Tax and
amounts for the government. There is thus constructive receipt. The Donor's Tax Incorporating the Amendments Introduced by RA 10963.
processes of bookkeeping and accounting for interest on deposits
1% 1. Basic Principles, Concept, and De inition
and yield on deposit substitutes that are subjected to FWT are indeed
(goods) -- for legal purposes -- tantamount to delivery, receipt or remittance. 2. Classi ication of Decedent
2%
(services) d. Fringe benefits tax 3. Composition of Gross Estate

1% A inal tax of 35% is hereby imposed on the grossed-up monetary a. Items to be included in determining gross estate
Payments by the government to local suppliers except (goods) value of fringe bene it.
if below P10K 2% b. Allowable deductions from gross estate
(services)
MV c. Exclusions from gross estate and exemptions of certain
Income payments to partners of GPP
GU M V = 65%
F BT = GU M V x 35% acquisitions and transmissions

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 CIVxTAX
1. Cash installment
-
a) The cash installments shall be made within two (2)
years from the date of iling of the estate tax return;
b) The estate tax return shall be iled within one year
from the date of decedent's death; xxxx
2. Partial disposition of estate and application of its
proceeds to the estate tax due. xxxx
D. DONOR’S TAX
1. Basic Principles, Concept, and De inition
2. Requisites of a Valid Donation
3. Transfers which may be considered as donation
4. Classi ication of Donor
5. Determination of Gross Gift
6. Tax credit for donor's taxes paid to a foreign country
7. Filing of return and payment
1. Basic Principles, Concept, and Definition
1. Donation is an act of liberality whereby a person disposes
gratuitously of a thing or right in favor of another who accepts
it.
2. In taxation, donation extends to sales or exchanges of property,
other than real property classi ied as capital asset located in
PH, for less than adequate and full consideration in money or
money’s worth.
3. Gift tax is also an excise tax imposed on the privilege of the
owner to give.
4. Gifts in favor of religious institutions are now exempt from
donor’s tax.
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
5. Rate of Donor’s Tax. The tax for each calendar year shall be
six percent (6%) computed on the basis of the total gifts in
excess of P250,000 exempt gift made during the calendar
year.
6. "NET GIFT" shall mean the net economic bene it from the
transfer that accrues to the donee.
7. Any contribution in cash or in kind to any candidate or
political party or coalition of parties for campaign purposes,
duly reported to the Comelec shall NOT be subject to the
payment of any gift tax. (Sec 13, RA 7166)
8. The donor's tax shall not apply unless and until there is a
completed gift. The transfer of property by gift is perfected
from the moment the donor knows of the acceptance by the
donee; it is completed by the delivery, either actually or
constructively, of the donated property to the donee.
9. Thus, the law in force at the time of the
perfection/completion of the donation shall govern the
imposition of the donor's tax.
2. Requisites of a Valid Donation
1. Capacity of donor;
2. Donative intent;
3. Delivery, whether actual or constructive, of the subject matter;
4. Acceptance of the gift by the donee.
Manuel G. Abello, et al. v. CIR
Donative intent is not negated by the presence of other intentions,
motives or purposes which do not contradict donative intent.
Subsequent to the donations involved in this case, Congress approved
RA 7166, providing in Section 13 thereof that political/electoral
contributions, duly reported to the Comelec, are not subject to the
payment of any gift tax. This all the more shows that the political
contributions herein made are subject to the payment of gift taxes,
since the same were made prior to the exempting legislation, and RA
No. 7166 provides no retroactive effect on this point.
By RGL
For the 2020/21 #BestBarEver
3. Transfers which may be considered as donation
a. Sale, exchange, or transfer of property for less than
adequate and full consideration; exception
Where property is transferred for less than an adequate and full
consideration in money or money's worth, then the amount by
which the fair market value of the property exceeded the value of
the consideration shall be deemed a gift, and shall be included in
computing the amount of gifts made during the calendar year:
Provided, however, That a sale, exchange, or other transfer of
property made in the ordinary course of business, a transaction
which is
1) a bona ide,
2) at arm's length, and
3) free from any donative intent,
will be considered as made for an adequate and full consideration
in money or money's worth.
CIR v. B.F. Goodrich Phils., Inc.
Petitioner insists that private respondent committed "falsity" when it
sold the property for a price lesser than its declared fair market
value. This fact alone did not constitute a false return which contains
wrong information due to mistake, carelessness or ignorance. It is
possible that real property may be sold for less than adequate
consideration for a bona ide business purpose; in such event,
the sale remains an "arm's length" transaction.
b. Condonation or remission of debt
If a creditor desires to bene it a debtor, and without any
consideration therefore, cancels the debt, the amount of the debt is
a donation by the creditor to the debtor.
c. Renunciation of inheritance; exception
Renunciation by the surviving spouse of his/her share in the
conjugal partnership or absolute community after the dissolution of
the marriage in favor of the heirs of the deceased spouse or any
other person/s is subject to donor's tax.
226 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

Whereas general renunciation by an heir, including the surviving
spouse, of his/her share in the hereditary estate left by the decedent
is NOT subject to donor's tax, unless speci ically and categorically
done in favor of identi ied heir/s to the exclusion or disadvantage of
the other co-heirs in the hereditary estate.
4. Classification of Donor
1. Resident or citizen and DC. — donation of all types of
properties wherever situated;
2. Nonresident alien and FC. — donation of real property and
tangible personal property situated in PH;
Donation of intangible PP with a situs in PH, unless exempted
on the basis of reciprocity.
5. Determination of Gross Gift
a. Composition of gross gift
Gross gifts include real and personal property, whether tangible or
intangible, or mixed, wherever situated: Provided, however, That
where the donor was a nonresident alien at the time of donation, his
real and personal property so transferred but which are situated
outside the Philippines shall not be included as part of his 'gross
gift.’
The computation of the donor's tax is on a cumulative basis
over a period of one calendar year.
b. Valuation of gifts made in property
Valuation. — The amount of any charitable contribution of
property other than money shall be based on the acquisition cost
of said property. (Sec 34[H][3])
If real property — the appraised value as of the time of donation
shall be whichever is higher of the FMV as:
a) Determined by the CIR; or
b) Shown in the schedule of values ixed by local assessors.
If shares of stocks — the FMV depends on whether the shares are
listed or unlisted.
a) Unlisted common shares = Book value;
b) Unlisted preferred shares = Par value.
In determining the book value of common shares, appraisal surplus
shall not be considered as well as the value assigned to preferred
shares, if there are any.
c) Listed in stock exchange = FMV shall be the arithmetic
mean between the highest and lowest quotation at a date
nearest the date of death, if none is available on the date of
death itself.
Units of participation in any association, recreation or
amusement club — the bid price nearest the date of death
published in any newspaper or publication of general circulation.
Right to usufruct, use or habitation, as well as that of annuity
— there shall be taken into account the probable life of the
bene iciary in accordance with the latest basic standard mortality
table, to be approved by the Secretary of Finance, upon
recommendation of the Insurance Commissioner.
c. Exemption of certain gifts
Made by a Resident
1) Gifts made to or for the use of the National Government or
any entity created by any of its agencies which is not
conducted for pro it, or to any political subdivision of the
said Government; and
2) Gifts in favor of an educational and/or charitable,
religious, cultural or social welfare corporation,
institution, accredited non-government organization,
trust or philanthropic organization or research institution
or organization: Provided, however, That not more than
thirty percent (30%) of said gifts shall be used by
such donee for administration purposes.
The donee-entity must be:
a) Non-stock;
b) Paying no dividends;
c) Governed by trustees who receive no
compensation; and
d) Devotes all its income to the accomplishment of
its purpose as enumerated in its AOI.
Made by a Non-resident Alien
1) - same -
2) - same - but change ‘accredited non-government
organization’ to ‘foundation’.
Deductions under RR 12-2018
1) Encumbrance on the property donated, if assumed by
donee;
2) Those speci ically provided by the donor as a diminution
of the property donated.
Exemptions under Special Laws
1) Donations to PH government for scienti ic, engineering,
and technological research, invention and development;
2) To social welfare, cultural, and charitable organizations;
3) To IRRI;
4) To Ramon Magsaysay Award Foundation;
5) To the National Museum, National Library, and the
archives of the NHI;
6) To the Southern Philippines Development Administration;
7) To the Intramuros Foundation.
6. Tax credit for donor's taxes paid to a foreign country
The tax imposed by this Title upon a donor who was a citizen or a
resident at the time of donation shall be credited with the amount of
any donor's tax of any character and description imposed by the
authority of a foreign country.
Limitations on Credit. — The amount of the credit taken under
this Section shall be subject to each of the following limitations:

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 CIVxTAX
a) The amount of the credit in respect to the tax paid to any
country shall not exceed the same proportion of the tax
against which such credit is taken, which the net gifts
situated within such country taxable under this Title bears
to his entire net gifts; and
b) The total amount of the credit shall not exceed the same
proportion of the tax against which such credit is taken,
which the donor's net gifts situated outside the Philippines
taxable under this title bears to his entire net gifts.
7. Filing of return and payment
Requirements. — Any person making a donation (whether direct
or indirect), unless the donation is speci ically exempt under the
NIRC or other special laws, is required, for every donation, to
accomplish under oath a donor's tax return in duplicate. The return
shall set forth:
1. Each gift made during the calendar year which is to be
included in gifts;
2. The deductions claimed and allowable;
3. Any previous net gifts made during the same calendar year;
4. The name of the donee; and
5. Such further information as the Commissioner may
require.
Time and place of iling and payment. — The donor's tax return
shall be iled within thirty (30) days after the date the gift is made
or completed and the tax due thereon shall be paid at the same time
that the return is iled.
E. VAT
RR 13-18. Implementing the VAT Provisions of TRAIN Act.
1. Nature and characteristics of VAT
2. Persons liable to VAT
3. Imposition of VAT
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
a. On sale of goods or properties
b. On importation of goods
c. On sale of services and use or lease of properties
4. Zero-rated and effectively zero-rated sales of goods or
CIR v. CA and COMASERCO
properties, and services
5. VAT-exempt transactions
6. Input and output tax
7. Refund or tax credit of excess input tax; procedure
8. Compliance requirements
1. Nature and characteristics of VAT
a. Tax on value added. — VAT is a tax on the value added of a
taxpayer arising from taxable sales of goods, properties, or
services during the quarter at the rate of 0 or 12%.
Value added is the difference between total sales of the
taxpayer for the taxable quarter subject to VAT and his total
purchases for the same period subject also to VAT.
Output tax means the VAT due on the sale or lease of taxable
goods, properties or services by any person registered or
required to register.
Input tax means the VAT due from or paid by a VAT-registered
person in the course of his trade or business on importation of
goods or local purchase of goods, properties, or services,
including lease or use of property, from a VAT-registered
person.
b. Sales tax. — VAT is a tax on the taxable sale, barter or exchange
of goods, properties or services. A sale may be an actual or
deemed sale, or an export or a local sale.
GR: There must be an actual sale in PH in order that VAT may
be imposed.
EXC:
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1. Importation of goods;
2. Erroneous issuance of VAT invoice or receipt for
VAT-exempt sales;
3. Deemed sales of goods or properties.
WON COMASERCO was engaged in the sale of services, and thus
liable to pay VAT thereon.
YES. Sec 105 of the NIRC clari ies that even a non-stock, non-pro it,
organization or government entity, is liable to pay VAT on the sale of
goods or services.
Section 108 of the NIRC de ines the phrase "sale of services" as the
"performance of all kinds of services for others for a fee,
remuneration or consideration."
Hence, it is immaterial whether the primary purpose of a corporation
indicates that it receives payments for services rendered to its
af iliates on a reimbursement-on-cost basis only, without realizing
pro it, for purposes of determining liability for VAT on services
rendered. As long as the entity provides service for a fee,
remuneration or consideration, then the service rendered is
subject to VAT.
c. Tax on consumption. — VAT is broad-based because every
sale at the levels of manufacturers or producers and
distributors is subject to VAT. The tax burden rests with the
inal consumer who consumes the goods, properties or
services.
d. Indirect tax: impact and incidence. — An indirect tax is a tax
demanded in the irst instance from one person in the
expectation and intention that he can shift the burden to
someone else.
The impact of taxation is on the seller upon whom the tax has
been imposed, while the incidence of tax is on the inal
consumer, the place at which the tax comes to rest.
e. Tax credit method
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i. Cost deduction method — refers to the manner of
computing the taxpayer’s VAT liability by deducting
his costs and expenses subject to VAT from his taxable
sales and multiplying the resulting value added by
12%.
ii. Tax credit method or invoice method — the input
taxes shifted by the sellers to the buyer are credited
against the buyer’s output taxes when he in turn sells
the taxable goods, properties, or services.
f. Destination principle and cross border doctrine. — The
destination of the goods determines taxation or exemption
from tax. Export sales of goods are zero-rated, while imports
of goods are subject to 12% VAT. Thus, the situs of taxation is
where the goods are consumed. As for services, consumption
takes place where the service is performed.
Cross border doctrine mandates that no VAT shall be imposed
to form part of the cost of the goods destined for consumption
outside the territorial border of the taxing authority.
CIR v. Burmeister and Wain Scandinavian Contractor Mindanao
The Consortium’s operation and maintenance of NAPOCOR’s power
barges cannot be classi ied as a single or isolated transaction.
As the Court held in CIR v. American Express, the place of payment
is immaterial, much less is the place where the output of the service
is ultimately used. An essential condition for entitlement to 0% VAT
is that the recipient of the services is a person doing
business outside the Philippines. In this case, the recipient of
the services is the Consortium, which is doing business not outside,
but within the Philippines because it has a 15-year contract to
operate and maintain NAPOCOR’s two 100-MW power barges in
Mindanao.
Nevertheless, in seeking a refund of its excess output tax, respondent
relied on VAT Ruling No. 003-99, which recon irmed BIR Ruling No.
023-95 “insofar as it held that the services being rendered by
BWSCMI is subject to VAT at zero percent (0%).” Respondent’s
reliance on these BIR rulings binds petitioner.
CIR v. American Express
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
As a general rule, the VAT system uses the destination principle.
However, our VAT law itself provides for a clear exception, under
which the supply of service shall be zero-rated when the following
requirements are met:
1) the service is performed in the Philippines;
2) the service falls under any of the categories provided in
Section 102(b) of the Tax Code; and
3) it is paid for in acceptable foreign currency that is accounted
for in accordance with the regulations of the Bangko Sentral
ng Pilipinas.
Since respondent’s services meet these requirements, they are
zero-rated.
2. Persons liable to VAT
A person may be characterized as a taxable person, if
a) He undertakes taxable transactions in goods, properties, or
services consumed or destined for consumption within PH;
b) Such transactions are entered into in the course of his trade
or business; AND
c) The amount of his gross sales or receipts is over the threshold
ixed by law or regulations.
An importer of goods, whether or not made in the course of trade or
business, is also a taxable person.
Registration as a VAT person is NOT a requirement to make a person
liable to VAT. An existing VAT-registered person whose gross
sales/receipts in the preceding year did not exceed the VAT-exempt
threshold of P3M, may opt to:
a) Register as a Non-VAT; or
b) Avail of the Optional Registration for VAT of Exempt Person
under Sec 236(H) of the NIRC, subject to the condition that once
availed of, shall not be entitled to cancel the VAT registration
for the next 3 years.
A taxable person may conduct business as
a) An individual;
b) Estate or trust;
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c) Partnership;
d) Joint venture;
e) Corporation;
f) Cooperative; or
g) Association.
Husband and Wife — treated as separate taxpayers. However, the
aggregation rule for each spouse shall apply, which means that the
taxable sales by each spouse shall be added together to determine
whether he/she has exceeded the general threshold prescribed by law. If
he/she does, then register as a VAT person; otherwise, subject to 3%
percentage tax under Sec 116.
Joint Venture — An unincorporated JV engaged in construction activity
or in energy-related projects, although exempt from income tax, is liable
to VAT.
Government — liable to VAT if engaged in the sale of goods, properties,
or services in its proprietary capacity.
Non-stock, non-pro it association or organization — if not
organized for pro it, relies solely on the mandatory contributions of its
members for its operating expenses, and performs functions exclusively
for the bene it of its members, NOT subject to VAT.
BIR v. First E-Bank Tower Condo 2020
re Condominium corporation
Certiorari or prohibition, not declaratory relief, is the proper
remedy to assail the validity or constitutionality of executive
issuances. In Diaz v. The Secretary of Finance, et al., the Court,
nonetheless, held that a petition for declaratory relief may be
treated as one for prohibition if the case has far-reaching
implications and raises questions that need to be resolved for the
public good; or if the assailed act or acts of executive of icials are
alleged to have usurped legislative authority.
RMC No. 65-2012 is Invalid
A condominium corporation is NOT engaged in trade or
business. The collection of association dues, membership fees, and
other assessments/charges is purely for the bene it of the
condominium owners. It is a necessary incident to the purpose to
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effectively oversee, maintain, or even improve the common areas of
the condominium as well as its governance.
As established in Yamane, the expenditures incurred by
condominium corporations on behalf of the condominium owners
are not intended to generate revenue nor equate to the cost of
doing business. Association dues, membership fees, and other
assessments/charges do not arise from transactions involving the
sale, barter, or exchange of goods or property. Nor are they generated
by the performance of services. As such, they are not subject to VAT.
Section 57 of RA 8424 directs that only income, be it active or
passive, earned by a payor-corporation can be subject to
withholding tax.
Subdivisions or Villages Homeowners Associations — Sec 18 of RA
9904 provides that association dues and income derived from rentals
of property may be exempted from income tax, VAT, and percentage tax,
provided that the association complements, supports, and strengthens
the LGU in providing vital services to their members.
1) The association must be duly-constituted as de ined under SEC
3(b) of RA 9904;
2) Certi ication from the LGU identifying the basic services
rendered by the association and therein stating its lack of
resources to render such services..
Recreational or sports club — Membership fees, assessment dues,
and other fees of similar nature only constitute contributions to and/or
replenishment of the funds for the maintenance and operations of the
facilities offered by recreational clubs to their exclusive members. They
represent funds "held in trust" by these clubs to defray their operating
and general costs and hence, only constitute infusion of capital.
Association of Non-Pro it Clubs, Inc. v. BIR 2019
In ine, for as long as these membership fees, assessment dues, and
the like are
1. treated as collections by recreational clubs from their
members as an inherent consequence of their membership,
and
2. are, by nature, intended for the maintenance, preservation,
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
and upkeep of the clubs' general operations and facilities,
then these fees cannot be classi ied as "the income of recreational
clubs from whatever source" that are "subject to income tax." Instead,
they only form part of capital from which no income tax may be
collected or imposed.
In the same way, membership fees, assessment dues, and the like are
not subject to VAT because in collecting such fees, the club is not
selling its service to the members.
Importer — VAT is properly and legally due on the local buyers who
are the importers and should no longer be imposed on the PH branch of
the seller based outside PH.
3. Imposition of VAT
What are the transactions subject to VAT?
1. Sale of goods or properties subject to 12% VAT (Sec 106[A]);
2. Transactions Deemed Sale subject to 12% VAT (Sec 107[B]);
3. Sale or Exchange of Services and Use or Lease of properties
subject to 12% VAT (Sec 108[A]);
4. Sale of goods or properties subject to 0% VAT (Sec 106[A][2]);
5. Sale or Exchange of Services and Use or Lease of properties
subject to 0% VAT (Sec 108[B]);
6. Importation of goods (Sec 107).
a. On sale of goods or properties
To be subject to VAT, the sale of goods must be
a) An actual or deemed sale for a valuable consideration;
b) Undertaken in the course of trade or business;
c) For the use or consumption in PH; AND
d) Not exempt from VAT under Sec 109 of NIRC, special law, or
international agreement.
With respect to sale or exchange of real property
a) The seller executes a deed of sale, barter, or exchange,
assignment or conveyance, or contract to sell, of real property;
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b) The real property is located in PH;
c) The seller or transferor is engaged in real estate business either
as a real estate dealer, developer, or lessor;
d) The real property is held primarily for sale or for lease in the
ordinary course of his trade or business, or at least an
ordinary asset used in the trade or business of the VAT taxpayer
as an incident to his VAT-taxable activity; AND
e) Not exempt from VAT under Sec 109 of NIRC, special law, or
international agreement.
i. Tax base: gross selling price
The term "gross selling price" means the total amount of money
or its equivalent which the purchaser pays or is obligated to pay to
the seller in consideration of the sale, barter or exchange of the
goods or properties, excluding the VAT.
The excise tax, if any, on such goods or properties shall form part
of the gross selling price
ii. Transactions deemed sale
1) Transfer, use or consumption not in the course of business of
goods or properties originally intended for sale or for use in
the course of business;
2) Distribution or transfer to:
a) Shareholders or investors as share in the pro its of the
VAT-registered persons; or
b) Creditors in payment of debt;
3) Consignment of goods if actual sale is not made within sixty
(60) days following the date such goods were consigned; and
4) Retirement from or cessation of business, with respect to
inventories of taxable goods existing as of such retirement or
cessation.
Here, the seller is also the buyer and no valuable consideration is
thus paid. The rationale is to recapture the VAT that was claimed as
input tax at the time of purchase.
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In the course of trade or business — means the regular conduct
or pursuit of a commercial or an economic activity, including
transactions incidental thereto, by any person regardless of
whether or not the person engaged therein is a non-stock, nonpro it
private organization (irrespective of the disposition of its net
income and whether or not it sells exclusively to members or their
guests), or government entity.
The rule of regularity, to the contrary notwithstanding, services
rendered in the Philippines by nonresident foreign persons shall
be considered as being rendered in the course of trade or business.
iii. Change or cessation of status as VAT-registered person
A VAT-registered person whose registration has been cancelled due
to retirement from or cessation of business, or due to changes in or
cessation of status under Sec. 106 (C) of the Tax Code may, within
two (2) years from the date of cancellation, apply for the issuance
of tax credit certi icate for any unused input tax which he may use
in payment of his other internal revenue taxes.
He shall be entitled to a refund if he has no internal revenue tax
liabilities against which the tax credit certi icate may be utilized.
The date of cancellation is the date of issuance of tax clearance by
the BIR, after full settlement of all tax liabilities relative to
cessation of business or change of status of the concerned taxpayer.
(Sec. 4.112-1.[b] RR 13-18)
b. On importation of goods
There shall be levied, assessed and collected on every importation
of goods a VAT equivalent to twelve percent (12%) based on the
total value used by the Bureau of Customs in determining tariff
and customs duties, plus customs duties, excise taxes, if any, and
other charges, such tax to be paid by the importer prior to the
release of such goods from customs custody.
Transfer of Goods by Tax-exempt Persons. (Technical
Importation) — In the case of tax-free importation of goods into
the Philippines by persons, entities or agencies exempt from tax
where such goods are subsequently sold, transferred or exchanged
in the Philippines to non-exempt persons or entities, the
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
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purchasers, transferees or recipients shall be considered the
13. sales of electricity by generation companies, transmission by
importers thereof, who shall be liable for any internal revenue tax
any entity, and distribution companies, including electric
on such importation.
cooperatives;
The tax due on such importation shall constitute a lien on the
14. services of franchise grantees of electric utilities, telephone
goods superior to all charges or liens on the goods, irrespective of
and telegraph, radio and television broadcasting and all other
the possessor thereof. (Sec 107 NIRC)
franchise grantees except those under Section 119 of this Code
c. On sale of services and use or lease of properties and
The phrase 'sale or exchange of services' means the performance of 15. non-life insurance companies (except their crop insurances),
all kinds of services in the Philippines for others for a fee, remuneration including surety, idelity, indemnity and bonding companies;
or consideration, including those performed or rendered by and
1. construction and service contractors; 16. similar services regardless of whether or not the performance
thereof calls for the exercise or use of the physical or mental
2. stock, real estate, commercial, customs and immigration
faculties.
brokers;
CIR v. Sony Phil., Inc. 2010
3. lessors of property, whether personal or real;
In the case of CIR v. CA, the Court had the occasion to rule that
4. warehousing services;
services rendered for a fee even on reimbursement-on-cost
5. lessors or distributors of cinematographic ilms; basis only and without realizing pro it are also subject to VAT.
The case, however, is not applicable to the present case.
6. persons engaged in milling, processing, manufacturing or
repacking goods for others; Here, Sony did not render any service to SIS at all. The services
rendered by the advertising companies, paid for by Sony using SIS
7. proprietors, operators or keepers of hotels, motels, resthouses, dole-out, were for Sony and not SIS. SIS just gave assistance to Sony
pension houses, inns, resorts; in the amount equivalent to the latter's advertising expense but never
received any goods, properties or service from Sony.
8. proprietors or operators of restaurants, refreshment parlors,
cafes and other eating places, including clubs and caterers;
Diaz, et al. v. Secretary of Finance, et al. 2011 En Banc re Toll Fees
9. dealers in securities;
May toll fees collected by tollway operators be subjected to VAT?
10. lending investors;
YES. The law imposes VAT on "all kinds of services" rendered in
11. transportation contractors on their transport of goods or the Philippines for a fee, including those speci ied in the list. The
cargoes, including persons who transport goods or cargoes for enumeration of affected services is not exclusive. Tollway fees are
hire and other domestic common carriers by land relative to NOT taxes. Indeed, they are not assessed and collected by the BIR
and do not go to the general coffers of the government.
their transport of goods or cargoes;
12. common carriers by air and sea relative to their transport of Consequently, VAT on tollway operations is not really a tax on the
tollway user, but on the tollway operator.
passengers, goods or cargoes from one place in the Philippines
to another place in the Philippines;
CIR v. SM Prime Holdings, Inc. 2010
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WON the gross receipts derived by operators or proprietors of
cinema/theater houses from admission tickets are subject to VAT.
2)
NO. The legislative intent is not to impose VAT on persons
already covered by the amusement tax.
To hold otherwise would impose an unreasonable burden on
cinema/theater houses operators or proprietors, who would be
paying an additional 10% VAT on top of the 30% amusement tax
imposed by Section 140 of the LGC of 1991, or a total of 40% tax.
Tambunting Pawnshop, Inc. v. CIR 2010
WON pawnshops are liable to pay VAT. YES. R.A. No. 9238 inally
classi ied pawnshops as Other Non-bank Financial Intermediaries.
Tax base: gross receipt
3)
The term 'gross receipts' means the total amount of money or its
equivalent representing the contract price, compensation, service
fee, rental or royalty, including the amount charged for materials
supplied with the services and deposits and advanced payments
actually or constructively received during the taxable quarter for
the services performed or to be performed for another person,
4) Those considered export sales under EO No. 226, otherwise
excluding VAT.
4. Zero-rated and effectively zero-rated sales of goods or
properties, and services
Zero-rated sale
a. Export Sales. — The term 'export sales' means:
1)
a) The sale and actual shipment of goods from the
Philippines to a foreign country, irrespective of any
shipping arrangement that may be agreed upon which may
in luence or determine the transfer of ownership of the
goods so exported and
b) paid for in acceptable foreign currency or its equivalent in
goods or services, and
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
c) accounted for in accordance with the rules and regulations
of the BSP;
a) Sale of raw materials or packaging materials
b) to a nonresident buyer
c) for delivery to a resident local export-oriented enterprise
d) to be used in manufacturing, processing, packing or
repacking in the Philippines of the said buyer's goods and
e) paid for in acceptable foreign currency and
f) accounted for in accordance with the rules and regulations
of the BSP;
a) Sale of raw materials or packaging materials
b) to export-oriented enterprise
c) whose export sales exceed seventy percent (70%) of
total annual production;
known as the Omnibus Investment Code of 1987, and other
special laws;
Without actual exportation the following shall be considered
constructively exported for purposes of these provisions:
1. sales to bonded manufacturing warehouses of
export-oriented manufacturers;
2. sales to export processing zones;
3. sales to registered export traders operating bonded
trading warehouses supplying raw materials in the
manufacture of export products under guidelines to be
set by the Board in consultation with the BIR and the
BOC;
4. sales to diplomatic missions and other agencies
and/or instrumentalities granted tax immunities, of
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locally manufactured, assembled or repacked products
whether paid for in foreign currency or not.
5) The sale of goods, supplies, equipment and fuel to persons
engaged in international shipping or international air
transport operations: Provided, That the goods, supplies,
equipment and fuel shall be used for international shipping or
air transport operations.
Provided, That subparagraphs (3), (4), and (5) hereof shall be subject to
the 12% VAT and no longer be considered export sales subject to 0%
VAT rate upon satisfaction of the following conditions:
1) The successful establishment and implementation of an
enhanced VAT refund system that grants refunds of
creditable input tax within ninety (90) days from the iling of
the VAT refund application with the BIR; and
2) All pending VAT refund claims as of December 31, 2017 shall
be fully paid in cash by December 31, 2019.
xxxx
b. Effectively Zero-Rated Transaction. — Sales to persons or
entities whose exemption under special laws or international
agreements to which the Philippines is a signatory effectively
subjects such sales to zero rate.
The following services performed in the Philippines by VAT-registered
persons shall be subject to zero percent (0%) rate:
1)
a) Processing, manufacturing or repacking goods
b) for other persons doing business outside the Philippines
c) which goods are subsequently exported,
d) where the services are paid for in acceptable foreign
currency and
e) accounted for in accordance with the rules and regulations
of the BSP;
2)
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a) Services other than PMR,
b) rendered to a person engaged in business conducted
outside the Philippines or to a nonresident person not
engaged in business who is outside the Philippines when
the services are performed,
c) the consideration for which is paid for in acceptable
foreign currency and
d) accounted for in accordance with the rules and regulations
of the BSP;
3) Services rendered to persons or entities whose exemption
under special laws or international agreements to which the
Philippines is a signatory effectively subjects the supply of
such services to zero percent (0%) rate;
4) Services rendered to persons exclusively engaged in
international shipping or international air transport operations,
including leases of property for use thereof;
5) Services performed by subcontractors and/or contractors in
processing, converting, or manufacturing goods for an
enterprise whose export sales exceed seventy percent (70%)
of total annual production;
6) Transport of passengers and cargo by domestic air or sea
vessels from the Philippines to a foreign country; and
★ If international, VAT-exempt if passenger; and
subject to other percentage tax of 3% if cargo.
7) Sale of power or fuel generated through renewable sources of
energy such as, but not limited to, biomass, solar, wind,
hydropower, geothermal, ocean energy, and other emerging
energy sources using technologies such as fuel cells and
hydrogen fuels.
Atlas Consolidated Mining v. CIR
WON the totality of sales to EPZA-registered enterprises should be
zero-rated, not merely the proportion which such sales have to the
actual exports of the enterprise.
YES. Section 4.100.2 of RR 7-95 in relation to Section 102 (b) of the
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
Tax Code shows that sales to an export-oriented enterprise
whose export sales exceed 70 percent of its annual production
are to be zero-rated, provided the seller complies with other
requirements, like registration with the BOI and the EPZA. The said
Regulation does not even hint, much less expressly mention,
that only a percentage of the sales would be zero-rated.
CIR v. Filminera Resources Corporation 2020
Proof of actual exportation of goods sold by a Value Added Tax
(VAT)-registered taxpayer to a Board of Investments
(BOI)-registered enterprise is vital for the transaction to be
considered as zero-rated export sales.
5. VAT-exempt transactions
WON the sales made to PGPRC for the third and fourth quarters of
the FY ending June 30, 2010 are zero-rated export sales based on the
certi ication issued by the BOI on January 27, 2010.
Section 4.106-5(a)(5) of RR No. 16-2005 classi ied sales to
BOI-registered entities as zero-rated export sales if the following
conditions are met:
1) the buyer is a BOI-registered manufacturer/producer;
2) the buyer's products are 100% exported; and
3) the BOI certi ied that the buyer exported 100% of its
products.
For this purpose, the BOI Certi ication is vital for the seller-taxpayer
to avail of the bene its of zero-rating. To ensure compliance with
invoicing requirements, Section 3 of RMO No. 09-00 requires the
BOI-registered buyer to furnish its suppliers with a copy of the BOI
Certi ication attesting that it exported 100% of its products.
CIR v. Cebu Toyo Corporation
Under RA 7916, respondent had two options with respect to its tax
burden.
1. It could avail of an income tax holiday pursuant to
provisions of E.O. No. 226, thus exempt it from income taxes
for a number of years but not from other internal revenue
taxes such as VAT; or
2. It could avail of the tax exemptions on all taxes, including
VAT under P.D. No. 66 and pay only the preferential tax rate
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of 5% under Rep. Act No. 7916.
Respondent availed of the income tax holiday for four (4) years.
Hence, respondent is NOT exempt from VAT and it correctly
registered itself as a VAT taxpayer. In ine, it is engaged in taxable
rather than exempt transactions.
Here, respondent is engaged in the export business and is registered
as a VAT taxpayer. Further, the records show that the respondent is
subject to VAT as it availed of the income tax holiday under E.O. No.
226. Perforce, respondent is subject to VAT at 0% rate and is
entitled to a refund or credit of the unutilized input taxes.
A. Sale or importation of
1. agricultural and marine food products in their original
state,
2. livestock and poultry of a kind generally used as, or
yielding or producing foods for human consumption; and
3. breeding stock and genetic materials therefor.
B. Sale or importation of
1. fertilizers;
2. seeds, seedlings and ingerlings;
3. ish, prawn, livestock and poultry feeds, including
ingredients, whether locally produced or imported, used in
the manufacture of inished feeds
except specialty feeds for race horses, ighting cocks,
aquarium ish, zoo animals and other animals generally
considered as pets;
C. Importation of personal and household effects belonging to
the residents of the Philippines returning from abroad and
nonresident citizens coming to resettle in the Philippines:
Provided, That such goods are exempt from customs duties;
D. Importation of professional instruments and implements,
tools of trade, occupation or employment, wearing apparel,
domestic animals, and personal and household effects
belonging to persons coming to settle in the Philippines or
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Filipinos or their families and descendants who are now
residents or citizens of other countries.
Vehicles, vessels, aircrafts, machineries and other similar
goods for use in manufacture, shall NOT fall within this
classi ication and shall therefore be subject to duties, taxes
and other charges;
E. Services subject to percentage tax under Title V;
1) Sale or lease of goods or properties or the performance of
services of non-VAT-registered persons, other than the
transactions mentioned in paragraphs (A) to (AA) of Sec.
109(1) of the Tax Code, the gross annual sales and/or
receipts of which does not exceed the amount of Php3M.
2) Services rendered by domestic common carriers by land,
for the transport of passengers and keepers of garages
(Sec. 117);
3) Services rendered by international air/shipping
carriers (Sec. 118);
4) Services rendered by franchise grantees of radio and/or
television broadcasting whose annual gross receipts of
the preceding year do not exceed Php10M, and by
franchise grantees of gas and water utilities (Sec. 119);
5) Service rendered for overseas dispatch, message or
conversation originating from the Philippines (Sec. 120);
6) Services rendered by any person, company or corporation
(except purely cooperative companies or associations)
doing life insurance business of any sort in the
Philippines (Sec. 123);
7) Services rendered by ire, marine or miscellaneous
insurance agents of foreign insurance companies (Sec.
124);
8) Services of proprietors, lessees or operators of cockpits,
cabarets, night or day clubs, boxing exhibitions,
professional basketball games, Jai-Alai and race tracks
(Sec. 125); and
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
9) Receipts on sale, barter or exchange of shares of stock
listed and traded through the local stock exchange or
through initial public offering (Sec. 127).
F. Services by agricultural contract growers and milling for
others of palay into rice, corn into grits and sugar cane into raw
sugar;
G. Medical, dental, hospital and veterinary services except those
rendered by professionals;
H. Educational services rendered by private educational
institutions, duly accredited by the DepEd, CHED, TESDA and
those rendered by government educational institutions;
“Educational services” shall refer to academic, technical or
vocational education.
I. Services rendered by individuals pursuant to
employer-employee relationship;
J. Services rendered by RAHQ that do not earn or derive
income from the Philippines;
K. Transactions which are exempt under international
agreements to which the Philippines is a signatory or under
special laws, except those under PD No. 529;
L.
a) Sales by agricultural cooperatives duly registered with
the CDA to their members
b) as well as sale of their produce, whether in its original
state or processed form, to non-members;
c) their importation of direct farm inputs, machineries and
equipment, including spare parts thereof, to be used
directly and exclusively in the production and/or
processing of their produce;
CIR v. United Cadiz Sugar Farmers Association MPC 2016
Although the sale of re ined sugar is generally subject to VAT,
such transaction may nevertheless qualify as a VAT-exempt
transaction if the sale is made by a cooperative. Under Section
109(L) of the NIRC, sales by agricultural cooperatives are exempt
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from VAT provided the following conditions concur, viz:
First, the seller must be an agricultural cooperative duly registered
with the CDA.
Second, the cooperative must sell either:
1) exclusively to its members; or
2) to both members and non-members, its produce, whether
in its original state or processed form.
A cooperative is the producer of the sugar if it owns or leases the land
tilled, incurs the cost of agricultural production of the sugar, and
produces the sugar cane to be re ined. It should not have merely
purchased the sugar cane from its planters-members.
CIR v. Negros Consolidated Farmers MPC 2018
For an agricultural cooperative to be exempted from the payment of
advance VAT on re ined sugar, it must be
an
a) a cooperative in good standing duly accredited and
registered with the CDA; and
b) the producer of the sugar.
M. Gross receipts from lending activities by credit or
multi-purpose cooperatives duly registered with the CDA;
N. Sales by non-agricultural, non-electric and non-credit
cooperatives duly registered with the CDA.
The share capital contribution of each member does not
exceed Php15K and regardless of the aggregate capital and net
surplus ratably distributed among the members;
Importation by non-agricultural, non-electric and non-credit
cooperatives of machineries and equipment, including spare
parts thereof, to be used by them are subject to VAT.
O. Export sales by persons who are not VAT-registered;
If VAT-registered, zero-rated.
P. The following sales of real properties are exempt from
VAT, namely:
1) Sale of real properties not primarily held for sale to
customers or held for lease in the ordinary course of
trade or business. However, even if the real property is
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not primarily held for sale to customers or held for lease
in the ordinary course of trade or business but the same is
used in the trade or business of the seller, the sale thereof
shall be subject to VAT being a transaction incidental to
the taxpayer's main business.
2) Sale of real properties utilized for low-cost housing.
3) Sale of real properties utilized for socialized housing
wherein the price ceiling per unit is P450K or as may
from time to time be determined by the HUDCC and the
NEDA and other related laws.
4) Sale of residential lots valued at Php1,919,500 and
below, or house & lot and other residential dwellings
valued at Php3,199,200 and below.
If two or more adjacent residential lots are sold or disposed
of in favor of one buyer, for the purpose of utilizing the lots
as one residential lot, the sale shall be exempt from VAT
only if the aggregate value of the lots do not exceed
Php1,919,500M.
Adjacent residential lots, although covered by separate titles
and/or separate tax declarations, when sold or disposed to
one and the same buyer, whether covered by one or
separate Deed of Conveyance, shall be presumed as a sale
of one residential lot.
Provided, That beginning January 1, 2021, the VAT
exemption shall only apply to
1. sale of real properties not primarily held for sale
to customers or held for lease in the ordinary
course of trade or business,
2. sale of real property utilized for socialized
housing,
3. sale of house and lot, and other residential
dwellings with selling price of not more than
Php3,199,200.
Q. Lease of a residential unit with a monthly rental not
exceeding P15K;
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
The foregoing notwithstanding, lease of residential units where
the monthly rental per unit exceeds P15K, but the aggregate of
such rentals of the lessor during the year do not exceed P3M
shall likewise be exempt from VAT; however, the same shall be
subject to three percent (3%) percentage tax under Section
116 of the Tax Code.
In cases where a lessor has several residential units for lease,
some are leased out for a monthly rental per unit of not
exceeding P15K while others are leased out for more than
P15K per unit, his tax liability will be as follows:
1. The gross receipts from rentals not exceeding P15K
per month per unit shall be exempt from VAT
regardless of the aggregate annual gross receipts. It is
also exempt from the 3% percentage tax.
2. The gross receipts from rentals exceeding P15K per
month per unit shall be subject to VAT if the aggregate
annual gross receipts from said units only exceeds
P3M. Otherwise, the gross receipts will be subject to
the 3% tax imposed under Section 116 of the Tax
Code.
R. Sale, importation, printing or publication of books and any
newspaper, magazine, review or bulletin which appears at
regular intervals with ixed prices or subscription and sale and
which is not devoted principally to the publication of paid
advertisements;
S. Transport of passengers by international carriers;
If cargo, 3% OPT.
T. Sale, importation or lease of passenger or cargo vessels and
aircraft, including engine, equipment and spare parts thereof
for domestic or international transport operations;
U. Importation of fuel, goods and supplies by persons engaged in
Contex Corp. v. CIR
international shipping or air transport operations:
Provided, That the fuel, goods, and supplies shall be used for
international shipping or air transport operations;
Thus, said fuel, goods and supplies shall be used exclusively or
shall pertain to the transport of goods and/or passenger from a
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port in the Philippines directly to a foreign port, or vice versa,
without docking or stopping at any other port in the
Philippines unless the docking or stopping at any other
Philippine port is for the purpose of unloading passengers
and/or cargoes that originated from abroad, or to load
passengers and/or cargoes bound for abroad.
V. Services of bank, non-bank inancial intermediaries
performing quasi-banking functions, and other non-bank
inancial intermediaries;
Such as money changers and pawnshops, subject to
percentage tax under Secs. 121 and 122, respectively, of the Tax
Code;
W. Sale or lease of goods and services to senior citizens and
persons with disability, as provided under RA Nos. 9994 and
10754, respectively;
X. Transfer of property pursuant to Section 40(C)(2) of the
NIRC, as amended;
Tax-free exchange of property in pursuance of a plan of merger
or consolidation.
Y. Association dues, membership fees, and other
assessments and charges collected by homeowners
associations and condominium corporations;
Z. Sale of gold to the BSP;
AA. Sale of drugs and medicines prescribed for diabetes, high
cholesterol, and hypertension beginning January 1, 2019;
and
BB. Sale or lease of goods or properties or the performance of
services other than the transactions mentioned in the preceding
paragraphs, the gross annual sales and/or receipts do not
exceed the amount of P3M.
Petitioner is registered as a NON-VAT taxpayer per Certi icate of
Registration issued by the BIR. As such, it is exempt from VAT on
all its sales and importations of goods and services.
Petitioner’s claim, however, for exemption from VAT for its
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purchases of supplies and raw materials is incongruous with its b. For conversion into or intended to form part of a 2) For the domestic purchase of goods and properties –
claim that it is VAT-Exempt, for only VAT-Registered entities can inished product for sale including packaging invoice showing the information required under Secs. 113
claim Input VAT Credit/Refund. materials; or and 237 of the Tax Code.

