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101+ REMINDERS AND POINTERS IN ALLIED POLITICAL LAWS

FOR THE 2013 BAR EXAMINATIONS
By:
Daryl Bretch M. Largo, ABPoSc, LLB, LLM
USC School of Law and Governance

Local Government Law (Public Corporation)

Municipal Corporations; De Facto Municipal Corporations

1. Kinds of defective “municipal corporations”:

Corporation De facto – a corporation de facto exists where the consent of the state is
implied rather than expressed, by the general consent to that kind of corporation, even though the
conditions of incorporation are not substantially complied with. There are four elements of a de
facto municipal corporation, namely: a. valid law authorizing incorporation, b. attempt in good
faith to organize it, c. colorable compliance with law, d. assumption of corporate powers
(McQuillin).

Corporation by prescription – a corporation by prescription exists under the principles of

common law, “where a body of men have been for a long time in the exercise of corporate powers,
a presumption arises of an ancient charter, granted to their predecessors, making the exercise
of such powers by them lawful and rightful, a lost grant or charter from the crown being
presumed”. Teodorico C. Martin, Commentaries and Jurisprudence on Philippine
Commercial Law (1986).

Corporation by estoppel – corporation by prescription is stated by Fletcher in this wise:

“While as against the state a corporation cannot be created by the mere agreement or other act or
omission of private persons, yet as between private litigants they may, by their agreements,
admissions, or conduct, place themselves where they would not be permitted to deny the fact of
the existence of the corporation” (Fletcher).

The Doctrine of De Facto Municipal Corporation states that “where there is authority in law for a
municipal corporation, the organization of the people of a given territory as such a corporation
under a color of delegated authority, followed by a user in good faith of the governmental powers
incidental thereto, will be recognized by the law as a municipal corporation de facto, wherever
through the failure to comply with the constitutional or statutory requirements, the corporation
cannot be said to exist de jure.” (C.W. Tooke, “De Facto Municipal Corporations under
Unconstitutional Statutes”, 37 Yale Law Journal 935 (1928))

A de facto municipal corporation can only be challenged by the State through the direct
action of Quo Warranto. However, where there is even no de facto municipal corporation to
speak of, a collateral attack on the supposed corporation’s existence is permissible. “Doctrine of
Operative Fact” is applicable in invalidly created and de facto local government unit. (Mun. of
Malabang vs. Benito, 1969). Note that in this case of Malabang vs. Benito, the Municipality of
Balabagan was not considered a de facto municipal corporation because the E.O. that created it
was declared void by the Supreme Court and that it had also existed for only a short period of
time. Applying the “Doctrine of Operative Fact”, however, the acts earlier performed by the
Balabagan was honored and given effects.

Local Autonomy; Fiscal Autonomy

2. Under the Philippine concept of local autonomy, the national government has not completely
relinquished all its powers over local governments, including autonomous regions. Only
administrative powers over local affairs are delegated to political subdivisions. Thus, policy-
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setting for the entire country still lies in the President and Congress. (Pimentel v. Aguirre, G.R.
No. 132988, July 19, 2000)

Under Art. X, Sec. 6 of the 1987 Constitution, local government units shall have a just share, as
determined by law, in the national taxes which shall be automatically released to them. Thus,
Sec. 4 of A. O. No. 372 which mandates that “pending the assessment and evaluation by the
Development Budget Coordinating Committee of the emerging fiscal situation, the amount
equivalent to 10% of the internal revenue allotment to local government units shall be withheld”
contravenes the mandate in Section 6, Article X of the 1987 Constitution and Art. 286 of the LGC
of 1991 that the share of each local government unit in the national taxes (IRA) shall be
“automatically released” to them and shall “not be subject to any lien or holdback that may be
imposed by the National Government for whatever purpose”. (Pimentel v. Aguirre [2000])

Powers of local government units

3. There are four (4) general kinds of powers of local government units: a) those that are expressly
granted to them, b) those that are implied from those that are granted to them, c) those that are
necessary, appropriate, or incidental for their efficient and effective governance, and d) those
that are essential to the promotion of the general welfare of their inhabitants. (Aquilino
Pimentel, The Local Government Code of 1991: The Key to National Development (1993), p. 15.

Creation of LGU; Plebiscite; Land Area requirement for Province

4. The recent League of Cities case (Feb. 15, 2011; April 12, 2011; June 28, 2011) granted the Motion
for Reconsideration of the 16 “Cities”, reversed and set aside the 24 August 2010 Resolution of SC
and decided on the basis of SC’s reasoning in the 21 December 2009 Ruling that Congress’ intent
to exempt the 16 Cities from the operation of R.A. 9009 should be respected.

A plebiscite for creating a new province should include the participation of the residents of the
mother province for the plebiscite to conform to the constitutional requirement. (Tan vs. Comelec
[1986])

In Miranda vs. Aguirre (1999), the Supreme Court applied the requirement of plebiscite in case
of conversion of an independent component city into a mere component city of a province. This
case involved the downgrading of Santiago City from an independent component city to a mere
component and the issue there was whether or not such conversion required the approval of the
people of Santiago City. The Supreme Court ruled that the downgrading of Santiago City falls
within the meaning of creation, division, merger, abolition or substantial alteration of boundaries
of municipalities per Section 10, Article X of the 1987 Constitution.

The 2010 Navarro vs. Ermita case was reversed in 2011 (April 12). The SC, through J. Nachura,
ruled that Congress intended to apply the exemption on land area requirements enjoyed by
municipalities and cities which have islands as territories to the Province (e.g. Province of
Dinagat).