While it is true that the petitioner should not have been liable for the c. For use as supplies in the course of business; or
VAT inadvertently passed on to it by its supplier since such is a
zero-rated sale on the part of the supplier, the petitioner is not the d. For use as materials supplied in the sale of service; or
proper party to claim such VAT refund. Rather, it is the petitioner’s e. For use in trade or business for which deduction for
suppliers who are the proper parties to claim the tax credit and
depreciation or amortization is allowed under this
accordingly refund the petitioner of the VAT erroneously passed on to
Code.
the latter.
2. Purchase of services on which a VAT has been actually paid.
PSALM v. CIR 2019
3. Transactions deemed sale;
WON PSALM’s privatization activities are subject to VAT.
4. Transitional input tax.
NO. The sale of the power plants in this case is not subject to VAT
When creditable
since the sale was made pursuant to PSALM's mandate to privatize
NPC's assets, and was not undertaken in the course of trade or
1. On purchase of goods or properties — upon consummation
business. In selling the power plants, PSALM was merely exercising a of sale, or issue of the sales invoice, although no payment
governmental function for which it was created under the EPIRA law. thereof was made by the buyer.
During its corporate life, PSALM has powers relating to the
2. On importation — upon payment of the VAT prior to the
management of its personnel and leasing of its properties as may be release of the goods from customs custody.
necessary to discharge its mandate.
3. On purchase of services — when paid by the buyer and
6. Input and output tax evidenced by the seller’s of icial receipt.
Categories of Input taxes Substantiation of Input Tax Credits
1. Input tax credit on importation of goods and current local a) Input taxes for the importation of goods or the domestic
purchases of goods, properties, and services (Sec 110); purchase of goods, properties or services is made in the
course of trade or business, whether such input taxes shall be
2. Transitional input tax credit — 2%;
credited against zero-rated sale, non-zero-rated sales, or
3. Presumptive input tax credit — 4%; subjected to the 5% Final Withholding VAT, must be
4. Final withholding tax credit; and substantiated and supported by the following documents, and
must be reported in the information returns required to be
5. Excess input tax credit.
submitted to the Bureau:
Sources of input tax credits 1) For the importation of goods - import entry or other
1. Purchase or importation of goods: equivalent document showing actual payment of VAT on
the imported goods.
a. For sale; or
3) For the purchase of real property – public instrument
i.e., deed of absolute sale, deed of conditional sale,
contract/agreement to sell, etc., together with VAT invoice
issued by the seller.
4) For the purchase of services – of icial receipt showing
the information required under Secs. 113 and 237 of the
Tax Code.
A cash register machine tape issued to a registered buyer shall
constitute valid proof of substantiation of tax credit only if it
shows the information required under Secs. 113 and 237 of the
Tax Code.
b) Transitional input tax shall be supported by an inventory of
goods as shown in a detailed list to be submitted to the BIR.
c) Input tax on “deemed sale” transactions shall be
substantiated with the invoice required under Sec. 4.113-2.
d) Input tax from payments made to non-residents shall be
supported by a copy of the Monthly Remittance Return of VAT
Withheld.
e) Advance VAT on sugar shall be supported by the Payment Order
showing payment of the advance VAT.
Transitional Input Tax Credits
A person who becomes liable to VAT or any person who elects to be a
VAT-registered person shall, subject to the iling of an inventory be
allowed input tax
1. on his beginning inventory of goods, materials and supplies
equivalent to two percent (2%) of the value of such inventory
or
2. the actual VAT paid on such goods, materials and supplies,
whichever is higher, which shall be creditable against the output tax.
When may one claim transitional input tax

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1. He becomes liable to VAT for the irst-time either through a
new law or when his taxable transactions exceed the P3M
threshold;
2. He elects to register as a VAT-registered person; and
3. He is already VAT-registered and also deals in goods or
properties, the sale of which is exempt, but later becomes a
taxable transaction through legislation.
Presumptive Input Tax Credits
Persons or irms engaged
1. in the processing of sardines, mackerel and milk, and
2. in manufacturing re ined sugar and cooking oil,
shall be allowed a presumptive input tax, creditable against the output
tax, equivalent to four percent (4%) of the gross value in money of
their purchases of primary agricultural products which are used as
inputs to their production.
The term 'processing' shall mean pasteurization, canning and activities
which through physical or chemical process alter the exterior texture or
form or inner substance of a product in such manner as to prepare it for
special use to which it could not have been put in its original form or
condition.
7. Refund or tax credit of excess input tax; procedure
1. Any VAT-registered person,
2. whose sales are zero-rated or effectively zero-rated may,
3. within two (2) years after the close of the taxable quarter
when the sales were made,
4. apply for the issuance of a tax credit certi icate or refund of
creditable input tax due or paid attributable to such sales,
except transitional input tax, to the extent that such input tax
has not been applied against output tax.
Cancellation of VAT Registration. — A person whose registration has
been cancelled due to retirement from or cessation of business, or due
to changes in or cessation of status under Section 106(C) of this Code
may, within two (2) years from the date of cancellation, apply for
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
the issuance of a tax credit certi icate for any unused input tax which
may be used in payment of his other internal revenue taxes.
Period within which Refund or Tax Credit of Input Taxes shall be
Made. — In proper cases, the Commissioner shall grant a refund for
creditable input taxes within ninety (90) days from the date of
submission of the of icial receipts or invoices and other
documents in support of the application iled:
Provided, That should the CIR ind that the grant of refund is not proper,
the CIR must state in writing the legal and factual basis for the denial.
In case of full or partial denial of the claim for tax refund, the taxpayer
affected may, within thirty (30) days from the receipt of the
decision denying the claim, appeal the decision with the CTA:
Provided, however, That failure on the part of any of icial, agent, or
employee of the BIR to act on the application within the ninety (90)-day
period shall be punishable under Section 269 of this Code.
When based on statute, a claim for tax refund partakes of the nature of
an exemption.
Categories of refunds or credits
1. Zero-rated or effectively zero-rated sales of goods.
Petitioner must prove or comply the following:
a. He is a VAT-registered person;
b. Filed with the BIR or DOF Center within 2 years after the
close of taxable quarter when the sales were made
With the CTA within 30 days from date of receipt of
denial from CIR;
c. The claimed input tax payments were not applied against
any output tax during the period covered by the claim and
in the succeeding periods, unless there be a separate
claim;
d. Deduct from its quarterly return the input tax being
claimed as refund or credit;
e. Directly attributable to the sale;
f. The acceptable foreign currency exchange proceeds had
been duly accounted for, if applicable;
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g. Duly supported by VAT invoices or of icial receipts;
Imprinting of the word “zero-rated” on the invoices or
receipts is required.
h. The VAT return for the succeeding quarters covered by the
claim must be submitted with the CTA.
2. Cancellation of VAT registration due to cessation of business
or dissolution of the corporation.
a. Within two (2) years from the date of cancellation,
apply for the issuance of a tax credit certi icate for any
unused input tax which may be used in payment of his
other internal revenue taxes.
b. The date of cancellation being referred herein is the date
of issuance of tax clearance by the BIR, after full
settlement of all tax liabilities relative to cessation of
business or change of status.
c. The iling of the claim shall be made only after completion
of the mandatory audit of all internal revenue tax
liabilities covering the immediately preceding year and the
short period return and the issuance of the applicable tax
clearance/s by the appropriate BIR Of ice which has
jurisdiction over the taxpayer.
CIR v. Central Luzon Drug Corporation
Tax liability required for Tax credit
Since a tax credit is used to directly reduce the tax that is due, there
ought to be a tax liability before the tax credit can be applied.
While the grant is mandatory, the availment or use is not. By its
nature, the tax credit may still be deducted from a future, not a
present, tax liability, without which it does not have any use.
Prior tax payments NOT required for Tax credit
While a tax liability is essential to the availment or use of any tax
credit, prior tax payments are not. On the contrary, for the existence
or grant solely of such credit, neither a tax liability nor a prior
tax payment is needed. Regarding this matter, a private
establishment reporting a net loss in its inancial statements is no
different from another that presents a net income. Both are entitled to
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the tax credit provided for under RA 7432, since the law itself accords
that unconditional bene it.
CIR v. Aichi Forging October 6, 2010
1. Thus, in claims for tax refund or credit of unutilized input
VAT, only the administrative claim must be within the 2-year
prescriptive period reckoned from the close of the taxable
quarter when the sale was made.
2. The claimant may then ile his judicial claim
a. Within 30 days from receipt of the denial of the CIR;
OR
b. Within 30 days after the lapse of the 90-day period
given to the CIR to decide that is reckoned from the
date when documents are deemed submitted.
This is considered a denial on the part of the CIR.
3. If the claimant iles his judicial claim without respecting the
90-day period, such will be dismissed as being premature.
4. The rule that both administrative and judicial claims fall
within the 2-year period applies to erroneously or
excessively paid taxes, and is reckoned from the date of
payment. Input VAT is NOT erroneously or excessively paid.
Philippine Phosphate Fertilizer v. CIR
WON the CTA should have granted petitioner’s claim for refund. YES.
Nowhere in the Circular is it stated that invoices are required to be
presented in claiming refunds.
CIR v. San Roque Power 2013 En Banc
Application of the 120+30 Day Periods (please note that the 120
days is now 90 days under the TRAIN law)
GR: Taxpayer must wait for the lapse of 120 days before it could
seek relief with the CTA.
EXC: Those who iled their judicial claim between
10 Dec 2003 — 6 Oct 2010.
“Excess” Input VAT and “Excessively” Collected Tax
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
The input VAT is NOT “excessively” collected as understood under
Section 229 because at the time the input VAT is collected the amount
paid is correct and proper.
CIR v. Dash Engineering 2013 cf. San Roque
WON respondent’s judicial claim for refund was iled within the
prescriptive period.
NO. In accordance with San Roque, respondent’s judicial claim for
refund must be denied for having been iled late. Although
respondent iled its administrative claim with the BIR on August 9,
2004 before the expiration of the two-year period in Section 112(A), it
undoubtedly failed to comply with the 120+30-day period in Section
112(D) (now subparagraph C) which requires that upon the inaction
of the CIR for 120 days after the submission of the documents in
support of the claim, the taxpayer has to ile its judicial claim within
30 days after the lapse of the said period.
ROHM Apollo v. CIR 2015
The taxpayer can ile an appeal in one of two ways:
1) ile the judicial claim within 30 days after the Commissioner
denies the claim within the 120-day waiting period, or
2) ile the judicial claim within 30 days from the expiration of
the 120-day period if the CIR does not act within that period.
Panay Power Corp. v. CIR 2015
In this case, records disclose that petitioner iled its administrative
and judicial claims for refund/credit of its input VAT on December
29, 2005 and January 20, 2006, respectively, or during the period
when BIR Ruling No. DA-489-03 was in place.
As such, it need not wait for the expiration of the 120-day
period before iling its judicial claim before the CTA, and hence, is
deemed timely iled. In view of the foregoing, the CTA En Banc erred
in dismissing outright petitioner’s claim on the ground of
prematurity.
Cargill Phils., Inc. v. CIR 2015
Anent Cargill’s irst refund claim, it iled its administrative claim
with the BIR on June 27, 2003, and its judicial claim before the CTA
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on June 30, 2003, or before the period when BIR Ruling No.
DA-489-03 was in effect. As such, it was incumbent upon Cargill to
wait for the lapse of the 120-day period before seeking relief with
the CTA. It was thus prematurely iled.
In contrast, Cargill’s second refund claims were both iled on May
31, 2005, falling within the exemption window period contemplated
in San Roque. Verily, the CTA En Banc erred when it outrightly
dismissed CTA Case No. 7262 on the ground of prematurity.
Pilipinas Total Gas v. CIR 2015 En Banc
re Submission of Documents
Under the current rule, the reckoning of the 120-day period has
been withdrawn from the taxpayer by RMC 54-2014, since it
requires him at the time he iles his claim to complete his supporting
documents and attest that he will no longer submit any other
document to prove his claim. Further, the taxpayer is barred from
submitting additional documents after he has iled his administrative
claim.
Hedcor, Inc. v. CIR 2015 also on Submission of Documents
The Transmittal Letter submitted by petitioner is not a substantial
submission that would warrant a change in the reckoning date for the
120-day period for the BIR to act on the claim for refund.
Silicon Philippines v. CIR 2016
The general interpretative rule allowed the premature iling of
judicial claims by providing that the "taxpayer-claimant need not
wait for the lapse of the 120-day period before it could seek judicial
relief with the CTA by way of Petition for Review." The rule certainly
did not allow the iling of a judicial claim long after the expiration of
the 120+30 day period.
_
8. Compliance requirements
A person subject to pay internal revenue tax must comply with certain
administrative requirements:
1. Registration as a VAT taxpayer;
2. Keeping and stamping of books of accounts, sales invoices, and
of icial receipts and other accounting records;
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1. for the period during which the CIR is prohibited from
making the assessment or beginning distraint or levy or a
proceeding in court and for sixty (60) days thereafter;
2. when the taxpayer requests for a reinvestigation which is
granted by the CIR;
/
3. when the taxpayer cannot be located;
4. when the warrant of distraint or levy is duly served upon
the taxpayer and no property could be located; and
5. when the taxpayer is out of the Philippines.
CIR v. Hambrecht & Quist Philippines 2010
The mere iling of a protest letter which is not granted does not
operate to suspend the running of the period to collect taxes. In the
case at bar, the records show that respondent iled a request for
reinvestigation on December 3, 1993, however, there is no indication
that petitioner acted upon respondent's protest.
2. Taxpayer's remedies
Administrative
1. Before payment of the de iciency tax assessment, the remedy
is to ile a written protest within 30 days from receipt of FAN;
2. After payment of the same, the remedy is to ile a written claim
for refund or tax credit — either with the BIR or the DOF
One Stop Shop Center.
The taxpayer need NOT pay the de iciency tax assessment
under protest nor is he required to protest at the time of
payment.
Judicial
1. Appeal to CTA. If the protest is denied in whole or in part, or is
not acted upon within one hundred eighty (180) days from
submission of documents, the taxpayer adversely affected by
the decision or inaction may appeal to the CTA
a. within thirty (30) days from receipt of the said decision,
OR
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
b. from the lapse of 180-day period;
otherwise, the decision shall become inal, executory and
demandable.
2. When in the opinion of the Court the collection may jeopardize
the interest of the Government and/or the taxpayer, the Court, at
any stage of the proceeding, may suspend the said collection
and require the taxpayer either to deposit the amount claimed
or to ile a surety bond for not more than double the amount
with the Court.
3. A preliminary hearing is required for the proper determination
of the necessity of a surety bond or the reduction thereof.
Pacquiao v. CTA.
Substantive
1) Questioning the constitutionality or validity of statutes or
regulations —
2) Failure to inform the taxpayer in writing of the legal and
factual bases of assessment makes it VOID. — The
taxpayers shall be informed in writing of the law and the facts
on which the assessment is made; otherwise, the assessment
shall be void.
3) Preservation of books of accounts and once-a-year
examination. — For income tax purposes, such examination
and inspection shall be made only once in a taxable year,
except in the following cases:
a) Fraud, irregularity or mistakes, as determined by the
Commissioner;
b) The taxpayer requests reinvestigation;
c) Veri ication of compliance with withholding tax laws
and regulations;
d) Veri ication of capital gains tax liabilities; and
e) In the exercise of the CIR's power under Section 5(B) to
obtain information from other persons in which case,
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another or separate examination and inspection may
be made.
All taxpayers are required to preserve their books of
accounts for a period of 10 years reckoned from the day
following the deadline in iling a return, or if iled after the
deadline, from the date of the iling, for the taxable year when
the last entry was made in the books of accounts.
a. First 5 years — hardcopies;
b. Next 5 years — may retain only an electronic copy of
the hardcopies.
4) Publication of RMC and RMO. — Absence of publication
renders the RMC and RMO invalid.
5) Power of CIR to distribute or allocate gross income and
deductions does NOT include the power to impute
‘theoretical interests’ to the controlled taxpayer’s
transactions.
6) Availment of tax amnesty.
a. Protest
i. Period to file protest
Within 30 days from receipt of the assessment.
ii. Kinds of protest
There are basically two types:
1) Request for Reconsideration — anchored on documents,
arguments, and legal authorities already submitted to the BIR.
This may involve a question of fact, or law, or both.
2) Request for Reinvestigation — grounded on new or
additional documents, arguments, and legal authorities not yet
submitted.
Submit additional relevant supporting documents within 60
days from iling of protest.
The taxpayer shall state in his protest:
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1) The nature of the protest;
2) Date of the assessment notice; and
3) The applicable law, rules, and regulations, or jurisprudence on
which the protest is based; otherwise, the protest shall be
deemed void.
iii. Submission of supporting documents
Under the current rule, effective June 11, 2014, the reckoning of the
120-day period has been withdrawn from the taxpayer by RMC
54-2014, since it requires him at the time he iles his claim to
complete his supporting documents and attest that he will no
longer submit any other document to prove his claim. Further, the
taxpayer is barred from submitting additional documents after he
has iled his administrative claim.
iv. Effect of failure to file protest
The assessment shall become inal, executory and demandable. No
requests for reconsideration or reinvestigation may then be granted.
v. Action of the Commissioner on the protest filed
a) Period to act upon or decide on protest iled
180 days.
b) Remedies of the taxpayer in case of denial or inaction of the
Commissioner
How to Appeal
1) If the protest is denied by the CIR’s duly authorized
representative
a) Appeal to the CTA; OR
b) Elevate the protest through a request for reconsideration
to the CIR.
Both within 30 days from receipt of decision.
NO request for reinvestigation is allowed in administrative
appeal.
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
2) If the protest is NOT acted upon by the CIR’s duly
authorized representative within the 180-day period
a) Appeal to the CTA within 30 days after the expiration of the
180-day period; OR
b) Await the inal decision of the CIR’s duly authorized
representative of the disputed assessment.
3) If the protest or administrative appeal is denied by the
CIR
a) Appeal to the CTA within 30 days from receipt.
An MR of the CIR’s denial shall NOT toll the 30-day period to
appeal to the CTA.
4) If the protest is NOT acted upon by the CIR within the
180-day period
a) Appeal to the CTA within 30 days after the expiration of the
180-day period; OR
b) Await the inal decision of the CIR on the disputed
assessment and appeal such inal decision to the CTA
within 30 days after receipt of the decision.
NB: These options are MUTUALLY EXCLUSIVE.
Denial of Protest
A. DIRECT — The decision of the CIR or his duly authorized
representative shall
a. State the facts, applicable law, rules and regulations, or
jurisprudence on which such decision is based; and
b. That the same is his inal decision.
B. INDIRECT —
a. CIR did not rule on the motion for reconsideration;
b. Referral by the CIR of request for reinvestigation to OSG;
c. Reiterating the demand for immediate payment of
de iciency tax due to taxpayer’s continued refusal to
execute waiver;
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d. Preliminary collection letter may serve as assessment
notice.
c) E ect of failure to appeal
The assessment shall become inal, executory and demandable.
b. Recovery of tax erroneously or illegally collected
If the sum of the quarterly tax payments made during the said taxable
year is not equal to the total tax due on the entire taxable income of that
year, the corporation shall either:
a) Pay the balance of tax still due; or
b) Carry-over the excess credit; or
c) Be credited or refunded with the excess amount paid, as the
case may be.
Once the option to carry-over and apply the excess quarterly income
tax against income tax due for the taxable quarters of the succeeding
taxable years has been made, such option shall be considered
irrevocable for that taxable period and no application for cash
refund or issuance of a tax credit certi icate shall be allowed therefor.
1) A Tax Credit Certi icate is a certi ication, duly issued to the
taxpayer named therein acknowledging that the
grantee-taxpayer is legally entitled a tax credit, the money value
of which
a) May be used in payment of any of his internal
revenue tax liability, or
b) May be converted as a cash refund.
2) A refund is a claim for the payment of cash for taxes
erroneously or illegally paid by the taxpayer.
3) No credit or refund of taxes or penalties shall be allowed
unless the taxpayer iles in writing with the CIR a claim for
credit or refund within two (2) years after the payment of the
tax or penalty.
4) A refund shall not be granted when there is a de iciency tax
assessment against the claimant-taxpayer.
248 of 269
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5) Once the taxpayer opts to carry-over the excess income tax The controlling factor for the operation of the irrevocability rule is 2. Penalties imposed without authority;
against the taxes due for the succeeding taxable years, such that the taxpayer chose an option; and once it had already done so, it
could no longer make another one. 3. Any sum alleged to have excessively or in any manner
option is irrevocable for the whole amount of the excess. The
wrongfully collected;
excess shall be carried over and duly applied UNTIL FULLY
Procedure for Claiming Refunds or Tax 4. Refund of BIR stamps when returned in good condition by the
UTILIZED.
Credits of Input VAT under Section 112 purchaser;
6) An exception to the irrevocability rule is when a corporation
dissolves. A refund is then allowed for any unutilized tax credit 1) The claim for refund must be iled with the CIR within two (2) 5. Redemption or change of unused stamps rendered un it for use
it had previously opted to be carried over. years counted from the last day of the quarter when the and refund of their value.
zero-rated sale was made;
7) A withholding agent is allowed to claim for tax refund, because
2) The claim for refund must be accompanied by a statement 204(c) and 229 112(c) 228
under the law, said agent is the one who is held liable for any
violation of the withholding tax law should such violation under oath that all documents to support the claim has been
submitted at the time of iling of claim for refund; Recovery of tax Refund of unutilized Administrative
occur. erroneously or input VAT from 0% Protest on
8) Starting date for counting the two-year period — 3) The CIR must decide on the claim within 90 days from the date illegally collected transactions Assessment
of iling. The adverse decision is appealable to the CTA within
GR: From the date of payment regardless of any 30 days from receipt; The 2-year prescriptive period
supervening cause that may arise after payment;
4) If no decision is made within the 90-day period, there is a Applies to AC only 30-day reglementary
EXC: deemed denial or adverse decision which is appealable to the Applies to AC and JC from close of taxable period
CTA within 30 days from the lapse of the 90-day period. from date of payment quarter when sale
a) Corporate income tax. — Where a corporation paid
was made
quarterly income taxes in any of the irst three Procedure for Claiming Refunds or Tax
quarters during the taxable year but incurs a net loss Credits of Tax Erroneously or Illegally CIR has no
during said year, the period shall be counted from the CIR has 90 days to CIR has 180 days to
Collected under Section 229 prescribed period to
resolve resolve
date of the iling of the annual corporate income resolve
tax return. 1) A written claim for refund must be iled with the CIR within
two (2) years from date of payment of the tax; Appeal to the CTA
b) Income tax paid in installments. — Where the tax
had been paid in installments, the taxes are deemed 2) A decision of the CIR denying the claim is appealable to the CTA 30 days from receipt
paid, for purposes of determining the commencement within 30 days from receipt thereof or within two (2) years of decision; OR
Within 2 years after 30 days from receipt
of the two-year period, on the date the last from date of payment, whichever comes irst; From inaction or
iling AC of denial of CIR.
installment was paid. await then appeal
3) If no decision is made by the CIR, the aggrieved taxpayer must within 30 days
University Physician Services v. CIR 2018 re Irrevocability Rule consider the inaction as a denial and appeal to the CTA must be
iled before the lapse of two (2) years counted from date of CIR v. Smart Communication, Inc. 2010
The irrevocability is limited only to the option of carry-over
payment.
such that a taxpayer is still free to change its choice after electing a The right of a withholding agent to claim a refund of
refund of its excess tax credit. But once it opts to carry over such erroneously or illegally withheld taxes comes with the
When is Tax Erroneously or Illegally Collected
excess creditable tax, after electing refund or issuance of tax credit responsibility to return the same to the principal taxpayer.
certi icate, the carry-over option becomes irrevocable.
1. Erroneously or illegally assessed or collected internal revenue
Winebrenner & Iñigo v. CIR 2015 reiterated in CIR v. Philippine
taxes;
Rhombus Energy v. CIR 2018 re Irrevocability Rule National Bank 2019