The requisites for Creation of Province are: (a) Twenty million pesos (P20,000,000.00)..and
either of the following requisites: (i) a contiguous territory of at least two thousand (2,000)
square kilometers, or (ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants. Thus, population requirement is not an indispensable requirement, but merely an
alternative addition to the indispensable income requirement. (Aquino III vs. Comelec [2010])

Political Subdivisions

5. The concept of an “associated state” is not sanctioned by the Constitution. Under Art. X, the
following are the only recognized “political subdivisions” in the Philippines: Provinces, Cities,
Municipalities, Barangays and the Autonomous Regions of Muslim Mindanao and the Cordilleras.
(Province of North Cotabato vs. GRP [2008])

In Metro Manila Development Authority (MMDA) vs. Bel-Air Village (2000), the Supreme
Court found MMDA to be not a political subdivision and not even a special metropolitan political
subdivision because there was no plebiscite when it was created and the President exercises not
just supervision but control over it. MMDA has purely administrative function. Not being a
political subdivision, it cannot exercise political powers.

The Cordillera Administrative Region (CAR) is not a public corporation or a territorial and
political subdivision. It does not have a separate juridical personality, unlike provinces, cities and
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municipalities. Neither is it vested with the powers that are normally granted to public
corporations, e.g. the power to sue and be sued, the power to own and dispose of property, the
power to create its own sources of revenue, etc. (Cordillera Broad Coalition vs. COA [1990])

Income requirement

6. In the case of conversion of a municipality into a city or a cluster of barangays to be formed into a
new city, Republic Act No. 9009, enacted on June 30, 2001 and amending Sec. 450 of the Code,
Internal Revenue Allotments (IRA) are no longer included in the computation of the annual
income for purposes of complying with the income requirement. “Income” under R.A. 9009
refers to “locally generated” income.

Division, Merger, Abolition of LGUs

7. Division or Merger of local government unit should not reduce the (1) land area, population, and
income to less than the minimum requirements under the Code, and (2) income classification of
the original LGU affected. (Sec. 8, LGC)

The ground for abolition of local government unit is when its income, population, or land area
has been irreversibly reduced to less than the minimum standards as certified by the national
agencies concerned. (Sec. 9, LGC)

Beginning of Corporate Existence

8. Under the LGC of 1991, the corporate existence of a local government unit begins: (1) As fixed by
the law or ordinance creating the LGU, or (2) Election and Qualifications of Chief Executive and
majority of Sanggunian members (when not fixed by law or ordinance). (Sec. 14, LGC). Note: The
Mejia case (1948) which ruled that LGU begins to exist upon the “effectivity of the law” creating it
is not anymore true.

President’s General Supervision Power

9. The President shall exercise “general supervision” over local government units, under Sec. 4
(Constitution) and Sec. 25 (LGC) and autonomous regions under Sec. 16 (Constitution). “General
Supervision” essentially means that the President shall ensure “that laws are faithfully executed”
and “that LGUs’ acts are within the scope of their prescribed powers and functions”.

Sec. 187 authorizes the Sec. of Justice to review only the constitutionality or legality of the tax
ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or
modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for
the judgment of the LGU that enacted the measure. He did not say that in his judgment it was a
bad law. What he found only was that it was illegal…..that was not an act of control but of
supervision. (Drilon vs. Lim [1994])

Review of Ordinance of Component LGU

10. The grounds for reviewing ordinance by a component unit of a Sanggunian are as follows: If by
Sangguniang Panlalawigan: 1. Ultra Vires (Sec. 56 (c), LGC); If by Sangguniang
Panlungsod/Bayan: 1. Not consistent with law and 2. Not consistent with Municipal or City
Ordinances (Sec. 57, LGC). The Veto Power of the Local Chief Executive, on the other hand, is
limited to the following grounds: 1. Ultra Vires and 2.Prejudicial to the public welfare. (Sec. 55,
LGC)

Prior Consultation Rule for National Program Implementation

11. The requirement of Prior Consultations found in Sections 2 (c) and 27 of the LGC apply only to
national programs and/or projects that are to be implemented in a particular local community.
For example, since Lotto is neither a program nor a project of the national government, but of a
charitable institution, the PCSO, the provision on prior consultation will not apply. It must
likewise be emphasized that the projects and programs mentioned in Section 27 should be
interpreted to mean projects and programs whose effects are among those enumerated in Section
26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3)
may cause the depletion of non-renewable resources; (4) may result in loss of crop land, range-
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land, or forest cover; (5) may eradicate certain animal or plant species from the face of the
planet; and (6) other projects or programs that may call for the eviction of a particular group of
people residing in the locality where these will be implemented. (Lina, Jr. vs. Paño; Province of
Rizal vs. Executive Secretary [2005])

Validity of Ordinances; Local Police Power

12. To be valid, municipal ordinances: (1) must not contravene the Constitution or any statute, (2)
must not be unfair or oppressive, (3) must not be partial or discriminatory, (4) must not
prohibit but may regulate trade, (5) must be general and consistent with public policy, and (6)
must not be unreasonable. There must be “lawful subject” and “lawful means”.

Zoning Ordinance is a police measure. It prevails over contractual obligations. Therefore, parties
to a contract who may be affected by zoning ordinances cannot invoke the constitutional right
against “impairment of obligations and contracts” because in constitutional law, police power
prevails over the “non-impairment clause”. (Ortigas and Company, Limited Partnership vs.
Feati Bank and Trust Company, 94 SCRA 533)

An ordinance that prohibits PAGCOR from operating a lawful game of chance violates
Presidential Decree No. 1869, which authorizes the PAGCOR to operate casinos within the
territorial jurisdiction of the Philippines. The power of a local government unit to suppress
gambling and prohibited games of chance excludes of chance permitted by law. Implied repeals
are not favored. (Magtajas vs. Pryce Properties Corporation, Inc.,234 SCRA 255)

In City of Manila v. Laguio, Jr. (2005), the Court nullified a city ordinance barring the operation
of motels and inns, among other establishments, within the Ermita-Malate area. The petition at
bar assails a similarly-motivated city ordinance that prohibits those same establishments from
offering short-time admission, as well as pro-rated or “wash up” rates for such abbreviated stays.
(White Light Corporation vs. City of Manila, 2009).