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 249 of 269
 CIVxTAX
WON the submission and presentation of the quarterly ITRs of the
succeeding quarters of a taxable year is indispensable in a claim for
refund.
NO. The irrevocability rule under Section 76 of the NIRC means
that once an option, either for refund or issuance of tax credit
certi icate or carry-over of CWT has been exercised, the same can no
longer be modi ied for the succeeding taxable years. What Section 76
requires, just like in all civil cases, is to prove the prima facie
entitlement to a claim, including the fact of not having carried over
the excess credits to the subsequent quarters or taxable year. It does
not say that to prove such a fact, succeeding quarterly ITRs are
absolutely needed.
This simply underscores the rule that any document, other than
quarterly ITRs may be used to establish that indeed the
non-carry over clause has been complied with, provided that
such is competent, relevant and part of the records.
Zuellig-Pharma Asia Paci ic Ltd. Phils. ROHQ v. CIR 2020
As held in Pilipinas Total Gas, it is the taxpayer who ultimately
determines when complete documents have been submitted for the
purpose of commencing and continuing the running of the 120-day
period. As herein applied, the 120-day period should therefore be
reckoned from the April 29, 2014 letter of Zuellig-PH wherein it
stated that it had already submitted the complete documents in
support of its refund claim. In turn, the BIR had 120 days from such
time (or until August 27, 2014) to act on Zuellig-PH's administrative
claim for refund. Since it was established that the BIR failed to act
within such period, Zuellig-PH had thirty (30) days, or until
September 26, 2014, to ile its judicial claim. Thus, its Petition for
Review was timely iled on September 25, 2014.
CIR v. Deutsche Knowledge Services Pte. Ltd. 2020
A claimant's entitlement to a tax refund or credit of excess input VAT
attributable to zero-rated sales hinges upon the following requisites:
1) the taxpayer must be VAT-registered;
2) the taxpayer must be engaged in sales which are
zero-rated or effectively zero-rated;
3) the claim must be iled within two years after the close of
the taxable quarter when such sales were made; and
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
4) the creditable input tax due or paid must be attributable to
such sales, except the transitional input tax, to the extent that
such input tax has not been applied against the output tax.
Conditions for Zero-rating of
Sales of Services
First, the seller is VAT-registered.
Second, the services are rendered "to a person engaged in
v
business conducted outside the Philippines or to a nonresident
person not engaged in business who is outside the Philippines
when the services are performed."
Third, the services are "paid for in acceptable foreign currency
and accounted for in accordance with [BSP] rules and
regulations."
Proof of NRFC Status. — The claimant must establish the two
components of a client's NRFC status, viz.:
1) that their client was established under the laws of a country
not the Philippines or, simply, is not a domestic corporation;
and
2) that it is not engaged in trade or business in the Philippines.
The CTA found that the SEC Certi ication of Non-Registration of
Company and Authenticated Articles of Association and/or
Certi icates of Registration/Good Standing/Incorporation
suf iciently established the NRFC status of 11 of DKS's af iliates
clients.
c. Power of CIR to compromise
The Commissioner may —
A) Compromise the payment of any internal revenue tax, when:
1) Doubtful validity. A reasonable doubt as to the validity of
the claim against the taxpayer exists; or
2) Financial incapacity. The inancial position of the
taxpayer demonstrates a clear inability to pay the assessed
tax.
This should be accompanied by a waiver of the secrecy of
bank deposits.
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The compromise settlement of any tax liability shall be subject
to the following minimum amounts:
1) For cases of inancial incapacity, a minimum
compromise rate equivalent to ten percent (10%) of the
basic assessed tax; and
2) For other cases, a minimum compromise rate equivalent to
forty percent (40%) of the basic assessed tax.
Where the basic tax involved exceeds P1M or where the
settlement offered is less than the prescribed minimum rates,
the compromise shall be subject to the approval of the
National Evaluation Board.
TN: Compromise can not be availed of by a withholding agent.
B) Abate or cancel a tax liability, when:
1) The tax or any portion thereof appears to be unjustly or
excessively assessed; or
2) The administration and collection costs involved do not
justify the collection of the amount due.
⭐All criminal violations may be compromised except:
a) those already iled in court, or
b) those involving fraud.
In addition, the following cannot be compromised:
c) Cases where inal reports of reinvestigation or
reconsideration have been issued resulting in the
reduction of the original assessment agreed to by the
taxpayer when he signed the required agreement form.
d) Payment of withholding tax, where the inancial position
of the withholding agent shows a clear inability to pay.
GR: The power to compromise and abate belongs to the CIR.
EXC:
1) assessments issued by the regional of ices involving basic
de iciency taxes of P500K or less, and
2) minor criminal violations.
250 of 269
 CIVxTAX
may be compromised by a regional evaluation board.
l
The last step in the abatement process is the issuance of a
b. Prescriptive periods; suspension of running of statute
termination letter.
of limitations
d. Non-retroactivity of rulings
Any revocation, modi ication or reversal of any of the rules and
regulations promulgated or any of the rulings or circulars
promulgated by the CIR shall not be given retroactive application if
the revocation, modi ication or reversal will be prejudicial to the
taxpayers, except in the following cases:
a) Where the taxpayer deliberately misstates or omits
material facts from his return or any document required of
him by the BIR;
b) Where the facts subsequently gathered by the BIR are
materially different from the facts on which the ruling is
based; or
c) Where the taxpayer acted in bad faith.
3. Government remedies for collection of delinquent taxes
In a nutshell:
1) Tax lien;
2) Distraint of personal property, or levy of real property, or
garnishment of bank deposits;
3) Sale of property;
4) Forfeiture;
5) Compromise and abatement;
6) Penalties and ines; and
7) Suspension of business operations.
a. Requisites
A taxpayer is delinquent in the payment of his tax when
1) The self-assessed tax per return iled by the taxpayer on the
prescribed date was not paid at all or was only partially paid;
OR
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
2) The de iciency tax assessed by the BIR became inal and
executory.
Imelda Sze, et al. v. BIR 2020
1) Period of Limitation Upon Assessment and Collection. —
Internal revenue taxes shall be assessed within three (3)
years
a) after the last day prescribed by law for the iling of the
return, OR
b) where a return is iled beyond the period prescribed by
law, from the day the return was iled.
In the case of a false or fraudulent return with intent to evade
tax or of failure to ile a return — within ten (10) years after
the discovery of the falsity, fraud or omission.
If the return is amended substantially, then the period to
assess will be reckoned from the iling of the amended return.
The taxpayer is given three (3) years from date of iling of
original return to amend, provided that no notice for audit or
investigation of such return, statement or declaration has in the
meantime been actually served upon the taxpayer.
2) The period to collect the tax is within three (3) years from
date of assessment. In the case, however, of an omission to ile
or if the return iled is false or fraudulent, the period to collect
is within ten (10) years from discovery without need of
assessment.
3) Period to File Criminal Action — All violations of any
provision of this Code shall prescribe after ive (5) years.
Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof.
The prescription shall be interrupted when proceedings are
instituted and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
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The term of prescription shall not run when the offender is
absent from the Philippines.
How to determine the reckoning point of the 5-year prescriptive
period for violations of the NIRC?
The CTA explained that Revenue Memorandum Circular 101-90
provides that an offense under the tax code is considered
discovered only after the manner of commission and the nature
and extent of fraud has been de initely ascertained. This occurs
when the BIR renders its inal decision and requires the taxpayer to
pay the de iciency tax.
Here, counting 30 days from the service of the FLD and the FAN, the
violations were considered discovered on March 9, 2005. The
BIR's revenue of icers iled their joint af idavit in the DOJ for
preliminary investigation on May 26, 2005. However, the original
Information was only iled in court on April 23, 2014, which
exceeded the ive-year prescriptive period. Therefore, the action had
prescribed.
4) No credit or refund of taxes or penalties shall be allowed
unless the taxpayer iles in writing with the Commissioner a
claim for credit or refund within two (2) years after the
payment of the tax or penalty.
5) Local taxes, fees, or charges shall be assessed within ive (5)
years from the date they became due.
In case of fraud or intent to evade the payment of taxes, fees, or
charges, the same may be assessed within ten (10) years
from discovery of the fraud or intent to evade payment.
Local taxes, fees, or charges may be collected within ive (5)
years from the date of assessment by administrative or
judicial action.
6) Under the Tax Code, if the law does not provide for any
particular prescriptive period of assessment, the rule is that the
tax sought to be assessed becomes IMPRESCRIPTIBLE.
251 of 269
 CIVxTAX
7) The issue of prescription must be raised at the administrative
level and evidence to prove prescription must be introduced by
the taxpayer.
CIR v. Phil. Global Communication, Inc.
WON CIR's right to collect respondent's alleged de iciency income tax
is barred by prescription.
YES. The assessment, in this case, was presumably issued on 14
April 1994 since the respondent did not dispute the CIR's claim.
Therefore, the BIR had until 13 April 1997. However, as there was no
Warrant of Distraint and/or Levy served on the respondents nor any
judicial proceedings initiated by the BIR, the earliest attempt of the
BIR to collect the tax due based on this assessment was when it iled
its Answer in CTA Case No. 6568 on 9 January 2003, which was
several years beyond the three-year prescriptive period. Thus, the
CIR is now prescribed from collecting the assessed tax.
Fishwealth Canning Corp. v. CIR 2010
Since petitioner received the denial of its administrative protest on
August 4, 2005, it had until September 3, 2005 to ile a petition for
review before the CTA Division. It iled one, however, on October 20,
2005, hence, it was iled out of time. For a motion for
reconsideration of the denial of the administrative protest does
not toll the 30-day period to appeal to the CTA.
Lascona Land Co., Inc. v. CIR 2012
waited for CIR Decision even after lapse of 180 days
Considering that Lascona opted to await the inal decision of the CIR
on the protested assessment, it then has the right to appeal such inal
decision to the Court by iling a petition for review within thirty days
after receipt of a copy of such decision or ruling, even after the
expiration of the 180-day period ixed by law for the CIR to act on
the disputed assessments.
CIR v. Primetown Property Group, Inc.
The rule is that the two-year prescriptive period for the iling of tax
refunds and tax credits is reckoned from the iling of the inal
adjusted return. But how should the two-year prescriptive period be
computed?
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
Section 31, Chapter VIII, Book I of the Administrative Code of
1987, being the more recent law, governs the computation of
legal periods. Lex posteriori derogat priori.
We therefore hold that respondent's petition ( iled on April 14, 2000)
was iled on the last day of the 24th calendar month from the day
respondent iled its inal adjusted return. Hence, it was iled within
the reglementary period.
CIR v. Univation Motor Philippines, Inc. 2019
WON the CTA has prematurely assumed jurisdiction on respondent's
judicial claim for tax refund or credit without waiting for the
decision of petitioner.
NO. In the instant case, the two-year period to ile a claim for refund
is reckoned from April 15, 2011, the date respondent iled its Final
Adjustment Return. Since respondent iled its administrative claim on
March 12, 2012 and its judicial claim on April 12, 2013, therefore,
both of respondent's administrative and judicial claim for refund
were iled on time or within the two-year prescriptive period
provided by law. Under the circumstances, if respondent awaited
for the commissioner to act on its administrative claim (before
resort to the Court), chances are, the two-year prescriptive period
will lapse effectively resulting to the loss of respondent's right
to seek judicial recourse and worse, its right to recover the taxes it
erroneously paid to the government. Hence, respondent's immediate
resort to the Court is justi ied.
Guidelines for the Execution of Waivers form the Defense of
Prescription
CIR v. Kudos Metal 2010
See RMO No. 14-2016
1. The taxpayer's failure to follow the forms does not invalidate
the executed waiver, for as long as the following are complied
with:
a) The Waiver of the Statute of Limitations under Section
222 (b) and (d) shall be executed before the expiration
of the period to assess or to collect taxes. The date of
execution shall be speci ically indicated in the waiver.
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b) The waiver shall be signed by the taxpayer himself or
his duly authorized representative;
c) The expiry date should be indicated;
2. Except for waiver of collection of taxes which shall indicate the
particular taxes assessed, the waiver need not specify the
particular taxes to be assessed nor the amount thereof.
3. The waiver may be notarized. However, it is suf icient that the
waiver is in writing as speci ically provided by the NIRC, as
amended.
4. Considering that the waiver is a voluntary act of the taxpayer,
the waiver shall take legal effect and be binding on the taxpayer
upon its execution thereof.
5. The taxpayer shall have the duty to retain a copy of the
accepted waiver.
6. Note that there shall only be two (2) material dates that need to
be present on the waiver:
a) The date of execution of the waiver by the taxpayer or
its authorized representative; and
b) The expiry date of the period the taxpayer waives the
statute of limitations
7. Before the expiration of the period set on the previously
executed waiver, the period earlier set may be extended by
subsequent written waiver made in accordance with this Order.
A perusal of the waivers executed by respondent's accountant reveals
the following in irmities:
1. The waivers were executed without the notarized written
authority of Pasco to sign the waiver in behalf of respondent.
2. The waivers failed to indicate the date of acceptance.
3. The fact of receipt by the respondent of its ile copy was not
indicated in the original copies of the waivers.
Due to the defects in the waivers, the period to assess or collect taxes
252 of 269
 CIVxTAX
was not extended. Consequently, the assessments were issued by the
BIR beyond the three-year period and are VOID.
CIR v. Next Mobile 2015 and in Asian Transmission v. CIR 2018
The de iciencies of the Waivers in this case are the same as the
defects of the waiver in Kudos. In the instant case, the CTA found the
Waivers because of the following laws:
1) they were executed without a notarized board authority;
2) the dates of acceptance by the BIR were not indicated
therein; and
3) the fact of receipt by respondent of its copy of the Second
Waiver was not indicated on the face of the original Second
Waiver.
Similarly, the BIR violated its own rules and was careless in
performing its functions with respect to these Waivers. Due to its
peculiar circumstances, We shall treat this case as an exception to
this rule and ind the Waivers valid.
It is true that petitioner was also at fault here because it was careless
in complying with the requirements of RMO No. 20-90 and RDAO
01-05. Nevertheless, petitioner's negligence may be addressed by
enforcing the provisions imposing administrative liabilities upon the
of icers responsible for these errors. The BIR's right to assess and
collect taxes should not be jeopardized merely because of the
mistakes and lapses of its of icers, especially in cases like this
where the taxpayer is obviously in bad faith.
CIR v. Systems Technology, Inc. 2017
RCBC is not on all fours with the instant case. The estoppel upheld in
the said case arose from the taxpayer's act of payment and not on the
reduction in the amount of the assessed taxes. RCBC's partial
payment of the revised assessments effectively belied its insistence
that the waivers are invalid and the assessments were issued beyond
the prescriptive period.
Here, as no such payment was made by STI, mere reduction of the
amount of the assessment because of a request for reinvestigation
should not bar it from raising the defense of prescription.
CIR v. Transitions Philippines Optical, Inc. 2017 Leonen, J
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
1
Estoppel applies against a taxpayer who did not only raise at the c. Administrative remedies
earliest opportunity its representative's lack of authority to execute
two (2) waivers of defense of prescription, but was also accorded, i. Tax lien
through these waivers, more time to comply with the audit
requirements of the BIR. Nonetheless, a tax assessment served
beyond the extended period is void.
Thus, having bene ited from the Waivers executed at its instance,
respondent is estopped from claiming that they were invalid and that
prescription had set in.
CIR v. Avon Products Manufacturing 2018 Leonen, J
The estoppel upheld in the RCBC case arose from
a) the bene it obtained by the taxpayer from its execution of the
waiver, in the form of a drastic reduction of the de iciency
taxes, and
b) the taxpayer's payment of a portion of the reduced tax
assessment.
Here, Avon did not receive any bene it from the waivers. On the
contrary, there was even a drastic increase in the assessed de iciency
taxes when the Commissioner increased the alleged sales
discrepancy. Under these circumstances, Avon's payment of an
insigni icant portion of the assessment cannot be deemed an
admission or recognition of the validity of the waivers.
ii. Distraint and levy
CIR v. La Flor Dela Isabela, Inc. 2019
In CIR v. Systems Technology Institute, Inc., the Court had ruled that
waivers extending the prescriptive period of tax assessments must be
compliant with RMO No. 20-90 and must indicate the nature and
amount of the tax due.
In the present case, the Waivers failed to indicate the speci ic tax
involved and the exact amount of the tax to be assessed or
collected. Clearly, the Waivers did not effectively extend the
prescriptive period under Section 203 on account of their invalidity.
The issue on whether the CTA was correct in not admitting them as
evidence becomes immaterial since even if they were properly
offered or considered by the CTA, the same conclusion would be
reached — the assessments had prescribed as there was no valid
waiver.
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1. A legal claim or charge on property as security for the payment
of tax due.
2. Attaches from the time when the assessment was made by the
CIR until paid, with interests, penalties, and costs that may
accrue upon all property and rights to property belonging
to the taxpayer.
3. Shall not be valid against any mortgagee, purchaser or judgment
creditor until notice of such lien shall be iled by the CIR in the
of ice of the Register of Deeds.
4. The claim of the government for unpaid taxes may only be
defeated by claims of unpaid wages if the employer-taxpayer is
bankrupt or under liquidation at the time the warrants of
distraint and levy were issued.
5. CIR v. Pineda. BIR may collect the de iciency tax due from one
heir only or from all the heirs in proportion to their inheritance
received. The liability, however, shall not exceed the amount of
the heir’s share.
Distraint of goods, chattels, or effects, and other personal
property of whatever character, including stocks and other
securities, debts, credits, bank accounts and interest in and rights to
personal property.
a) Actual — seizure and taking possession of personal
property of taxpayer.
b) Constructive — CIR may place under constructive
distraint the property of a delinquent taxpayer or ANY
taxpayer who, in his opinion,
i) is retiring from any business subject to tax, or
ii) is intending to leave the Philippines or to remove
his property therefrom or
iii) to hide or conceal his property or
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EXC: If there is fraud, 10 years.
Suspended when
1) The local treasurer is legally prevented from collecting the
tax;
2) The owner of the property or the person having legal interest
therein requests for reinvestigation and executes a waiver in
r
writing before the expiration of the period within which to
collect; and
3) The owner of the property or the person having legal interest
therein is out of the country or otherwise cannot be located.
c. Remedies of LGUs
Administrative
1) Lien (Sec 257)
2) Distraint (Sec 254)
3) Levy (Sec 258)
Judicial. Civil action to be iled by the local treasurer.
Privatization and Management Of ice v. CTA 2019
WON petitioner, as an agency of the government, is exempt from
posting a surety bond as a condition to the suspension of collection of
real property tax.
YES. The Republic need not give this security as it is presumed to be
always solvent and able to meet its obligations. Thus, the petitioner,
being an agent of the national government, is NOT required to
put up a bond because to do so would be to indirectly require the
state to submit such bond.
Provincial Government of Cavite and Provincial Treasurer of
Cavite v. CQM Management, Inc 2020
In National Power Corp. v. Province of Quezon, et al., the Court
explained that the unpaid tax attaches to the property and is
chargeable against the taxable person who had actual or bene icial
use and possession of it regardless of whether or not he is the owner.
Here, petitioners cannot conduct a tax delinquency sale of the Maxon
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES For the 2020/21 #BestBarEver
and Ultimate properties which are now owned by respondent. To do NO need to pay under protest.
so would effectively make respondent liable for the payment of real
property taxes due on the Maxon property for the years 2000-2013 LBAA has 120 days to decide.
and on the Ultimate properties for the years 1997-2013 when it did 2) CBAA — SC, same procedure.
not yet own or had actual or bene icial use of the properties.
c. Compromising real property tax assessment
Parenthetically, respondent is exempt from paying real property
taxes over the Maxon and Ultimate properties from the time it had Condonation or Reduction of Real Property Tax and Interest.
acquired ownership and/or actual or bene icial use of the properties — In case of
pursuant to Section 24 of RA 7916, as amended by RA 8748.
1. a general failure of crops or
PEZA issued MC No. 2004-024 which provides in part that 2. substantial decrease in the price of agricultural or
"PEZA-registered economic zone enterprises availing of the 5% agribased products, or
[gross income tax] incentive are exempted from payment of all 3. calamity
national and local taxes, except real property tax on land owned by
developers." in any province, city or municipality, the sanggunian concerned, by
ordinance passed prior to the irst (1st) day of January of any year
In this case, there is nothing to indicate that respondent is a and upon recommendation of the Local Disaster Coordinating
developer. Thus, considering RA 7916, as amended, its IRR, and Council, may condone or reduce, wholly or partially, the taxes and
Memorandum Circular No. 2004-024, it is evident that save for the interest thereon for the succeeding year or years in the city or
payment of 5% gross income tax, respondent is exempt from the
municipality affected by the calamity. (Sec 276)
payment of national and local taxes including real property tax on the
Maxon and Ultimate Properties. Condonation or Reduction of Tax by the President of the
Philippines. — The President of the Philippines may, when
6. Taxpayer's remedies public interest so requires, condone or reduce the real
property tax and interest for any year in any province or city or a
a. Contesting an assessment
municipality within the Metropolitan Manila Area. (Sec 277 LGC)
1) Pay under Protest;
2) File protest with Local treasurer within 30 days from payment;
Judicial Remedies
3) Appeal to LBAA 60 days from receipt of decision of local
treasurer who is granted 60 days to decide. A. JURISDICTION OF THE CTA
4) Appeal to CBAA 30 days from receipt of decision;
En Banc
5) Appeal to CTA En banc 30 days from receipt of decision via
In Division
Rule 43;
B. PROCEDURE
6) Supreme Court 15 days from receipt of decision via Rule 45.
1. Filing of an action for collection of taxes
b. Contesting a valuation of real property
1) Contest to the LBAA 60 days from receipt of Notice of 2. Civil cases
Assessment;
3. Criminal cases
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 CIVxTAX
4. Appeal to the CTA en banc
5. Petition for Review on Certiorari to the Supreme Court
A. JURISDICTION OF THE CTA
En Banc
The Court en banc shall exercise exclusive appellate jurisdiction to
review by appeal the following:
a) Decisions or resolutions on motions for reconsideration or
new trial of the Court in Divisions in the exercise of its
exclusive appellate jurisdiction over:
1) Cases arising from administrative agencies – BIR,
BOC, DOF, DTI, DA;
2) Local tax cases decided by the RTCs in the exercise of
In Division
their original jurisdiction; and
The Court in Divisions shall exercise:
3) Tax collection cases decided by the RTCs in the
exercise of their original jurisdiction involving inal
and executory assessments for taxes, fees, charges and
penalties, where the principal amount of taxes and
penalties claimed is less than one million pesos;
b) Decisions, resolutions or orders of the RTCs in local tax cases
decided or resolved by them in the exercise of their appellate
jurisdiction;
c) Decisions, resolutions or orders of the RTCs in tax collection
cases decided or resolved by them in the exercise of their
appellate jurisdiction;
d) Decisions, resolutions or orders on motions for
reconsideration or new trial of the Court in Division in the
exercise of its exclusive original jurisdiction over tax
collection cases;
e) Decisions of the Central Board of Assessment Appeals
(CBAA) in the exercise of its appellate jurisdiction over cases
involving the assessment and taxation of real property
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
originally decided by the provincial or city board of
assessment appeals;
f) Decisions, resolutions or orders on motions for
reconsideration or new trial of the Court in Division in the
exercise of its exclusive original jurisdiction over cases
involving criminal offenses arising from violations of the
NIRC or the TCC and other laws administered by the BIR or
BOC;
g) Decisions, resolutions or orders on motions for
reconsideration or new trial of the Court in Division in the
exercise of its exclusive appellate jurisdiction over criminal
offenses mentioned in the preceding subparagraph; and
h) Decisions, resolutions or orders of the RTCs in the exercise of
their appellate jurisdiction over criminal offenses mentioned
in subparagraph (f).
a) Exclusive original or appellate jurisdiction to review by
appeal the following:
1) Decisions of the CIR in cases involving disputed
assessments, refunds of internal revenue taxes, fees or
other charges, penalties in relation thereto, or other
matters arising under the NIRC or other laws
administered by the BIR;
2) Inaction by the CIR in cases involving disputed
assessments, refunds of internal revenue taxes, fees or
other charges, penalties in relation thereto, or other
matters arising under the NIRC or other laws
administered by the BIR, where the NaIRC or other
applicable law provides a speci ic period for action:
Provided, that in case of disputed assessments, the
inaction of the CIR within the one hundred eighty
day-period under Section 228 of the NIRC shall be
deemed a denial for purposes of allowing the taxpayer
to appeal his case to the Court and does not
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necessarily constitute a formal decision of the CIR on
the tax case;
Provided, further, that should the taxpayer opt to await
the inal decision of the CIR on the disputed
assessments beyond the one hundred eighty
day-period abovementioned, the taxpayer may appeal
such inal decision to the Court under Section 3(a),
Rule 8 of these Rules; and
Provided, still further, that in the case of claims for
refund of taxes erroneously or illegally collected,
the taxpayer must ile a petition for review with the
Court prior to the expiration of the two-year period
under Section 229 of the NIRC;
3) Decisions, resolutions or orders of the RTCs in local
tax cases decided or resolved by them in the exercise
of their original jurisdiction;
4) Decisions of the Commissioner of Customs in cases
involving liability for customs duties, fees or other
money charges, seizure, detention or release of
property affected, ines, forfeitures of other penalties
in relation thereto, or other matters arising under the
Customs Law or other laws administered by the BOC;
5) Decisions of the Secretary of Finance on customs
cases elevated to him automatically for review from
decisions of the Commissioner of Customs adverse to
the Government under Section 2315 of the Tariff and
Customs Code; and
6) Decisions of the Secretary of Trade and Industry, in the
case of non-agricultural product, commodity or
article, and the Secretary of Agriculture, in the case of
agricultural product, commodity or article, involving
dumping and countervailing duties under Section 301
and 302, respectively, of the Tariff and Customs Code,
and safeguard measures under Republic Act No. 8800,
where either party may appeal the decision to impose
or not to impose said duties;
266 of 269
 CIVxTAX
b) Exclusive jurisdiction over cases involving criminal offenses,
to wit:
1) Original jurisdiction over all criminal offenses
arising from violations of the NIRC or TCC and other
laws administered by the BIR or the BOC, where the
principal amount of taxes and fees, exclusive of
charges and penalties, claimed is P1M or more; and
2) Appellate jurisdiction over appeals from the
judgments, resolutions or orders of the RTCs in their
original jurisdiction in criminal offenses arising from
violations of the NIRC or TCC and other laws
administered by the BIR or the BOC, where the
principal amount of taxes and fees, exclusive of
charges and penalties, claimed is less than P1M or
where there is no speci ied amount claimed;
c) Exclusive jurisdiction over tax collection cases, to wit:
1) Original jurisdiction in tax collection cases involving
inal and executory assessments for taxes, fees,
charges and penalties, where the principal amount of
taxes and fees, exclusive of charges and penalties,
claimed is P1M or more; and
2) Appellate jurisdiction over appeals from the
judgments, resolutions or orders of the RTCs in tax
collection cases originally decided by them within
their respective territorial jurisdiction.
Lucas G. Adamson, et al. v. CA
Whether the CTA has no jurisdiction to take cognizance of both the
criminal and civil cases here at bar.
NO. Under Republic Act No. 1125 as amended, the rulings of the
Commissioner are appealable to the CTA. The power to decide
disputed assessments, refunds of internal revenue taxes, fees or other
charges, penalties imposed in relation thereto, or other matters
arising under this Code or other laws or portions thereof
administered by the BIR is vested in the Commissioner, subject to the
exclusive appellate jurisdiction of the CTA.
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PRE-WEEK NOTES
CIR v. Hambrecht & Quist Philippines 2010
The issue of prescription of the BIR's right to collect taxes may be
considered as covered by the term "other matters" over which the
CTA has appellate jurisdiction.
NPC v. Municipal Govt. of Navotas, et al. 2014
WON the CTA Second Division has jurisdiction to review the decision
of the RTC which concerns a petition for declaratory relief involving
real property taxes.
YES. When the legality or validity of the assessment is in question,
and not its reasonableness or correctness, appeals to the LBAA, and
subsequently to the CBAA, pursuant to Sections 226 and 229 of the
LGC, are NOT necessary. Stated differently, in the event that the
taxpayer questions the authority and power of the assessor to
impose the assessment, and of the treasurer to collect the real
property tax, resort to judicial action may prosper.
In ine, if a taxpayer is not satis ied with the decision of the CBAA or
the RTC, as the case may be, the taxpayer may ile, within thirty (30)
days from receipt of the assailed decision, a petition for review with
the CTA pursuant to Section 7(a) of R.A. 9282. In cases where the
question involves the amount of the tax or the correctness
thereof, the appeal will be pursuant to Section 7(a)(5) of R.A. 9282.
When the appeal comes from a judicial remedy which questions the
authority of the local government to impose the tax, Section 7(a)(3)
of R.A. 9282 applies. Thereafter, such decision, ruling or resolution
may be further reviewed by the CTA En Banc pursuant to Section 2,
Rule 4 of the Revised Rules of the CTA.
Thus, the CTA En Banc erred in dismissing the petition for review en
banc, and af irming the CTA Second Division’s position that the RTC
has no jurisdiction over the instant case for failure of petitioner to
exhaust administrative remedies which resulted in the inality of the
assessment.
Philamlife v. Sec. of Finance and CIR 2014
Where does one seek immediate recourse from the adverse ruling of
the Secretary of Finance in its exercise of its power of review under
Sec. 4?
Sec. 7(a)(1) of RA 1125, as amended, addresses the seeming gap in
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the law as it vests the CTA, albeit impliedly, with jurisdiction over the
CA petition as “other matters” arising under the NIRC or other
laws administered by the BIR.
In the recent case of City of Manila v. Grecia-Cuerdo, the Court en
banc has ruled that the CTA now has the power of certiorari in
cases within its appellate jurisdiction.
Guided by the doctrinal teaching in resolving the case at bar, the fact
that the CA petition not only contested the applicability of Sec. 100 of
the NIRC over the sales transaction but likewise questioned the
validity of Sec. 7(c.2.2) of RR 06-08 and RMC 25-11 does not divest
the CTA of its jurisdiction over the controversy.
CIR v. V.Y. Domingo Jewellers, Inc. 2019
WON the First Division of the CTA has jurisdiction to entertain V.Y.
Domingo's petition for review.
NO. V.Y. Domingo received the PCL issued by petitioner CIR
informing it of Assessment Notices dated November 18, 2010. On
September 12, 2011, the former sent a letter request to the BIR
requesting for certi ied true copies of the said Assessment Notices.
However, instead of iling an administrative protest against the
assessment notice within thirty (30) days from its receipt, V.Y.
Domingo elected to ile its petition for review before the CTA First
Division on September 16, 2011, ratiocinating that the issuance of the
PCL and the alleged inality of the terms used for demanding payment
therein proved that its Request for Re-evaluation/ Re-investigation
and Reconsideration had been denied by the CIR.
The word "decisions" in the aforementioned provision of R.A.
No. 9282 has been interpreted to mean the decisions of the CIR
on the protest of the taxpayer against the assessments.
De initely, said word does not signify the assessment itself.
Evidently, V.Y. Domingo's immediate recourse to the CTA First
Division was in violation of the doctrine of exhaustion of
administrative remedies.
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 CIVxTAX
B. PROCEDURE
1. Filing of an action for collection of taxes
a. Internal revenue taxes
The civil remedies for the collection of internal revenue taxes,
fees or charges, and any increment thereto resulting from
delinquency shall be:
a) By distraint of goods, chattels, or effects, and other
personal property of whatever character, including
stocks and other securities, debts, credits, bank
accounts and interest in and rights to personal
property, and by levy upon real property and interest
in rights to real property; and
b) By civil or criminal action.
Either of these remedies or both simultaneously may be
pursued in the discretion of the authorities charged with the
collection of such taxes.
b. Local taxes
All local taxes, fees, and charges shall be collected by the
provincial, city, municipal, or barangay treasurer, or their duly
authorized deputies.
The provincial, city or municipal treasurer may designate the
barangay treasurer as his deputy to collect local taxes, fees, or
charges. In case a bond is required for the purpose, the
provincial, city or municipal government shall pay the
b. Suspension of collection of taxes
premiums thereon in addition to the premiums of bond that
may be required under the LGC.
2. Civil cases
a. Mode and effect of appeal
Review of cases in the Court en banc. — In cases falling
under the exclusive appellate jurisdiction of the Court en banc,
the petition for review of a decision or resolution of the Court
in Division must be preceded by the iling of a timely
motion for reconsideration or new trial with the Division.
Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao
PRE-WEEK NOTES
a) An appeal from a decision or ruling or the inaction of
i) the CIR on disputed assessments or claim for
refund of internal revenue taxes erroneously
or illegally collected,
ii) the decision or ruling of the Commissioner of
Customs, the Secretary of Finance, the
Secretary of Trade & Industry, the Secretary of
Agriculture, and
iii) the Regional Trial Court
in the exercise of their original jurisdiction,
shall be taken to the Court by iling before it a
3. Criminal cases
petition for review as provided in Rule 42
of the Rules of Court. The Court in Division
shall act on the appeal.
b) An appeal from a decision or resolution of the Court in
Division on a motion for reconsideration or new trial
shall be taken to the Court by petition for review as
provided in Rule 43 of the Rules of Court. The Court
en banc shall act on the appeal.
c) An appeal from a decision or ruling of the CBAA or the
RTC in the exercise of their appellate jurisdiction
shall be taken to the Court by iling before it a petition
for review as provided in Rule 43 of the Rules of
Court. The Court en banc shall act on the appeal.
GR: No appeal taken to the Court shall suspend the
payment, levy, distraint, or sale of any property of the
taxpayer for the satisfaction of his tax liability;
EXC: Where the collection of the amount of the taxpayer’s
liability, sought by means of a demand for payment,
by levy, distraint or sale of any property of the
taxpayer, or by whatever means, as provided under
existing laws, may jeopardize the interest of the
Government or the taxpayer, an interested party
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may ile a motion for the suspension of the
collection of the tax liability.
The motion may be iled
a) together with the petition for review or
b) with the answer, or
c) in a separate motion iled by the interested party at
any stage of the proceedings.
The adverse party shall, within ive days after receipt of a copy
of the motion, ile an opposition thereto, if any.
c. Injunction not available to restrain collection
a. Institution and prosecution of criminal action
All criminal actions before the Court in Division in the exercise
of its original jurisdiction shall be instituted by the iling of an
information in the name of the People of the Philippines.
In criminal actions involving violations of the NIRC and other
laws enforced by the BIR, the CIR must approve their iling.
In criminal actions involving violations of the TCC and other
laws enforced by the BOC, the Commissioner of Customs must
approve their iling.
The institution of the criminal action shall interrupt the
running of the period of prescription.
All criminal actions shall be conducted and prosecuted under
the direction and control of the public prosecutor. In criminal
actions involving violation of the NIRC or other laws enforced
by the BIR, and violations of the TCC or other laws enforced by
the BOC, the prosecution may be conducted by their respective
duly deputized legal of icers.
b. Institution of civil action in criminal action
In cases within the jurisdiction of the Court, the criminal action
and the corresponding civil action for the recovery of civil
liability for taxes and penalties shall be deemed jointly
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 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

instituted in the same proceeding. The iling of the criminal receipt of a copy of the decision or resolution, as provided in Rule
action shall necessarily carry with it the iling of the civil 45 of the Rules of Court.
action. No right to reserve the iling of such civil action
separately from the criminal action shall be allowed or If such party has iled a motion for reconsideration or for new trial,
recognized. the period herein ixed shall run from the party’s receipt of a copy
of the resolution denying the motion for reconsideration or for new
c. Period to appeal trial.
a) An appeal to the Court in criminal cases decided by a RTC Effect of appeal. — The motion for reconsideration or for new trial
in the exercise of its original jurisdiction shall be taken by iled before the Court shall be deemed abandoned if, during its
iling a notice of appeal pursuant to Sections 3(a) and 6, pendency, the movant shall appeal to the Supreme Court.
Rule 122 of the Rules of Court within ifteen days from
receipt of a copy of the decision or inal order with the
court which rendered the inal judgment or order appealed
from and by serving a copy upon the adverse party. The
Court in Division shall act on the appeal.
b) An appeal to the Court en banc in criminal cases decided
by the Court in Division shall be taken by iling a petition
for review as provided in Rule 43 of the Rules of Court
within ifteen days from receipt of a copy of the decision
or resolution appealed from. The Court may, for good
cause, extend the time for iling of the petition for review
for an additional period not exceeding ifteen days.
c) An appeal to the Court in criminal cases decided by the
RTCs in the exercise of their appellate jurisdiction shall
be taken by iling a petition for review as provided in Rule
43 of the Rules of Court within ifteen days from receipt
of a copy of the decision or inal order appealed from. The
Court en banc shall act on the appeal.

4. Appeal to the CTA en banc

The review of criminal cases in the Court en banc or in Division
shall be governed by the applicable provisions of Rule 124 of the
Rules of Court.

5. Petition for Review on Certiorari to the Supreme Court

A party adversely affected by a decision or ruling of the Court en
banc may appeal therefrom by iling with the Supreme Court a
veri ied petition for review on certiorari within ifteen days from

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 269 of 269
 CIVxTAX PRE-WEEK NOTES For the 2020/21 #BestBarEver

instituted in the same proceeding. The iling of the criminal receipt of a copy of the decision or resolution, as provided in Rule
action shall necessarily carry with it the iling of the civil 45 of the Rules of Court.
action. No right to reserve the iling of such civil action
separately from the criminal action shall be allowed or If such party has iled a motion for reconsideration or for new trial,
recognized. the period herein ixed shall run from the party’s receipt of a copy
of the resolution denying the motion for reconsideration or for new
c. Period to appeal trial.
a) An appeal to the Court in criminal cases decided by a RTC Effect of appeal. — The motion for reconsideration or for new trial
in the exercise of its original jurisdiction shall be taken by iled before the Court shall be deemed abandoned if, during its
iling a notice of appeal pursuant to Sections 3(a) and 6, pendency, the movant shall appeal to the Supreme Court.
Rule 122 of the Rules of Court within ifteen days from
receipt of a copy of the decision or inal order with the
court which rendered the inal judgment or order appealed
from and by serving a copy upon the adverse party. The
Court in Division shall act on the appeal.
b) An appeal to the Court en banc in criminal cases decided
by the Court in Division shall be taken by iling a petition
for review as provided in Rule 43 of the Rules of Court
within ifteen days from receipt of a copy of the decision
or resolution appealed from. The Court may, for good
cause, extend the time for iling of the petition for review
for an additional period not exceeding ifteen days.
c) An appeal to the Court in criminal cases decided by the
RTCs in the exercise of their appellate jurisdiction shall
be taken by iling a petition for review as provided in Rule
43 of the Rules of Court within ifteen days from receipt
of a copy of the decision or inal order appealed from. The
Court en banc shall act on the appeal.

4. Appeal to the CTA en banc

The review of criminal cases in the Court en banc or in Division
shall be governed by the applicable provisions of Rule 124 of the
Rules of Court.

5. Petition for Review on Certiorari to the Supreme Court

A party adversely affected by a decision or ruling of the Court en
banc may appeal therefrom by iling with the Supreme Court a
veri ied petition for review on certiorari within ifteen days from

Based on the Books of Rabuya, Paras, De Leon, Ingles, Mamalateo, Dimaampao By RGL 269 of 269
 COMxCRM
IPAMS v. Country Bankers Insurance 2018
When the insurer recognizes his liability to pay the claim, there
is waiver by the insurer of any defect in the proof of loss.
The argument of Country Bankers on the lack of of icial
receipts was a mere afterthought to evade its obligation to pay
the claims presented by petitioner IPAMS.
Surety
12. Mercantile Insurance v. DMCI-Laing Construction 2019
Since the surety is a solidary debtor, it is not necessary that the
original debtor irst failed to pay before the surety could be
made liable; it is enough that a demand for payment is made by
the creditor for the surety's liability to attach.
The requirement of " irst demand" in this case should be
understood in light of Article 1169, wherein the obligee is
deemed to be in delay upon judicial or extrajudicial demand.
Clearly, Mercantile's liability became due upon its receipt of the
First Call.
Intellectual Property Law
13. Unfair Competition
Asia Paci ic Resources International Holdings, Ltd. v.
Paperone, Inc. 2018 ✔
While there is confusion of goods when the products are
competing, confusion of business exists when the products
are non-competing but related enough to produce confusion of
af iliation.
Respondent, in using a trademark of petitioner as its corporate
name or trade name, may be held liable for unfair competition.
Banking Law
14. Diligence Required of Banks
Citystate Savings Bank v. Tobias 2018
A banking corporation is liable to innocent third persons where
the representation is made in the course of its business by an
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES For the 2020/21 #BestBarEver
agent acting within the general scope of his authority even
Section 18 of P.D. No. 957 prohibits the mortgage of a portion of
though, in the particular case, the agent is secretly abusing his
the common areas of the condominium project without the
authority and attempting to perpetrate a fraud upon his
approval of the HLURB.
principal or some other person, for his own ultimate bene it.
In this case, PPI's act of mortgaging the uncovered parking area
15. Closure of Banks
– by amending the approved project plan and master deed
Banco Filipino Savings v. BSP 2018 Leonen, J without the af irmative vote of two-thirds of the voting power
of CCI or a simple majority of the registered unit owners under
A bank which has been ordered closed by the Bangko Sentral is
Sec. 4 of the Condominium Act – constitutes unsound real
placed under the receivership of the PDIC. As a consequence of
estate business practice.
the receivership, the closed bank may sue and be sued only
through its receiver, the PDIC. Any action iled by the closed Here, PNB-IFL clearly failed to exercise the required degree of
bank without its receiver may be dismissed. caution in readily accepting the collateral offered by PPI.
FRIA 20. Planters Development Bank v. Lubiya Agro Industrial 2018
16. Commencement Order As a GR, personal notice to the mortgagor in an extrajudicial
foreclosure proceeding is NOT necessary. Act 3135 only
LBP v. Polillo Paradise Island Corp. 2019 ✔
requires posting of the notice + publication of said notice.
The FRIA provides that the effects of the Commencement
The only exception is if the parties expressly stipulated the
Order shall be reckoned from the date of the iling of the
requirement of personal notice.
petition for corporate rehabilitation, be it voluntary or
involuntary. 21. Tabuada v. Tabuada 2018
17. Effect of Commencement Order A person constituting a mortgage should be the owner of the
mortgaged property, or should have the right of free disposal of
Allied Banking Corp. v. Equitable PCI Bank, Inc. 2018 ✔
it, or in the absence thereof, such person should be legally
The effects of such commencement order shall retroact to the authorized for the purpose. Otherwise, the mortgage shall be
date that the petition was iled, and render void any attempt to null and void.
collect on or enforce a claim against the debtor or to set off any
22. Sps Bautista v. Premiere Development Bank 2018
debt by the debtor's creditors, after the commencement date.
The publication and posting of the notice of the rescheduled
Real Estate Mortgage
extrajudicial foreclosure sale are mandatory and jurisdictional.
18. Villalon v. Rural Bank of Agoo 2019 The ensuing sale held without the publication and posting of
the notice is void ab initio.
The irst mortgagee has superior right over the second
mortgagee even if the latter has foreclosed the mortgaged END OF COMMERCIAL LAW
property ahead of the irst. A second mortgagee of an
CRIMINAL LAW
unregistered land has to wait until after the debtor’s obligation
to the irst has been fully satis ied.
I. PRINCIPLES OF CRIMINAL LAW
19. Concorde Condominium v. PNB 2018
A. General principles
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1. Mala in se and mala prohibita 4. Penalties prohibitum. "An act which is declared malum prohibitum, malice or
criminal intent is completely immaterial."
2. Scope and characteristics a. Imposable penalties
Hence, "intent to commit the crime and intent to perpetrate the
3. Pro reo principle b. Classi ication
act must be distinguished. A person may not have consciously
4. Interpretation of penal laws c. Duration and effects intended to commit a crime; but he did intend to commit an act,
and that act is, by the very nature of things, the crime itself." When
5. Retroactive effect of penal laws d. Application an act is prohibited by a special law, it is considered injurious to
public welfare, and the performance of the prohibited act is the crime
B. Felonies i. Subsidiary imprisonment itself.
1. Criminal liabilities ii. Indeterminate Sentence Law Volition, or intent to commit the act, is different from criminal intent.
a. Classi ication of felonies e. Graduation of penalties Volition or voluntariness refers to knowledge of the act being done.
On the other hand, criminal intent refers to the state of mind beyond
b. Aberratio ictus, error in personae, and praeter f. Accessory penalties voluntariness. It is this intent that is being punished by crimes mala
in se.
intentionem 5. Execution and service
c. Impossible crimes a. Three-fold rule Garcia v. CA

d. Stages of execution b. Probation Law The acts prohibited in Section 27(b) of the Omnibus Election Code
are mala in se. Given the volume of votes to be counted and
e. Continuing crimes c. Juvenile Justice and Welfare Act canvassed within a limited amount of time, errors and
miscalculations are bound to happen. And it could not be the intent of
f. Complex crimes and composite crimes d. Republic Act No. 10951 the law to punish unintentional election canvass errors.
2. Circumstances affecting criminal liability 6. Extinction of criminal liability Criminal intent is presumed to exist on the part of the person who
a. Justifying executes an act which the law punishes, unless the contrary shall
7. Civil liability in criminal cases
appear. Thus, whoever invokes good faith as a defense has the
b. Exempting burden of proving its existence.

c. Mitigating A. General principles

People v. Comia
d. Aggravating 1. Mala in se and mala prohibita The act of transporting a prohibited drug is a "malum
e. Alternative circumstances prohibitum" because it is punished as an offense under a special law.
Crimes mala in se are inherently immoral and involve intent to
It is a wrong because it is prohibited by law. Without the law
f. Absolutory causes commit a crime. Good faith is a defense in mala in se crimes, but is punishing the act, it cannot be considered a wrong. As such, the mere
not a defense in mala prohibita crimes, where what is required is commission of said act is what constitutes the offense punished and
3. Persons liable and degree of participation merely the intent to perpetrate the act. Although most crimes suf ices to validly charge and convict an individual caught
punished under special penal laws are mala prohibita, there are committing the act so punished, regardless of criminal intent.
a. Principals, accomplices, and accessories
also those that are mala in se.
b. Conspiracy and proposal
Matalam v. People 2016 Leonen, J
c. Multiple offenders
The general rule is that acts punished under a special law are malum

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2. Scope and characteristics
a. Generality
Penal laws apply to ALL PERSONS who commit crimes within the
territory. exc
1. Under Vienna Convention on diplomatic relations;
2. In certain exempting circumstances under the RPC and
special laws;
3. Legal pluralism in certain areas/culture, i.e. the Muslim
Code and IPRA.
b. Territoriality
Penal laws apply to all offenses committed within the PH territory.
exc
1. Extraterritoriality under the RPC and SPLs
2. Transnational crimes under UNTOC and domestic law,
3. Universal jurisdiction in jus cogens crimes and under
UNCLOS, and
4. Erga omnes crimes under international criminal tribunal
jurisdiction.
People v. Tulin re extraterritoriality and universal jurisdiction
The attack on and seizure of "M/T Tabangao'' and its cargo were
committed in Philippine waters, although the captive vessel was later
brought by the pirates to Singapore where its cargo was off-loaded,
transferred, and sold. And such transfer was done under
accused-appellant Hiong's direct supervision. Although PD No. 532
requires that the attack and seizure of the vessel and its cargo be
committed in Philippine waters, the disposition by the pirates of the
vessel and its cargo is still deemed part of the act of piracy, hence, the
same need not be committed in Philippine waters.
Moreover, piracy falls under Title One of Book Two of the Revised
Penal Code. As such, it is an exception to the rule on territoriality
in criminal law. It is likewise, well-settled that regardless of the law
penalizing the same, piracy is a reprehensible crime against the
whole world (People v. Lol-lo).
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
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c. Prospectivity 5. Retroactive effect of penal laws
Penal laws do not have retroactive effect
The general rule is that penal laws shall have a retroactive effect
exc if the provisions are favorable to the accused who is not a insofar as they favor the person guilty of a felony except
habitual offender a. If the offender is a habitual delinquent;
exc to the exc the law itself provides against such retroactive effect. b. The new or amendatory law is not favorable to him; or
Hernan v. Sandiganbayan 2017 En Banc c. Retrospective application is expressly proscribed.
For as long as the penal law is favorable to the accused, it shall ind People v. Sarcia
application regardless of whether its effectivity comes after the time
when the judgment of conviction is rendered and even if service of Sec 68 of RA 9344 allows the retroactive application of the Act to
sentence has already begun. The accused shall be entitled to the those who have been convicted and are serving sentence at the time
bene its of the new law warranting him to serve a lesser sentence, or of the effectivity of this said Act, and who were below the age of 18
to his release, if he has already begun serving his previous sentence, years at the time of the commission of the offense.
and said service already accomplishes the term of the modi ied
sentence. B. Felonies
1. Criminal liabilities
3. Pro reo principle
⭐Intestate Estate of Gonzales v. People 2010 Modes of committing crimes
1. Dolo. Deceit or criminal intent.
The fundamental principle in applying and in interpreting criminal
laws is to resolve all doubts in favor of the accused. In dubio pro Act performed with deliberate intent.
reo. When in doubt, rule for the accused.
There must be a con luence of both an evil act and an evil
Intimately related to the in dubio pro reo principle is the rule of intent. Actum non facit reum, nisi mens sit rea.
lenity. The rule applies when the court is faced with two possible 2. Culpa. Fault.
interpretations of a penal statute, one that is prejudicial to the
accused and another that is favorable to him. The rule calls for the Wrongful acts result from imprudence, negligence, lack of
adoption of an interpretation which is more lenient to the foresight, or lack of skill.
accused.
Requisites of Dolo
Lenity becomes all the more appropriate when this case is viewed 1. Freedom;
through the lens of the basic purpose of Article 332 of the RPC to
preserve family harmony by providing an absolutory cause. 2. Intelligence;
3. Intent.
4. Interpretation of penal laws
a. Penal laws are strictly construed against the Government and For culpa, instead of intent, accused is imprudent, negligent or
liberally in favor of the accused; lacks foresight or skill while doing the act.
b. The Spanish text is controlling. ⭐Sevilla v. People 2014
by RGL 148 of 249
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Quasi-offenses under Article 365 of the RPC are distinct and
separate crimes and not a mere modality in the commission of a
crime. Thus, the proper designation of the felony should be reckless
imprudence resulting to falsi ication of public documents and
not falsi ication of public documents through reckless imprudence.
Reckless imprudence resulting to falsi ication of public documents is
an offense that is necessarily included in the willful act of
falsi ication of public documents, the latter being the greater offense.
As such, he can be convicted of reckless imprudence resulting to
falsi ication of public documents notwithstanding that the
Information only charged the willful act of falsi ication of public
documents.
People v. Pugay
The next question to be determined is the criminal responsibility of
the accused Pugay. Having taken the can from under the engine of the
ferris wheel and holding it before pouring its contents on the body of
the deceased, this accused knew that the can contained gasoline. The
stinging smell of this lammable liquid could not have escaped his
notice even before pouring the same. Clearly, he failed to exercise all
the diligence necessary to avoid every undesirable consequence
arising from any act that may be committed by his companions who
at the time were making fun of the deceased. Thus, the accused is
only guilty of homicide through reckless imprudence
de ined in Article 365 of the RPC. (should have been reckless
imprudence resulting to homicide)
Proximate cause
That cause, which, in natural and continuous sequence,
unbroken by any ef icient intervening cause, produces the
injury, and without which the result would not have occurred.
The felony is NOT the proximate cause of the resulting injury
when:
a. There is an active force that intervened between the felony and
the injury, and the active force is a distinct act or fact
absolutely foreign from the act of the accused.
b. The injury is due to the intentional act of the victim.
Contributory negligence.
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
NOT ef icient intervening causes
1. Weak or diseased physical condition of victim;
2. Nervousness or temperament of victim;
3. Causes inherent in the victim, i.e. victim not knowing how to
swim;
4. Neglect of victim or third person;
5. Erroneous or unskillful treatment;
6. Delay in the medical treatment of victim.
Death of victim is presumed to be the natural consequence of
physical injuries in licted
1. The victim was in normal health;
2. Death may be expected from the injuries in licted;
3. Death ensued within a reasonable time.
Dinamling v. People 2015
As to the alleged miscarriage or incomplete abortion, the allegedly
exculpatory testimony of Dr. Diaz, or even the complete disregard of
any evidence surrounding such fact does not lead to petitioner
Dinamling's acquittal. The fact of AAA's miscarriage or incomplete
abortion is not essential to proving the elements of the crime, unless
it is alleged to have caused mental or emotional suffering. It is not
among the crime's elements. In fact, it is not abortion but the mere
fact of pregnancy of the victim at the time of commission which is an
aggravating circumstance, not an element, of the offense.
Gelig v. People 2010
The prosecution's success in proving that Lydia committed the crime
of direct assault does not necessarily mean that the same physical
force she employed on Gemma also resulted in the crime of
unintentional abortion.
It is worth stressing that Gemma was admitted and con ined in a
hospital for incomplete abortion on August 28, 1981, which was 42
days after the July 17, 1981 incident. This interval of time is too
lengthy to prove that the discharge of the fetus from the womb of
Gemma was a direct outcome of the assault.
by RGL
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Novicio v. People
If the victim dies as a result of a deliberate act of the malefactors,
intent to kill is presumed. It is petitioner's postulation that the lone
gunshot wound of Mario does not establish intent to kill. However,
the number of wounds in licted is not the sole consideration in
proving intent to kill.
This Court has repeatedly held that if the victim's wound would
normally cause death, then the last act necessary to produce
homicide would have been performed and death would have
resulted were it not for the timely medical attention given to
the victim.
Kinds of criminal intent
1. General. Presumed from the commission of a felony by dolo.
2. Speci ic. Must be proven by direct or circumstantial evidence.
Motive is the reason or compelling force why the accused committed
the acts complained of. Criminal intent is the purpose of the accused
in adopting the particular means to achieve his objective.
However, motive may be inquired into in some instances:
a. Where the identity of offender is in question;
b. To determine voluntariness of the act, or whether it was
intentionally done;
c. To determine the aggressor when self-defense is invoked;
d. To determine speci ic nature of the crime, i.e. murder in
furtherance of rebellion.
Serrano v. People 2010
Intent to kill is a state of mind that the courts can discern only
through external manifestations, i.e., acts and conduct of the
accused at the time of the assault and immediately thereafter.
In Rivera v. People, the Court considered the following factors to
determine the presence of an intent to kill:
1) the means used by the malefactors;
2) the nature, location, and number of wounds sustained by
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the victim; 3. The mistake of fact was NOT due to negligence, bad faith or 1. Gravity — grave, less grave, light;
3) the conduct of the malefactors before, at the time, or unlawful intent of the accused. The accused must have no 2. Mode of commission — Intentional and culpable;
immediately after the killing of the victim; and opportunity to verify his mistake.
3. Their nature — Mala in se and mala prohibita;
4) the circumstances under which the crime was committed
and the motives of the accused. Yapyuco v. Sandiganbayan 2012 4. The law punishing them — Felonies, offenses and
Here, the petitioner used a knife in his assault. The petitioner stabbed In the context of criminal law, a “mistake of fact” is a infractions.
the victim in the abdomen while the latter was held by Gener and misapprehension of a fact which, if true, would have justi ied the act
Orieta. Immediately after the stabbing, the petitioner, Gener and or omission which is the subject of the prosecution. Generally, a b. Aberratio ictus, error in personae, and praeter intentionem
Orieta beat and stoned the victim until he fell into a creek. A reasonable mistake of fact is a defense to a charge of crime where it
reasonable inference can be made that the victim was left for dead negates the intent component of the crime. Accused is still liable under the following circumstances:
when he fell into the creek. 1. Praeter intentionem. — Injury caused is greater than what
A proper invocation of this defense requires
Under these circumstances, we are convinced that the petitioner, in was intended;
stabbing, beating and stoning the victim, intended to kill him. a) that the mistake be honest and reasonable;
Any person may be held liable for an intentional felony although the
b) that it be a matter of fact; and
wrong done is not intended by him, if:
Rivera, et al v. People c) that it negates the culpability required to commit the crime
or the existence of the mental state which the statute a. he has committed an intentional felony;
Intent to kill is a speci ic intent which the prosecution must prove
prescribes with respect to an element of the offense. b. the wrong done or injury caused is the direct, natural or
by direct or circumstantial evidence, while general criminal intent
is presumed from the commission of a felony by dolo. logical consequence of the felony committed; OR
People v. Gervero 2018
In the present case, the prosecution mustered the requisite quantum if the intentional felony committed is the proximate
of evidence to prove the intent of petitioners to kill Ruben. Esmeraldo As early as in the case of People v. Oanis and Galanta, the Court has cause of the injury or damage incurred by the victim.
and Ismael pummeled the victim with ist blows. Even as Ruben fell ruled that mistake of fact applies only when the mistake is
2. Aberratio ictus. — Miscarriage of the blow;
to the ground, unable to defend himself against the sudden and committed without fault or carelessness.
sustained assault of petitioners, Edgardo hit him three times with a 3. Error in personae. — Mistake in identity.
hollow block. Edgardo tried to hit Ruben on the head, missed, but a. Classification of felonies
De inition Effect as to penalty
still managed to hit the victim only in the parietal area, resulting in a
lacerated wound and cerebral contusions. Article 3. De initions. — Acts and omissions punishable by law are
felonies (delitos). Lack of intent to
Praeter
That the head wounds sustained by the victim were merely commit so grave a Mitigating circumstance
Felonies are committed not only by means of deceit (dolo) but also intentionem
super icial and could not have produced his death does not negate wrong
by means of fault (culpa).
petitioners' criminal liability for attempted murder.
There is deceit when the act is performed with deliberate intent and Aberratio Mistake in blow; Art 48 on complex crime may
there is fault when the wrongful act results from imprudence, ictus at least 2 victims apply
Mistake of fact negligence, lack of foresight, or lack of skill.
There is NO liability for mistake of fact. The requisites are: Art 49 applies — if the penalty
Elements of felonies Mistake in for the crime intended be
1. The act done would have been lawful had the act been as the Error in
1. There must be an act or omission; identity; only one different from that committed,
personae
accused believed them to be; victim the lesser penalty shall be
2. Such must be punishable by the RPC; and imposed in its MAX period
2. The intention in performing the act should be lawful; and
3. Such is performed or incurred by means of dolo or culpa.
People v. Pugay, supra re praeter intentionem
According to

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As for Samson, there is adequate evidence showing that his act was 2. which would produce the felony as a consequence
1) legal impossibility, or
merely a part of their fun-making that evening. His act, however, does 3. but which, nevertheless, do not produce it
not relieve him of criminal responsibility. Burning the clothes of the 2) physical impossibility of accomplishing the intended act in
victim would cause at the very least some kind of physical injuries order to qualify the act as an impossible crime. 4. by reason of causes independent of the will of the
on his person, a felony de ined in the RPC. If his act resulted into a Legal impossibility would apply to those circumstances where perpetrator.
graver offense, as what took place in the instant case, he must 1) the motive, desire and expectation is to perform an act in
be held responsible therefor. There is an attempt when
violation of the law;
2) there is intention to perform the physical act; 1. The offender commences the commission of the felony
Article 4 of the RPC provides that criminal liability shall be incurred
by any person committing a felony although the wrongful act done be 3) there is a performance of the intended physical act; and directly by overt acts;
different from that which he intended. 4) the consequence resulting from the intended act does not a. That there be external acts;
amount to a crime.
As no suf icient evidence appears in the record establishing any b. Such external acts have direct connection with the
qualifying circumstances, Samson is only guilty of the crime of On the other hand, factual impossibility occurs when extraneous crime intended to be committed.
homicide de ined and penalized in Article 249 of the RPC. circumstances unknown to the actor or beyond his control prevent
the consummation of the intended crime. One example is the man 2. He does NOT perform all the acts of execution which should
who puts his hand in the coat pocket of another with the intention to produce the felony;
People v. Umawid 2014 re aberratio ictus
steal the latter's wallet and inds the pocket empty. The case at bar
belongs to this category. 3. The offender's act be NOT stopped by his own spontaneous
Maureen’s death is a case of aberratio ictus, given that the fatal blow
desistance;
therefor was only delivered by mistake as it was actually Vicente
who was Umawid’s intended target. In this regard, Umawid’s single d. Stages of execution 4. The non-performance of all acts of execution was due to cause
deed actually resulted in the: (a) Attempted Murder of Vicente; and or accident other than his spontaneous desistance.
(b) Consummated Murder of Maureen. This may be classi ied as a
species of complex crime de ined under Article 48 of the RPC,
particularly, a delito compuesto, or a compound crime where a Frustrated Attempted
single act produces two (2) or more grave or less grave felonies.
has performed all the acts
✘
c. Impossible crimes
of execution which
should produce the ✔ merely
commences
1. The act performed would be an offense against persons or felony as a consequence
property;
cause or accident
2. Act done with evil intent; some cause
other than the
reason for independent of the
3. Its accomplishment is inherently impossible, or that the offender's own
non-accomplishment will of the
spontaneous
means employed is either inadequate or ineffectual; perpetrator
desistance
4. The act performed should not constitute a violation of another Subjective and Objective Phases
provision of the RPC.
Each felony under the RPC has
NB: There is NO attempted or frustrated impossible crime. A felony is consummated when all the elements necessary for its
1. a "subjective phase," or that portion of the acts
execution and accomplishment are present;
Intod v. CA and People constituting the crime included between the act which
It is frustrated when
begins the commission of the crime and the last act
There must be either
1. the offender performs all the acts of execution

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 COMxCRM
performed by the offender which, with prior acts, should
result in the consummated crime.
2. After that point has been breached, the subjective phase
ends and the objective phase begins.
It has been held that if the offender never passes the subjective
phase of the offense, the crime is merely attempted.
On the other hand, the subjective phase is completely passed in
case of frustrated crimes, for in such instances, "subjectively the
crime is complete."
The determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts
of execution have been performed by the offender.
The critical distinction instead is whether the felony itself was
actually produced by the acts of execution. The determination of
whether the felony was "produced" after all the acts of execution
had been performed hinges on the particular statutory
de inition of the felony.
How to determine the stage of the crime
1. Nature of the offense;
2. Elements constituting the felony;
3. Manner of committing same —
a. Formal Crimes — Consummated in one instant, no
attempt. e.g. slander, false testimony, sale of prohibited
drugs.
b. Crimes consummated by mere attempt or proposal or
by overt act e.g. Flight to enemy’s country (121),
corruption of minors (340), Treason.
c. Felony by omission no attempted stage
d. Crimes requiring the intervention of two person to commit
them are consummated by mere agreement e.g. betting
in sport contests (197), corruption of public of icer (212)
e. Material crimes. There are THREE stages of execution.
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
When felonies do not have stages
1. If punished under SPL;
2. By omission;
3. Formal crimes, e.g. physical injuries.
Felonies without frustrated stage
1. Theft;
2. Rape.
Rivera v. People supra
Article 7. When light felonies are punishable. — Light felonies are
punishable only when they have been consummated, with the
exception of those committed against person or property.
GR: Light felonies are punishable only when consummated.
EXC: Those committed against persons or property, even if
People v. Gonzalez
attempted or frustrated. e.g. Slight physical injuries and
maltreatment (266); Art 309, nos. 7 and 8; Alteration of
boundary marks (313); Malicious mischief (328 and 329, no.
3).
Valenzuela v. People⭐ and Canceran v. People 2015
Is there a frustrated stage in theft?
NO. Theft cannot have a frustrated stage. Theft can only be
attempted or consummated.
People v. Aca-ac ⭐
People v. Labiaga 2013
Necessarily, rape is attempted if there is no penetration of the female
organ because not all acts of execution were performed. Taking into
account the nature, elements and manner of execution of the crime of
rape and jurisprudence on the matter, it is hardly conceivable how the
frustrated stage of rape can ever be committed.
As this Court explained in People v. Orita, rape is either attempted or
consummated. There can be no frustrated rape.
Baleros v. People
The attempt which the Penal Code punishes is that which has a
logical connection to a particular, concrete offense; that which is
the beginning of the execution of the offense by overt acts of the
by RGL
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perpetrator, leading directly to its realization and consummation.
It would be too strained to construe petitioner's act of pressing a
chemical-soaked cloth in the mouth of Malou which would induce
her to sleep as an overt act that will logically and necessarily ripen
into rape. As it were, petitioner did not commence at all the
performance of any act indicative of an intent or attempt to rape
Malou.
An essential element of murder and homicide, whether in their
consummated, frustrated or attempted stage, is intent of the
offenders to kill the victim immediately before or simultaneously
with the in liction of injuries.
The (speci ic criminal intent) intent to kill determines whether the
crime committed is physical injuries or homicide. Such intent is
made manifest by the acts of the accused which are undoubtedly
intended to kill the victim.
For evident lack of criminal intent to kill the complainant, the
information for attempted homicide must fail. Considering the nature
and location of their injuries and the number of days required for
their treatment, we ind that the crime committed for the injuries
sustained by the children are two counts of slight physical injuries
under Art. 266.
Appellant should be convicted of attempted murder, and not
frustrated murder.
In frustrated murder, there must be evidence showing that the
wound would have been fatal were it not for timely medical
intervention. If the evidence fails to convince the court that the
wound sustained would have caused the victim’s death without
timely medical attention, the accused should be convicted of
attempted murder and not frustrated murder.
In the instant case, it does not appear that the wound sustained by
Gregorio Conde was mortal.
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To determine the proper venue, 1. Complex crime;

Velasco v. People
Its purpose is to treat several acts validity of arrest and the i. Delito compuesto;
Having commenced the criminal act by overt acts but failing to as one crime commencement of the running of
perform all acts of execution as to produce the felony by reason of prescription. ii. Delito complejo.
some cause other than his own desistance, petitioner committed an
2. Special complex crimes;
attempted felony. Petitioner already commenced his attack with a Examples and Effects of Continuing crimes
manifest intent to kill by shooting private complainant seven times, 3. Continued, continuous or continuing crimes.
1. Kidnapping with homicide;
but failed to perform all the acts of execution by reason of causes
2. The term of prescription commences to run from the date the b. Real or material — There are different crimes in law as well
independent of his will, that is, poor aim and the swiftness of the
latter. Private complainant sustained a wound on the left arm that is crime ended; as in the conscience of the offender. They are thus
not suf icient to cause his death. The settled rule is that where the SEPARATELY punished.
3. BP 22. — Thus, venue may be had either at the place where the
wound in licted on the victim is not suf icient to cause his
check was issued, drawn, or dishonored. Special from ordinary
death, the crime is only attempted murder, since the accused did
not perform all the acts of execution that would have brought about 4. Rebellion. — a rebel may be arrested at any time without need 4. Special complex crimes are those speci ically designated by law to
death. of a warrant as he is deemed to be in the act of committing the be penalized as one felony, although composed of many crimes.
offense at any time.
e. Continuing crimes 5. May consist of crimes punished under SPLs, whereas the complex
f. Complex crimes and composite crimes crime in Art 48 contemplates of felonies punished under the RPC.
Continuous crimes or delito continuado
Kinds of ordinary complex crimes
1. For delito continuado to exist there should be a plurality of acts Article 48. Penalty for complex crimes. —
performed during a period of time; unity of penal provision 1) Compound crime. Requisites:
1. (Compound crime or delito compuesto) When a single act
violated; and unity of criminal intent or purpose, which means that a. Only a single act is performed;
constitutes two or more grave or less grave felonies, or
two or more violations of the same penal provisions are united in
b. It produces
one and the same intent or resolution leading to the perpetration 2. (Complex crime proper or delito complejo) when an
of the same criminal purpose or aim. offense is a necessary means for committing the other, i. 2 or more grave felonies, or

2. According to Guevarra, in appearance, a delito continuado consists the penalty for the most serious crime shall be imposed, the same ii. one or more grave and one or more less grave felonies,
of several crimes but in reality there is only one crime in the to be applied in its maximum period. or
mind of the perpetrator. iii. 2 or more less grave felonies.
Plurality of crimes
3. Padilla views such offense as consisting of a series of acts arising 2) Complex crime proper. Requisites:
1. Consists in the successive execution by the same individual of
from one criminal intent or resolution.
different criminal acts upon any of which no conviction has yet a. At least 2 offenses are committed;
Delito continuado distinguished from Continuing crime been declared. b. One or some of the offenses must be necessary to commit
2. If there has been a conviction for one or some of them, the rules on the other;
Delito continuado Continuing crime
recidivism, quasi-recidivism, reiteracion, or habitual c. All of the offenses must be punished under the same
A single crime produced by One which is consummated in delinquency may instead be applied. statute.
several acts performed separately one place but by reason of the
3. There are two kinds
during a period of time under a nature of the offense, the
single criminal intent in violation violation of the law is deemed a. Formal or ideal — Multiple crimes committed from the same
of a single penal provision. continuing. criminal intent are punished with ONE penalty:

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 COMxCRM
Rules to determine the crime/s to be charged if two or
more are committed
6. Foreknowledge Rule. — Where the accused repetitively performed
one element of a crime (or component of a complex crime) over a
period of time on a more or less regular basis, having
foreknowledge of its occurrence.
7. Doctrine of Absorption. — If one of the offense is an element of
another, the former is deemed absorbed by the latter and there is
only one crime.
8. Single Impulse Doctrine. — If the act or acts complained of
resulted from a single criminal impulse, it constitutes a single
offense.
People v. Orias 2010
Orias should be convicted of three (3) counts of murder and
NOT of the complex crime of multiple murder
The three (3) crimes of murder did not result from a single act but
from several individual and distinct acts. Deeply rooted is the
doctrine that when various victims expire from separate shots,
such acts constitute separate and distinct crimes.
In the instant, the acts of Orias and Elarcosa demonstrate the
existence of conspiracy, thereby imputing collective criminal
responsibility upon them, as the act of one is the act of all.
People v. Nelmida 2012 En Banc
Appellants and their co-accused simultaneous act of riddling the
Napolis v. CA cited in Fransdilla v. People 2015
vehicle boarded by Mayor Tawan-tawan and his group with bullets
discharged from their irearms when the said vehicle passed by,
resulted in the death of two security escorts of Mayor Tawan-tawan.
Evidently, there is in this case no complex crime proper. And the
circumstances present in this case do not it exactly the description
of a compound crime.
⭐As held in People v. Valdez, each act by each gunman
pulling the trigger of their respective irearms, aiming each
particular moment at different persons constitute distinct
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
and individual acts which cannot give rise to a complex
crime.
In People v. Lawas, the Court was "forced" to ind all the accused
guilty of only one offense of multiple homicide. However, as this
Court held in People v. Remollino, the Lawas doctrine is more of
an exception than the general rule.
Here, conspiracy is very much evident from the actuations of the
appellants and their co-accused. Collective responsibility replaced
individual responsibility. The Lawas doctrine, premised on the
impossibility of determining who killed whom, cannot be
applied.
The current rule is where several killings on the same occasion
were perpetrated, but not involving prisoners, a different rule
may be applied, that is to say, the killings would be treated as
separate offenses.
Thus, appellants are liable for the separate crimes of two (2)
counts of murder and seven (7) counts of attempted murder.
As to penalty
Applying the Indeterminate Sentence Law in the case of attempted
murder,
1. the maximum shall be taken from the medium period of
prision mayor, which is 8 years and 1 day to 10 years,
2. while the minimum shall be taken from the penalty next
lower in degree, i.e., prision correccional, in any of its
periods, the range of which is 6 months and 1 day to 6 years.
The complex crime of robbery in an inhabited house by armed
persons and robbery with violence against or intimidation of
persons was committed when the accused, who held irearms,
entered the residential house of the victims and in licted injury upon
the victims in the process of committing the robbery. Hence, the
penalty is that imposed for the robbery in an inhabited house, the
more serious crime. Citing Napolis v. CA, the CA correctly ruled that
all the accused, including Fransdilla, were guilty of committing the
complex crime of robbery in an inhabited house under Article 299,
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and robbery with intimidation or violence under Article 294.
People v. Garcia
The crime of forcible abduction with rape is a complex crime that
occurs when there is carnal knowledge with the abducted woman
under the following circumstances:
1) by using force or intimidation;
2) when the woman is deprived of reason or otherwise
unconscious; and
3) when the woman is under twelve years of age or is
demented.
Garcia is guilty of the complex crime of forcible abduction with rape.
He should also be held liable for the other three counts of rape
committed by his three co-accused, considering the clear conspiracy
among them.
However, as correctly held by the trial court, there can only be ONE
complex crime of forcible abduction with rape. The crime of
forcible abduction was only necessary for the irst rape. Thus, the
subsequent acts of rape can no longer be considered as separate
complex crimes of forcible abduction with rape. They should be
detached from and considered independently of the forcible
abduction. Therefore, Garcia should be convicted of one complex
crime of forcible abduction with rape and three separate acts of
rape.
Santiago v. Garchitorena
The 32 Amended Informations reproduced verbatim the allegation of
the original information, except that instead of the word "aliens" in
the original information each amended information states the name
of the individual whose stay was legalized. The 32 Amended
Informations aver that the offenses were committed on the same
period of time. The strong probability even exists that the approval of
the application for the legalization of the stay of the 32 aliens was
done by a single stroke of the pen, as when the approval was
embodied in the same document.
9. Political Offense Doctrine
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a. Common crimes, perpetrated in furtherance of a political
offense, are divested of their character as “common”
offenses and assume the political complexion of the main
crime of which they are mere ingredients, and,
consequently, cannot be punished separately from the
principal offense, or complexed with the same, to justify
the imposition of a graver penalty.
b. When a killing is committed in furtherance of rebellion,
the killing is not homicide or murder. Rather, the killing
assumes the political complexion of rebellion.
c. When the political offense doctrine is asserted as a defense
in the trial court, it becomes crucial for the court to
determine whether the act of killing was done in
furtherance of a political end, and for the political
motive of the act to be conclusively demonstrated.
Ocampo v. Abando 2014 En Banc
Whether the murder charges against petitioners should be dismissed
under the political offense doctrine.
NO. The political offense doctrine is not a ground to dismiss the
charge against petitioners prior to a determination by the trial court
that the murders were committed in furtherance of rebellion.
As held in the case of Prosecutor of Zamboanga v. CA, if during
trial, petitioners are able to show that the alleged murders were
indeed committed in furtherance of rebellion, the trial court shall
dismiss the murder charges upon the iling of the Information
for simple rebellion, as long as petitioners would not be placed in
double jeopardy.
Special Complexing
1. Component crimes in a special complex crime have no
attempted or frustrated stages because the intention of the
offenders is to commit the principal crime which is to rob but
in the process of committing the said crime, another crime is
committed.
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2. As held in People v. Jugueta, in special complex crimes like
robbery with homicide where the penalty imposed is reclusion
perpetua, the awards for civil indemnity, moral damages, and
exemplary damages are now uniformly pegged at P75K. The
award of temperate damages is also increased to P50K.
Inapplicability of Art 48
1. When the crime subject of the case are covered by the
doctrine of common elements;
a. There can be no complexing wherein two felonies have
a common element and such element is used to
complete the requirements for integrating one crime,
the other crime would be incomplete in that element
and consequently, non-existent.
b. Thus, there can be NO complex crime of estafa
through falsi ication of a private document as both
crimes require damage as an element which is used
for one renders the other incomplete.
2. When the crimes involved are subject to the rule of
absorption of one crime by the other;
3. Where the two offenses resulting from a single act are
speci ically punished as a single crime (Art 265 par 2).
4. Special complex crimes;
a. Art 266-B Rape with homicide;
b. Art 267 Kidnapping with homicide and/or rape;
c. Art 294 Robbery with homicide or rape or
intentional mutilation or arson;
d. Art 297 Attempted or frustrated robbery with
homicide;
e. Art 320 Destructive arson.
5. When the crimes involved cannot be legally complexed:
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a. Art 129 Search warrants maliciously obtained and
abuse in the service of those legally obtained with
perjury;
b. Art 210 Bribery with in idelity in the custody of
prisoners;
c. Art 235 Maltreatment of prisoners with serious
physical injuries;
d. Art 312 Usurpation of real rights with serious
physical injuries;
e. Art 275 Abandonment of persons in danger and Art
276-278 crimes against minors with any other
felony.
NB: Complexing is ‘legally impossible’ because the provisions
expressly state that the penalty for such felonies is in addition
to those imposed on the other felonies committed.
Rules on Robbery and Homicide
1. If homicide was consummated, the case will be a special
complex crime of either Art 294, wherein robbery was
consummated, or Art 297, wherein it was merely attempted or
frustrated.
2. If the homide was not consummated, but was a necessary
means to commit any stage of the robbery, Art 48 applies.
3. If the homicide was neither consummated nor necessary to
robbery, these felonies are separate and distinct offenses.
People v. Dillatan 2018
The component crimes in a special complex crime have no
attempted or frustrated stages.
Thus, as in the present case where, aside from the killing of Homer,
the Spouses Acob, on the occasion of the same robbery, also
sustained injuries, regardless of the severity, the crime committed is
still robbery with homicide as the injuries sustained by the Spouses
Acob are subsumed under the generic term "homicide" and,
thus, become part and parcel of the special complex crime of
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robbery with homicide.
People v. Aspili
Neither in law nor in jurisprudence is there an aggravating
circumstance as robbery in band. More importantly, the evidence
shows that what was committed is the special complex crime of
robbery with homicide aggravated by rape.
The original design of the malefactors was to commit robbery in
order to facilitate their escape from the penal colony. Their original
intent did not comprehend the commission of rape. Hence, the rape is
deemed to aggravate the crime but damages or indemni ication for
the victim may be awarded. Instead of ignominy, it is the rape
itself that aggravates the crime.
With respect to the deaths of Daisy Gonzales and Yolanda Argue, the
appellants are clearly liable therefor since, as held by this Court in
People v. Mangulabnan, it is immaterial that the death of a
person supervened by mere accident, provided that the
homicide is produced by reason or on occasion of the robbery.
People v. Pulusan
A conviction for highway robbery requires proof that the accused
were organized for the purpose of committing robbery
indiscriminately. There is no such proof in this case. The trial court
thus correctly found Pulusan and Rodriguez guilty of the crime of
robbery with homicide aggravated by rape under Article
294(1).
We must state that regardless of the number of homicides committed
on the occasion of a robbery, the crime is still robbery with
homicide. In this special complex crime, the number of persons
killed is immaterial and does not increase the penalty
prescribed in Art. 294. There is NO crime of robbery with
multiple homicide. Moreover, whenever the special complex crime
of robbery with homicide is proven to have been committed, all
those who took part in the robbery are liable as principals
therein although they did not actually take part in the
homicide.
2. Circumstances affecting criminal liability
a. Justifying circumstances
★ DO NOT incur criminal liability.
Self-defense
Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression. ⭐
Second. Reasonable necessity of the means employed to
prevent or repel it.
Third. Lack of suf icient provocation on the part of the person
defending himself.
1. There is unlawful aggression when the peril to one’s life, limb or
right is either actual or imminent.
2. A slap on the face is unlawful aggression.
3. A strong retaliation for an injury or threat may amount to an
unlawful aggression.
4. The killing of the deceased by the defendant be simultaneous with
the attack made by the former, or at least both acts succeeded each
other without appreciable interval of time. The accused must have
no time nor occasion for deliberation and cool thinking.
5. A public of icer exceeding his authority may become an unlawful
aggressor.
6. When the aggressor lees, unlawful aggression no longer exists.
However, if the purpose of the retreat was for the aggressor to take
a more advantageous position to insure the success of the attack
already begun by him, the unlawful aggression is considered still
continuing, and the one making a defense has a right to pursue him
in his retreat and to disable him.
7. No unlawful aggression when there is agreement to ight. The
challenge to ight must be accepted. However, if the aggression
occurred ahead of the agreed time and place of the ight, it is
unlawful.
8. A mere threatening or intimidating attitude, not preceded by an
outward and material aggression, is not unlawful aggression,
because it is required that the act be offensive and positively strong,
showing the wrongful intent of the aggressor to cause injury.
9. The person defending himself cannot be expected to think clearly
so as to control his blow.
10. The measure of rational necessity is to be found in the situation
as it appeared to the person defending at the time when the blow
was struck.
11. Whether the means employed is reasonable, will depend upon
a. The nature and quality of the weapon used by the aggressor;
What the law requires is rational equivalence.
b. His physical condition, character, size and other circumstances,
and those of the person defending himself;
c. And also the place and occasion of the assault.
12. If the provocation by the person defending himself is not proximate
and immediate to the aggression, there is self-defense.
People v. Antonio
As testi ied by accused-appellant himself, the deceased who was at
that time very drunk tried to hit him but missed and fell on the
ground. At that point, unlawful aggression ceased and it was no
longer necessary for him to stab the deceased. It was
accused-appellant, therefore, who became the aggressor when he,
despite the condition of the deceased, proceeded to stab the latter at
the back. His act can no longer be interpreted as an act of
self-preservation but a perverse desire to kill. Hence, he cannot
successfully claim the bene it of self-defense.
People v. Rubiso

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Unlawful aggression is a condition sine qua non for the
justifying circumstance of self-defense. It contemplates an actual,
sudden and unexpected attack, or imminent danger thereof, and not
merely a threatening or intimidating attitude. The person
defending himself must have been attacked with actual physical
force or with actual use of weapon.
It is axiomatic that the mere thrusting of one’s hand into his
pocket as if for the purpose of drawing a weapon is NOT
unlawful aggression. Even the cocking of a ri le without aiming the
irearm at any particular target is NOT suf icient to conclude that
one’s life was in imminent danger.
The location and presence of gunshot wounds on the body of the
victim eloquently refute appellant’s allegation of self-defense. It is an
oft repeated rule that the presence of a large number of wounds,
their location and their seriousness would negate self-defense.
Instead, they indicate a determined effort to kill.
People v. Lansang
The justifying circumstance of defense of a relative can only be
raised where there is a concurrence of the requisites of unlawful
aggression, reasonable necessity of the means employed to repel the
aggression and that the person making the defense had no part in
the provocation.
Defense of relatives
Any one who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers
or sisters, or his relatives by af inity in the same degrees and those
consanguinity within the fourth civil degree, provided that the
irst and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the
revocation was given by the person attacked, that the one making
defense had no part therein.
Requisites:
1) Unlawful aggression;
2) Reasonable necessity of the means employed to prevent or
repel it;
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
3) In case the provocation was given by the person attacked, the
one making the defense had no part therein.
13. Relatives that can be defended: (SADS4C)
a. Spouse;
b. Ascendants;
c. Descendants;
d. Legitimate, natural or adopted Siblings, or relatives by af inity
in the same degrees;
e. Relatives by Consanguinity within the 4th civil degree. (4C)
14. The fact that the relative defended gave provocation is immaterial.
⭐Carungcong v. People 2010
Article 332 provides for an absolutory cause in the crimes of
theft, estafa and malicious mischief. It limits the responsibility of the
offender to civil liability and frees him from criminal liability by
virtue of his relationship to the offended party.
The continuing af inity view maintains that the relationship by
af inity between the surviving spouse and the kindred of the
deceased spouse continues even after the death of the deceased
spouse, regardless of whether the marriage produced children or not.
This is more consistent with the language and spirit of Article 332(1)
of the RPC. The fundamental principle in applying and in interpreting
criminal laws is to resolve all doubts in favor of the accused. In
dubio pro reo. When in doubt, rule for the accused.
Defense of strangers
Anyone who acts in defense of the person or rights of a stranger,
provided that the irst and second requisites mentioned in the irst
circumstance of this Article are present and that the person
defending be not induced by revenge, resentment, or other evil
motive.
Requisites:
1) Unlawful aggression;
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2) Reasonable necessity of the means employed to prevent or
repel it;
3) Accused must not be induced by revenge, resentment or
other evil motive.
15. Any person not included in the enumeration of relatives that can be
defended is considered a stranger.
Fulfillment of duty
Any person who acts in the ful illment of a duty or in the lawful
exercise of a right or of ice.
Requisites:
1. The accused acted in the performance of a duty OR in the
lawful exercise of a right or of ice;
2. The injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful
exercise of such right or of ice.
Cabanlig v. Sandiganbayan
Self-defense and ful illment of duty operate on different principles.
Self-defense is based on the principle of self-preservation from
mortal harm, while ful illment of duty is premised on the due
performance of duty.
A policeman in the performance of duty is justi ied in using such
force as is reasonably necessary to secure and detain the
offender, overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily
harm. Unlike in self-defense where unlawful aggression is an
element, in performance of duty, unlawful aggression from the
victim is NOT a requisite.
Ful illment of Duty was Complete, Killing was Justi ied
In this case, Valino was committing an offense in the presence of the
policemen when Valino grabbed the M16 Armalite from Mercado
and jumped from the jeep to escape. The policemen would have been
justi ied in shooting Valino if the use of force was absolutely
necessary to prevent his escape. The policemen had the duty not only
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to recapture Valino but also to recover the loose irearm.
The duty to issue a warning is not absolutely mandated at all
times and at all cost, to the detriment of the life of law enforcers.
The directive to issue a warning contemplates a situation
where several options are still available to the law enforcers. In
exceptional circumstances such as this case, where the threat to the
life of a law enforcer is already imminent, and there is no other
option but to use force to subdue the offender, the law enforcer's
failure to issue a warning is excusable.
Avoidance of a greater evil
Any person who, in order to avoid an evil or injury, does not act
which causes damage to another, provided that the following
requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of
preventing it.
16. The greater evil should not be brought about by the negligence or
imprudence of the actor; nor must it result from a violation of law.
17. Only criminal liability is excused, not civil liability.
Obedience to a lawful order
Any person who acts in obedience to an order issued by a superior
for some lawful purpose.
Requisites:
1) That an order has been issued by a superior;
2) Such order must be for some lawful purpose;
3) The means used by the subordinate to carry out said order is
lawful.
18. The subordinate is not liable for carrying out an illegal order of his
superior, if he is not aware of the illegality of the order and he is
not negligent.
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
Balunueco v. CA
In the case at bar, Ricardo utterly failed to adduce suf icient proof of
the existence of a positively strong act of real aggression on the part
of the deceased Senando.
First, the fact that three (3) of the assailants suffered non-fatal
injuries bolsters the fact that Senando tried vainly to ward off the
assaults of his assailants. Second, Ricardo failed to present himself
to the authorities. The natural impulse of any person who has killed
someone in defense of his person or relative is to bring himself to the
authorities and try to dispel any suspicion of guilt that the authorities
might have against him. Third, petitioner had a rather erratic
recollection of people and events.
Manaban v. CA
In this case, there was no unlawful aggression on the part of the
victim. First, Bautista was shot at the back as evidenced by the point
of entry of the bullet. Second, when Bautista was shot, his gun was
still inside a locked holster and tucked in his right waist. Third,
when Bautista turned his back at Manaban, Manaban was already
pointing his service irearm at Bautista. 1.
Aggression presupposes that the person attacked must face a
real threat to his life and the peril sought to be avoided is 2.
imminent and actual, not imaginary.
Masipequiña v. CA
The rule is that the reasonable necessity of the means employed 3.
to repel or prevent the attack depends upon the imminent
danger of injury, NOT on the harm actually done to the
accused.
Thus, that Masipequiñ a escaped serious injuries does not necessarily People v. Rafanan on insanity
imply that the means he used to repel the attack were unreasonable
and excessive.
b. Exempting circumstances
the following are exempt from criminal liability:
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1. An imbecile or an insane person, unless the latter has acted
during a lucid interval.
2. A person under 15 years of age.
3. A person over 15 years of age and under 18, unless he has
acted with discernment, in which case, such minor shall be
proceeded against in accordance with the provisions of Art. 80 of
this Code.
4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of
causing it.
5. Any person who act under the compulsion of irresistible
force.
6. Any person who acts under the impulse of an uncontrollable
fear of an equal or greater injury.
7. Any person who fails to perform an act required by law, when
prevented by some lawful insuperable cause.
Imbecility or Insanity
An imbecile is one who, while advanced in age, has a mental
development comparable to that of children 2-7 years of age.
To constitute insanity, there must be complete deprivation of
intelligence or that there be total deprivation of the freedom of
the will. During the lucid interval, the insane acts with
intelligence.
Thus, epilepsy, somnambulism, and malignant malaria are valid
defenses. Feeblemindedness and pedophilia, on the other hand, are
NOT.
In order that the exempting circumstance of INSANITY may be taken
into account, it is necessary that there be a complete deprivation of
intelligence in committing the act, that is,
1. that the accused be deprived of reason;
2. that there be no responsibility for his own acts;
3. that he acts without the least discernment;
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Accident b. The priest fails to do so;

4. that there be a complete absence of the power to discern, or
that there be a total deprivation of freedom of the will. 9. An accident is something that happens outside the sway of our c. His failure was due to a lawful cause, privileged
Where the accused failed to show complete impairment or loss of will, and although it comes about through some act of our will, lies communication between him and a penitent.
intelligence, the Court has recognized at most a mitigating, not an
beyond the bounds of humanly foreseeable consequences. Review of Justifying and Exempting Circumstances
exempting, circumstance in accord with Article 13(9) of the RPC.
10. It is intrinsically contradictory to negligence. M = Mitigating
In previous cases where schizophrenia was interposed as an
exempting circumstance, it has mostly been rejected by the Court. In Civil If not
11. The following requisites must concur: Requisites
each of these cases, the evidence presented tended to show that if Liability complete
there was impairment of the mental faculties, such impairment was a) that the accused was performing a lawful act with due care;
not so complete as to deprive the accused of intelligence or the b) that the injury is caused by mere accident; and Justifying
consciousness of his acts. Accordingly, we must reject the insanity
defense of Rafanan. c) that there was no fault or intent on his part to cause the
1. Unlawful aggression;
injury.
2. Reasonable necessity of the
Minority Irresistible force
RA 9344 as amended by RA 10360 means employed to prevent or
12. The force must be irresistible to reduce the actor to a mere Self-defense ✘ M repel it;
4. A child above 15, but below 18, must have acted without
instrument who acts not only without will but against his will. 3. Lack of suf icient provocation
discernment to be exempt.
Uncontrollable fear on the part of the person
5. Periods of criminal responsibility defending himself;
a) Absolute irresponsibility 15 years and below; 13. This presupposes that a person is compelled to commit a crime by
another, but the compulsion is by means of intimidation or 1. Unlawful aggression;
b) Conditional responsibility 15 years and 1 day - 18 years;
threat, not force or violence. If force or violence is employed, the 2. Reasonable necessity of the
c) Full responsibility 18 years - 70 years; applicable defense is irresistible force. means employed to prevent or
Defense of repel it;
d) Mitigated responsibility 15 years and 1 day to 18 years, with 14. Duress as a valid defense should be based on real, imminent, or ✘ M
relatives 3. In case the provocation was
discernment; over 70 years or senility. reasonable fear for one’s life or limb and should NOT be
speculative, fanciful, or remote fear. given by the person attacked,
6. A child in con lict with the law (CCL) is one who at the time of the
the one making a defense had
commission of the offense is below 18 years old but not less than 15. The compulsion must be of such a character as to leave no
no part therein.
15 years and 1 day old. opportunity to the accused for escape or self-defense in equal
7. Discernment means the capacity of the child at the time of the combat. 1. Unlawful aggression;
commission of the offense to understand the differences between Insuperable cause 2. Reasonable necessity of the
right and wrong and the consequences of the wrongful act. means employed to prevent or
16. Confessant reveals to a priest of his plan to rebel against the Defense of repel it;
8. Intent refers to the desired act of the person while discernment
government. Under Art 116, it is required that anyone who knows of ✘ M
strangers 3. The person defending be not
relates to the moral signi icance that a person ascribes to the said
such conspiracy must report the same. However, due to
act. induced by revenge,
penitent-priest privileged communication, the priest can not be
resentment or other evil
compelled to report such information.
motive.
a. The act of reporting is required under law;

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1. The evil sought to be avoided exempt; have succumbed to it.

actually exists; 2. If above 15 but below 18,
Avoidance of 1. An act is required by law to be
2. The injury feared be greater conditionally exempt.
greater evil done;
or State of
✔ M than that done to avoid it; 3. Exemption applies only if it be
3. There be no other practical and shown that the minor acted 2. A person fails to perform such
necessity Insuperable
✘ ✘ act;
less harmful means of without discernment. cause
preventing it. 3. His failure to perform such act
1. A person is performing a was due to some lawful or
1. The accused acted in the lawful act; insuperable cause.
performance of a duty or in the
2. With due care;
lawful exercise of such right or
Accident ✘ M c. Mitigating circumstances
of ice; 3. He causes an accident to
Ful illment 2. The injury caused or the another by mere accident; 1. Incomplete Defense. Those mentioned in the preceding
✘ M chapter, when all the requisites necessary to justify or to exempt
of duty offense committed be the 4. Without fault or intention of
from criminal liability in the respective cases are not attendant.
necessary consequence of the causing it.
due performance of duty or 2. Mitigating responsibility. That the offender is under
lawful exercise of such right or 1. The compulsion is by means eighteen year of age or over seventy years.
of ice. Compulsion of physical force; 3. Praeter intentionem. That the offender had no intention to
of an
✔ ✘ 2. Such force must be irresistible; commit so grave a wrong as that committed.
1. An order has been issued by a irresistible
force 3. Such force must come from a 4. Provocation. That suf icient provocation or threat on the part
superior;
third person. of the offended party immediately preceded the act.
Obedience 2. Such order must be for a lawful
to a lawful ✘ M 5. Immediate vindication of a grave offense. That the act
purpose; 1. The threat which causes the was committed in the immediate vindication of a grave offense
order
3. The means used by the fear is of an evil greater than to the one committing the felony, his spouse, ascendants, or
subordinate to carry out said or at least equal to, that which relatives by af inity within the same degrees.
order is lawful. he is required to commit; 6. Passion or obfuscation. That of having acted upon an
a) existence of an impulse so powerful as naturally to have produced passion or
Exempting uncontrollable fear; obfuscation.
Impulse of
an b) the fear must be real and 7. Voluntary surrender. That the offender had voluntarily
1. Imbecile is exempt in ALL uncontrollable
✔ M surrendered himself to a person in authority or his agents, or
imminent;
cases; fear Plea of guilty. That he had voluntarily confessed his guilt
Imbecility c) the fear of an injury is
or insanity
✔ M 2. Insane is only exempt if he before the court prior to the presentation of the evidence for the
greater than or at least
acted not during a lucid prosecution.
equal to that done.
interval. 8. Deaf and Dumb, Blind. That the offender is deaf and dumb,
2. That it promises an evil of
blind or otherwise suffering some physical defect which thus
Minority ✔ M such gravity and imminence
1. If 15 and below, absolutely
that the ordinary man would

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restricts his means of action, defense, or communications with
his fellow beings.
9. Illness. Such illness of the offender as would diminish the
exercise of the will-power of the offender without however
depriving him of the consciousness of his acts.
10. Analogous. And, inally, any other circumstances of a similar
nature and analogous to those above mentioned.
Privileged and ordinary
1. Ordinary or Generic mitigating are those enumerated in Art 13.
For incomplete defense however, in Subsection 1, it becomes
privileged when majority of the requisites are present. (Art 69)
Incomplete defense Immediate vindication of a grave offense
3. When all the requisites necessary to justify the act or to exempt 11. A lapse of time is allowed between the grave offense and the
from criminal liability are not attendant. vindication.
4. The only instance it becomes privileged mitigating is when a 12. Whether the personal offense is grave must be decided considering
majority of the requisites in self-defense, defense of relatives or the social standing of the person, the place, the time when the insult
strangers is present. was made.
Praeter intentionem 13. It is incompatible with passion or obfuscation. They cannot
5. It is the intention of the offender at the moment when he is co-exist, except when there are other facts, although closely
committing the crime which is considered. connected. In other words, the cause for each arose from different
sets of facts.
People v. Enriquez

a. It is susceptible to being offset by any aggravating The trial court gave all of the accused the bene it of the mitigating Provocation Vindication
circumstance. circumstance that the offenders had no intention to commit so
grave a wrong. The estimation of this circumstance was proper, Also against offender’s
Made towards offender
b. If not offset, produces only the effect of applying the and its allowance was not inconsistent with the inding that the relatives
penalty provided by law in its minimum period, in case crime was murder.
Offender must An offense need not
of divisible penalty. A grave offense
Provocation have done be grave
2. Privileged mitigating are those that cannot be offset by any
6. Any unjust or improper conduct or act by the offended party,
aggravating circumstance. It has the effect of imposing upon the Immediately
capable of exciting, inciting, or irritating anyone. Time lapse Proximate
preceded the act
offender the penalty lower by one or two degrees than that
7. As to whether a provocation is suf icient depends upon the act
provided by law. Passion or obfuscation
constituting the provocation, the social standing of the person
a. Art 68. When the offender is a minor and his case falls 14. Mitigating only when the same arose from lawful sentiments, and
provoked, the place and time when the provocation is made.
under the JJWA, particularly those above 15 but below 18, NOT in a spirit of lawlessness or revenge.
8. As an element of self-defense, it pertains to its absence on the part
and acts WITH discernment. 15. The crime committed by the accused must be provoked by prior
of the person defending himself; whereas as a mitigating
b. Art 69. Not all, but a majority of the requisites of justifying unjust or improper acts of the injured party.
circumstance, it pertains to its presence on the part of the offended
or exempting circumstances are present. party. 16. Exercise of a right or ful illment of duty is NOT a proper source of
c. Art 64(5). When there are 2 or more mitigating 9. It must be immediate to the commission of the crime such that the passion or obfuscation.
circumstances and no aggravating. accused had no time to regain his reason and to exercise 17. It must be proven that the act which produced passion or
d. Art 268(3). Voluntary release of person illegally detained self-control. obfuscation took place at a time not far removed from the
within 3 days; 10. It should not be offensive and positively strong as it may then be commission of the crime.
e. Art 333(3). Abandonment without justi ication of the considered as an unlawful aggression that may give rise to 18. The crime committed must be the result of a sudden impulse of
spouse who committed adultery. self-defense. natural and uncontrollable fury.