The exercise of the power to issue business permit is a delegated police power and hence,
discretionary in nature. A mayor cannot, therefore, be compelled by mandamus to issue a
business permit. (Roble Arrastre, Inc. v. Hon. Villaflor [2006]; Rimando vs. Naguilian Emission
Testing Center, Inc. [2012])

Local Eminent Domain

13. The specific requirements for local eminent domain are:

a. It is exercised through its chief executive and acting pursuant to an ordinance;

b. It is for public use, or purpose, or welfare for the benefit of the poor and the
landless;
c. Payment of just compensation, pursuant to the provisions of the Constitution and
pertinent laws; and
d. A valid and definite offer has been previously made to the owner, and such offer was
not accepted.

Note: In case of urban development, e.g. housing projects, by the LGU, add as
requirements Sections 9 and 10 of R.A. 7279.

The landowner is entitled to recover possession of the property expropriated if the government
fails to fully pay just compensation to the owner within a period of five (5) years from the finality
of the judgment in an expropriation proceeding. (Republic vs. Lim, 2005)

If the genuine public necessity of expropriation of a private land ceases or disappears, then there
is no more cogent point for the government’s retention of the expropriated land. The same legal
situation should hold if the government devotes the property to another public use very much
different from the original or deviates from the declared purpose to benefit another private
person. (Anunciacion Vda. De Ouano vs. Republic, Feb. 9, 2011)

Before a local government unit may enter into the possession of the property sought to be
expropriated, it must (1) file a complaint for expropriation sufficient in form and substance in the
proper court and (2) deposit with the said court at least 15% of the property's fair market value
based on its current tax declaration. The law does not make the determination of a public purpose
a condition precedent to the issuance of a writ of possession. (Francia vs. Meycauayan [2008])
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Local Taxation

14. MIAA is exempt from real property taxation by the local government because, first, MIAA is not a
government-owned or controlled corporation but an instrumentality of the National Government
and thus exempt from local taxation and second, the real properties of MIAA are owned by the
Republic of the Philippines and thus exempt from real estate tax. (Manila International Airport
Authority vs. CA [2006])

Section 133 of the Code limits the grant to local governments of the power to tax, and not merely
the exercise of a delegated power to tax. Section 133 states that the taxing powers of local
governments "shall not extend to the levy" of any kind of tax on the national government, its
agencies and instrumentalities. (Ibid., See also Republic vs. Philippine Reclamation Authority
(PRA) [2012])

Closure of roads, alley, park or square

15. The closure of a road, alley, park or square presupposes an exercise of police power. Hence, for
any loss or inconvenience caused to a property owner, is a “damnum absque injuria” (literally
“damage without injury”), hence, no compensation. (See Cabrera vs. CA [1991])

Validity of Municipal Contracts

16. Requisites for Validity of Contracts entered into by LGUs:

1. The local government unit must have the power to enter into the particular contract;

2. Pursuant to Section 22(c) of the Local Government Code, there must be a prior
authorization by the Sanggunian concerned, and a legible copy of the contract shall be
posted at a conspicuous place in the provincial capitol or the city, municipal or
barangay hall;

3. In accordance with Secs. 46 and 47, Chapter 8, Subtitle B, Book V, 1987 Admin. Code,
if the contract involves the expenditure of public funds, there should be an actual
appropriation and a certificate of availability of funds by the treasurer of the local
government unit (Except in the case of a contract for supplies to be carried in stock)

4. The contract must conform with the formal requisites of written contracts prescribed
by law;

Municipal Liability; Personal Liability of Officials

17. The LGU is considered as a private person liable ex contractu. But, the rule applies only when the
contract is within the authority of the LGU (intra vires), otherwise, if LGU has no authority (ultra
vires), it cannot be held liable ex contractu because a void contract cannot be cured, not even by
the application of the Doctrine of Estoppel. Doctrine of Estoppel will not apply to void contracts
as when the LGU already received benefits because it will only validate an otherwise void
contract.

The prevailing rule in the law of municipal corporations is that a municipality is not liable for the
torts committed by its regular employees in the discharge of governmental functions. The
municipality is answerable only when it is acting in a proprietary capacity. (San Fernando v.
Firme, 195 SCRA 692.). However, under Section 24 of the Local Government Code, local
government units and their officials are not exempt from liability for death or injury to persons
or damage to property.

Jurisprudence teaches that for liability to arise under Article 2189 of the Civil Code, ownership of
the roads, streets, bridges, public buildings and other public works, is not a controlling factor, it
being sufficient that a province, city or municipality has control or supervision thereof.
(Municipality of San Juan, Metro Manila vs. CA, G.R. No. 121920 [2005])

The general rule is that public officials can be held personally accountable for acts claimed to have
been performed in connection with official duties where they have acted ultra vires or where there
is a showing of bad faith. (Chavez vs. SB [1991])
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Enforcement of Monetary Judgment against LGUs

18. One of the available remedies to enforce favorable monetary judgment against a local government
unit is to levy on the patrimonial properties of the judgment local government unit. Property
which is patrimonial and which is held by a municipality in its proprietary capacity as treated by
the great weight of authority as the private asset of the town and may be levied upon and sold
under an ordinary execution.” (Municipality of Paoay vs. Manaois, 86 Phil. 629)

But, if the local government does not have patrimonial properties, the remedy of the
judgment creditor is to file a petition for mandamus to compel it to appropriate money to satisfy
the judgment. “When a municipality fails or refuses, without justifiable reason, to effect payment
of a final money judgment rendered against it, the claimant may avail of the remedy of mandamus
in order to compel the enactment and approval of the necessary appropriation ordinance, and the
corresponding disbursement of municipal funds therefore.” (Municipality of Makati vs. Court of
Appeals, 190 SCRA 206)

As his other option, he can file the money claim with the COA.

However, the money of a local government unit in the bank cannot be garnished if it came from
public funds. As held in Municipality of Makati vs. Court o Appeals, 190 SCRA 206, 212, public
funds are exempted from garnishment.