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 COMxCRM PRE-WEEK NOTES For the 2020/21 #BestBarEver

19. It may be built up and strengthen over time until it can no longer be complainant's relatives who were pursuing him and who appeared to
repressed and will ultimately motivate the commission of the But, we must stress that provocation and passion or obfuscation be thirsting for his blood.
are not two separate mitigating circumstances. Well-settled is the
crime. (People v. Oloverio 2015 Leonen, J)
rule that if these two circumstances are based on the same facts, they
Manaban v. CA
20. Considered as ONE mitigating circumstance with provocation if should be treated together as one mitigating circumstance.
both arose from one and the same cause. Voluntary Surrender and Obfuscation
Nonetheless, since the mitigating circumstance of voluntary
21. INCOMPATIBLE with the following: surrender is also present, Article 64 (5) of the RPC should be Manaban called the police to report the shooting incident. When the
applied. The penalty for frustrated homicide, pursuant to Article 50 police arrived, Manaban surrendered his service irearm and
a. Praeter intentionem;
of the RPC, is the penalty next lower in degree than that voluntarily went with the police to the police station for
b. Treachery; prescribed by law for consummated homicide. investigation. Thus, Manaban is entitled to the bene it of the
c. Evident premeditation; mitigating circumstance of voluntary surrender.
Voluntary Surrender
22. The following elements must be present for voluntary surrender to On obfuscation, we ind that the facts of the case do not entitle
Provocation Passion or Obfuscation Manaban to such mitigating circumstance. Manaban admitted
be appreciated:
shooting Bautista because Bautista turned around and was allegedly
Source Offended party Caused by provocation a) the offender has not been actually arrested; about to draw his gun to shoot Manaban. The act of Bautista in
turning around is not unlawful and suf icient cause for Manaban to
Time Immediately preceded b) the offender surrendered himself to a person in authority, lose his reason and shoot Bautista. The defense failed to establish
Need not be immediate
lapse the act and, by clear and convincing evidence the cause that allegedly
c) the surrender must be voluntary, spontaneous. produced obfuscation.
Effect Loss of reason and self-control of offender
Plea of guilty
Lumauig v. People 2014
23. Not mitigating if made on appeal.
Irresistible Force Passion or Obfuscation In sentencing petitioner, the Sandiganbayan correctly considered the
24. Plea of guilty to lesser offense than that charged is not mitigating.
mitigating circumstance of voluntary surrender. However, it
Kind Exempting Mitigating failed to consider the mitigating circumstance of return or full However, if the information is amended to change the charge to a
restitution of the funds that were previously unliquidated. lesser offense and the accused pleads guilty thereto, it is mitigating.
Force Physical Not physical
25. The plea of guilty must be unconditional.
Source 3rd person Offender himself People v. Basite
26. NOT mitigating in culpable felonies and in crimes under SPLs.
Lawful? NO Arise from lawful sentiments A surrender to be voluntary must be spontaneous, showing the
Analogous circumstances
intent of the accused to submit himself unconditionally to the
authorities, either because a. Over 60 years with failing sight, similar to senility;
Romera v. People
1. he acknowledges his guilt, or
b. Outraged feeling of owner of animal taken for ransom similar
Thrusting his bolo at petitioner, threatening to kill him, and hacking 2. he wishes to save them the trouble and expense necessarily
the bamboo walls of his house are, in our view, suf icient to vindication;
incurred in his search and capture.
provocation to enrage any man, or stir his rage and obfuscate his c. Esprit de corps or mass psychology is similar to passion or
thinking, more so when the lives of his wife and children are in If none of these two (2) reasons impelled the accused to surrender,
because his surrender was obviously motivated more by an intention obfuscation;
danger. Petitioner stabbed the victim as a result of those
provocations, and while petitioner was still in a it of rage. In our to insure his safety, his arrest being inevitable, the surrender is not d. Voluntary restitution of property similar to voluntary
view, there was suf icient provocation and the circumstance of spontaneous. Here, accused-appellant willingly went to the police
surrender;
passion or obfuscation attended the commission of the offense. authorities with Gilbert Sacla only to escape the wrath of private

Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla by RGL 162 of 249
 COMxCRM PRE-WEEK NOTES For the 2020/21 #BestBarEver

e. Extreme poverty similar to incomplete justi ication based on otherwise, ordinary. 1. Offender spontaneously confessed his guilt;
state of necessity; 2. Such was made in open court, before the
Minor Plea of
f. Testifying for the prosecution similar to plea of guilty; Above 15 but below 18 years old. competent court that is to try the case; and
(Privileged) guilty
3. Such was made prior to the presentation of
People v. Tampus and Montesclaros Senility Offender is over 70 years old evidence for the prosecution.
We agree with both the trial and appellate courts in their appreciation
There is a notable and evident disproportion between 1. The offender is deaf and dumb, blind or
of the mitigating circumstance of illness as would diminish the Praeter
exercise of willpower of Ida without depriving her of the the means employed to execute the criminal act and otherwise suffering some physical defect
intentionem Deaf and
consciousness of her acts, pursuant to Article 13(9). its consequences.
2. Which thus restricts his means of action,
Dumb, Blind
Dr. Costas testi ied that Ida was provisionally treated for 1. Must be suf icient; defense, or communications with his fellow
schizophrenia a few months before the incident. Ida was not beings.
2. Must originate from offended party; and
totally deprived of intelligence at the time of the incident; but, she
Provocation 3. Must be immediate to the act, i.e., to the 1. The illness of offender must diminish the
may have poor judgment.
commission of the crime by the person who is exercise of his will-power;
Mitigating circumstances which are personal to offenders Illness
provoked. 2. Such illness should not deprive the offender of
Mitigating circumstances which arise consciousness of his acts.
1. There be a grave offense done to the one
1) From the moral attributes of the offender; or committing the felony, his spouse, ascendants, Analogous Similar to any of the mitigating circumstances.
2) From his private relations with the offended party; or Immediate descendants, legitimate, natural or adopted
vindication brothers or sisters, or relatives by af inity within d. Aggravating circumstances
3) From any other personal cause,
of a grave the same degrees;
Shall only serve to mitigate the liability of the principals, accomplices, 1. That advantage be taken by the offender of his public position.
offense 2. The felony is committed in vindication of such (Abuse of public position)
and accessories to whom such circumstances are attendant. (Art 62[3]) grave offense. A lapse of time is allowed between
2. That the crime be committed in contempt or with insult to the
Circumstances which are neither exempting nor mitigating the vindication and doing of the grave offense. public authorities. (Contempt of or insult to public
1. Aberratio ictus; authorities)
1. There be an act, both unlawful and suf icient, to
produce such a condition of mind; and 3. That the act be committed with insult or in disregard of the
2. Mistake in the identity;
respect due the offended party on account of his rank, age, or
3. Entrapment; 2. Said act which produced the obfuscation was not sex, (Insult to offended party)
Passion or
obfuscation far removed from the commission of the or that is committed in the dwelling of the offended party, if the
4. Age of criminal responsibility;
crime by a considerable length of time, during latter has not given provocation. (Dwelling)
5. Performance of righteous action. which the perpetrator might recover his normal 4. That the act be committed with abuse of con idence or obvious
equanimity. ungratefulness. (Abuse of con idence or obvious
Review of Mitigating Circumstances
ungratefulness)
Circumstance Requisites 1. Offender had not been actually arrested.
5. That the crime be committed in the palace of the Chief Executive
Voluntary 2. He surrendered himself to a person in authority or in his presence, or where public authorities are engaged in
Not all requisites necessary to justify the act or to
Incomplete surrender or to the latter's agent; the discharge of their duties, or in a place dedicated to religious
exempt from criminal liability are attendant.
defense worship. (Palace of Chief Executive)
If majority of the requisites are present, privileged, 3. The surrender was voluntary.

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COMxCRM
6. That the crime be committed in the night time, or in an
uninhabited place, or by a band, whenever such circumstances
may facilitate the commission of the offense. (Nighttime,
Uninhabited place,)
Whenever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to
have been committed by a band. (Band)
7. That the crime be committed on the occasion of a con lagration,
shipwreck, earthquake, epidemic or other calamity or
misfortune. (Calamity)
8. That the crime be committed with the aid of armed men or
persons who insure or afford impunity. (Aid of armed men)
9. That the accused is a recidivist. (Recidivist)
A recidivist is one who, at the time of his trial for one crime,
shall have been previously convicted by inal judgment of
another crime embraced in the same title of this Code.
10. That the offender has been previously punished by an offense to
which the law attaches an equal or greater penalty or for two or
more crimes to which it attaches a lighter penalty.
(Reiteracion)
11. That the crime be committed in consideration of a price,
reward, or promise. (Price, reward, or promise)
12. That the crime be committed by means of inundation, ire,
poison, explosion, stranding of a vessel or international damage
thereto, derailment of a locomotive, or by the use of any other
arti ice involving great waste and ruin. (Great waste and ruin)
13. That the act be committed with evident premeditation. (Evident
premeditation)
14. That the craft, fraud or disguise be employed. (Craft, fraud, or
disguise)
15. That advantage be taken of superior strength, or means be
employed to weaken the defense. (Abuse of superior
strength)
16. That the act be committed with treachery. (Alevosia)
There is treachery when the offender commits any of the crimes
against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense
which the offended party might make.
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES For the 2020/21 #BestBarEver
17. That means be employed or circumstances brought about which against persons.
add ignominy to the natural effects of the act. (Ignominy)
Recidivism vs Reiteracion
18. That the crime be committed after an unlawful entry. (Unlawful
entry) Recidivism Reiteracion
There is an unlawful entry when an entrance is effected by a
way not intended for the purpose. As to 1st offense, Been adjudged with
Served out the sentence
offender shall have inality
19. That as a means to the commission of a crime a wall, roof, loor,
door, or window be broken. (Breaking wall, roof, loor, door,
Previous and Included in SAME Must NOT be embraced
or window)
subsequent offenses title in same title
20. That the crime be committed with the aid of persons under
ifteen years of age or by means of motor vehicles, motorized Always aggravating ✔ ✘
watercraft, airships, or other similar means. (aab RA 5438).
(Aid of person under 15, Motor vehicle) The four forms of REPETITION
21. That the wrong done in the commission of the crime be 1. Recidivism
deliberately augmented by causing other wrongs not necessary
for its commission. (Cruelty) 2. Reiteracion or habituality
3. Multi-recidivism or habitual delinquency Art 62[5]
Kinds
(Extraordinary aggravating) — if within a period of ten years
1. Generic — Those that can be applied to all crimes. from the date of his release or last conviction of the crimes of
2. Speci ic — Applies only to particular crimes. serious or less serious physical injuries, robo, hurto, estafa
or falsi ication, he is found guilty of any of said crimes a third
3. Qualifying — Changes the nature of the crime.
time or oftener.
4. Inherent — Must accompany the commission of the crime.
4. Quasi-recidivism Art 160 (Special aggravating) — commits a
People v. Nabaluna felony after having been convicted by inal judgment, before
beginning to serve such sentence, or while serving the same,
The element of treachery cannot simply be presumed. It must be shall be punished by the maximum period of the penalty
clearly proven as the crime itself.
prescribed by law for the new felony.
The mere fact that two of the accused, with one of them being armed Treachery or alevosia
with a bolo, does not necessarily constitute abuse of superior
strength on their part. To take advantage of superior strength, it is 1. The settled rule is that treachery can exist even if the attack is
imperative that there be a showing of purposely using excessive frontal, as long as the attack is sudden and unexpected, giving
force which is out of proportion to the means of defense the victim no opportunity to repel it or to defend himself.
available to the person attacked.
2. What is decisive is that the execution of the attack, without the
Lastly, disregard of old age should not be taken into account for, slightest provocation from an unarmed victim, made it
as stated in the case of People v. Pagal, it is not proper to consider impossible for the victim to defend himself or to retaliate.
this aggravating circumstance in crimes against property.
Robbery with homicide is primarily a crime against property and not 3. There is treachery when the offender commits any of the
crimes against persons, employing means, methods or forms
by RGL 164 of 249
 COMxCRM
in the execution thereof, which tend directly and specially to
ensure its execution without risk to himself arising from the
defense that the offended party might make.
4. There are two (2) conditions that must concur for treachery to
exist, to wit:
a) the employment of means of execution gave the person
attacked no opportunity to defend himself or to
retaliate; and
b) the means or method of execution was deliberately
and consciously adopted.
5. The essence of treachery is that the attack is deliberate and
without warning, done in a swift and unexpected manner,
affording the hapless, unarmed and unsuspecting victim no
chance to resist or escape.
People v. Bermudo 2018
Gilberto was completely defenseless at the time of the attack because
he was surprised by Rommel with a blow to the head causing him to
fall to the ground. Rommel and co-accused continued to attack him
causing him multiple injuries, including the fatal ones. Gilberto was
never in a position to defend himself. Further, Rommel and his
co-accused consciously adopted the means of attack because, as
noted by the CA, they were already armed when they proceeded to the
crime scene. In addition, it is noteworthy that Rommel suddenly,
without warning or provocation, attacked Gilberto from behind.
People v. Bagabay 2018
It is not enough that the attack was "sudden," "unexpected," and
"without any warning or provocation." There must also be a
showing that the offender consciously and deliberately adopted
the particular means, methods and forms in the execution of the
crime which tended directly to insure such execution, without risk to
himself.
People v. Jaurigue 2019
There can be no treachery when the victim was "forewarned of the
danger he was in," "put on guard," or otherwise "could anticipate
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
aggression from the assailant" as when "the assault is preceded by a
heated exchange of words between the accused and the victim; or
when the victim is aware of the hostility of the assailant towards the
former."
People v. Angeles 2019
Treachery may still be appreciated even when the victim was
forewarned of the danger to his person. What is decisive is that the
execution of the attack made it impossible for the victim to defend
himself or to retaliate.
Evident premeditation
To prove this aggravating circumstance, the prosecution must show the
following:
1) the time when the offender determined to commit the crime;
2) an act manifestly indicating that the offender clung to his
determination; and
3) a lapse of time, between the determination to commit the
crime and the execution thereof, suf icient to allow the offender
to re lect upon the consequences of his act.
Mari v. CA
The mere fact that the victim is a woman is not per se an
aggravating circumstance. There was no inding that the evidence
proved that the accused in fact deliberately intended to offend or
insult the sex of the victim, or showed manifest disrespect to the
offended woman or displayed some speci ic insult or disrespect to
her womanhood. There was no proof of speci ic fact or circumstance,
other than the victim is a woman, showing insult or disregard of sex
in order that it may be considered as aggravating circumstance.
Nighttime or nocturnidad
a) particularly sought or darkness is taken advantage to commit
the offense, or
b) facilitated the commission of the crime.
Nighttime cannot be considered if it is shown that the place was
adequately lighted.
by RGL
For the 2020/21 #BestBarEver
Abuse of superior strength
People v. Maron 2019
Employment of means to weaken the defense is, at the very least,
subsumed under the qualifying circumstance of abuse of superior
strength.
In determining whether the qualifying circumstance of employing
means to weaken the defense is present, the Court shall be guided by
the same standard in determining the presence of abuse of superior
strength, i.e., "notorious inequality of forces between the victim
and the aggressor/s that is plainly and obviously advantageous to the
aggressor's and purposely selected or taken advantage of to facilitate
the commission of the crime.”
People v. Pagapulaan 2019
To take advantage of superior strength means to purposely use
excessive force out of proportion to the means of defense available to
the person attacked.
Unlike in treachery, where the victim was not given the opportunity
to defend himself or repel the aggression, taking advantage of
superior strength does not mean that the victim was
completely defenseless.
People v. Enojo 2019
It has been consistently held that an attack made by a man with a
deadly weapon upon an unarmed and defenseless woman
constitutes the circumstance of abuse of that superiority which his
sex and the weapon used in the act afforded him, and from which the
woman was unable to defend herself.
People v. Arizobal re Dwelling, Treachery, Band, Nighttime
The trial court is correct in appreciating dwelling as an aggravating
circumstance. Generally, dwelling is considered inherent in the
crimes which can only be committed in the abode of the victim, such
as trespass to dwelling and robbery in an inhabited place. However,
in robbery with homicide the authors thereof can commit the
heinous crime without transgressing the sanctity of the victim's
domicile.
165 of 249
 COMxCRM
But treachery was incorrectly considered by the trial court. The
accused stand charged with, tried and convicted of robbery with
homicide which is primarily classi ied as a crime against property.
As such, treachery cannot be validly appreciated as an aggravating
circumstance.
While it appears that at least ive (5) malefactors took part in the
commission of the crime, the evidence on record does not disclose
that "more than three" persons were armed, and robbery in "band"
means "more than three armed malefactors united in the
commission of robbery."
Nighttime did not attend the commission of the crime. The fact that
the offense was committed at 9:30 in the evening does not suf ice to
sustain nocturnidad. It must be shown that nocturnidad was
deliberately and intentionally sought.
People v. Nasayao re Treachery
The victim, while squatting on top of a bench and eating his meal
with a plate in one hand, was certainly in no position to defend
himself or to retaliate. Accused may have forewarned Joves about
what he was about to do by telling him to inish his meal.
Nevertheless, accused did not wait for Joves to inish. He did not give
Joves the opportunity to stand up. Joves not only failed to reply to
accused’s order for him to inish his meal, but also failed to make any
instinctive reaction to the perceived threat posed by accused who
was holding two knives. From all indications, the attack on Joves was
sudden and unexpected.
People v. de la Torre re Dwelling
In People v. Parazo, the “dwelling” contemplated in Article 14(3) of
the RPC does not necessarily mean that the victim owns the
place where he lives or dwells. Be he a lessee, a boarder, or a
bedspacer, the place is his home, the sanctity of which the law
seeks to protect. The fact that the crime was consummated in the
nearby house is also immaterial. Marita was forcibly taken by
appellant from her dwelling house (kitchen) and then raped her.
Dwelling is aggravating if the victim was taken from his house
although the offense was not completed therein.
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES For the 2020/21 #BestBarEver
People v. Matibag 2015 of a inal judgment of conviction when they committed the offenses.
Aspili, Magbanua, Mendoza and Rebutido have previously been
The special aggravating circumstance of use of unlicensed convicted of the crimes of frustrated homicide, serious physical
irearm, which was duly alleged in the Information, should be injuries, theft, and murder and trespass to dwelling, respectively.
appreciated in the imposition of penalty. When Matibag killed Duhan Both Sales and Aguirre have previously been convicted of robbery in
with his irearm, the use thereof was unauthorized under the purview band.
of RA 8294 and is equally appreciated as a special aggravating
We likewise uphold the trial court's inding that the crime was
circumstance. As a result, the imposition of the maximum penalty of
aggravated because it was committed by a band. All the six
death, which is reduced to reclusion perpetua in light of RA 9346,
appellants were armed when they boarded the vessel and perpetrated
stands proper. To this, the Court adds that Matibag is not eligible for
their dastardly acts. There is also abuse of superior strength,
parole.
since most of the victims were women and children ranging from 2 to
9 years old.
People v. Perreras re Dwelling
However, the aggravating circumstances of nocturnity and craft
Dwelling aggravates a felony where the crime was committed in the
should not have been considered by the lower court. There was no
dwelling of the offended party if the latter has not given provocation
showing that the appellants purposely sought the cover of night
or if the victim was killed inside his house. Although accused was
when they committed the special complex crime of robbery with
outside of the house when he ired, the victim was inside his house.
homicide. Neither did the appellants employ craft, since they had
For the circumstance of dwelling to be considered, it is not necessary
already boarded the vessel when they pretended to buy Tanduay Rum
that the accused should have actually entered the dwelling of the
in exchange for the dried ish and chicken they were carrying. Even
victim to commit the offense; it is enough that the victim was
without such pretense, they could nonetheless have carried out their
attacked inside his own house.
unlawful scheme.
People v. Taño Review of Aggravating Circumstances
The Court inds that dwelling cannot be appreciated as an Circumstance Requisites Notes
aggravating circumstance. The building where the two offenses were
committed was not entirely for dwelling purposes. The evidence Inherent in
shows that it consisted of two loors: the ground loor, which was Malversation
being operated as a video rental shop, and the upper loor, which was (217);
used as a residence. It was in the video rental shop where the rape Falsi ication of
was committed. True, the victim was dragged to the kitchen and toilet a) Done by a public of icer; document by
but these two sections were adjacent to and formed parts of the store. Abuse of public
b) Took advantage of public
Being a commercial shop that caters to the public, the video position
position of icers(171);
rental outlet was open to the public. As such, it is not attributed the
Art 19 par 3;
sanctity of privacy that jurisprudence accords to residential abodes.
Crimes by public
of icers
People v. Aspili
(204-245)
We ind no merit in the appellants' contention that the lower court
Contempt or a) public authority is Becomes Direct
erred in considering recidivism as an aggravating circumstance. All
insult to the engaged in the exercise of Assault if done
the appellants are recidivists. They were serving sentence by virtue
public his functions; against authority
by RGL 166 of 249
COMxCRM PRE-WEEK NOTES For the 2020/21 #BestBarEver

authorities b) authority is not the clear. the act;

person against whom the
crime is committed; Chief Executive: COMMON ELEMENTS FOR PAR 6
c) offender knows him to be a) Public authority must be Need not be in a) facilitated the commission of the crime; OR
a public authority; in their of ice while the palace; His b) especially sought by the offender to insure the commission
Palace of the
d) presence has not performing his duty; mere presence of the crime or for the purpose of impunity; OR
Chief Executive
prevented the b) He may be the offended aggravates; He c) offender took advantage for the purpose of impunity;
commission of the crime. party need not perform
his duties; Calamity
a) Deliberate intent to offend includes
or insult (sine qua non) Two alternative Calamity or a) Offender must take con lagration,
Rank: there should be a tests for misfortune advantage of calamity; shipwreck,
Insult or difference in the social Disregard of sex a) crime occurred in that nocturnity: earthquake,
disregard of condition of the offender and absorbed in period of darkness a) Objecti epidemic
offended party offended; treachery; beginning at end of dusk ve:
and ending at dawn; facilitat a) armed persons took part
Age: there is a considerable Nocturnidad or Not considered
b) place must not be es in the commission of the
gap; Nighttime when both
illuminated; crime; crime either directly or
Sex: Female. parties are
c) crime must begin and be b) Subject Aid of armed indirectly;
EQUALLY armed;
it is enough that accomplished in the ive: men b) accused availed himself
a) offended party must not Not considered if
the victim was nighttime; purpose of their aid, or relied upon
Dwelling give provocation (sine conspiracy is
attacked inside ly them during the
qua non) present
his own house sought commission of the crime

★ Betrayal of a) The place provides no a) Offender is on trial for an offense;

"For the b) previously convicted by inal judgment of
con idence reasonable possibility of
purpose of another crime;
a) offended party had trusted NOT the victim receiving some
impunity" c) both offenses embraced in same title of Code;
the offender; aggravating help;
In an means to prevent d) offender be convicted of new offense
b) offender abused such ★ Con idence b) accused sought the
uninhabited offender's ★ Also applies if both offenses violate the
trust by committing a must be solitude for an easy and Recidivist
Abuse of place recognition, or same Ordinance/SPL
crime against the offended immediate uninterrupted
con idence secure himself ★ Controlling is time of TRIAL, not the
party; and personal accomplishment of the
from detection commission of crime;
c) abuse of con idence ★ Stealing the crime, and to insure
and punishment. ★ The commission of crime and rendering
facilitated the property of concealment of offense;
commission of the crime host is with of judgment must be successive: e.g.
abuse of a) at least four; Crime 1 → Judgment 1 → Crime 2 → Judgment 2
One of the four
con idence b) all four are armed;
should not be a a) Accused on trial for an ★ If offender
By a band c) all shall have acted Reiteracion or
principal by offense; has not been
Obvious together, taking direct habituality
ungratefulness must be obvious, i.e. manifest and inducement. b) previously served previously
ungratefulness part in the execution of

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COMxCRM PRE-WEEK NOTES For the 2020/21 #BestBarEver

sentence for another punished or THOUGHT crime.

offense of an equal or served
greater penalty, or for two sentence, Act done in order There is an unlawful entry
involves intellectual trickery not to arouse when an entrance is effected
or more crimes of a reiteracion Craft Unlawful Entry NOT for escape
and cunning suspicion of the by a way not intended for the
lighter penalty than that is NOT
victim; purpose.
for the new offense; attendant;
c) be convicted of the new ★ Reiteracion Breaking wall,
Differs from Offender need not enter the building for
offense. NOT involves insidious words or roof, loor, door,
Craft in that FORCIBLE ENTRY to be aggravating.
ALWAYS machinations used to induce or window
Fraud involves
aggravating Fraud the victim in a manner which
direct Aid of person
would enable the offender to 1. Two different aggravating: aid of minors
a) there must be at least two carry out his criminal design. inducement by under 15
If not alleged to under 15, means of motor vehicle;
Consideration (2) principals, one by insidious words
qualify the crime 2. Estafa cannot be committed by means of
of price, reward inducement and the Means of motor
to murder, involves resorting to any device to conceal motor vehicle
or promise other/s by direct Disguise vehicle
GENERIC only identity
participation;
a) Injury caused be
a) There should be The culprit
When the crime committed is deliberately increased
Abuse of notorious inequality of enjoys and
Great waste Incompatible by causing other wrong;
parricide, there is only forces between the two Cruelty delights in
and ruin superior with Passion or b) Other wrong is
GENERIC aggravating parties; making his
strength obfuscation
b) Offender takes advantage unnecessary in
Means are victim suffer.
If there is intent to kill, using of this inequality. accomplishing the crime;
Explosion purposely used
explosion, crime is MURDER
to accomplish a a) At the time of the attack, a) Applies to e. Alternative circumstance
If person dies as a result criminal victim was not in a crimes
without intent, COMPLEX purpose. position to defend himself against Alternative circumstances are those which must be taken into
Derailment of CRIME of damage to means of Alevosia or or retaliate; AND persons; consideration as aggravating or mitigating according to the nature and
Locomotive communication with effects of the crime and the other conditions attending its
Treachery b) offender consciously b) mode of
homicide (Arts 330 and 249 in commission. They are the relationship, intoxication and the degree of
adopted the particular attack
rel to Art 4 and 48); instruction and education of the offender.
means, methods, or consciously
a) time when offender forms. adopted. The alternative circumstance of relationship shall be taken into
determined to commit consideration when the offended party is the spouse, ascendant,
crime; A circumstance
After offender descendant, legitimate, natural, or adopted brother or sister, or
b) act indicating culprit pertaining to the relative by af inity in the same degrees of the offender.
had determined moral order,
Evident clung to this
to commit the must tend to make the effects which adds The intoxication of the offender shall be taken into consideration
Premeditation determination; Ignominy of the crime more humiliating,
crime, 2nd req. disgrace and as a mitigating circumstances when the offender has committed a
c) suf icient lapse of time putting the victim to shame;
exists. obloquy to the felony in a state of intoxication, if the same is not habitual or
between determination
material injury subsequent to the plan to commit said felony but when the
and execution, allowing intoxication is habitual or intentional, it shall be considered as an
REFLECTION and COOL caused by the
aggravating circumstance.

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 COMxCRM PRE-WEEK NOTES For the 2020/21 #BestBarEver

People v. Orilla re relationship
The Amended Information did not allege Remilyn’s minor age. The
prosecution’s failure to allege speci ically Remilyn’s minor age
prevents the transformation of the crime to its quali ied form.
Based on a strict interpretation, alternative circumstances are thus
not aggravating circumstances per se. Jurisprudence considers
relationship as an aggravating circumstance in crimes against
chastity. However, rape is no longer a crime against chastity for
it is now classi ied as a crime against persons.
People v. Bondoc lack of instruction generally mitigating
except in Crimes against property and chastity
A close examination of the record is indicative of the lack of
instruction of the offender. There is more than suf icient
justi ication for the inding of the mitigating circumstance of the
above character that would lessen the rigor of the Anti-Subversion
law.
People v. Fontillas 2010 re intoxication
The Court of Appeals correctly rejected the accused-appellant's
assertion that his extreme intoxication from alcohol on the night of
the rape should be appreciated as a mitigating circumstance. Accused
did not present any evidence that his intoxication was not habitual
or subsequent to the plan to commit the rape.
People v. Dawaton
The trial court erred in not appreciating the alternative
circumstance of intoxication in favor of the accused. There
being no indication that the accused was a habitual drunkard or that
his alcoholic intake was intended to fortify his resolve to commit the
crime, the circumstance of intoxication should be credited in his
favor.
f. Absolutory causes
People v. Casio 2014 Leonen, J
Are those where the act committed is a crime but for reasons of
public policy and sentiment, there is no penalty imposed.
A circumstance which is present prior to or simultaneously with accused called out their attention by saying “Chicks mo dong?”
the offense by reason of which the accused who acts with criminal
With regard to the lack of prior surveillance, prior surveillance is
intent, freedom and intelligence does not incur a criminal liability
for an act which constitutes a crime. not a condition for an entrapment operation’s validity. As
held in People v. Padua, a prior surveillance is not a prerequisite
1. Spontaneous desistance in attempted felonies (Art. 6); for the validity of an entrapment or buy-bust operation, the
2. Accessories in light felonies (Art. 16); conduct of which has no rigid or textbook method.
3. Accessories exempt from criminal liability by reason of
People v. Doria
relationship (Art. 20);
Entrapment in the Philippines is not a defense available to the
4. A legal spouse or parent who in licts slight or less serious
accused. It is instigation that is a defense and is considered an
physical injuries under exceptional circumstances; (Art. 247. If absolutory cause.
death or serious injuries result, there is mitigated liability, as
“extenuating circumstance”) In the case at bar, the evidence shows that it was the con idential
informant who initially contacted Doria. At the pre-arranged meeting,
5. Persons not criminally liable for theft, estafa or malicious the informant was accompanied by PO3 Manlangit who posed as the
mischief by reason of relationship to the offended party. (Art. buyer of marijuana. PO3 Manlangit handed the marked money to
332) Doria as advance payment for one (1) kilo of marijuana. Doria was
apprehended when he later returned and handed the brick of
Entrapment from Instigation marijuana to PO3 Manlangit.
Entrapment Instigation Battered Woman Syndrome
People v. Genosa in rel. to Sec. 26, RA 9262
law of icers employ ruses and
schemes to ensure the The severe beatings repeatedly in licted on appellant constituted a
the accused is induced to commit
apprehension of the criminal form of cumulative provocation that broke down her psychological
the crime.
while in the actual commission resistance and self-control. This “psychological paralysis” she
of the crime. suffered diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13. In
the law of icer conceives the
addition, appellant should also be credited with the extenuating
commission of the crime and
the mens rea originates from the circumstance of having acted upon an impulse so powerful as to have
suggests to the accused who
mind of the criminal naturally produced passion and obfuscation.
adopts the idea and carries it into
execution In order to be classi ied as a battered woman, the couple must go
through the battering cycle at least TWICE. The battered woman
does NOT exempt the criminal
considered an absolutory cause. syndrome is characterized by the so-called “cycle of violence,”
from liability.
which has three phases:
1) the tension-building phase;
2) the acute battering incident; and
Accused was predisposed to commit the offense because she
initiated the transaction. As testi ied by PO1 Veloso and PO1 Luardo, 3) the tranquil, loving (or, at least, nonviolent) phase.