Succession in Sanggunian

19. The “last vacancy” in the Sanggunian refers to that created by the elevation of the member
formerly occupying the next higher in rank which in turn also had become vacant by any of the
causes already enumerated, and the term “last vacancy” is thus used in Section 45 (b), Local
Government Code, to differentiate it from the other vacancy previously created....The reason
behind the right given to a political party to nominate a replacement where a permanent vacancy
occurs in the Sanggunian is to maintain the party representation as willed by the people in the
election. (Navarro vs. Court of Appeals, 355 SCRA 672).

Disqualification of Local Elective Officials

20. The phrase “within two (2) years after serving sentence” should have been interpreted and
understood to apply both to those who have been sentenced by final judgment for an offense
involving moral turpitude and to those who have been sentenced by final judgment for an offense
punishable by one (1) year or more of imprisonment. The placing of the comma (,) in the
provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government Code.
The Court’s declaration in Dela Torre case on the effect of probation on Sec. 40(a) of the Local
Government Code, ought to be considered an obiter in view of the fact that Dela Torre was not
even entitled to probation because he appealed his conviction to the Regional Trial Court which,
however, affirmed his conviction. Thus, those who have not served their sentence by reason of the
grant of probation (which should not be equated with service of sentence) should not be
disqualified from running for a local elective office because the two (2)-year period of ineligibility
under Sec. 40(a) of the Local Government Code does not even begin to run. (Moreno vs. Comelec
[2006])

21. The disqualification of “removal from office as a result of an administrative case” shall apply only
to those removed from office during the effectivity of the LGC of 1991 and shall apply as well to
any official, whether elective or appointive.

The disqualification of “dual citizenship” shall be construed as “dual allegiance”. (Manzano vs.
Mercado)

In Faypon, a person who was out of his domicile of origin to pursue studies, engage in business,
or practice vocation was not considered to have abandoned his domicile of origin. But in Coquilla,
naturalization in foreign country results in abandonment. In Caasi, becoming a permanent
immigrant (“greencard holder”) to the US constitutes abandonment of residency. (see Macalintal
vs. Comelec [2003])

22. Eligibility of Ecclesiastics to a local elective position: While five members of the Court constituted
a minority, the vote of the remaining seven did not suffice to render the challenged provision (Sec.
2175 of the old Administrative Code states: "In no case shall there be elected or appointed to a
municipal office ecclesiastics, soldiers in active service, persons receiving salaries or
compensation from provincial or national funds, or contractors for public works of the
municipality.”) ineffective. Section 2175 of the Revised Administrative Code, as far as ecclesiastics
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are concerned, was be accorded respect. (Pamil vs. Teleron, 1978). It must be noted that the
provision disqualifying ecclesiastics from holding local appointive or elective position refers to
“municipal” positions only. Hence, there seems to be no controversy for an ecclesiastic to be
elected Governor of a province like in the case of Roman Catholic Priest Eddie Panlilio of
Pampanga.

Synchronization of National and Local Elections; ARMM elections

23. While the Constitution does not expressly state that Congress has to synchronize national and
local elections, the clear intent towards this objective can be gleaned from the Transitory
Provisions (Article XVIII) of the Constitution. The objective behind setting common termination
date for all elective officials, done among others through the shortening the terms of the twelve
winning senators with the least number of votes, is to synchronize the holding of all future
elections — whether national or local — to once every three years. This intention finds full support
in the discussions during the Constitutional Commission deliberations. These Con-Com
exchanges, read with the provisions of the Transitory Provisions of the Constitution, all serve as
patent indicators of the constitutional mandate to hold synchronized national and local elections,
starting the second Monday of May, 1992 and for all the following elections. (Datu Michael Abas
Kida vs. Senate of the Philippines, G.R. No. 196271, October 18, 2011.

Although called regional elections, the ARMM elections should be included among the elections
to be synchronized as it is a "local" election based on the wording and structure of the
Constitution. (Ibid.)

As can be gleaned from Sec. 8 of Art. VI, Sec. 4 (3) of Art. VII, and Sec. 3 of Art. X of the 1987
Constitution, the power to fix the date of the election is essentially legislative in nature. Thus it
was held that Comelec does not have the power to order special elections. The authority of the
Comelec to postpone elections under Sections 5 (Postponement of Elections) and Section 6
(Failure of Elections) of the B.P. Blg. 881 (Omnibus Election Code) presupposes that Congress, by
law, has already fixed the date of the elections and by reason of force majeure, violence, terrorism
and other causes enumerated therein, there is need to postpone the date of election already fixed
by law or schedule a new one where the one fixed by law has not been held. (Ibid.)

The Aguinaldo Doctrine

24. The re-election of the local executive official renders the pending administrative case against
him moot. As explained in Aguinaldo v. Santos, 212 SCRA 768 (1992), a local elective official
cannot be removed from office for misconduct committed during his previous term, because each
term is separate and the people by re-electing him are deemed to have forgiven his misconduct.

That the people voted for an official with knowledge of his character is presumed, precisely to
eliminate the need to determine, in factual terms, the extent of this knowledge. Such an
undertaking will obviously be impossible. Supreme Court rulings on the matter do not distinguish
the precise timing or period when the misconduct was committed, reckoned from the date of the
official's reelection, except that it must be prior to said date. (Garcia vs. Mojica [1999])

However, Aguinaldo doctrine applies only to administrative case for misconduct, so the official
may still be held criminally or civilly liable for the same act under the “three-fold liability rule”.

Neither will the Aguinaldo doctrine apply to one who committed misconduct while holding an
appointive position and later on elected into office.

Three-Term Limit Rule

25. Elements: (1) that the official concerned has been elected for three consecutive terms
in the same local government post; and

(2) that he has fully served three consecutive terms.