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 COMxCRM PRE-WEEK NOTES For the 2020/21 #BestBarEver

b. When the principal penalty imposed be only a ine, the ii. Indeterminate Sentence Law 8. whose maximum term of imprisonment does not exceed one
subsidiary imprisonment shall NOT exceed six months if the year.
Procedure
culprit shall have been prosecuted for a grave or less grave
In summary
felony, and shall NOT exceed ifteen days, if for a light felony. 1. Getting the MAXIMUM range
1. Determine irst the degree before ixing the periods;
c. When the principal penalty imposed is HIGHER than prision a. Start with the imposable penalty of the RPC;
a. Take the penalty for the principal in the consummated
correccional, NO subsidiary imprisonment shall be b. If there are privileged mitigating (Art 68-69), or special
imposed upon the culprit. stage as the starting point;
mitigating circumstances (Art 64[5]), lower the penalty
d. If the principal penalty imposed is not to be executed by irst by 1 degree or more, then start from there. b. Disregard the attendant circumstances;
con inement in a penal institution, but such penalty is of ixed 2. Getting the MINIMUM range; c. Consider the factors in graduating by degree.
duration, the convict, during the period of time established in 2. Determine the proper period in accordance with Arts 62 and
a. The degree next lower to the maximum range is the
the preceding rules shall continue to suffer the same 64 by considering the following:
minimum range of the indeterminate sentence.
deprivations as those of which the principal penalty consists.
3. Getting the MAXIMUM TERM a. Ordinary mitigating — minimum period;
e. The subsidiary personal liability which the convict may have
a. Consider the presence of attendant circumstances in order b. Generic aggravating — maximum period;
suffered by reason of his insolvency shall not relieve him from
the ine in case his inancial circumstances should to determine the period of the penalty; c. Alternative circumstances — depends on whether it
improve. b. Said period shall be the actual maximum term of the mitigates or aggravates;
2. The subsidiary penalty of imprisonment in case of non-payment of indeterminate sentence; d. Complex crimes — always maximum;
the penalty of ine must be stated in the Judgment, otherwise 4. Getting the MINIMUM TERM e. Crimes due to error in personae (Art 49), the penalty for
it cannot be imposed despite non-payment of the ine. (Pp v. a. Shall be taken from any period of the minimum range, the lesser offense, as between that committed and
Alapan 2018) taking into consideration the factors stated in People v. intended, is imposed in the maximum period;
3. NO subsidiary penalty in the following cases Ducosin f. Abuse of public position or membership in an organized
a. When penalty imposed is HIGHER than prision correccional; Inapplicability syndicate (Art 62 par 1[a]) — maximum period.

b. For failure to pay reparation of damage caused, 1. persons convicted of offenses punished with death penalty or g. Quasi-recidivism (Art 160) — maximum period;
indemni ication of consequential damages, and cost of life-imprisonment; h. Ordinary attendant circumstances may offset each other.
proceedings; 2. convicted of treason, conspiracy or proposal to commit 3. Apply the indeterminate sentence law, when applicable.
c. When penalty imposed is ine and a penalty not to be executed treason;
People v. Temporada
by con inement in a penal institution and which has no ixed 3. convicted of misprision of treason, rebellion, sedition or
duration. Discussion on relevant terminologies
espionage;
4. Unless the SPL provides that subsidiary imprisonment shall not be 1. The RPC provides for an initial penalty as a general
4. convicted of piracy;
imposed, then it may be imposed. IOW, if the SPL is silent, prescription for the felonies de ined therein which consists
5. habitual delinquents; of a range of period of time. This is what is referred to as the
subsidiary imprisonment is allowed.
"prescribed penalty."
6. have escaped from con inement or evaded sentence;
2. The Code provides for attending or modifying circumstances
7. those who having been granted conditional pardon by the Chief
which when present in the commission of a felony affects
Executive shall have violated the terms thereof;

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 COMxCRM
the computation of the penalty to be imposed on a convict.
This penalty, as thus modi ied, is referred to as the
"imposable penalty."
3. From this imposable penalty, the court chooses a single
ixed penalty (also called a straight penalty) which is the
"penalty actually imposed" on a convict, i.e., the prison
term he has to serve.
4. With the passage of the ISL, the law created a prison term
which consists of a minimum and maximum term called the
indeterminate sentence. Thus, the penalty actually
imposed under the pre-ISL regime became the maximum
term under the ISL regime.
People v. Simon
1. If the judgment which could be affected and modi ied by the
reduced penalties provided in Republic Act No. 7659 has
already become inal and executory or the accused is
serving sentence thereunder, then practice, procedure and
pragmatic considerations would warrant and necessitate the
matter being brought to the judicial authorities for relief under a
writ of habeas corpus.
2. Mitigating circumstances should be considered and applied
only if they affect the periods and the degrees of the penalties
within rational limits.
3. The inal query is whether or not the Indeterminate Sentence
Law is applicable to the case now before us. Apparently it does,
since drug offenses are not included in nor has appellant
committed any act which would put him within the exceptions to
said law and the penalty to be imposed does not involve
reclusion perpetua or death.
4. It is held that Sec 1 of ISLaw refers to an offense under a special
law wherein the penalty imposed was not taken from and is
without reference to the RPC.
⭐People v. Cesar
Accused-appellant pleaded guilty to and was convicted of the crime
of direct assault upon a person in authority with homicide. This
being a complex crime, the penalty for the more serious crime
should be imposed, the same to be applied in its maximum
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
period. The more serious crime is homicide punishable by
reclusion temporal (the prescribed penalty).
Accused has to his credit two mitigating circumstances: the special
or privileged mitigating circumstance of minority and the
ordinary mitigating circumstance of plea of guilty.
1. Therefore, under Art. 64, par. 5, the penalty imposable is
the penalty next lower to that prescribed by law.
2. Under Art. 71, the penalty next lower to reclusion temporal
Cajigas v. People
is prision mayor.
3. Because of the complex nature of the crime committed, the
penalty of prision mayor is to be applied in its
maximum period.
4. However, having in his favor the ordinary mitigating
circumstance of plea of guilty without any offsetting
aggravating circumstance, applying Art. 64, par. 2, the
penalty of prision mayor maximum should be imposed
in its minimum range.
The proper method, thus, is
1. to start from the penalty imposed by the RPC, i.e.,
reclusion temporal;
2. then apply the privileged mitigating circumstance of
minority and determine the penalty immediately inferior in
degree, i.e., prision mayor; and
3. inally, apply the same in its maximum degree due to the
complex nature of the crime
Gelig v. People 2010 supra
4. but within the minimum range thereof because of the
ordinary mitigating circumstance of plea of guilty.
Prision mayor being the maximum of the indeterminate sentence, the
minimum of the indeterminate penalty is within the range of the
penalty next lower to it as prescribed by the RPC, i.e., prision
correccional.
Lumauig v. People 2014 supra
The ISLaw, under Section 2, is not applicable to, among others,
cases where the maximum term of imprisonment does not
exceed one year. In determining “whether an indeterminate
Reynaldo Mariano v. People 2014
sentence and not a straight penalty is proper, what is considered is
by RGL
For the 2020/21 #BestBarEver
the penalty actually imposed by the trial court, after
considering the attendant circumstances, and not the imposable
penalty.”
In the case at bar, since the maximum of the imposable penalty is six
months, the ISLaw is not applicable. Thus, it is proper to impose a
straight penalty of four months and one day of arresto mayor and
delete the imposition of ine.
Applying the ISLaw,
1. the minimum of the indeterminate sentence can be
anywhere within the range of the penalty next lower in
degree to the penalty prescribed by the RPC for the crime.
2. The determination of the minimum term of the
indeterminate sentence should be done without
considering any modifying circumstance attendant to the
commission of the crime and without reference to the
periods into which it may be subdivided.
3. The penalty prescribed under Article 315, paragraph 2(d) of
the RPC, as amended by PD 818, is reclusion temporal.
4. The penalty next lower in degree is prision mayor.
5. The minimum term of the indeterminate penalty should be
anywhere within six years and one day to 12 years of prision
mayor.
The penalty for the crime of direct assault is prision correccional
in its medium and maximum periods. The penalty should be ixed
in its medium period in the absence of mitigating or aggravating
circumstances. Applying the ISLaw, the petitioner should be
sentenced to an indeterminate term, the minimum of which is
within the range of the penalty next lower in degree, i.e., arresto
mayor in its maximum period to prision correccional in its
minimum period, and the maximum of which is that properly
imposable under the RPC, i.e., prision correccional in its
medium and maximum periods.
179 of 249
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Death stands alone as the capital punishment. The RPC classi ies for the offense the duration of which is from two years, four ⭐Thus, the maximum period of the prescribed penalty becomes
the felony of serious physical injuries in Art 263 based on the gravity months and one day to six years. the DEGREE. To get the proper period, divide this maximum
of the physical injuries. period into 3 equal periods.
The determination of the minimum and maximum terms is left
With Ferdinand not becoming insane, imbecile, impotent, or blind,
entirely to the discretion of the trial court, the exercise of which will Inapplicability of graduation by period
his physical injuries did not fall under Article 263[1]. Consequently,
not be disturbed on appeal unless there is a clear abuse.
the CA incorrectly considered the petitioner’s act as a grave felony 1. Only indivisible penalties are involved (Art 63);
had it been intentional, and should not have imposed the penalty at
e. Graduation of penalties 2. Penalty consists only of a ine (Art 66);
arresto mayor in its maximum period to prision correccional in its
medium period. Instead, the petitioner’s act that caused the serious 3. Offenses penalized by SPL, unless divisible penalties in the RPC
By degree By period Always MAXIMUM
physical injuries, had it been intentional, would be a less grave were adopted by the SPL to punish violations thereof; and
felony under Article 25, because Ferdinand’s physical injuries were Stage of commission Ordinary aggravating Special aggravating
those under Article 263[3], for having incapacitated him from the 4. Felonies committed through negligence (Art 365).
performance of the work in which he was habitually engaged in for Participation Ordinary mitigating Delito complejo Graduation of Fine
more than 90 days.
Privileged mitigating By degree
Conformably with Article 365, the proper penalty is arresto
mayor in its minimum and medium periods, which ranges from Factors to consider to graduate by degree Art 75. Take ¼ of the maximum amount to get the next degree lower,
one to four months. As earlier mentioned, the rules in Article and so on
64 are NOT applicable in reckless imprudence, and considering 1. Nature of participation of accused;
By period
further that the maximum term of imprisonment would not 2. Stage of execution of the felony (Arts 50-57);
exceed one year, rendering the Indeterminate Sentence Law Art 66. The ine cannot go outside the limits provided by law.
inapplicable, the Court holds that the straight penalty of two 3. Privileged mitigating circumstances (Arts 68-69);
a. maximum should not exceed the ine prescribed by law
months of arresto mayor was the correct penalty for the petitioner. 4. Presence of 2 or more mitigating with no aggravating (Art
b. minimum should not be lower than that provided by law.
64[5]).
People v. Medroso
Effect of special aggravating circumstance f. Accessory penalties
Paragraph 5 of Article 365 expressly states that in the imposition of
the penalties provided for in the Article, the courts shall exercise Penalty to be imposed shall be in its MAXIMUM regardless of
Accessory penalties inherent in principal penalties
their sound discretion without regard to the rules prescribed in mitigating circumstances.
Article 64. 1. Death, when not executed
1. Advantage of public position;
a. Perpetual absolute DQ; and
The penalty for homicide thru reckless imprudence with 2. By an organized/syndicated crime group;
violation of the Automobile Law is prision correccional in its b. Civil interdiction for 30Y, if not expressly remitted in
medium and maximum periods with a duration from two years, An organized/syndicated crime group means a group of two or the pardon.
four months, and one day to six years. Applying the ISLaw to which more persons collaborating, confederating or mutually
appellant is entitled the imposable penalty covers 2. Reclusion perpetua and temporal
helping one another for purposes of gain in the commission of
a) a minimum to be taken from the penalty one degree lower any crime. a. Civil interdiction for life or during sentence; and
than that prescribed by law or arresto mayor in its b. Perpetual absolute DQ.
3. Quasi-recidivism;
maximum period to prision correccional in its minimum
period, i.e. four months and one day to two years and four 4. Ordinary complex crimes. 3. Prision mayor
months, and
a. Temporary absolute DQ; and
b) a maximum to be taken in turn from the penalty prescribed
b. Perpetual special DQ from suffrage.

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 COMxCRM PRE-WEEK NOTES For the 2020/21 #BestBarEver

case shall thus be remanded to the court of origin to effect appellant's divisible penalty, the ISLaw is applicable. 6. Extinction of criminal liability
con inement in an agricultural camp or other training facility,
following the Court's pronouncement in People v. Sarcia. Section 38 of RA No. 9344 provides that when the child below 18 1. By the death of the convict, as to the personal penalties and as
years of age who committed a crime and was found guilty, the court to pecuniary penalties, liability therefor is extinguished only
shall place the child in con lict with the law under suspended when the death of the offender occurs before inal judgment.
Rosal Hubilla v. People 2014 and People v. Wile 2016
sentence even if such child has reached 18 years or more at the time
If the CICL has reached eighteen (18) years of age while under of judgment. 2. By service of the sentence;
suspended sentence, the court shall determine whether 3. By amnesty, which completely extinguishes the penalty and
1. to discharge the child in accordance with this Act, d. Republic Act No. 10951
all its effects;
2. to order execution of sentence, or Hisoler v. De Asis 2018 4. By absolute pardon;
3. to extend the suspended sentence for a certain speci ied
Under Section 85 of R.A. No. 10951, the penalty for Estafa or 5. By prescription of the crime;
period or until the child reaches the maximum age of
twenty-one (21) years. swindling committed through false pretenses has been amended.
Applied in this case, since the penalty prescribed by law is a penalty 6. By prescription of the penalty;
A review of the provisions of RA No. 9344 reveals that imprisonment composed of only one period, Article 65 of the RPC requires the 7. By the marriage of the offended woman.
of CICL is by no means prohibited. While Section 5 (c) of RA No. division of the time included in the penalty into three portions, thus:
9344 bestows on CICL the right not to be unlawfully or arbitrarily a. Maximum : 9 years, 4 months and 1 day to 10 years Prescription
deprived of their liberty; imprisonment as a proper disposition of
b. Medium : 8 years, 8 months and 1 day to 9 years and 4 of crime
a case is duly recognized, subject to certain restrictions on the
months
imposition of imprisonment, namely: ★ the crime itself is extinguished because of failure to ile a
c. Minimum : 8 years and 1 day to 8 years and 8 months. case.
a) the detention or imprisonment is a disposition of last
resort, and The minimum term of the indeterminate sentence should be of penalty
b) the detention or imprisonment shall be for the shortest anywhere from six (6) years and one (1) day to eight (8) years. ★ The prescription of penalties found in Article 93 of the RPC,
appropriate period of time. Under R.A. No. 10951 therefore, the petitioner is liable to suffer the applies only to those who are convicted by inal judgment
indeterminate penalty of imprisonment ranging from six (6) years and are serving sentence which consist of deprivation of
Lastly, following Section 51 of RA No. 9344, the petitioner, although and one (1) day of prision mayor, as minimum, to eight (8) years and liberty.
he has to serve his sentence, may serve it in an agricultural camp eight (8) months of prision mayor, as maximum.
★ The period for prescription of penalties begins only when the
or other training facilities in a manner consistent with the offender ✔ RPC RA 10951 convict evades service of sentence by escaping during the
child's best interest. Such service of sentence will be in lieu of term of his sentence.
service in the regular penal institution. minimum 6M 1D 6Y 1D
Prescription of Crime Penalty Fine
People v. Ancajas 2015 maximum 10Y 8Y 8M

Allain acted with discernment as shown by his act of covering AAA's Section 100 of R.A. No. 10951 applies only insofar as it is favorable
Death, RP, RT 20Y 20Y
mouth with a handkerchief to prevent her from shouting and to the accused. While the imposable penalty under the RPC and R.A.
conspired with appellant Vergel in raping AAA. Allain was only 17 No. 10951 both have their advantages, the Court inds that the Reclusion temporal 20Y 15Y
years old when he committed the crime; he is, therefore, entitled to
penalty imposed under the RPC should apply.
the privileged mitigating circumstance of minority under Article
Other af lictive 15Y 15Y >1.2m
68(2) of the RPC.

Hence, the imposable penalty must be reduced by one degree, Correctional exc 10Y 10Y >40k – 1.2m
i.e., from reclusion perpetua, which is reclusion temporal. Being a

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COMxCRM
offender;
2) Offender disobeys;
155
3) Disobedience not serious.
153 Tumults and other disturbances of public order
1) Causing any serious disturbance in a public place, of ice,
establishment;
2) Interrupting or disturbing performances, functions,
gatherings, peaceful meetings, if the act is not included in
Arts 131 and 132;
3) Making an outcry tending to incite rebellion or sedition in
any gathering;
4) Displaying placards or emblems which provoke
disturbance; 156
5) Burying with pomp the body of a legally executed person.
Acts punished
Quali ied: If the disturbance or interruption is tumultuous.
★ May commit a separate crime, i.e. serious physical injuries.
★ May also be complexed, i.e. assault and tumultuous
disturbance. Elements
Unlawful use of means of publication
154
and unlawful utterances
1) Publishing or causing to be published as news any false
NOTES
news which may endanger the public order, or cause damage
to the interest or credit of the State. 1.
2) Encouraging disobedience to the law or to the constituted
authorities or by praising, justifying or extolling any act
punished by law;
3) Maliciously publishing or causing to be published any
of icial resolution or document without proper authority, or
before they have been of icially published.
4) Printing, publishing or distributing (or causing the same)
books, pamphlets, periodicals, or lea lets which do not bear
the real printer's name, or which are classi ied as
157
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
anonymous.
Alarms and scandals
1) Discharging any irearm, rocket, irecracker, or other
explosive, within any town or public place, calculated to
cause (which produces) alarm or danger;
2) Instigating or taking an active par in any charivari or other
disorderly meeting offensive to another or prejudicial to
public tranquility;
3) Disturbing the public peace while wandering about at night
or while engaged in any other nocturnal amusements;
4) Causing any disturbance or scandal in public places while
intoxicated or otherwise, provided Art 153 is not applicable.
Delivering prisoners from jails
1) Removal of a person from jail;
2) Assists in the escape of a prisoner.
1) There is a person con ined in a jail;
2) Offender removes therefrom such person, or helps him
escape.
Separate and distinct from Bribery:
a) Briber - Art 156 + Art 212, corruption of a public of icer;
b) Jailer, if public of icer - Art 223, in idelity in the custody of
prisoners + Art 210, bribery;
if private person - Art 225, next lower that Art 223 + Art 210;
c) Prisoner, if convict - Not liable in Art 156, but in Art 157;
if detention - no liability, but if convicted, shall not avail of
ISLAW.
Evasion of service of sentence
by RGL
For the 2020/21 #BestBarEver
Escape of a prisoner by inal judgment from jail.
1) Offender is a convict by inal judgment;
2) He is serving sentence consisting of deprivation of liberty;
3) He escapes.
159 Violation of conditional pardon
Conditionally pardoned convict violates any of the conditions set
forth in the pardon.
1) Offender was a convict;
2) Granted conditional pardon by Chief Executive;
3) Violated any of the conditions of the pardon.
NOTES RE EVASION
1. Art 157, Quali ied:
1) means of unlawful entry;
2) breaking doors, windows, gates, walls, roofs, or loors;
3) using picklocks, false keys, disguise, deceit, violence or
intimidation; or
4) connivance with other convicts or employees of the penal
institution.
160 Quasi-recidivism
Convict by inal judgment commits a new felony punishable by the
RPC before beginning to serve or while serving a sentence.
1) Offender is a convict by inal judgment;
2) Committed a new felony before beginning to serve such
sentence, or while serving the same.
Gelig v. People 2010
RTC convicted Lydia Gelig for committing the complex crime of
direct assault with unintentional abortion. On the day of the
commission of the assault, Gemma was engaged in the performance
194 of 249
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of her of icial duties, that is, she was busy with paperwork while 2) Offender either made, imported, or uttered such coins; 2) Offender either forged, imported or uttered such instrument;
supervising and looking after the needs of pupils. Lydia was already
angry when she entered the classroom and accused Gemma of calling 3) In case of uttering, he connived with the counterfeiters or 3) In case of uttering, he connived with the forger or importer.
her son a "sissy". Gemma then proceeded towards the principal's importers.
of ice but Lydia followed and resorted to the use of force by slapping Illegal possession and use of forged treasury or bank
168
and pushing her against a wall divider. The violent act resulted in Mutilation of coins, importation and uttering of notes and other instruments of credit
164
Gemma's fall to the loor. mutilated coins
1) Any treasury or bank note or certi icate or other obligation
Gemma, being a public school teacher, belongs to the class of 1) Mutilating coins with intent to damage or defraud. and security payable to bearer, or any instrument payable
persons in authority expressly mentioned in Article 152 of the RPC. 2) Importing or uttering such mutilated coins with to order or other document of credit not payable to bearer
connivance with the mutilator or importer. is forged or falsi ied by another person.
Pangan v. Gatbalite 2) Knowledge;
165 Selling of false or mutilated coins, without connivance
"Escape" in legal parlance and for purposes of Articles 93 and 157 of 3) Performs any of these acts:
the RPC means unlawful departure of prisoner from the limits of his Acts punished with corresponding elements a) Using any such forged or falsi ied instruments; or
custody. Clearly, one who has not been committed to prison cannot
be said to have escaped therefrom. 1) Possession of coin, counterfeited or mutilated by another b) Possessing with intent to use.
a) Possession
169 How forgery is committed
b) With intent to utter
D. Crimes Against Public Interest
c) Knowledge. 1) Giving to a treasury or bank note or any instrument payable
to bearer or to order mentioned therein the appearance of a
161 Counterfeiting or forging 2) Actually uttering
true and genuine document.
a) Actually uttering
Forging the: e.g. Writing the word "Victory" in ink at the back of the
b) Knowledge. one-peso bill which accused gave as payment. (PP v
1) Great Seal of the Government of the PH;
Galano).
2) signature of the President; False Treasury or Bank notes
2) Erasing, Substituting, Counterfeiting, or Altering by any
3) stamp of the President.
Forging treasury or bank notes or other documents means the igures, letters, words, or sign contained therein.
162 Using forged signature or counterfeit seal or stamp 166 payable to bearer, importing, and uttering of such false e.g. A wrote B's name on the back of said treasury
or forged notes and documents
warrant as if B had indorsed it, and then presented it for
1) Great Seal of the Republic was counterfeited or the signature payment. (US v. Solito)
1) Forging or falsi ication of treasury or bank notes or other
or stamp of the Chief Executive was forged by another person;
documents payable to bearer; Falsification
2) Offender knew of the counterfeiting or forgery;
2) Importation;
3) He used the counterfeit seal or forged signature or stamp. 170 Falsi ication of legislative documents
3) Uttering in connivance with the forgers or importers.
Counterfeiting or Mutilating coins
Counterfeiting, importing and uttering instruments not 1) There be a bill, resolution, or ordinance of any stage and of
167 any legislative body;
163 Making, importing and uttering false coins. payable to bearer
2) Offender alters;
1) There be an instrument payable to order or other document
1) There be false or counterfeited coins; 3) He has no proper authority;
not payable to bearer;

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COMxCRM PRE-WEEK NOTES For the 2020/21 #BestBarEver

4) Alteration has changed the meaning. d) Wrongful intent of injuring a third person. b) Committed any acts in Art 171;
★ Person making the narration of facts must have c) Falsi ication committed in public, of icial, or
Falsi ication by public of icer, employee or notary or
171 knowledge of its falsity. commercial documents.
ecclesiastical minister
5) Altering true dates 2) Falsi ication of private documents.
Any public of icer, employee, or notary, or ecclesiastical minister,
★ Date must be essential. a) Offender committed act in Art 171 except par 7;
who takes advantage of his of icial position.
★ Must affect either the veracity or the effects of the b) Committed in any private document;
Acts punished with corresponding elements
document. c) Caused or with intent to cause damage to a third
1) Counterfeiting or imitating any handwriting, signature or
★ Altering dates in of icial receipts to prevent party.
rubric.
discovery of malversation is falsi ication. 3) Use of falsi ied documents.
Two ways:
6) Making any alteration or intercalation in a genuine in a judicial proceeding
1) Counterfeiting, requisites are: document which changes its meaning.
a) Knowledge;
a) intent or attempt to imitate, a) There be an alteration or intercalation;
b) False document embraced in Art 171 or 172 pars
b) genuine and forged bear some resemblance; b) Made on a genuine document; 1-2;
and
c) Meaning of document has changed; and c) Introduced in evidence in any judicial proceeding.
2) Feigning which is simulating something that does
d) Change made the document speak something false. in any other transaction
not exist.
7) Issuing in authenticated form a document purporting to be a d) Used such document;
Making it appear that a person who does not know
copy of an inexistent document.
how to write has signed the document is feigning. e) Caused or with intent to cause damage.
★ Purporting to be a copy of an inexistent document -
2) Causing it to appear that persons have participated in any
Making a copy of a deed of sale which was never False medical certi icates, false certi icates of merit or
act or proceeding. 174
executed; service
a) Causing it to appear that a person participated in an
8) Intercalating any instrument or note relative to the issuance Punishable act committed by offender
act; and
thereof in a protocol, registry or of icial book.
b) Such person did not in fact participate. 1) Physician falsi ies medical certi icate,
★ Including in a copy a statement contrary to, or
3) Attributing to persons who have participated in an act or 2) Public Of icer falsi ies certi icate of merit or service,
different from that of the genuine original - Civil
proceeding statements other than those in fact made by them. good conduct, etc,
registrar stating that a person is legitimate contrary
a) A person participated in an act; to that stated in the original. 3) Private person falsi ies either.
b) He made statements in that act; and 175 Using false certi icates
Falsi ication by private individuals and use of falsi ied
172
c) Statements other than those made by such person documents
were attributed to him. 1) Art 174 has been committed;
Acts punished with corresponding elements
4) Making untruthful statements in a narration of facts. 2) Offender knew of the falsity;
1) Falsi ication of public, of icial or commercial documents.
a) In a document, there be a narration of facts; 3) He used the same.
a) Offender is private individual or public of icer who
b) Offender has legal obligation to disclose the truth; 177
did not take advantage of his of icial position; Usurpation
c) Facts are absolutely false;

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COMxCRM PRE-WEEK NOTES For the 2020/21 #BestBarEver

1) Usurpation of authority 2) Making a false af idavit. a) Solicited gift or promise;

knowingly and falsely representing oneself to be an of icer, Elements b) To refrain bidders from taking part.
agent, rep of the PH or any foreign gov't
1) Made statement under oath, or executed an af idavit upon a 2) Attempting bidders to stay away
2) Usurpation of of icial functions material matter; a) Attempted to cause bidders to stay away;
performing any act pertaining to any person in authority, 2) Such was made before a competent of icer, authorized to b) By threats, gifts, promises or other arti ice.
under pretense of of icial position, and without being receive and administer oath;
lawfully entitled to.
3) Willful and deliberate assertion of falsehood; Common bid manipulation practices:
False testimony 4) Statement or af idavit required by law. 1. Bid cover happens when a competitor submits a bid that is
either
184 Offering false testimony in evidence
180 False testimony against a defendant
a) higher than that of the designated winner,
1) Offered in evidence a false witness or testimony; b) too high to be accepted, or
1) There be a criminal proceeding;
2) Knows of falsity; c) contains special terms that are known to be unacceptable
2) Offender testi ies falsely under oath against defendant;
3) Made in a judicial or of icial proceeding. by the purchaser.
3) Knows of falsity;
2. Bid suppression happens when a company does not submit
4) Defendant is either acquitted or convicted by inal judgment. NOTES RE FALSE TESTIMONY a bid for inal consideration.
181 False testimony favorable to the defendant 1. Material matter is the main fact which is the subject of the 3. Bid rotation, takes turns winning bids.
inquiry or any circumstance which tends to prove that fact, or any
4. Market allocation, agree not to compete for certain
1) There be a criminal proceeding; fact or circumstance which tends to corroborate or strengthen the
customers or in certain areas.
2) Offender testi ies falsely under oath with intent to favor testimony, or which legitimately affects the credit of any witness
defendant; who testi ies. Has been repealed by RA 10667 or the Philippine
186
3) Knows of falsity; 2. Subornation of perjury is committed by procuring another to Competition Act
swear falsely.
182 False testimony in civil cases 3. Offer of testimonial evidence, begins the moment a witness is Layug v. Sandiganbayan
called to the witness stand and interrogated by counsel. There is authority to the effect that a fourth requisite, i.e., that the act
1) Civil case;
4. If the false witness desists, he is not liable. The offeror however of falsi ication was committed to the damage of a third party or with
2) Testimony is relevant, and intent to cause such damage, may be dispensed with as regards
is liable for attempted offering false testimony in evidence.
3) False; falsi ication of public or of icial documents. In the prosecution of
185 Machinations in public auctions cases involving falsi ication of daily time records, it is imperative
4) Knows of falsity; that there be proof of damage to the government. Such damage may
5) Malicious with intent to affect the issues presented. Common elements take the form of salary paid to the accused for services not rendered.

183 False testimony in other cases and perjury 1) There be public auction;
Tepoco v. People 2017 re Falsi ication of public documents
2) Intent to cause reduction of price
Acts punished Wrongful intent on the part of the accused to injure a third
Acts punished with additional elements
person is NOT an essential element of the crime of falsi ication
1) Falsely testifying under oath; and
1) Soliciting any gift or promise of public document.

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 COMxCRM PRE-WEEK NOTES For the 2020/21 #BestBarEver

Malabanan v. Sandiganbayan 2017 iii) offend any race or religion; F. Crimes Committed by Public O cers

Offenders are considered to have taken advantage of their of icial iv) tend to abet us of prohibited drugs; and Who are public officers
position in falsifying a document if v) are contrary to law, public order, morals, good 1) Taking part in the performance of public functions in the
customs, established policies, lawful orders, Government, or
1) they had the duty to make or prepare or otherwise intervene
decrees and edicts;
in the preparation of the document; or Performing in said Government public duties as an employee,
2) they had of icial custody of the falsi ied document 3) Sell, give away, or exhibit offensive displays.
agent or subordinate of icial, of any rank or class;
In cases of falsi ication, we have interpreted that the criminal intent
Leus v. St. Scholastica’s College Westgrove 2015 2) His authority must be by
to pervert the truth is lacking in cases showing that
1) the accused did not bene it from the falsi ication; and a) direct provision of law;
The determination of whether a conduct is disgraceful or immoral
2) no damage was caused either to the government or to a third involves a two-step process: irst, a consideration of the totality of b) popular election; or
person. the circumstances surrounding the conduct; and second, an
assessment of the said circumstances vis-à -vis the prevailing norms c) appointment by competent authority.
of conduct, i.e., what the society generally considers moral and For purposes of RPC, there is no distinction between a public of icer
E. Crimes Against Public Morals respectable.
and a public employee. What is determinative is not the nature of
The morality referred to in the law is public and necessarily appointment but of the duties he performs.
200 Grave scandal secular, not religious.
Crimes Committed by Judges
1) Act is performed;
Madrilejos v. Gatdula 2019 En Banc
2) Such be highly scandalous as offending against decency or 204 Knowingly rendering unjust judgment
good customs; Ordinance No. 7780 is a local legislation which criminalizes
obscenity. Obscenity is unprotected speech. 1) Offender is a judge;
3) Not under any other article;
Under the circumstances, the proper recourse for petitioners would 2) Renders judgment;
4) Done in a public place or within public knowledge or view.
have been to go to trial to allow the RTC, as the trier of fact, to 3) Such is unjust;
Immoral doctrines, obscene publications and judicially determine whether the materials complained of as obscene
4) Knows it is unjust.
201 were indeed proscribed under the language of Ordinance No. 7780.
exhibitions
As part of their defense, petitioners can probably argue for the
(as amended by PD 969) 205 Rendering judgment through negligence
adoption of the Miller standards, which requires the trier of fact to
1) Publicly proclaim doctrines openly contrary to public ascertain:
1) Offender is a judge;
morals; a) whether "the average person, applying contemporary
community standards" would ind that the work, taken as a 2) Renders judgment;
2) a. Authors or publishers of, or owners of establishment whole, appeals to the prurient interest; 3) Such is manifestly unjust;
selling obscene literature;
b) whether the work depicts or describes, in a patently 4) Due to inexcusable negligence or ignorance.
b. Exhibit indecent or immoral plays, scenes, acts, or offensive way, sexual conduct speci ically de ined by the
shows which: applicable state law; and 206 Rendering unjust interlocutory order
i) glorify criminals or condone crimes; c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scienti ic value. 1) Offender is a judge;
ii) serves no other purpose but to satisfy market for
violence, lust or pornography; 2) (a) knowingly renders unjust interlocutory order; or

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 COMxCRM
b) under the custody of the offender who is a warden or
of similar position and duty;
c) the wife, daughter, sister, or relative within the same
degree of af inity of the person in the custody of
offender.
Lumauig v. People 2014
A prior notice or demand for liquidation of cash advances is not
a condition sine qua non before an accountable public of icer
may be held liable under Article 218.
Legrama v. Sandiganbayan 2012
Mere absence of funds is not suf icient proof of conversion; neither is
the mere failure of the public of icer to turn over the funds at any
given time suf icient to make even the prima facie case. In ine,
conversion must be proved. However, an accountable of icer may
be convicted of malversation even in the absence of direct proof
of misappropriation so long as there is evidence of shortage in
his account which he is unable to explain.
Under Article 217, a presumption was installed that upon demand
by any duly authorized of icer, the failure of a public of icer to have
duly forthcoming any public funds or property – with which said
of icer is accountable – should be prima facie evidence that he had
put such missing funds or properties to personal use. When these
circumstances are present, a “presumption of law” arises that there
was malversation of public funds or properties.
G. Crimes Against Persons
Destruction of Life
246 Parricide
1) A person is killed;
2) Deceased is killed by the accused;
3) Deceased is:
a) the father mother, or child, regardless of legitimacy; or
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
b) a legitimate other ascendant, descendant or spouse of
accused.
The law does not require knowledge of relationship.
Death or physical injuries under exceptional
247
circumstances
1) A legally married person or a parent surprises his spouse
or his daughter, the latter under 18 years of age and living
with him, in the act of committing sexual intercourse
with another.
2) He or she kills, or in licts any serious physical injuries upon
any or both, in the act or immediately thereafter.
3) He has not promoted or facilitated the prostitution of his
wife or daughter, nor has consented to the in idelity of the
spouse.
248 Murder
Any of the following aggravating circumstances are present
1) Treachery (16), taking advantage of superior strength (15),
with the aid of armed men (8), or employing means to
weaken the defense (15), or of means or persons to insure or
afford immunity (8);
2) In consideration of a price, reward, or promise (11);
3) By means of inundation, ire, poison, explosion, shipwreck,
stranding of a vessel, derailment or assault upon a railroad,
fall of an airship (12), by means of motor vehicles, or with
the use of great waste and ruin (20);
4) On occasion of any of the preceding, or of an earthquake,
eruption of a volcano, destructive cyclone, epidemic or other
public calamity (7);
5) Evident premeditation (13);
6) With cruelty (21), by deliberately and inhumanly augmenting
the suffering of the victim, or outraging or scof ing at his
person or corpse (not in Art 14).
by RGL
For the 2020/21 #BestBarEver
Rules for the application of circumstances to qualify murder
a) Only one of the circumstances required; others considered as
generic aggravating;
b) When the other circumstances are absorbed or included in
the one that quali ies, they cannot be considered as generic
aggravating;
c) Any of the qualifying circumstances must be alleged.
Otherwise, the crime is only homicide with the qualifying
only considered as generic aggravating.
249 Homicide
1) A person was killed;
2) Without any justifying circumstance;
3) With intention to kill, which is presumed;
4) Not murder, parricide, nor infanticide.
NOTES
1. When victim is under 12 years of age: RP (Sec 10 RA 7610);
2. Intent to kill is conclusively presumed when death resulted. (US v
Gloria)
251 Death caused in a tumultuous affray
1) There be several persons;
2) Did not compose groups organized for the common purpose
of assaulting and attacking each other reciprocally;
3) Quarreled and assaulted one another in a confused and
tumultuous manner;
4) Someone was killed;
5) It cannot be ascertained who actually killed the deceased;
6) Those who in licted serious physical injuries or who used
violence:
a) can be identi ied. - PM;
b) cannot be determined - PC med-max.
202 of 249
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1) Castration - depriving another, either totally or partially, of

NOTES Abortion
some essential organ for reproduction.
1. Tumultuous affray exists when at least four persons took part;
a) There is mutilation of penis or ovarium.
2. The person killed in the course of the affray need not be one of 256 Intentional abortion
b) It was purposeful and deliberate, to deprive the
the participants in said affray.
Acts punished offended party of reproducing.
252 Physical injuries in licted in a tumultuous affray 1) Using violence against a pregnant woman (RT). 2) Mayhem - lopping or clipping off any other part of the body.
2) Without violence and without consent of the woman (PM).
1) There is a tumultuous affray; 263 Serious physical injuries
3) With consent (PC med-max).
2) There are those who suffered serious or less serious
Elements If in consequence of the physical injuries in licted, injured
physical injuries only;
person shall:
3) Those responsible can not be identi ied; 1) There is a pregnant woman;
1) become insane, imbecile, impotent or blind
4) Those that have used violence upon the offended party are 2) Violence exerted, or drugs or beverages administered, or
acts upon the woman; 2) have lost the use of speech or the power to hear or to
known.
smell, an eye, a hand, a foot, an arm, or a leg, or lost the
3) As a result, fetus dies;
253 Giving assistance to suicide use of any such principal member, or have become
4) Abortion is intended. incapacitated for the work he was habitually engaged.
1) By assisting another to commit suicide, whether it is 3) have become deformed, or have lost any other body part,
257 Unintentional abortion
consummated (PM) or not (AMay med-max); or the use thereof, or have been ill or incapacitated to
2) By lending his assistance to another to commit suicide to the 1) There is a pregnant woman; perform the work he was habitually engaged in for
extent of doing the killing himself (RT). 2) Violence is used without intending an abortion; more than 90 days.

3) Violence intentionally exerted; 4) have become ill or incapacitated for labor for more than
254 Discharge of irearms
30 days.
4) Fetus dies.
1) Discharges a irearm against or at another;
264 Administering injurious substances or beverages
2) No intention to kill. 260 Duel
1) Offender in licted upon another any serious physical
255 Infanticide 1) Killing one's adversary in a duel; (RT)
injury;
2) In licting physical injuries upon such adversary; (Penalty
1) Child was killed; 2) By knowingly administering any injurious substances or
according to the nature)
beverages or by taking advantage of his weakness of mind or
2) Less than 72 hours of age; 3) Making combat although no physical injuries have been credulity.
3) Accused killed the child. in licted. (AMay)
3) No intent to kill.

NOTES 265 Less serious physical injuries

Physical Injuries
1. Penalty is same as that for parricide or murder.
1) Incapacitated for labor for 10-30 days; or needs medical
2. Concealing dishonor mitigates liability for the mother (PM 262 Mutilation
attendance for same period.
med-max) and maternal grandparents (RT).
Acts punished 2) Injuries not those described in Art 263-264.

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COMxCRM PRE-WEEK NOTES
266 Slight physical injuries and maltreatment b) under the custody of the police, military or any law
enforcement agency or penal institution.
1) Incapacitated offended party for labor from 1-9 days, or
required medical attendance during same period; (AMen) c) in full view of the spouse, parent, child, or other
relatives within the 3rd degree of consanguinity.
2) Did not prevent offended party from his habitual work or did
not require medical attendance. (AMen or Fine <=200 and d) offender knows victim as religious;
Censure); e) victim is below 7 years old;
3) Ill-treatment of another by deed without causing any injury. f) offender knows he has HIV/AIDS or other STD and
(AMen min or Fine <=50) transmits to victim;
g) offender belongs to AFP, PNP, para-military, other law
Rape
enforcement agency or penal institution and takes
advantage of position.
266-A Rape by sexual intercourse (Ordinary)
h) permanent mutilation/disability;
Penalty is RP when:
i) offender knows victim is pregnant;
1) Offender is a man;
j) offender knows victim has mental disability,
2) Had carnal knowledge with a woman; emotional disorder and/or physical handicap.
3) Accomplished
266-A Rape through sexual assault (Object)
a) using force or intimidation;
b) when the woman is deprived of reason, or Penalty is PM
unconscious; 1) Offender commits sexual assault;
c) through fraudulent machination or grave abuse of
2) Committed by inserting
authority; OR
a) his penis into another's mouth or anus; or
d) when woman is under 12 years of age (statutory rape)
b) any instrument or object into the genital or anal
or demented.
ori ice.
Penalty is RP to Death when:
3) Accomplished
1) with the use of a deadly weapon or by at least 2 persons;
a) using force or intimidation;
2) the victim has become insane;
b) when the woman is deprived of reason, or
3) special complex crime of attempted rape with homicide; unconscious;
Penalty is Death when: c) through fraudulent machination or grave abuse
1) special complex crime of rape with homicide. of authority; or when woman is under 12 years of
age or demented.
2) with any of the following:
a) victim is minor and the offender is a parent, ascendant, Quali ied
step-parent, guardian, relative within the 3rd civil degree, a) with the use of a deadly weapon or by at least 2 persons; PM
or the common law spouse of the parent. to RT
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla by RGL
For the 2020/21 #BestBarEver
b) the victim has become insane; RT
c) special complex crime of attempted rape with homicide; RT
to RP
d) special complex crime of rape with homicide. RP
e) any of the 10 qualifying of par 1. RT
NOTES RE RAPE
1. Indemnity and Damages
a. Civil indemnity is mandatory. (Pp v. Lascano)
b. If quali ied, increased to not less than P75K, (Pp v. Victor)
c. In rape with homicide: P100K as civil indemnity + P75K as
moral + P25K as temperate + P100K as exemplary damages.
(Pp v. Cumimba)
d. Award of moral damages, automatic. Exemplary damages
justi ied under Art 2230 of Civil Code if there is an aggravating
circumstance. (Pp v. Lucena)
2. Is resistance by the victim required to prove lack of consent to
the rape? Any physical overt act manifesting resistance against the
rape in any degree from the victim is admissible as evidence of lack
of consent. Tenacious resistance, however, is not required. Neither
is a determined and persistent physical struggle on the part of the
victim necessary. (Pp v. Gondaway)
3. Force as an element of rape need not be irresistible; it need but
be present. Intimidation must be viewed in light of the victim’s
perception and judgment at the time of the commission of the
crime and not by any hard and fast rule.
4. Intimidation includes the moral kind as the fear caused by
threatening the girl with a knife or pistol. (Pp v. Frias)
5. The victim’s moral character is immaterial, there being absolutely
no nexus between it and the odious deed committed. Even a
prostitute or a woman of loose morals can be the victim of rape, for
she can still refuse a man’s lustful advances. (Pp v. Agsaoay)
6. Evidence which may be accepted in the prosecution of rape
a) any physical overt act manifesting resistance against the act of
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rape in any degree from the offended party; or
b) where the offended party is so situated as to render him/her
incapable of giving consent.
Ricalde v. People 2015 Leonen, J
Rape under the second paragraph of Article 266-A is also known as
“instrument or object rape,” “gender-free rape,” or “homosexual
rape.” The gravamen of rape through sexual assault is “the
insertion of the penis into another person’s mouth or anal ori ice, or
any instrument or object, into another person’s genital or anal
ori ice.”
In People v. Soria, the court discussed that a victim need not identify
what was inserted into his or her genital or anal ori ice for the court
to ind that rape through sexual assault was committed.
Baleros v. People
Whether or not the act of the petitioner, i.e., the pressing of a
chemical-soaked cloth while on top of Malou, constitutes an overt act
of rape.
NO. It would be too strained to construe petitioner's act of pressing a
chemical-soaked cloth in the mouth of Malou which would induce
her to sleep as an overt act that will logically and necessarily ripen
into rape. As it were, petitioner did not commence at all the
performance of any act indicative of an intent or attempt to rape
Malou. It cannot be overemphasized that petitioner was fully clothed
and that there was no attempt on his part to undress Malou, let alone
touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention,
is anybody's guess.
Perez v. CA
Perez was found guilty of attempted rape. However, a careful
review of the records of the case shows that the crime committed by
petitioner was acts of lasciviousness not attempted rape.
There is no showing in this case that petitioner’s sexual organ had
even touched complainant’s vagina nor any part of her body.
Although the information iled against petitioner was for
attempted rape, he can be convicted of acts of lasciviousness
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES For the 2020/21 #BestBarEver
because the crime of acts of lasciviousness is included in rape. subparagraph (d) of Article 266-A(1) of the RPC.
Nonetheless, the mistake would not exonerate appellant.
People v. Aca-ac
In People v. Dalandas, citing People v. Dumanon, this Court held
Necessarily, rape is attempted if there is no penetration of the
that mental retardation can be proven by evidence other than
female organ because not all acts of execution were performed. The
medical/clinical evidence, such as the testimony of witnesses and
offender merely commenced the commission of a felony directly by
even the observation by the trial court.
overt acts. Taking into account the nature, elements, and manner of
execution of the crime of rape and jurisprudence on the matter, it is
hardly conceivable how the frustrated stage in rape can ever be People v. YYY 2018 re Rape
committed.
A medico-legal report is NOT indispensable in rape cases as it is
merely corroborative in nature. Thus, even without it, an accused
People v. Dalisay may still be convicted on the sole basis of the testimony of the
victim. As such, the credibility of the witness should be assessed
The presence of either hymenal laceration or spermatozoa on Lanie's
independently regardless of the presence or absence of a
private part is not an essential element of rape. In People v. Parcia,
medico-legal report. Trial courts are expected to scrutinize the
we held that the absence of sperm does not disprove the charge of
victim's testimony with great caution, with or without a medico-legal
rape. Likewise, in People v. Regala, we ruled that an intact hymen
report to corroborate the same.
does not necessarily prove absence of sexual intercourse.
People v. Lining H. Crimes Against Personal Liberty and Security
RTC found Gerry Lining guilty beyond reasonable doubt for the crime
of forcible abduction with rape, and for another count of rape. Illegal Detention
267 Kidnapping and serious illegal detention
The medical inding that the victim was already a non-virgin, nor the
fact that she had sexual relations before, would not matter. Even a
Penalty is RP to Death
woman of loose morals could still be a victim of rape, for the
essence of rape is the carnal knowledge of a woman against her will 1) Offender is a private individual;
and without her consent.
2) Kidnaps or detains another, depriving the latter of his
Nevertheless, accused-appellant could only be convicted for the liberty;
crime of rape, instead of the complex crime of forcible abduction 3) Act is illegal;
with rape. Indeed, it would appear from the records that the main
objective of the accused when the victim was taken to the house of 4) Any of the following circumstance is present:
Mila Salvacion was to rape her. Hence, forcible abduction is a) lasts for more than 3 days;
absorbed in the crime of rape.
b) simulating public authority;
c) any serious physical injuries are in licted or threats
People v. Monticalvo 2013
to kill detainee are made;
A mental retardate can be classi ied as a person “deprived of
d) detainee is a minor, female, or a public of icer; OR
reason,” not one who is “demented” and carnal knowledge of a
mental retardate is considered rape under subparagraph (b), not e) Person is kidnapped for ransom.
by RGL 205 of 249
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Maximum penalty of Death detention. 276 Abandoning a minor

1) if the purpose is to extort money; 3. When the victim is female, detention is under Art 267. Voluntary
1) Offender has custody of a child;
release is not mitigating in that article.
2) victim is killed or dies as a consequence; special complex 2) Who is under 7 years of age;
crime Kidnapping of minors 3) Abandons such child;
3) victim is raped; special complex crime
4) Has no intent to kill when child is abandoned.
4) victim is subjected to torture or dehumanizing acts. 270 Kidnapping and failure to return a minor
Trespass
268 Slight illegal detention 1) Offender is entrusted with the custody of a minor;
2) Deliberately fails to restore said minor to his parents or 280 Trespass to dwelling
1) Offender is a private individual;
guardians.
2) Kidnaps or detains another, depriving the latter of his liberty;
1) Offender is a private person;
3) Act is illegal; 271 Inducing a minor to abandon his home
2) Enters the dwelling of another;
4) Without any of the circumstances in Art 267. 1) The minor is living in the home of his parents or guardian or 3) Against the latter's will.
Penalty lowered to PM min-med when offender the person entrusted with is custody;
Quali ied: By means of violence or intimidation
a) voluntarily releases captive within 3 days, when he was in 2) Induces said minor to abandon such home.
the position to prolong detention; 281 Other forms of trespass
b) without having attained the purpose intended; and
Abandonment and Exploitation
1) Offender enters the closed premises or the fenced estate of
c) before the institution of criminal proceedings. another;
Abandonment of persons in danger and of one's own
275 2) It is uninhabited;
269 Unlawful arrest victim
3) Prohibition to enter be manifest;
1) Offender arrests or detains another; 1) Failing to render assistance to any person offender inds:
4) Has not secured the permission of the owner or caretaker.
2) Purpose is to deliver him to the proper authorities; a) In an uninhabited place,

3) Not authorized by law or there is no reasonable ground b) wounded or in danger of dying, Threats and Coercion
therefor. c) whilst he can render assistance without detriment to
himself, 282 Grave threats
NOTES RE ILLEGAL DETENTION d) he fails to render such, and
1) Where offender attained his purpose
1. The essence of the crime of kidnapping is e) such omission shall not constitute a more serious
a) Threatening another with the in liction upon his
a. the actual deprivation of the victim's liberty offense.
person, honor or property or that of his family of
b. coupled with an indubitable proof of intent on the part 2) Failing to help or assist another whom offender accidentally any wrong
of the malefactor to effect such restraint on the wounded or injured.
b) amounting to a crime and
offended party's liberty. 3) Failing to deliver a child under 7 years whom offender found
c) demanding money or imposing any other condition,
2. A public of icer must have duty under the law to detain persons, abandoned, to the authorities or to his family, or by failing to
even though not unlawful, and
otherwise he may be liable for kidnapping and not arbitrary take him to a safe place.

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d) the offender attained his purpose. Quali ied if the coercion is committed a) Offender pays the wages due a laborer by means of
2) Where offender did not attain his purpose; 1) in violation of the right of suffrage; tokens or objects;

3) Not subject to a condition 2) compel another to perform or b) Not legal tender;

a) Threatening another of in liction upon his person, 3) prevent another from performing any religious act. c) Not expressly requested by the employee.
honor or property or that of his family of any wrong Elements Formation, maintenance and prohibition of combination
289
b) amounting to a crime and 1) A person is prevented from doing something legal, or of capital or labor through violence or threats
c) not subject to a condition. compelled to do something against his will;
1) Offender employs violence or threats, in such a degree as to
2) Effected through violence, threats or intimidation; and compel or force the laborers or employers in the free and
283 Light threats
3) The restraint shall not be authorized or not in the exercise legal exercise of their industry or work.
1) Makes a threat to commit a wrong; of a lawful right. 2) Purpose is to organize, maintain or prevent coalitions of
2) Does not amount to a crime; capital or labor, strike of laborers or lockout of employers.
287 Light coercions
3) There is demand for money or imposing any other condition, People v. Benedicto Ramos
even though not unlawful; and 1) Offender is a creditor;
For kidnapping to exist, it is not necessary that the offended party
4) Offender has or has not attained his purpose. 2) Seizes anything belonging to his debtor; be kept within an enclosure to restrict her freedom of locomotion.
3) By means of violence, or display of material force producing It is enough that, as in the instant case, she was in any manner
285 Other light threats deprived of her liberty, unable to move - and get out - as she pleased.
intimidation;
Acts Punished ★ If no violence or intimidation, unjust vexation The rule now is: Where the person kidnapped is killed in the
1) (a) Threatening another with a weapon, or 4) Purpose is to apply same to the payment of debt. course of the detention, regardless of whether the killing was
purposely sought or was merely an afterthought, the kidnapping and
(b) by drawing such weapon in a quarrel, unless it be in murder or homicide can no longer be complexed under Art. 48, nor
288 Other similar coercions
lawful self-defense; be treated as separate crimes, but shall be punished as a special
2) Orally threatening another, in the heat of anger, with some 1) Forcing or compelling, directly or indirectly, or knowingly complex crime under the last paragraph of Art. 267, as amended.
harm constituting a crime, without persisting in the idea permitting such be done to the laborer or employee of the
involved in his threat; offender to purchase merchandise of any kind from him. People v. Anticamara 2011

3) Orally threatening another to do any harm not constituting a a) Offender is any person, agent or of icer of any The last paragraph of Article 267 of the RPC provides that if the
felony. association or corporation; victim is killed or dies as a consequence of the detention, or is raped
or subjected to torture or dehumanizing acts, the maximum penalty
b) Employed laborers or employees; and
286 Grave coercions shall be imposed. In People v. Larrañaga, this provision gives rise
c) Forces or compels, directly or indirectly, or to a special complex crime. Thus, We hold that appellant Lando is
Acts punished knowingly permits such be done to the employee of guilty beyond reasonable doubt of the special complex crime of
the offender to purchase merchandise of any kind kidnapping and serious illegal detention with rape.
1) Preventing another, by means of violence, threats or
intimidation from doing something legal. from him.
However, the Court does not agree with the CA and trial court's
2) Compelling another, by means of violence, threats or 2) Paying the wages due his laborer or employee by means of judgment inding appellant Al liable for Rape. In People v. Suyu, We
intimidation, to do something against his will, may it be right tokens or objects other than the legal tender, unless expressly ruled that once conspiracy is established between several accused in
requested by the employee. the commission of the crime of robbery, they would all be equally
or wrong.

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culpable for the rape committed by anyone of them on the occasion
of the robbery, unless anyone of them proves that he endeavored to
prevent the others from committing rape.
There is no evidence to prove that appellant Al was aware of the
subsequent events that transpired after the killing of Sulpacio and the
kidnapping of AAA. Appellant Al could not have prevented appellant
Lando from raping AAA, because at the time of rape, he was no longer
associated with appellant Lando.
People v. Dionaldo 2014
The Court is, however, constrained to modify the ruling of the RTC
and the CA, as the crime the accused-appellants have committed does
not merely constitute Kidnapping and Serious Illegal Detention, but
that of the special complex crime of Kidnapping for Ransom with
Homicide. This is in view of the victim’s (i.e., Edwin's) death, which
was (a) speci ically charged in the Information, and (b) clearly
established during the trial of this case.
Further taking into account the fact that the kidnapping was
committed for the purpose of extorting ransom, accused-appellants’
conviction must be modi ied from Kidnapping and Serious Illegal
Detention to the special complex crime of Kidnapping for Ransom
with Homicide, which carries the penalty of death.
People v. Bandoquillo 2016
Bandoquillo is a private individual who, along with his cohorts,
kidnapped Hung Yee Chua (Yee) and 5 minors. The abductors
simulated public authority by misrepresenting themselves as
PDEA agents when they forcibly took the victims. In kidnapping and
serious illegal detention for ransom, the purpose of extorting ransom
is a qualifying circumstance which must be alleged in the
Information and proved by the prosecution as the crime itself by
words and overt acts of the accused before, during and after the
kidnapping and detention of the victim. In the case at bench, the
Information did not contain an allegation that Bandoquillo and
his cohorts intended to extort ransom to obtain the release of
the victims. Accordingly, Bandoquillo should be convicted only of
simple kidnapping and serious illegal detention.
People v. Borja 2017 Leonen, J
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
A public of icer who detains a person for the purpose of
extorting ransom cannot be said to be acting in an of icial
capacity. In People v. Santiano, this Court explained that public
of icials may be prosecuted under Article 267 of the RPC if they act in
their private capacity. The burden is on the accused to prove that
he or she acted in furtherance of his or her of icial functions.
In this case, Ronalyn was clearly deprived of her liberty. She was
forcibly taken inside a vehicle by accused-appellant and his cohorts
and was driven around Quezon City for at least ive (5) hours.
People v. Concepcion 2018 Leonen, J
re kidnapping absorbed in rape
Accused abducted the victim and then raped her. Thereafter, he
prevented her from leaving by placing electric wire around the room
where she was in to prevent anyone who might come to release her.
The abduction of the victim by the accused is absorbed in the crime
of rape since it was resorted to in order to commit the latter crime.
The continued detention of AAA after the rape cannot be deemed
absorbed in it. The detention was illegal and not attended by the
circumstances that would render it serious illegal detention. Thus,
this Court inds accused-appellant guilty of the crime of slight illegal
detention.
I. Crimes Against Property
Robbery
293 Robbery, in general
1) Elements of robbery in general
a) there be (1) personal property, (2) belonging to
another;
b) there is (3) unlawful taking of that property;
c) such must be (4) with intent to gain; and
d) there is (5) violence against or intimidation of
any person, or force upon anything.
2) Classi ication of robbery
by RGL
For the 2020/21 #BestBarEver
a) With violence against, or intimidation of persons
(Arts 294, 297, 298);
b) By the use of force upon things (Arts 299, 302)
NOTES
1. Where the taking was lawful and the unlawful misappropriation
was subsequent thereto, the crime is estafa or malversation.
But if intent from the very beginning was to gain from the
prohibited material, even with lawful taking, then it is robbery.
2. Unlawful taking complete from the moment the offender gains
possession of the thing as to robbery with violence against or
intimidation of persons. The thing must be taken out of the
building as to robbery with force upon things.
3. In order for the element of violence or intimidation to be
appreciated, it must be present before the taking of personal
property is complete. Except, when the violence results in (a)
homicide, (b) rape, (c) intentional mutilation, (d) or serious
physical injuries under pars 1 and 2.
4. Robbery at a glance
a) If there is violence against or intimidation of any person,
always robbery.
b) In the irst type of robbery, the value of robbed property is
immaterial. Penalty depends on (1) the result of the violence
used, and (2) on the existence of intimidation.
c) On the second type, penalty is based on (1) value, (2)
carrying of arms, if carried out in inhabited buildings.
d) Penalty based solely on value if carried out in uninhabited
buildings.
5. If robbery was effected by employing both violence against or
intimidation of persons and force upon the things, the latter will
be absorbed by the former. Thus, the proper crime to be charged
is under Art 294, not Art 299.
6. RA 10883, the New Anti-Carnapping Act of 2016, which lapsed
into law on July 17, 2016, is the law applicable when property
taken in robbery is a motor vehicle.
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294 Robbery with violence against or intimidation of persons a) an uninhabited place, or Elements of subdivision A

b) by a band, or 1) Offender entered

Par 1. Robbery with homicide
1) Robbery with homicide is taken in its generic sense and
absorbs all other crimes, i.e. serious physical injuries,
contemporaneous thereto. If committed by a band, such
becomes only a generic aggravating circumstance.
2) One of the following must be proven that the homicide
was committed:
296
a) to facilitate the robbery or escape of culprits;
b) to preserve the possession of the loot;
c) to prevent discovery; or
d) to eliminate witnesses or suppress evidence.
Par 1. Robbery with rape
1) The intent to gain must precede the rape.
2) Committed when the robbery is accompanied by rape.
3) The rape must be consummated.
c) by attacking a moving train, street car, motor vehicle, or
airship, or
d) by entering the passengers' compartments in a train, or
e) on a street, road, highway, or alley, and with the use of
irearms.
Robbery by a band
1) At least four armed malefactors take part in committing
robbery.
2) When any of the arms used is unlicensed, the penalty upon
all robbers shall be the maximum corresponding penalty,
without prejudice to the criminal liability of illegal
possession of such irearms.
Elements of subdivision B
3) Any member present shall be punished as principal of any of
the assaults, unless it be shown that he attempted to prevent
a) an inhabited place, or
b) public building, or
c) edi ice devoted to religious worship.
2) The entrance effected by:
a) an opening not intended for entrance or egress;
b) breaking any wall, roof, or loor or breaking any
door or window;
c) using false keys, picklocks or similar tools;
d) using any ictitious name or pretending the exercise
of public authority.
3) Once inside, takes personal property of another with intent to
gain.
1) Offender is inside regardless of how he entered;

Pars 2-3. Robbery with serious physical injuries the same. 2) The unlawful taking done by

1) The injuries were in licted in the course of the robbery; and 4) A band member is liable for any assaults committed when a) breaking of doors, wardrobes, chests, or any other
the following concur: kind of locked or sealed furniture or receptacle; OR
2) In licted upon those not responsible for the crime.
a) He was a member; b) by taking such away to be broken or forced open
Par 4. Robbery with unnecessary violence and intimidation
b) Present at the commission of robbery; outside.
1) If the violence or intimidation employed in the commission
of the robbery c) Others committed the assault; 300 Robbery in an uninhabited place and by a band
2) shall have been carried to a degree clearly unnecessary for d) Did not attempt to prevent assault.
1. Quali ies Art 299. Punished by the maximum period of the
the commission of the crime, or
298 Robbery by execution of deeds ⭐ penalty therefor.
3) when in the course of its execution, the offender shall have
2. That the place be uninhabited, and committed by a band
in licted upon any person not responsible for its commission 1) Offender intends to defraud another;
must concur.
any of the physical injuries covered by subdivisions 3 and 4 2) Compels him to sign, execute, or deliver any public
of Article 263. 3. The inhabited house, public building, edi ice for religions
instrument or document;
worship must be located in an uninhabited place.
Par 5. Robbery with the use of violence and intimidation 3) By means of violence or intimidation.
4. Art 299 is quali ied when both circumstances concur. In
★ Simple robbery.
Robbery in an inhabited house, public building, or Robbery with violence against or intimidation of persons,
Robbery under subdivisions 3, 4, 5 of Art 294 quali ied if 299
edi ice devoted to public worship either may qualify (Art 295).
committed in:
What is an inhabited house and their dependencies

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1) Dependencies must be 3) Purpose is to 3) done with intent to gain;

a) Contiguous, a) commit robbery in the highway, 4) without consent of owner;
b) have an interior entrance connected therewith, and b) kidnap for ransom, or 5) be accomplished without violence against or, intimidation of
c) form part of the whole. c) attain by means of force and violence any other persons, or force upon things.

2) Orchards and lands used for cultivation, not dependencies. purpose. 310. Quali ied Theft if
1) theft committed by a domestic servant;
302 Robbery in an uninhabited place or in a private building 307 Aiding and abetting brigands
2) with grave abuse of con idence;
1) Offender enters an uninhabited or a private building. 1) There is a band of brigands; 3) property stolen is a
2) Any was present: 2) Offender knows; a) motor vehicle,
a) entrance was effected through an opening not 3) Does any: b) mail matter,
intended for egress; a) aids, abets, protects c) large cattle;
b) a wall, roof, loor, or outside door or window was b) gives info on police movement; 4) consists of coconuts taken from plantation;
broken; c) acquires or receives property taken by such 5) ish taken from ishpond or ishery;
c) false keys, picklocks, were used to effect entrance; brigands.
6) on the occasion of ire, earthquake, typhoon, volcanic
d) a door, wardrobe, chest, was broken; eruption, or any other calamity, vehicular accident, civil
Theft
e) a closed or sealed receptacle was removed, and be disturbance.
broken open elsewhere. 308 Theft QUALIFIED THEFT
3) Personal property of another was taken with intent to gain. 1. Penalty is two degrees higher.
Who are liable for theft
304 Possession of picklocks or similar tools 1) With intent to gain, but without violence against or 2. Grave abuse of con idence is a mere circumstance which
intimidation of persons nor force upon things, take, personal aggravates and quali ies the crime. It is not necessary for said
1) Offender has possession; property, of another, without the latter's consent. circumstance to be premeditated in order to be taken into
2) Such are specially adapted to commit robbery; and consideration. Its presence in the commission of the crime is
2) Having found lost property, fail to deliver same to the local
suf icient.
3) Possession was unlawful. authorities or its owner.
3. Theft by domestic servant always quali ied. Not so for
3) After having maliciously damaged the property of another,
False keys housemate. Not for laborer.
remove or make use of the fruits or object of the damage
1) (a) Art 304; (b) Genuine keys stolen from owner; (c) Any keys. caused by them. 4. Theft by truck driver or by shepherd or by one who had access to
the place where the stolen property is kept is quali ied theft.
Brigandage 4) Enter an enclosed estate or a ield where trespass is
forbidden and without consent, hunt or ish upon the same or Usurpation
306 Brigandage gather fruits, cereals or other forest or farm products.
Elements 312 Occupation of real property
Exists when
1) Taking of personal property; Acts punished
1) There are at least four armed men.
2) belonging to another; 1) taking possession of any real property of another by means
2) Forming a band of robbers;

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of violence against or intimidation of persons. business or imaginary transactions, or by means of other 4) There is demand from offended party (not required when
2) usurping any real rights in property belonging to another by similar deceits. there is evidence of misappropriation)
means of VAIP. b) altering the quality, ineness or weight of anything ★ Three (3) ways of committing
Elements pertaining to his art or business.
1) misappropriating or
1) takes possession of any real property or usurps any real c) pretending to have bribed any Government employee.
2) converting the thing received; or
rights thereof; (maximum penalty)
3) denying that the thing was received.
2) belongs to another; d) postdating or issuing a bouncing check.
1. Estafa by conversion. Pledging a thing which was received only
3) violence against or intimidation of persons is used; e) obtaining any food or accommodation, or credit of such.
to be sold on commission. It presupposes that the thing has been
4) with intent to gain. (par 3) BY ANY OF THE FOLLOWING FRAUDULENT MEANS devoted to a purpose or use different from that agreed upon.
a) inducing another, by means of deceit, to sign a document; 2. Estafa by misappropriation. Appellant took the sum of P8.3K
313 Altering boundaries or landmarks
b) resorting to some fraudulent practice to insure success in a out of the funds of the Manila Railroad Company, replacing it with
1) There be boundary marks or monuments, or estates; gambling game; his personal check. He directed the cashier to hold the check until
c) removing, concealing, or destroying, in whole or in part, any end of month. He used the amount for his personal use. It was
2) Offender alters same.
court record, of ice iles, document, or any other papers. found out he had insuf icient funds to cover the check, though
314 Fraudulent insolvency later, he was able to replenish said account. He is still guilty
Elements in general
because the law does not distinguish between permanent and
1) Offender is a debtor with due and demandable obligation; 1) Accused defrauded another by temporary misappropriations.
2) He absconds with his property; a) abuse of con idence, or 3. In estafa, damage to the offended party, not the gain of the
b) means of deceit; and offender, is the important consideration.
3) To the prejudice of his creditors.
2) Damage or prejudice capable of pecuniary estimation caused 4. Demand is not legally required, but is necessary to show
Swindling and Other Deceits upon injured party. circumstantial evidence of misappropriation after failing to
account upon demand.
315 Swindling or Estafa Elements of estafa with unfaithfulness (sub 1[a])
5. There is no estafa through negligence.
1) Offender has an onerous obligation to deliver something of
Fraud committed by these means: value; 6. Estafa through falsi ication of public documents (FPD) is
(par 1) WITH UNFAITHFULNESS OR ABUSE OF CONFIDENCE necessarily included in a charge of malversation through FPD.
2) He alters its substance, quality or quantity;
a) altering the substance, quantity, or quality of anything of 7. Misappropriation of policeman of irearms received is: estafa,
3) Damage or prejudice is caused.
value; when it is not involved in the commission of a crime, and
malversation, if it is involved.
b) misappropriating or converting any personal property Elements of estafa with abuse of con idence (sub 1[b])
received in trust, or denying to having received same.;
1) Money, goods, or other personal property be received in Elements of estafa by taking undue advantage of the signature
c) taking undue advantage of the signature in blank, and by trust, or on commission, or for administration, or under any in blank (sub 1[c])
writing any document above such. other obligation involving the duty to make delivery of, or to 1) The paper with the signature of the offended party be in
(par 2) BY FALSE PRETENSES return. blank;
a) using ictitious names, or falsely pretending to possess 2) Such has been misappropriated or converted; 2) Offended party should have delivered it to the offender;
power, in luence, quali ications, property, credit, agency, 3) To the prejudice of another;

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3) A document is written above the signature without authority;
4) Liability or damage is caused to another.
Elements of estafa by means of DECEIT (subs 2, 3)
1) There must be a false pretense, fraudulent act, or fraudulent
means;
2) Must be made prior to or simultaneously with the
commission of the fraud;
3) Offended party relied on it, or was induced by it to part with
his property.
4) There is damage.
Three (3) ways of committing Art 315 No. 2[a]
1) using ictitious name;
2) falsely pretending to possess: power, in luence, quali ications,
property, credit, agency, business or imaginary transactions;
or
3) through similar deceits.
Elements of estafa by postdating a check or issuing a check in
payment of an obligation. (No 2[d])
1) Offender postdated a check, or issued a check in payment of
an obligation;
2) Done when the offender had no funds in the bank, or his
funds deposited therein were not suf icient to cover the
amount.
Elements of estafa by inducing another to sign any document.
(No 3[a])
1) Offender induced offended party to sign a document;
2) Deceit be employed;
3) Offended party personally signed;
4) Prejudice be caused.
There should be proof that defendant made statements tending to
mislead the complainant as to the character of the document executed
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES For the 2020/21 #BestBarEver
by him. real property, pretending to be the owner of the same.
Elements of estafa by removing, concealing, or destroying 1) Thing be immovable;
documents (No 3[c]) 2) Offender falsely represents to be the owner;
1) There be court record, of ice iles, documents or any other 3) Executed an act of ownership;
papers;
4) To the prejudice of owner or a third person.
2) Offender removed, concealed or destroyed any of them;
Par 2. By disposing of real property as free from encumbrance,
3) With intent to defraud another. although such be not recorded.
Element of damage or prejudice may consist in: 1) Thing disposed is real property;
1) Offended party being deprived of his money or property, as 2) Offender knew of the encumbrance, recorded or not.
result of the defraudation;
3) There is express representation that the property is free from
2) Disturbance in property right; or any encumbrance;
3) Temporary prejudice. 4) There is damage to another.
Par 3. By wrongfully taking by the owner his personal property
NOTES RE ESTAFA
from its lawful possessor
1. Disturbance in property rights. Though the typewriter was
1) Offender is the owner of personal property;
later recovered after it was sold to another by accused,
complainant suffered disturbance of his property right over said 2) It is in the lawful possession of another;
typewriter. 3) Offender wrongfully takes it from its lawful possessor;
2. The basis of penalty is the amount or value misappropriated and 4) Prejudice is caused upon the possessor or a third person.
not delivered or returned before the institution of criminal action.
Par 4. By executing any ictitious contract to the prejudice of
Payment subsequent to the commission of estafa does not
another
distinguish the criminal liability.
Par 5. By accepting any compensation for services not rendered
3. Temporary prejudice. Complainant bought a ilter from an agent
or for labor not performed.
through a check. The ilter was not delivered, and found agent to
Par 6. By selling, mortgaging or encumbering real property or
be bogus. He called bank to suspend payment. Thus, he could not
dispose of the amount in the check possessed by the accused properties with which the offender guaranteed the
ful illment of his obligation as surety.
bogus agent.
4. If a person procures a loan through a falsi ied public document, 1) Offender is a surety in a bond;
but settles said loan in due time, there is no estafa, only 2) He guaranteed with his real property/ies;
falsi ication. 3) He encumbers said guaranty;
5. There is a complex crime of theft and estafa. 4) Such encumbrance is
316 Other forms of swindling a) without express authority from court,
b) made before the cancellation of his bond, OR
Par 1. By conveying, selling, encumbering, or mortgaging any
c) before being relieved from the bond.
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There must be damage caused under Art 316. 3) Train, ship, vessel, airship, plane; 2) For the bene it of another;
4) Building, factory, warehouses, devoted to the service of 3) Motivated by spite or hate towards owner or
317 Swindling a minor
public utilities; occupant;
1) Offender takes advantage of the inexperience, emotions, or 5) Any building burnt to conceal evidence of another violation 4) By a syndicate (at least 3 persons).
feelings of a minor; of law, to conceal bankruptcy or defrauding creditors or to
2) Induces such minor collect from insurance. NOTES RE ARSON

a) to assume an obligation, 6) Arsenal, shipyard, storehouse, military power or ireworks 1. Attempted arson. Placing the rags soaked in gasoline beside the
factory, ordinance, storehouse, archives, general museum of wooden wall of the building and lighting a match.
b) to give release, OR
the Government; 2. Frustrated arson. The rags were set on ire, but were put out
c) to execute a transfer of any property right;
7) In an inhabited place, any storehouse or factory of before any part of the building was burned.
3) Consideration be in lammable or explosive materials. 3. If main objective is burning, but death results, arson.
a) some loan of money,
PD 1613. Simple Arson 🔗 4. If purpose is to kill a person in the building, and setting it on ire
b) credit, OR was the means resorted, murder.
c) other personal property; ★ Arson is the malicious destruction of property by ire. 5. If killing has been committed, then the building is burnt to cover
4) To the detriment of the minor. ★ Kinds of arson: it up, murder/homicide AND arson.
1) Simple arson;
318 Other deceits Malicious Mischief
2) Destructive arson;
1) Defrauding or damaging another by any other deceit not 3) Other cases of arson. 327 Malicious mischief
mentioned in the preceding articles.
★ Simple arson. Burning or setting ire to the property of 1) Offender deliberately caused damage to the property of
2) Interpreting dreams, by making forecasts, telling fortunes, or another, or his own under circumstances which expose to another;
by taking advantage of the credulity of the public in any other danger the life or property of another. PM.
similar manner, for pro it or gain. 2) Such act does not constitute arson;
★ Other cases of arson. Punished by RT-RP
3) Be done merely for the sake of damaging it.
Arson 1) Any government building;
328. Special cases or Quali ied malicious mischief
2) Inhabited house or dwelling;
320 Destructive Arson 1) To obstruct performance of public function.
3) Industrial establishment, shipyard, oil well, mine
2) Using any poisonous or corrosive substance;
Penalty of RP to Death to any person who burns the following shaft, platform or tunnel;
3) Spreading any infection or contagion among cattle.
1) One or more buildings, consequent to 1 single act of burning, 4) Plantation, farm, pasture land, growing crop, grain
ield, orchard, bamboo grove or forest; 4) Causing damage to property of the National Museum, Library,
or as a result of simultaneous burnings or committed on
or to any archive or registry, waterworks, road, promenade,
several or different occasions. 5) Rice, sugar, cane mills, or mill central;
or any other thing used in common by the public.
2) Any building of public or private ownership where people 6) Railway or bus station, airport, wharf or warehouse.
usually congregate, regardless of whether offender knows ★ Special aggravating circumstances. MAX 332 Persons exempt from criminal liability
that there are persons in said building at the time it is set on
1) Intent to gain; Crimes involved
ire, and whether it is inhabited or not.

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a) Theft;
b) Estafa;
c) Malicious mischief.
Persons exempted
a) Spouses, ascendants, descendants, or relatives by af inity in
the same line;
b) Widowed spouse with respect to the property which
belonged to the deceased spouse before the same passed into
the possession of another.
c) Brothers and sisters and brothers-in-law and sisters-in-law, if
living together.
People v. Soriano re Arson
Arson is the malicious burning of property.
1) Destructive Arson (Art. 320) and
2) other cases of arson (PD 1613).
This classi ication is based on the kind, character and location of
the property burned, regardless of the value of the damage caused.
Article 320 of the RPC, aab RA 7659, contemplates the malicious
burning of structures, both public and private, hotels, buildings,
edi ices, trains, vessels, aircraft, factories and other military,
government or commercial establishments. If as a consequence
of the commission of any of the acts penalized under Art. 320, death
should result, the mandatory penalty of death shall be imposed.
On the other hand, PD 1613 remains the governing law for Simple
Arson. If special aggravating circumstances are present, the penalty
under Sec. 3 shall be imposed in its maximum period:
a) If committed with intent to gain;
b) If committed for the bene it of another;
c) If the offender is motivated by spite or hatred towards the
owner or occupant of the property burned; and,
d) If committed by a syndicate, or group of three (3) or more
persons.
If by reason, or on the occasion of Simple Arson death results, the
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
penalty of reclusion perpetua to death shall be imposed.
Here, the applicable provision of law should be Sec. 3, par. 2, of PD
1613, which imposes a penalty of reclusion temporal to reclusion
perpetua for other cases of arson as the properties burned by
accused are speci ically described as houses, contemplating
inhabited houses or dwellings under the aforesaid law. The 3rd
special aggravating circumstance cannot be appreciated in the present
case where it appears that he was acting more on impulse, heat of
anger or risen temper. Thus, accused-appellant must be held guilty
of Simple Arson.
People v. Buebos
The legal basis of the trial court in convicting petitioners of arson is
Section 3[2] of P.D. No. 1613. The elements of this form of arson are:
a) there is intentional burning
b) of an inhabited house or dwelling.
Admittedly, there is a con luence of the foregoing elements here.
However, the information failed to allege that what was
intentionally burned was an inhabited house or dwelling. That
is fatal. In ine, petitioners can be convicted only of simple arson,
under Section 1[1] of P.D. No. 1613, punishable by prision mayor.
People v. Macabando 2013
The Information alleged that the appellant set ire to his own house,
and that the ire spread to other inhabited houses. That the
appellant’s act affected many families will not convert the crime to
destructive arson, since the appellant’s act does not appear to be
heinous or represents a greater degree of perversity and
viciousness when compared to those acts punished under Article
320 of the RPC. The established evidence only showed that the
appellant intended to burn his own house, but the con lagration
spread to the neighboring houses.
People v. Abayon 2016
There is no complex crime of arson with (multiple) homicide.
In cases where both burning and death occur, it is de rigueur to
ascertain the main objective of the malefactor:
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a) if the main objective is the burning of the building or edi ice,
but death results by reason or on the occasion of arson, the
crime is simply arson, and the resulting homicide is
absorbed;
b) if, on the other hand, the main objective is to kill a particular
person who may be in a building or edi ice, when ire is
resorted to as the means to accomplish such goal the crime
committed is murder only; lastly,
c) if the objective is, likewise, to kill a particular person, and in
fact the offender has already done so, but ire is resorted to
as a means to cover up the killing, then there are two
separate and distinct crimes committed —
homicide/murder and arson.
Abayon is charged with the crime of arson because his intent was
merely to destroy his family's apartment through the use of ire. The
resulting deaths that occurred, therefore, should be absorbed by
the crime of arson and only increases the imposable penalty to
reclusion perpetua to death.
Batac v. People 2018 re Estafa through false checks vis-a-vis BP 22
The CA af irmed the decision of the RTC inding Batac guilty beyond
reasonable doubt of Estafa de ined under Article 315, paragraph 2(d)
committed against Frias. Jurisprudence has consistently held that
such estafa consists of the following elements:
1) the offender has postdated or issued a check in payment of
an obligation contracted at the time of the postdating or
issuance;
2) at the time of postdating or issuance of said check, the
offender has no funds in the bank or insuf icient; and
3) the payee has been defrauded.
In People v. Reyes, the Court ruled that for estafa under the above
provision to prosper, the issuance of the check must have been
the inducement for the other party to part with his money or
property.
The prosecution suf iciently demonstrated Batac's deceit when it
established that the latter induced Frias into buying the checks at a
rediscounted rate by representing to him that she had enough funds
in her account to cover them.
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Deceit and damage are essential elements in Article 315 (2-d), but are
not required in BP 22. Other differences between the two also include
the following:
1) a drawer of a dishonored check may be convicted under BP
22 even if he had issued the same for a preexisting
obligation, while under Article 315 (2-d), such circumstance
negates criminal liability;
2) speci ic and different penalties are imposed in each of the
two offenses;
3) estafa is essentially a crime against property, while
violation of BP 22 is principally a crime against public
interest as it does injury to the entire banking system;
4) violations of Article 315 are mala in se, while those of BP
22 are mala prohibita.
People v. Cahilig 2014 re Quali ied Theft
The elements of Quali ied Theft, committed with grave abuse of
con idence, are as follows:
1. Taking of personal property;
2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
4. That it be done without the owner’s consent;
5. That it be accomplished without the use of violence or
intimidation against persons, nor of force upon things;
6. That it be done with grave abuse of con idence.
Cahilig took money from WPESLAI and its depositors by taking
advantage of her position as cashier. Her intent to gain is clear in the
use of a carefully planned and deliberately executed scheme to
commit the theft.
Grave abuse of con idence, as an element of Quali ied Theft, “must
be the result of the relation by reason of dependence, guardianship,
or vigilance, between the appellant and the offended party that might
create a high degree of con idence between them which the appellant
abused.”
Brokmann v. People 2012
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
Brokmann was convicted of the crime of estafa, under Art 315, par
1(b). The offense of estafa, in general, is committed either by
a) abuse of con idence (Par 1) or
b) means of deceit (Par 2).
Deceit is not an essential requisite of estafa by abuse of
con idence; the breach of con idence takes the place of fraud or
deceit, which is a usual element in the other estafas. In this case, the
charge against the petitioner and her subsequent conviction was for
estafa committed by abuse of con idence. Thus, it was not necessary
for the prosecution to prove deceit as this was not an element of the
estafa that the petitioner was charged with.
Espino v. People 2013
People v. Maglaya
The crime charged was estafa under Art 315, par 1(b). However, the
crime the accused was convicted of was estafa under par 2(a).
Estafa under paragraph 2(a) is swindling by means of false
pretense. In this case, there was no use of a ictitious name, or a
false pretense of power, in luence, quali ications, property, credit,
agency, or business. The Court deems it wiser to give the offense its
true, formal name – that of estafa through abuse of
con idence under paragraph 1(b).
First, personal property in the form of the checks was received
by the offender in trust or on commission, with the duty to
deliver it to Mr. Banaag.
Second, the accused rediscounted the checks to his aunt-in-law.
Third, this rediscounting resulted in the wrongful encashment of
the checks by someone who was not the payee and therefore not
People v. Nery
lawfully authorized to do so.
Finally, this wrongful encashment prejudiced KN Inc., which lost
the proceeds of the check.
Thus, the Information in this case may be interpreted as charging the
accused with both estafa under paragraph 1(b) and estafa under
paragraph 2(a).
Guzman v. CA
As appellant converted to his own use proceeds of sales of
merchandise delivered to him as agent, which he received in trust for
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For the 2020/21 #BestBarEver
and under obligation to deliver and turn over to his principal, he is
guilty of the crime of estafa as de ined by Article 315, paragraph 1,
subparagraph (e). The next question is whether the present
information for quali ied theft alleges suf icient facts to sustain a
conviction for estafa.
An essential element of the crime of estafa is that the money or goods
misappropriated or converted by the accused to the prejudice of
another was received by him "in trust or on commission, or for
administration, or under any other obligation involving the duty to
make delivery of, or to retain the same". No such allegation
appears in the above information. Consequently, we agree with
appellant that he can not be convicted thereunder of the crime of
estafa.
Under the facts proven, appellant is guilty of the crime of theft. It
is true that the machines speci ied in the information were delivered
to him by his prospective customers, but the physical possession
thus secured by him did not vest in him the juridical possession
necessary for the crime of estafa.
Although appellant had taken advantage of his position in committing
the crime aforementioned, We do not believe he had acted with
grave abuse of con idence and can be convicted of quali ied
theft, because his employer had never given him the possession of
the machines involved in the present case or allowed him to take
hold of them, and it does not appear that the former had any special
con idence in him.
The accused in the present case insists that there is no prohibition in
our law to prevent the parties to a contract to novate it so that any
incipient criminal liability under the irst is thereby avoided.
The novation theory may perhaps apply prior to the iling of
the criminal information in court by the state prosecutors. But
after the justice authorities have taken cognizance of the crime and
instituted action in court, the offended party may no longer divest the
prosecution of its power to exact the criminal liability, as
distinguished from the civil. The crime being an offense against the
state, only the latter can renounce it.
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Lito Corpuz v. People 2014 En Banc
No speci ic type of proof is required to show that there was
demand. Demand need not even be formal; it may be verbal. The
speci ic word “demand” need not even be used to show that it has
indeed been made upon the person charged, since even a mere
query as to the whereabouts of the money [in this case,
property], would be tantamount to a demand.
The prosecution was able to prove the existence of all the elements of
the Estafa under Article 315 par(1)(b). Private complainant gave
petitioner the pieces of jewelry in trust, or on commission basis with
an obligation to sell or return the same within sixty (60) days, if
unsold. There was misappropriation when petitioner failed to remit
the proceeds of those pieces of jewelry sold, or if no sale took place,
failed to return the same pieces of jewelry within or after the agreed
period despite demand from the private complainant, to the prejudice
of the latter.
People v. Fernandez 2014
We point out that conviction under the Labor Code for illegal
recruitment does not preclude punishment under the RPC for
the crime of estafa.
The appellant’s act of falsely pretending to possess power and
quali ications to deploy the complainants to Hongkong, even if he did
not have the authority or license for the purpose, undoubtedly
constitutes estafa under Article 315(2)(a). The elements of deceit
and damage are clearly present; the appellant’s false pretenses were
the very cause that induced the complainants to part with their
money.
Ablaza v. People 2018 re Robbery
Paragraphs one to four of Article 294 indisputably involve the use of
violence against persons. The actual physical force in licted results
in death, rape, mutilation or the physical injuries therein enumerated.
The simple robbery under paragraph ive may cover physical injuries
not included in paragraphs two to four. Thus, when less serious or
slight physical injuries are in licted upon the offended party on the
occasion of a robbery, the accused may be prosecuted for and
convicted of robbery under paragraph ive. It seems obvious that
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
intimidation is not encompassed under paragraphs one to four since
no actual physical violence is in licted; evidently then, it can only fall
under paragraph ive.
People v. Domasig 2018 re Robbery with homicide
A conviction of robbery with homicide requires certitude that the
robbery is the main purpose, and the objective of the malefactor and
the killing is merely incidental to the robbery. The intent to rob must
precede the taking of human life but the killing may occur before,
during or after the robbery. What is crucial for a conviction for the
crime of robbery with homicide is for the prosecution to irmly
establish the offender's intent to take personal property before
the killing, regardless of the time when the homicide is actually
carried out.
People v. Layug 2017 re Robbery with homicide
It is immaterial that the death would supervene by mere accident; or
that the victim of homicide is other than the victim of robbery, or that
two or more persons are killed or that aside from the homicide, rape,
intentional mutilation, or usurpation of authority, is committed by
reason or on the occasion of the crime. Likewise immaterial is the
fact that the victim of homicide is one of the robbers; the felony
would still be robbery with homicide. Once a homicide is committed
by or on the occasion of the robbery, the felony committed is robbery
with homicide. All the felonies committed by reason of or on the
occasion of the robbery are integrated into one and indivisible
felony of robbery with homicide. The word "homicide" is used in
its generic sense. Homicide, thus, includes murder, parricide, and
infanticide.
People v. Mejares 2018 Leonen, J re Theft
The SC has been consistent in holding that intent to gain or animus
lucrandi is an internal act that is presumed from the unlawful taking
by the offender of the thing subject of asportation. Thus, actual
gain is irrelevant as the important consideration is the intent to
gain.
The value of personal property in quali ied theft must be proven
during trial. Since the penalty in cases of theft is dependent on the
value of stolen personal properties, it is critical to ensure that the
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penalty is based on the value proven during trial, and not merely on
the Information or uncorroborated testimonies presented by the
prosecution.
Cheng v. People 2016 re Estafa by misappropriation or conversion
Jewelries were delivered to the accused by the owner for her to sell
them and remit the proceeds to the latter. The accused failed to remit
the proceeds to the owner. Instead she issued her checks to pay for
the jewelries but the checks bounced upon being presented for
payment in the bank. Is the accused liable for estafa?
YES. The essence of this kind of Estafa is the appropriation or
conversion of money or property received to the prejudice of the
entity to whom a return should be made. To misappropriate for one's
own use includes not only conversion to one's personal advantage,
but also every attempt to dispose of the property of another without
right. In proving the element of conversion or misappropriation, a
legal presumption of misappropriation arises when the accused
fails to deliver the proceeds of the sale or to return the items to be
sold and fails to give an account of their whereabouts.
People v. Baladjay 2017 re Syndicated Estafa
Clearly, all the elements of Syndicated Estafa obtain in this case,
considering that:
a) more than ive (5) persons are involved in Multitel's grand
fraudulent scheme, including Baladjay and her co-accused -
who employed deceit, false pretenses and representations to
the private complainants regarding a supposed lucrative
investment opportunity with Multitel in order to solicit
money from them;
b) the said false pretenses and representations were made prior
to or simultaneous with the commission of fraud;
c) relying on the false promises and misrepresentations thus
employed, private complainants invested their hard-earned
money in Multitel; and
d) Baladjay and her co-accused defrauded the private
complainants, obviously to the latter's prejudice.
People v. Aquino 2018 re Civil Fraud
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Not all proposals to invest in certain business ventures are tainted 3) Cohabiting with her in any other place. priest, teacher, etc;
with fraud. To be sure, an actionable fraud arises when the accused 2) Of a sister by her brother, or descendant by ascendant.
has knowledge that the venture proposed would not reasonably yield Elements
the promised results, and yet, despite such knowledge, deliberately 1) There is a married man; Elements
continues with the misrepresentation. 1) Offended party is a virgin;
2) He committed any of the acts punished;
As case law instructs, "the gravamen of the crime of Estafa is the 3) As to the concubine, that she knows the man to be married. 2) Over 12, under 18;
employment of fraud or deceit to the damage or prejudice of another. 3) He has sexual intercourse with her;
When fraud pertains to the means of committing a crime or the
NOTES 4) There is abuse of authority, con idence or relationship on the
classes of crimes under Estafa; otherwise, if fraud merely causes loss
or injury to another, without being an element of a crime, then it may 1. Scandal is produced when: part of the offender.
only be classi ied as civil fraud from which an action for damages a) the man and his mistress live in the same room of a house,
may arise. 338 Simple seduction
b) they appear together in public, and
J. Crimes Against Chastity c) perform acts in sight of the community which gives rise to 1) Offended party is over 12, under 18;
criticism and general protest among the neighbors. This is 2) Of good reputation, single or widow;
333 best proven by people in the vicinity. 3) Offender has sex with her;
Adultery
2. When spies are employed, there is no evidence of scandalous 4) By means of deceit.
1) There is a married woman; circumstances.
2) She has sexual intercourse with a man not her husband; 339 Acts of lasciviousness with consent
336 Acts of lasciviousness
3) As to the paramour, that he knows the woman is married.
1) Offender commits acts of lasciviousness;
1) Offender commits any act of lasciviousness or lewdness;
NOTES 2) Upon a woman who is a virgin or single or widow of good
2) Such act is committed against any person of either sex; reputation, over 12 but under 18, or a sister or descendant
1. Where the offended party in an adultery case obtained a divorce
3) It is done: regardless of reputation or age.
in his country before the adultery proceedings are commenced,
he no longer has the right to institute proceedings against the a) by using force or intimidation; 3) Through abuse of authority, con idence, relationship, or
offender. (Pilapil v. Ibay-Somera) b) when the offended party is deprived of reason or deceit.