The 2013 case of Abundo, Sr. vs. Comelec summarized the prevailing jurisprudence on issues
affecting consecutiveness of terms and/or involuntary interruption, as follows:

“1.When a permanent vacancy occurs in an elective position and the official merely
assumed the position pursuant to the rules on succession under the LGC, then his service for the
unexpired portion of the term of the replaced official cannot be treated as one full term as
contemplated under the subject constitutional and statutory provision that service cannot be
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counted in the application of any term limit (Borja, Jr.). If the official runs again for the same
position he held prior to his assumption of the higher office, then his succession to said position is
by operation of law and is considered an involuntary severance or interruption (Montebon, citing
Borja, Jr.).

2. An elective official, who has served for three consecutive terms and who did not seek
the elective position for what could be his fourth term, but later won in a recall election, had an
interruption in the continuity of the official's service. For, he had become in the interim, i.e., from
the end of the 3rd term up to the recall election, a private citizen (Adormeo and Socrates).

3. The abolition of an elective local office due to the conversion of a municipality to a city
does not, by itself, work to interrupt the incumbent official's continuity of service (Latasa).

4. Preventive suspension is not a term-interrupting event as the elective officer's

continued stay and entitlement to the office remain unaffected during the period of suspension,
although he is barred from exercising the functions of his office during this period (Aldovino, Jr.).

5. When a candidate is proclaimed as winner for an elective position and assumes office,
his term is interrupted when he loses in an election protest and is ousted from office, thus
disenabling him from serving what would otherwise be the unexpired portion of his term of office
had the protest been dismissed (Lonzanida and Dizon). The break or interruption need not be for
a full term of three years or for the major part of the 3-year term; an interruption for any length of
time, provided the cause is involuntary, is sufficient to break the continuity of service (Socrates,
citing Lonzanida).

6. When an official is defeated in an election protest and said decision becomes final after
said official had served the full term for said office, then his loss in the election contest does not
constitute an interruption since he has managed to serve the term from start to finish. His full
service, despite the defeat, should be counted in the application of term limits because the
nullification of his proclamation came after the expiration of the term (Ong and Rivera).”

In the case of Abundo, the two-year period during which his opponent, Torres, was serving as
mayor should be considered as an interruption, which effectively removed Abundo's case from the
ambit of the three-term limit rule.

“Interruption” of a term exempting an elective official from the three-term limit rule is one that
involves no less than the involuntary loss of title to office. An officer who is preventively
suspended is simply barred from exercising the functions of his office but title to office is not lost.
(Aldovino vs. Comelec, 2009)

Discipline of Local Elective Officials

26. Unlike the old law, removal of a local elective official can only be done by regular courts (RTC, CA,
or Sandiganbayan), not anymore by the Office of the President through the DILG. The rule which
confers to the proper courts the power to remove an elective local official from office is intended
as a check against any capriciousness or partisan activity by the disciplining authority. (see Sec.
60, LGC and Sangguniang Barangay of Don Mariano Marcos vs. Martinez (2008) )

27. The following are the requirements for the imposition of Preventive Suspension:

(a) Issues have already been joined;

(b) Evidence of guilt is strong;
(c) Given the gravity of the offense, respondent might influence witnesses or pose a threat
to records/evidence. (Sec. 63; Joson III vs. CA, 2006)

Penalty of Suspension shall not exceed the unexpired term or a period of six (6) months per
administrative case, nor a bar to candidacy. [Sec. 66 (b)]

In case of execution pending appeal, the respondent shall be considered as having been placed
under preventive suspension during the pendency of the appeal in the event he wins such appeal.
He shall be paid his salary and benefits if the appeal exonerates him.

Veto Power of Local Chief Executive

28. Q1: How does the local legislative assembly override the veto by the local chief executive of an
ordinance? Q2: On what grounds can a local chief executive veto an ordinance? Q3: How can
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an ordinance vetoed by local chief executive become a law without it being overridden by the
local legislative assembly?

A1: Under Section 54(a) and 55(c) of the Local Government Code, the local legislative
assembly can override the veto of the local chief executive by two-thirds (2/3) vote of all its
members.

A2: Under Section 55(a) of the Local Government Code, the local chief executive may veto an
ordinance on the ground that it is ultra vires or prejudicial to the public welfare.

A3: Pursuant to Section 54(b) of the Local Government Code, an ordinance vetoed by the
local chief executive shall be deemed approved if he does not communicate his veto to the
local legislative assembly within fifteen (15) days in the case of a province and ten (10) days in
the case of a city or a municipality. Likewise, if the veto by the local executive has been
overridden by the local legislative assembly, a second veto will be void. Under Section 55(c) of
the Local Government Code, the local chief executive may veto an ordinance only once.

Practice of Profession

29. All governors, city and municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their functions as local chief executives.
Sanggunian members may practice their professions, engage in any occupation, or teach in
schools except during session hours. However, sanggunian members who are also members of
the Bar are subject to certain limitations when they practice law. (See Sec. 90, LGC)

Presiding Officer of Sanggunian

30. For purposes of exercising his legislative prerogatives and powers, the Vice-Governor, who is
acting as Governor, is deemed as a non-member of the SP for the time being. Under RA 7160,
unlike in the old law, the Governor was already deprived of the power to preside over the SP as he
is not a member thereof. Hence, being the Acting Governor, the Vice-Governor cannot continue to
simultaneously exercise the duties of the latter office. Indeed, the creation of a temporary vacancy
in the office of the Governor creates a corresponding temporary vacancy in the office of the Vice
Governor whenever the latter acts as Governor by virtue of such temporary vacancy. This event
constitutes an inability on the part of the regular presiding officer (Vice Governor) to preside
during the SP sessions, which thus calls for the operation of the remedy set in Art. 49(b) of the
Local Government Code concerning the election of a temporary presiding officer. (see Gamboa vs.
Aguirre [1999])

Quorum in Sanggunian

31. The Supreme Court interpreted Section 53 of RA 7160 to mean that “the entire membership must
be taken into account in computing the quorum of the sangguniang panlalawigan”. In stating that
there were fourteen (14) members of the Sanggunian, the Supreme Court in the said Zamora case
included the Vice-Governor, as presiding officer, as part of the entire membership of the
Sangguniang Panlalawigan which must be taken into account in computing the quorum. (Zamora
vs. Caballero [2004])

In recent case of La Carlota City, Negros Occidental vs. Atty. Rex G. Rojo [2012], the Supreme
Court, applying Zamora case, ruled that the vice-mayor shall be included in the computation of
the quorum because under the Local Government Code of 1991, the Sangguniang Panlungsod
"shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members,
the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na
pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members."

Subpoena and Contempt Power of Sanggunian

32. A Sanggunian is not empowered to issue subpoenas to compel the attendance witnesses. There
is no provision in the Constitution, the Local Government Code, or any law expressly granting
local legislative bodies the power to subpoena witnesses. As held in Negros Oriental II Electric
Cooperative, Inc. vs. Sangguniang Panlungsod of Dumaguete, 155 SCRA 421, such power cannot
be implied from the grant of delegated legislated power. Such power is judicial.

Likewise, a Sanggunian does not have the power to cite for contempt. There is likewise no
provision in the Constitution, the Local Government Code, or any other laws granting local
 10  
 
legislative bodies the power to cite for contempt. Such power cannot deem implied in the
delegation of legislative power to local legislative bodies, for the existence of such power poses a
potential derogation of individual rights.

Recall

33. Some rules on Recall:

1. Based on “trust and confidence” only;

2. No more Preparatory Recall Assembly (PRA) as mode of initiating recall, only by registered
voters subject to certain percentages;
3. Official subject of recall becomes automatic candidate in the recall election;
4. No resignation during recall process;
5. Recall election should only be once during the term of the official. (note of “election”, not
“proceeding”)
6. No recall (election) shall take place within one (1) year from date of official’s assumption to
office or one (1) year immediately preceding a regular election (day of election and that
election affecting the office of the official concerned).

Local “Midnight Appointments”

34. Article VII, Section 15 of the 1987 Constitution which prohibits “midnight appointments” applies
only to presidential appointments. In fact, there is no law that expressly prohibits local elective
officials from making appointments during the last days of his or her tenure. (De Rama vs. CA
[2001]) This kind of appointment, however, is subject to Civil Service Rules that generally
prohibit “en masse” appointments before the expiration of term of the appointing oficial.

Settlement of Boundary Disputes

35. Boundary disputes between and among local government units shall, as much as possible, be
settled amicably. To this end:

(a) Boundary disputes involving two (2) or more barangays in the same city or municipality shall
be referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned.
(b) Boundary disputes involving two (2) or more municipalities within the same province shall
be referred for settlement to the sangguniang panlalawigan concerned.
(c) Boundary disputes involving municipalities or component cities of different provinces shall
be jointly referred for settlement to the sanggunians of the province concerned.
(d) Boundary disputes involving a component city or municipality on the one hand and a highly
urbanized city on the other, or two (2) or more highly urbanized cities, shall be jointly
referred for settlement to the respective sanggunians of the parties.
(e) In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from
the date the dispute was referred thereto, it shall issue a certification to that effect.
Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall
decide the issue within sixty (60) days from the date of the certification referred to above.
(Sec. 118, LGC)

Within the time and manner prescribed by the Rules of Court, any party may elevate the decision
of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area
in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing
thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and
continued for all legal purposes. (Sec. 119, LGC)

Administrative Law

What may be delegated to administrative agencies

36. Legislative discretion as to the substantive contents of the law cannot be delegated. What can be
delegated is the discretion to determine how the law may be enforced, not what the law shall be.
The ascertainment of the latter subject is a prerogative of the legislature. This prerogative cannot
be abdicated or surrendered by the legislature to the delegate. (Eastern Shipping Lines, Inc. vs.
POEA [1988])
 11  
 

Government instrumentality, regulatory agency, chartered institution, and GOCC

37. A government instrumentality refers to any agency of the national government, not integrated
within the department framework, vested with special functions or jurisdiction by law, endowed
with some if not all corporate powers, administering special funds, enjoying operational
autonomy, usually through a charter. The term includes regulatory agencies, chartered
institutions and government-owned or controlled corporations. (Sec. 2[10], Introductory
Provisions, EO No. 292)

A regulatory agency refers to any agency expressly vested with jurisdiction to regulate,
administer or adjudicate matters affecting substantial rights and interest of private persons, the
principal powers of which are exercised by a collective body, such as a commission, board or
council. (Sec. 2[11], Introductory Provisions, EO No. 292)

A chartered institution refers to any agency organized or operating under a special charter, and
vested by law with functions relating to specific constitutional policies or objectives. This term
includes state universities and colleges and the monetary authority of the State. (Section 2[12],
Introductory Provisions, EO No. 292)

A Government owned or controlled corporation (GOCC) is an agency organized as a stock or

non-stock corporation, vested with functions relating to public needs whether governmental or
proprietary in nature, and owned by the government directly or indirectly through its
instrumentality either wholly or to the extent of at least 51% of the capital stock in the case of
stock corporation.

Power of the President to create offices

38. Rules on the Power of the President to create offices:

• Subsumed in President’s Power to Reorganize “already existing” Offices within the Office
of the President Proper (OPP);
• Reorganization is limited to: (1) internal reorganization within OPP, (2) transferring
function of unit of OPP to a Dept./Agency or vice versa, (3) transferring agency of OPP to
Dept./Agency or vice versa;
• Creation of NEW OFFICE, not included! Creation of new office remains a LEGISLATIVE
FUNCTION!
• Creation of AD HOC OFFICE/COMMITTEE, which the President may create, can only be
justified under Faithful Execution Clause and Power to investigate, and not under Power
of Control. [Biraogo vs. Philippine Truth Commission (PTC), Dec. 2010]

Note: “Office of the President Proper” (OPP) refers to the following offices under Sec. 22, Title II,
Book III of the Administrative Code of 1987:

(1) The Office of the President Proper shall consist of the Private Office, the Executive
Office, the Common Staff Support System, and the Presidential Special
Assistants/Advisers System;

(2) The Executive Office refers to the Offices of the Executive Secretary, Deputy
Executive Secretaries and Assistant Executive Secretaries;

(3) The Common Staff Support System embraces the offices or units under the
general categories of development and management, general government
administration and internal administration; and

(4) The President Special Assistants/Advisers System includes such special

assistants or advisers as may be needed by the President.