2. It is not necessary that there be a valid marriage. otherwise unconscious;

340 Corruption of minors
3. Direct proof of carnal knowledge is not necessary. c) by means of fraudulent machination or grave
abuse of authority; 1) Offender promotes or facilitate the prostitution or corruption
4. Each sexual intercourse constitutes a crime of adultery. It is not
d) when the offended party is below 12 (penalty is RT of persons under age;
a continuing offense.
med as per RA 7610) or is demented. 2) Such is to satisfy the lust of another.
334 Concubinage
Seduction and Abduction 341 White slave trade
Acts Punished
Acts penalized
1) Keeping a mistress in the conjugal dwelling; 337 Quali ied seduction
1) Engaging in the business of prostitution;
2) Having sexual intercourse, under scandalous circumstances,
1) Of a virgin, over 12, under 18, by a person in authority, 2) Pro iting from it;
with a woman who is not his wife;

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not merely limited to pecuniary bene it but also includes the bene it
which in any other sense may be derived or expected from the act
C. Fisheries Code
which is performed. Thus, the mere use of the thing which was
taken without the owner's consent constitutes gain.
1.
B. Anti-Electricity and Electric Transmission Lines/
Materials Pilferage Act of 1994
1. Illegal Use of Electricity. — It is unlawful for any person,
whether natural or juridical, public or private, to:
a. Tap, make or cause to be made any connection with
overhead lines, service drops, or other electric service
wires, without previous authority or consent;
b. Tap, make or cause to be made any connection to the
existing electric service facilities of any duly registered
consumer without the latter's or the electric utility's
consent or authority;
c. Tamper, install or use a tampered electrical meter,
jumper, or any other device which interferes with the
2.
proper or accurate registry or metering of electric current;
d. Damage or destroy an electric meter so as to interfere with
the proper or accurate metering of electric current; and
e. Knowingly use or receive the direct bene it of electric
service obtained. 3.
2. Theft of Electric Power Transmission Lines and Materials.
— It is unlawful for any person to:
a. Cut, saw, slice, separate, split, severe, smelt, or remove
b. Take, carry away or remove or transfer, with or without the
use of a motor vehicle or other means of conveyance
4.
c. Store, possess or otherwise keep in his premises, custody
or control
5.
d. Load, carry, ship or move from one place to another,
whether by land, air or sea
6.
any electric power transmission line/material or meter
without the consent of the owner, whether or not the act is done
for pro it or gain.
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
See Chapter VI on Prohibitions and Penalties
Unauthorized Fishing. —
a. To capture or gather or to cause the capture or
gathering of ish, fry or ingerlings of any ishery
species or ishery products without license or permit
from the Department or LGU.
Except in cases speci ied under this Code, it shall also
be unlawful for any commercial ishing vessel to ish
in municipal waters.
However, ishing for daily food sustenance or for
leisure which is not for commercial, occupation or
livelihood purposes may be allowed.
b. It shall be unlawful for any person not listed in the
registry of municipal isherfolk to engage in any
commercial ishing activity in municipal waters.
Engaging in Unauthorized Fisheries Activities. — To
exploit, occupy, produce, breed or culture ish, fry or
ingerlings of any ishery species or ishery products or
construct and operate ish corrals, ish traps, ish pens and ish
cages or ishponds without a license, lease or permit.
Failure to Secure Fishing Permit Prior to Engaging in
Distant Water Fishing. — To ish in the high seas, in the
territorial seas, archipelagic waters, and EEZs of other states
using a Philippine lagged ishing vessel without irst securing
a ishing permit from the Department and authorization from
the coastal state.
Poaching in Philippine Waters. — To ish or operate any
ishing vessel in Philippine waters.
D. Anti-Fencing Law of 1979
Ban on Coral Exploitation and Exportation. — To commit
any activity that damage coral reefs.
"Fencing" is the act of any person who,
Ban on Muro-ami, Other Methods and Gear Destructive to
Coral Reefs and Other Marine Habitat. —
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a. To ish with gear or method that destroys coral reefs,
seagrass beds, and other ishery marine life habitat as
may be determined by the Department.
b. Except in cases allowed by law, to gather, possess,
commercially transport, sell or export coral sand,
coral fragments, coral rocks, silica, and any other
substances which make up any marine habitat.
7. Fishing or Taking of Rare, Threatened or Endangered
Species. —
a. To ish or take, catch, gather, sell, purchase, possess,
transport, export, forward or ship out aquatic species
listed in Appendix I of the Convention on the
International Trade in Endangered Species of Wild
Flora and Fauna (CITES), or those categorized by the
International Union for Conservation of Nature and
Natural Resources (IUCN) as threatened and
determined by the Department as such.
b. As well as aquatic species listed in CITES Appendices
II and III if scienti ic assessments show that
population of the species in the wild cannot remain
viable under pressure of collection and trade.
8. Commercial Fishing Vessel Operators Employing
Unlicensed Fisherfolk, Fishworker or Crew. – For Philippine
lagged ishing vessels engaged in distant water ishing to
employ unlicensed isherfolk or ishworker or crew.
9. Noncompliance with Port State Measures. — No foreign
ishing vessel shall be allowed entry without providing at least
twenty-four (24)-hour prior notice. When a foreign ishing
vessel is granted entry, failure to provide a catch report shall be
deemed unlawful.
1. with intent to gain for himself or for another,
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The ⭐elements of traf icking in persons can be derived
from its de inition under Section 3(a) of RA 9208, as amended, thus:
1) The act of “recruitment, obtaining, hiring, providing,
offering, transportation, transfer, maintaining, harboring, or
receipt of persons with or without the victim’s consent or
knowledge, within or across national borders;”
2) The means used which include “threat or use of force, or
other forms of coercion, abduction, fraud, deception, abuse
of power or of position, taking advantage of the vulnerability
of the person, or, the giving or receiving of payments or
bene its to achieve the consent of a person having control
over another; and
3) The purpose of traf icking is exploitation which includes
“exploitation or the prostitution of others or other forms of
sexual exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs.”
Knowledge or consent of the minor is NOT a defense under
Republic Act No. 9208.
The victim’s consent is rendered meaningless due to the coercive,
abusive, or deceptive means employed by perpetrators of human
traf icking. Even without the use of coercive, abusive, or deceptive
means, a minor’s consent is not given out of his or her own free will.
The act of “sexual intercourse” need not have been
consummated for the mere “transaction” i.e. that ‘solicitation’ for
sex and the handing over of the “bust money” of Php.1,000.00
already consummated the said act of traf icking in persons,
quali ied by the fact that one of the victims was a child.
People v. Ramirez 2019 Leonen, J and People v. Maycabalong 2019
This Court in People v. Rodriguez acknowledged that, as with Casio,
the corroborating testimonies of the arresting of icer and the minor
victims were suf icient to sustain a conviction under the law. In
People v. Spouses Ybanez, et al., this Court likewise af irmed the
conviction of traf ickers arrested based on a surveillance report on
the prostitution of minors within the area. In People v. XXX and YYY,
this Court held that the exploitation of minors, through either
prostitution or pornography, is explicitly prohibited under the law.
Here, Ramirez cannot use as a valid defense either BBB's and AAA's
consent to the transaction, or that BBB received the payment on her
behalf, following Casio. People v. De Dios, bolstered Casio in ruling
that traf icking in persons may be committed also by means of taking
advantage of the persons' vulnerability as minors. 2.
⭐People v. Dela Rosa 2019 Leonen, J
Ruth Dela Rosa was convicted of quali ied traf icking in persons.
3.
This Court maintains that "recruitment" also contemplates an
accused's act of providing the conditions for prostituting AAA.
Prostitution is de ined under Section 3(c) of RA 9208 as Who can commit VAWC
1. any act, transaction, scheme or design
1.
2. involving the use of a person by another,
3. for sexual intercourse or lascivious conduct
2.
4. in exchange for money, pro it or any other consideration.
Here, it was through the accused that Kim Caben knew AAA. The
accused was the one who brought AAA to Coa Hotel where they met 3.
Kim Caben. It was the accused who instructed AAA on what to do
while in the hotel. The accused was even present when Kim Caben
and AAA had sex. Without the accused bringing AAA to Coa Hotel, the
February 2013 incident would not have happened. In other words, it
was the accused who provided AAA to Kim Caben.
Kinds of abuses against women
Planteras, Jr v. People 2018
1.
To knowingly lease or sublease, use or allow to be used any house,
building or establishment for the purpose of promoting traf icking in
persons constitutes the offense of promoting or facilitating 2.
traf icking in persons. In order for one to be convicted thereof the
accused must, among others, knowingly lease or sublease, or allow
to be used any house, building or establishment for the purpose of
promoting traf icking in persons.
Z. Anti-Violence Against Women
and their Children Act of 2004
Who can be victims of VAWC
1. woman who is 3.
a. offender’s wife,
b. former wife, or a
woman with whom the offender
a. has or had a sexual or dating relationship, or
b. has a common child with, or against
The woman’s child whether legitimate or illegitimate, within or
without the family abode.
VAWC may likewise be committed “against a woman with
whom the person has or had a sexual or dating relationship.”
The use of the gender-neutral word “person” who has or had a
sexual or dating relationship with the woman encompasses
even lesbian relationships.
It does not preclude the application of the principle of
conspiracy under the RPC. Thus, in the case of Go-Tan v.
Spouses Tan, the parents-in-law of the victim, were held to be
proper respondents in the case.
"Physical Violence" refers to acts that include bodily or
physical harm;
"Sexual violence" refers to an act which is sexual in nature,
committed against a woman or her child. It includes, but is not
limited to:
a. rape, sexual harassment, acts of lasciviousness xxx;
b. acts causing or attempting to cause the victim to engage in
any sexual activity by force, threat of force, physical or
other harm or threat of physical or other harm or coercion;
c. Prostituting the woman or child.
"Psychological violence" refers to acts or omissions
causing or likely to cause mental or emotional suffering of the

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victim such as but not limited to intimidation, harassment,
stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and marital in idelity.
xxxx
4. "Economic abuse" refers to acts that make or attempt to
make a woman inancially dependent which includes, but is
not limited to the following:
a. withdrawal of inancial support or preventing the victim
from engaging in any legitimate profession, occupation,
business or activity, except in cases wherein the other
spouse/partner objects on valid, serious and moral
grounds as de ined in Article 73 of the Family Code;
b. deprivation or threat of deprivation of inancial resources
and the right to the use and enjoyment of the conjugal,
community or property owned in common;
c. destroying household property;
d. controlling the victims' own money or properties or solely
controlling the conjugal money or properties.
Battered Woman Syndrome
"Battered Woman Syndrome" has three phases
1. The tension-building phase — minor batterings, verbal or
slight physical abuse occurs. The victim either paci ies the
batterer or stays out of his way;
2. Acute battering phase — characterized by brutality,
destructiveness or death. The victim realizes that she cannot
reason with him and resistance would only exacerbate her
condition;
3. Tranquil period — batterer may show a tender and nurturing
behavior.
Requisites for BWS as a Defense
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
1. Cycle of violence — “each of the phases of the cycle of
violence must be proven to have characterized at least two
battering episodes”
2. The inal acute episode preceding the killing of the batterer
must have produced in the battered person’s mind an actual
fear of an imminent harm from her batterer and an honest
belief that she needed to use force to save her life.
3. At the time of the killing, the batterer must have posed probable
— not necessarily immediate and actual — grave harm to the
woman, based on the history of violence. (PP v. Genosa, GR
135981, Jan. 15, 2004)
Extraterritoriality
AAA v. BBB 2018
YES. In Dinamling v. People, this Court already had occasion to
enumerate the elements of psychological violence under Section
5(i) of R.A. No. 9262:
1) The offended party is a woman and/or her child or children;
2) The woman is either the wife or former wife of the offender,
or is a woman with whom the offender has or had a sexual
or dating relationship, or is a woman with whom such
offender has a common child;
3) The offender causes on the woman and/or child mental or
emotional anguish; and
4) The anguish is caused through acts of public ridicule or
humiliation, repeated verbal and emotional abuse, denial of
inancial support or custody of minor children or access to
the children or similar such acts or omissions.
What R.A. No. 9262 criminalizes is not the marital in idelity per se
but the psychological violence causing mental or emotional suffering
on the wife. Marital in idelity as cited in the law is only one of
the various acts by which psychological violence may be
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committed. Thus, the mental or emotional suffering of the victim is
an essential and distinct element in the commission of the offense.
What may be gleaned from Section 7 of R.A. No. 9262 is that the law
contemplates that acts of violence against women and their children
may manifest as transitory or continuing crimes. Even if the
alleged extra marital affair causing the offended wife mental and
emotional anguish is committed abroad, the same does not place a
prosecution under R.A. No. 9262 absolutely beyond the reach of
Philippine courts.
Dabalos v. RTC 2013
In Ang v. Court of Appeals, the Court enumerated the elements of the
crime of violence against women through harassment, to wit:
1. The offender has or had a sexual or dating relationship with
the offended woman;
2. The offender, by himself or through another, commits an act
or series of acts of harassment against the woman; and
3. The harassment alarms or causes substantial emotional or
psychological distress to her.
Notably, while it is required that the offender has or had a sexual or
dating relationship with the offended woman, for RA 9262 to be
applicable, it is not indispensable that the act of violence be a
consequence of such relationship. It is immaterial whether the
relationship had ceased for as long as there is suf icient evidence
showing the past or present existence of such relationship between
the offender and the victim when the physical harm was committed.
Araza v. People 2020
The law does not require proof that the victim became
psychologically ill due to the psychological violence done by her
abuser. Rather, the law only requires emotional anguish and
mental suffering to be proven. To establish emotional anguish or
mental suffering, jurisprudence only requires that the testimony of
the victim be presented in court, as such experiences are personal to
this party.
Melgar v. People 2018 re Denial of inancial support
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Psychological violence is the means employed by the perpetrator,
Child Prostitution and Other Sexual Abuse
while mental or emotional anguish is the effect caused to or the
damage sustained by the offended party. To establish psychological
violence as an element of the crime, it is necessary to show proof of
commission of any of the acts enumerated in Section 5 (i) or similar
acts. And to establish mental or emotional anguish, it is necessary to
present the testimony of the victim as such experiences are personal
to this party." Thus, in cases of support, it must be irst shown that
the accused's denial thereof — which is, by itself, already a form of
economic abuse — further caused mental or emotional anguish
to the woman-victim and/or to their common child.
AA. Special Protection of Children Against Abuse,
Exploitation, and Discrimination Act
Definition of Child
"Children" refers to person below eighteen (18) years of age or
those over but are unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or
condition.
Acts punished as child abuse
"Child abuse" refers to the maltreatment, whether habitual or not, of
the child which includes any of the following:
1) Psychological and physical abuse, neglect, cruelty, sexual
abuse and emotional maltreatment;
2) Any act by deeds or words which debases, degrades or
demeans the intrinsic worth and dignity of a child as a human
being;
3) Unreasonable deprivation of his basic needs for survival,
such as food and shelter; or
4) Failure to immediately give medical treatment to an
injured child resulting in serious impairment of his growth and
development or in his permanent incapacity or death.
Attempt To Commit Child Prostitution
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
Children, whether male or female, who for money, pro it, or any
other consideration or due to the coercion or in luence of any
adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to
reclusion perpetua shall be imposed upon the following:
a) Those who engage in or promote, facilitate or induce child
prostitution which include, but are not limited to, the
following:
1) Acting as a procurer of a child prostitute;
2) Inducing a person to be a client of a child prostitute by
means of written or oral advertisements or other similar
means;
3) Taking advantage of in luence or relationship to procure a
child as prostitute;
4) Threatening or using violence towards a child to engage
him as a prostitute; or
5) Giving monetary consideration goods or other pecuniary
bene it to a child with intent to engage such child in
prostitution.
b) Those who commit the act of sexual intercourse of
lascivious conduct with a child exploited in prostitution or
subject to other sexual abuse; and
c) Those who derive pro it or advantage therefrom, whether as
manager or owner of the establishment where the prostitution
takes place, or of the sauna, disco, bar, resort, place of
entertainment or establishment serving as a cover or which
engages in prostitution in addition to the activity for which the
license has been issued to said establishment.
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1. Under Section 5(a) when any person who, not being a relative
of a child, is found alone with the said child inside the room or
cubicle of a house, an inn, hotel, motel, pension house,
apartelle or other similar establishments, vessel, vehicle or
any other hidden or secluded area under circumstances which
would lead a reasonable person to believe that the child is
about to be exploited in prostitution and other sexual abuse.
2. Under Section 5(b) when any person is receiving services
from a child in a sauna parlor or bath, massage clinic, health
club and other similar establishments.
3. A penalty lower by two (2) degrees than that prescribed for
the consummated felony under Section 5 hereof shall be
imposed upon the principals of the attempt to commit the
crime of child prostitution.
Child Trafficking
Any person who shall engage in trading and dealing with children
including, but not limited to, the act of buying and selling of a child
for money, or for any other consideration, or barter, shall suffer the
penalty of reclusion temporal to reclusion perpetua.
The penalty shall be imposed in its maximum period when the
victim is under twelve (12) years of age.
Attempt to Commit Child Traf icking
There is an attempt to commit child traf icking under Section 7 of
this Act:
a) When a child travels alone to a foreign country without valid
reason therefor and without clearance issued by the DSWD or
written permit or justi ication from the child's parents or legal
guardian;
b) When a person, agency, establishment or child-caring
institution recruits women or couples to bear children for the
purpose of child traf icking; or
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c) When a doctor, hospital or clinic of icial or employee, nurse, exploited in 5(b) of R.A. No. temporal in its R.A. No. 7610: temporal in its of the
midwife, local civil registrar or any other person simulates prostitution or 7610: reclusion medium period to reclusion medium period to RPC:
birth for the purpose of child traf icking; or other sexual temporal in its reclusion temporal in its reclusion prision
abuse medium period perpetua medium period perpetua mayor
d) When a person engages in the act of inding children among
low-income families, hospitals, clinics, nurseries, day-care Sexual Assault Tulagan v. People 2019 En Banc
Sexual Assault
centers, or other child-during institutions who can be offered under Article
committed
for the purpose of child traf icking. 266-A(2) of the If the acts constituting sexual assault are committed against a victim
against
RPC in relation to under 12 years of age or is demented, the nomenclature of the
A penalty lower two (2) degrees than that prescribed for the children
Section 5(b) of NA offense should now be "Sexual Assault” under paragraph 2, Article
exploited in
consummated felony under Section 7 hereof shall be imposed upon R.A. No. 7610: 266-A of the RPC in relation to Section 5(b) of R.A. No. 7610. The
prostitution or
the principals of the attempt to commit child traf icking under this reclusion imposable penalty is still reclusion temporal in its medium period,
other sexual
temporal in its and not prision mayor.
Act. abuse
medium period
Rape under RPC from sexual child abuse Whereas if the victim is 12 years old and under 18 years old, or
Rape under 18 years old and above under special circumstances, the
1. Under 12 prosecute as Statutory Rape under RPC; penalty Sexual nomenclature of the crime should be "Lascivious Conduct under
Article 266-A(1) Sexual Abuse
is RP Intercourse Section 5(b) of R.A. No. 7610" with the imposable penalty of
of the RPC: under Section 5(b)
committed reclusion temporal in its medium period to reclusion perpetua, but it
prosecute as Acts of Lasciviousness under RPC, but penalty reclusion of R.A. No. 7610:
against should not make any reference to the provisions of the RPC.
perpetua, except reclusion
provided under Sec. 5 (b), RA 7610 which is RT med. children NA
when the victim is temporal in its
exploited in It is only when the victim of the sexual assault is 18 years old and
2. Over 12 but Under 18 either Rape under RPC (if any of 4 below 7 years old medium period to
prostitution or above, and not demented, that the crime should be called as "Sexual
circumstances occur) in which case reclusion
other sexual Assault under paragraph 2, Article 266-A of the RPC" with the
death penalty perpetua
or RA 7610 if victim is “subjected to other sexual abuse” or abuse imposable penalty of prision mayor.
shall be imposed
under persuasion, inducement, enticement, coercion or
in luence (PIECI) where penalty is RT medium to RP. Rape under People v. Tubillo 2017
Article 266-A(1)
3. Over 18 Rape under RPC; Rape Under Section 5 (b), Article III of RA 7610 in relation to RA 8353, if
in relation to Art.
Rape under under the victim of sexual abuse is below 12 years of age, the offender
266-B of the RPC:
Acts of Lasciviousness under RPC (prision correccional). Article 266-A(1) Article
Rape by reclusion should not be prosecuted for sexual abuse but for statutory rape
in relation to Art. 266-A(1)
Designation of the Crime & Imposable Penalty carnal perpetua, except under Article 266-A(1)(d) of the RPC and penalized with reclusion
266-B of the RPC: of the
from Tulagan v. People knowledge when the victim is perpetua.
reclusion RPC:
below 7 years old
Age of Victim 12 years old or perpetua reclusion On the other hand, if the victim is 12 years or older, the offender
18 years in which case
Under 12 years below 18, or 18 perpetua should be charged with either sexual abuse under Section 5 (b) of RA
old and death penalty
Crime old or demented under special shall be imposed 7610 or rape under Article 266-A (except par 1 [d]) of the RPC.
Committed above However, the offender cannot be accused of both crimes for the same
circumstances
Sexual Assault Lascivious Sexual act because his right against double jeopardy will be prejudiced. A
Acts of Acts of Lascivious under Article Conduct under Assault person cannot be subjected twice to criminal liability for a single
Rape by criminal act. Likewise, rape cannot be complexed with a violation
Lasciviousness Lasciviousness conduct under 266-A(2) of the Section 5(b) of under
Sexual Assault of Section 5 (b) of RA 7610. Under Section 48 of the RPC, a felony
committed under Article 336 Section 5(b) of NA RPC in relation to R.A. No. 7610: Article
against of the RPC in R.A. No. 7610: Section 5(b) of reclusion 266-A(2) under the RPC such as rape cannot be complexed with an offense
children relation to Section reclusion penalized by a special law.

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People v. Basa, Jr 2019
Before an accused can be held criminally liable for lascivious
conduct under Section 5(b) R.A. No. 7610, the Court held in Quimvel
v. People that the requisites for Acts of Lasciviousness, as penalized
under Article 336 of the RPC, must be met in addition to the
requisites for sexual abuse under R.A. No. 7610.
A child is deemed exploited in prostitution or subjected to other
sexual abuse when the child indulges in sexual intercourse or
lascivious conduct
a) for money, pro it or any other consideration; or
b) under the coercion or any in luence of any adult, syndicate
or group.
In the case of Olivarez v. CA, the Court explained that the phrase
"other sexual abuse," covers not only a child who is abused for pro it,
but also one who engages in lascivious conduct through the
coercion or intimidation by an adult. In the latter case, there must
be some form of compulsion equivalent to intimidation which
subdues the free exercise of the offended party's will.
Calaoagan v. People 2019
Sec. 10(a) of R.A. No. 7610 penalizes an act when it constitutes as
child abuse. In relation thereto, Sec. 3(b) highlights that in child
abuse, the act by deeds or words must debase, degrade, or
demean the intrinsic worth and dignity of a child as a human
being.
When the in liction of physical injuries against a minor is done at the
spur of the moment, it is imperative for the prosecution to prove
a speci ic intent to debase, degrade, or demean the intrinsic
worth of the child; otherwise, the accused cannot be convicted
under Sec. 10(a) of R.A. No. 7610.
Sanchez v. People
Here, the applicable laws are Article 59 of P.D. No. 603 and Section
10(a) of R.A. No. 7610. The use of "or" in Section 10(a) of RA 7610
before the phrase "be responsible for other conditions prejudicial to
the child's development" supposes that there are four punishable
acts therein. First, the act of child abuse; second, child cruelty;
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
third, child exploitation; and fourth, being responsible for
conditions prejudicial to the child's development. The fourth
penalized act cannot be interpreted as a qualifying condition for the
three other acts.
Araneta v. People
People v. Carlos Alhambra 2014
The Rules and Regulations of the questioned statute distinctly and
separately de ined child abuse, cruelty and exploitation just to show
that these three acts are different from one another and from the act
prejudicial to the child's development.
An accused can be prosecuted and be convicted under Section 10(a) if
he commits any of the four acts therein. The prosecution need not
prove that the acts of child abuse, child cruelty and child exploitation
have resulted in the prejudice of the child because an act prejudicial
to the development of the child is different from the former acts.
Bongalon v. People 2013
Not every instance of the laying of hands on a child constitutes the
crime of child abuse under Section 10 (a) of Republic Act No. 7610.
Only when the laying of hands is shown beyond reasonable doubt to
be intended by the accused to debase, degrade or demean the
intrinsic worth and dignity of the child as a human being should it be
punished as child abuse. Otherwise, it is punished under the RPC.
People v. Baraga 2014
Sexual abuse under Section 5(b), Article III of R.A. No. 7610 has
three elements:
1) the accused commits an act of sexual intercourse or
lascivious conduct;
2) the said act is performed with a child exploited in
prostitution or subjected to other sexual abuse; and
3) the child is below 18 years old.
The penalty for sexual abuse performed on a child under 18 years old
but over 12 years old under Section 5(b) of R.A. No. 7610 is reclusion
temporal in its medium period to reclusion perpetua. The Court
likewise considers the alternative circumstance of relationship
against Baraga as an aggravating circumstance. Since there is an
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aggravating circumstance and no mitigating circumstance, the penalty
shall be applied in its maximum period, i.e., reclusion perpetua.
Besides, Section 31 of R.A. No. 7610 expressly provides that the
penalty shall be imposed in its maximum period when the
perpetrator is, inter alia, the parent of the victim.
The prosecution was able to establish Alhambra’s criminal liability
under Section 5(b) of R.A. No. 7610. First, AAA testi ied that, whilst
clad only in towel after having taken a bath, her father forcibly
removed her towel covering her body, kissed her on the neck,
removed her undergarments, and kissed her on the other parts of her
body. Second, Alhambra used his moral ascendancy and in luence
over his daughter AAA to consummate his lascivious design. Third,
AAA was only 17 years old when the said incident happened.
Alhambra’s assertion that he is not liable for sexual abuse under
Section 5(b) since AAA is not a child engaged in prostitution or
subjected to other sexual abuse is plainly without merit. The law
covers not only a situation in which a child is abused for pro it
but also one in which a child, through coercion or
intimidation, engages in any lascivious conduct. A child is
deemed subjected to “other sexual abuse” when he or she indulges in
lascivious conduct under the coercion or in luence of any adult. As
established by the prosecution, Alhambra was only able to
consummate his lascivious design towards AAA through coercion
and with the use of his in luence over the latter as her father.
BB. Safe Spaces Act
Particularly Secs 4 to 25
1. The crimes of gender-based streets and public spaces
sexual harassment are committed through any unwanted
and uninvited sexual actions or remarks against any person
regardless of the motive for committing such action or
remarks.
2. It includes
a. catcalling, wolf-whistling, unwanted invitations,
misogynistic, transphobic, homophobic and sexist
slurs,
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b. persistent uninvited comments or gestures on a
person's appearance,
c. relentless requests for personal details,
d. statement of sexual comments and suggestions,
e. public masturbation or lashing of private parts,
f. groping, or any advances, whether verbal or physical,
that is unwanted and has threatened one's sense of
personal space and physical safety and committed in
public spaces such as alleys, roads, sidewalks and
parks.
3. They are those performed in buildings, schools, churches,
restaurants, malls, public washrooms, bars, internet shops,
public markets, transportation terminals or public utility
vehicles.
7.
4. Gender-based online sexual harassment refers to an
online conduct targeted at a particular person that causes or
likely to cause another mental, emotional or psychological
distress, and fear of personal safety, sexual harassment acts
including
a. unwanted sexual remarks and comments, threats,
b. uploading or sharing of one's photos without consent,
video and audio recordings,
c. cyberstalking and
d. online identity theft.
5. Stalking refers to conduct directed at a person involving the
repeated visual or physical proximity, non-consensual
communication, or a combination thereof that cause or will
likely cause a person to fear for one's own safety or the safety
of others, or to suffer emotional distress.
6. Quali ied Gender-Based Streets, Public Spaces and Online
Sexual Harassment. — The penalty next higher in degree will
be applied in the following cases:
a. If the act takes place in a common carrier or PUV,
including, but not limited to, jeepneys, taxis, tricycles,
Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla
PRE-WEEK NOTES
or app-based transport network vehicle services,
where the perpetrator is the driver of the vehicle
and the offended party is a passenger;
b. If the offended party is a minor, a senior citizen, or a
PWD, or a breastfeeding mother nursing her child;
c. If the offended party is diagnosed with a mental
problem tending to impair consent;
d. If the perpetrator is a member of the uniformed
services, such as the PNP and the AFP, and the act was
perpetrated while the perpetrator was in uniform; and
e. If the act takes place in the premises of a
government agency offering frontline services to the
public and the perpetrator is a government
employee.
The crime of gender-based sexual harassment in the
workplace includes the following;
a. An act or series of acts involving any unwelcome
sexual advances, requests or demand for sexual
favors or any act of sexual nature, whether done
verbally, physically or through the use of technology
such as text messaging or electronic mail or through
any other forms of information and communication
systems, that has or could have a detrimental effect on
the conditions of an individual's employment or
education, job performance or opportunities;
b. A conduct of sexual nature and other conduct-based on
sex affecting the dignity of a person, which is
unwelcome, unreasonable, and offensive to the
recipient, whether done verbally, physically or
through the use of technology such as text messaging
or electronic mail or through any other forms of
information and communication systems;
c. A conduct that is unwelcome and pervasive and
creates an intimidating, hostile or humiliating
environment for the recipient.
by RGL
For the 2020/21 #BestBarEver
⭐The crime of gender-based sexual harassment may
also be committed between peers and those
committed to a superior of icer by a subordinate,
or to a teacher by a student, or to a trainer by a
trainee.
8. Exemptions. — Acts that are legitimate expressions of
indigenous culture and tradition, as well as breastfeeding
in public shall not be penalized. (Sec 31)
CC. Data Privacy Act
Punishable acts are as follows:
1. Unauthorized processing of personal information or
sensitive personal information — processing personal
information or sensitive personal information, without the
consent of the data subject, or without being authorized under
any existing law.
2. Accessing personal information and sensitive personal
information due to negligence — providing access to
personal information or sensitive personal information,
without being authorized under any law, due to negligence.
3. Improper personal information or sensitive personal
information — knowingly or negligently disposing,
discarding or abandoning the personal information or sensitive
personal information of an individual in an area accessible to
the public or has otherwise placed the personal information of
an individual in its container for trash collection.
4. Processing of personal information or sensitive personal
information for unauthorized purposes — processing of
personal information or sensitive personal information for
purposes not authorized by the data subject, or otherwise
authorized under existing laws.
5. Unauthorized access or Intentional breach — knowingly
and unlawfully, or violating data con identiality and security
data systems, breaks in any way into any system where
personal and sensitive personal information is stored.
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6. Concealment of security breaches involving sensitive

personal information — concealing, intentionally or by
omission, security breaches involving sensitive personal
information, after having knowledge of such breach and of the
obligation to notify the Data Privacy Commission.
7. Malicious disclosure — committed by any personal
information controller or personal information processor or
any of its of icials, employees or agents, who, with malice or in
bad faith, discloses unwarranted or false information relative to
any personal information or personal sensitive information
obtained by him.
8. Unauthorized disclosure — committed by any personal
information controller or personal information processor or
any of its of icials, employees or agents, who discloses to a
third-party personal information or sensitive personal
information, without the consent of the data subject, and not
constituting Malicious disclosure.
9. “Committed in Large-Scale” — when the personal
information of at least 100 persons is harmed, affected or
involved as the result of the above-mentioned actions.

Based on the Books of Aquino, Sundiang, Miravite, De Leon, Reyes, Regalado, Campanilla by RGL 249 of 249