Control Power of the President

39. The President’s power of control does not apply to reviewing, modifying or setting aside a
decision of a subordinate official or body exercising quasi-judicial power after the decision has
become final pursuant to law or the rules issued to implement it. (Antique Sawmills, Inc. vs.
Zayco, 17 SCRA 316; Macailing vs. Andrada, 31 SCRA 126)
 12  
 
Quasi-legislative and Quasi-judicial functions of Administrative Agencies

40. Basic distinctions between quasi-legislative (QL) and quasi-judicial (QJ) functions of
administrative agencies:

• QJ requires notice and hearing, QL only requires publication as a general rule.

• QJ sets different requirements for resort to court: e.g. doctrine of prior exhaustion of
administrative remedy applies (Smart vs. NTC case)
• QJ decisions are, generally, brought to the CA/SC because QJ agencies are deemed equal
in rank with RTC. If QL only, RTC generally.

41. The “Doctrine of Necessary Implication” does not authorize the exercise of powers greater than
the express powers, such that, for example, the power to “regulate” does not include the power to
“prohibit”; nor does the power to “investigate” necessarily include the power to “adjudicate”
(Carino vs. CHR, 204 SCRA 483)

Doctrine of Subordinate Legislation

42. Q: May an implementing rule provide for a provision not found in the statute?

A: As a rule, administrative rules and regulations are intended to carry out, not to supplant nor to
modify, the law. An administrative agency cannot amend an act of Congress. In case of
discrepancy between a provision of statute and a rule or regulation issued to implement said
statute, the statutory provision prevails. (Echegaray vs. DOJ [1998])

However, where a rule or regulation has a provision not expressly stated or contained in the
statute being implemented, that provision does not necessarily contradict the statute. A legislative
rule is in the nature of subordinate legislation, designed to implement a primary legislation by
providing the details thereof. All that is required is that the regulation should be germane to the
objects and purposes of the law; that the regulation be not in contradiction to but in conformity
with the standards prescribed by the law. [Holy Spirit Homeowners’ Association vs. Defensor
(2006)]

Thus, in a case, the Supreme Court ruled that the COMELEC had the authority to promulgate
Resolution No. 8714 pursuant to Sec. 35 of R.A. No. 7166. It was granted the power to issue the
implementing rules of Secs. 32 and 33 of R.A. No. 7166. The COMELEC was mandated to provide
the details of who may bear, carry or transport firearms or other deadly weapons, as well as the
definition of “firearms,” among others. These details are left to the discretion of the COMELEC,
which is a constitutional body that possesses special knowledge and expertise on election matters,
with the objective of ensuring the holding of free, orderly, honest, peaceful and credible
elections…That the COMELEC deemed “airguns, airsoft guns and their replica/imitation” as
included in the meaning of “firearms” in its Implementing rules was valid. [Atty. Orceo vs.
Comelec (2010)]

When hearing is required even in Quasi-legislative issuances

43. When an administrative rule is merely interpretative in nature, its applicability needs nothing
further than its bare issuance for it gives no real consequence more than what the law itself has
already prescribed. When the administrative rule goes beyond and substantially adds to or
increases the burden of those governed, it behooves the agency to accord those directly affected
a chance to be heard, and thereafter to be duly informed, before that new issuance is given the
force and effect of law. [CIR VS. CA (261 SCRA 236)]

Enforceability and Validity of Administrative Issuances

44. The Adm. Code of 1987, Section 3 thereof, expressly requires each agency to file with the Office of
the National Administrative Register (ONAR) of the University of the Philippines Law Center
three certified copies of every rule adopted by it. Administrative issuances which are not
published or filed with the ONAR are ineffective and may not be enforced. [GMA vs. MTRCB
(2007)]

Requirements for the validity of administrative rules with penal provisions:

1. The statute has declared the violation punishable;

2. The statute must have imposed and specified the penalty for the violation;
3. The rule must be published.
 13  
 

Administrative Due Process

45. The function of granting, denying, suspending or revoking license, permit, franchise or
certificate of public convenience and/or necessity is not just purely administrative, but quasi-
judicial or adjudicative function because it is dependent upon the ascertainment of facts by the
agency upon which a decision is to be made and rights and liabilities determined. Hence, notice
and hearing and adjudication are required in these cases. (see Sañado vs. Court of Appeals)
[What about “rate-fixing”?]

The essence of administrative due process is simply “opportunity to be heard”, or “opportunity to

explain one’s side” or “opportunity to seek a reconsideration” of the action or ruling complained
of. (Utto vs. Comelec, 375 SCRA 523)

Exceptions to the requirement of Notice and Hearing:

1. Summary Abatement of Nuisance per se (police power)

2. Preventive Suspension (it is not a penalty)
3. Padlocking of filthy restaurants, theaters, etc. (nuisance per se)
4. Cancellation of Passport of accused (pragmatism, accused may escape)
5. Summary distraint and levy (lifeblood theory of taxation; need for taxes)
6. Grant of Provisional Authority (temporary only)

“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion”. (Rubberworld vs. NLRC, 175 SCRA 450)

Although admissible in evidence, affidavits being self-serving must be received with caution. This
is because the adverse party is not afforded any opportunity to test their veracity. By themselves,
generalized and pro forma affidavits cannot constitute relevant evidence which a reasonable mind
may accept as adequate. There must be some other relevant evidence to corroborate such
affidavits. [PLDT vs. Tiamson (2005)]

Subpoena and Contempt Powers of Administrative Agencies

46. Subpoena and contempt powers are not inherent in admin bodies because these powers are
essentially judicial in nature. Hence, it can only be exercised if (1) duly allowed by law and (2) in
connection with the matter they are authorized to investigate. (Carmelo vs. Ramos, 6 SCRA
836) [Cf: Sec. 13, Book VII of Administrative Code]

Note: If agency is created not by the Administrative Code but by a special charter (law), the
authority given must at least be the authority to “take testimony or evidence” before Section 13
(Issue Subpoena and in case of disobedience seek the aid of the RTC) of the Code may be invoked.
Hence, authority to merely “investigate” does not confer the QJ body the power to cite a person in
contempt under the Administrative Code. (See: Carmelo vs. Ramos, supra.)

Judicial Review of Administrative Decisions

47. Basic Rules on Judicial Review of Administrative Decisions:

1. Decisions may be based on “substantial evidence” only;

2. Findings of facts made therein are to be respected so long as they are supported by
substantial evidence; Hence, it is not for the reviewing court to weigh the conflicting
evidence, determine the credibility of witnesses, or otherwise substitute its judgment
with that of the QJ Body;
3. Administrative decisions in matters within the executive jurisdiction can only be set
aside on proof of: (a) gross abuse of discretion, (b) fraud, or (c) error of law.
[Ombudsman vs. Bungubung (2008), citing Montemayor vs. Bundalian (2003)]

Res Judicata

48. Although a judicial concept in origin, “res judicata” now applies to QJ decisions. The elements
are: (a) sameness of causes of actions, (b) sameness of issues, (c) identity of parties/privies. In
Board of Commissioners vs. Dela Rosa 197 SCRA 853, there is no res judicata in administrative
adjudication of citizenship unless certain requisites are present.
 14  
 

Doctrine of Primary Jurisdiction; Doctrine of Prior Exhaustion of Administrative

Remedies

49. Under the Doctrine of Primary Jurisdiction (or Prior Resort), courts cannot and will not resolve
a controversy involving a question which is within the jurisdiction of an administrative tribunal,
especially where the question demands the exercise of sound administrative discretion requiring
the special knowledge, experience and services of the administrative tribunal to determine
technical and intricate matters of fact.

The Doctrine of Exhaustion of Administrative Remedies, on the other hand, requires that before
a party is allowed to seek the intervention of the court, it is a pre-condition that he should have
availed first of all the means of administrative processes afforded him. Hence, if a remedy within
the administrative machinery can still be resorted to by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his jurisdiction then such
remedy should be exhausted first before the court’s judicial power can be sought. The premature
invocation of court’s jurisdiction is fatal to one’s cause of action. Accordingly, absent any finding
of waiver or estoppel the case is susceptible of dismissal for lack of cause of action. Non-
exhaustion of administrative remedies is not, however, jurisdictional. It only renders the action
premature, i.e., claimed cause of action is not ripe for judicial determination and for that reason a
party has no cause of action to ventilate in court. (Carale v. Abarintos, 269 SCRA 132)

This doctrine, however, is disregarded in the following instances:

1) when there is a violation of due process;

2) when the issue involved is purely a legal question;
3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction;
4) when there is estoppel on the part of the administrative agency concerned;
5) when there is irreparable injury;
6) when the respondent is a department secretary whose acts as an alter ego of the President
bears the implied and assumed approval of the latter;
7) when to require exhaustion of administrative remedies would be unreasonable;
8) when it would amount to a nullification of a claim;
9) when the subject matter is a private land in land case proceeding;
10) when the rule does not provide a plain, speedy and adequate remedy, and
11) when there are circumstances indicating the urgency of judicial intervention.
(Paat v. CA, 266 SCRA 167)

Jurisdiction of DARAB in Agrarian cases

Under Section 50, DAR has primary jurisdiction to determine and adjudicate agrarian reform
matters and exclusive original jurisdiction over all matters involving the implementation of
agrarian reform, except those falling under the exclusive jurisdiction of the DA and the DENR.
Further exception to the DAR's original and exclusive jurisdiction are all petitions for the
determination of just compensation to landowners and the prosecution of all criminal offenses
under RA No. 6657, which are within the jurisdiction of the RTC sitting as a Special Agrarian
Court. Thus, jurisdiction on just compensation cases for the taking of lands under RA No. 6657 is
vested in the courts. (Land Bank of the Philippines vs. Honeycomb Farms [2012], J. Brion)

Law on Public Officers

Jurisdiction of Ombudsman

50. The Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs
with original charters. It can only investigate and prosecute acts of the officials/employees of
government corporations. Even if the government later on will acquire the controlling interest, as
in the case of PAL, the fact remains that the latter did not have an “original charter”. (Khan vs.
Ombudsman [2006]; Carandang vs. Ombudsman [ 2011] )

The power of investigation granted to the Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with other similarly authorized government
agencies, such as the PCGG and judges of municipal trial courts and municipal circuit trial courts.
The power to conduct preliminary investigation on charges against public employees and officials
is likewise concurrently shared with the Department of Justice. Despite the passage of the Local
Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the
 15  
 
President and the local Sanggunians to investigate complaints against local elective officials.
(Flores vs. Montemayor [2011])

The provisions of Section 20 (5) of R.A. 6770 are merely directory. The Ombudsman is not
prohibited from conducting an investigation a year after the supposed act was committed. The
issue of whether Section 20 (5) of R.A. 6770 is mandatory or discretionary has been settled by
jurisprudence. [W]ell-entrenched is the rule that administrative offenses do not prescribe.
Administrative offenses by their very nature pertain to the character of public officers and
employees. In disciplining public officers and employees, the object sought is not the
punishment of the officer or employee but the improvement of the public service and the
preservation of the public's faith and confidence in our government. (Office of the
Ombudsman vs. Andutan, Jr. [2011])

Authority to Discipline Deputy Ombudsman and Special Prosecutor

51. The Ombudsman's administrative disciplinary power over a Deputy Ombudsman and Special
Prosecutor is not exclusive, it is shared with the President as the appointing authority. While the
removal of the Ombudsman himself is also expressly provided for in the Constitution, which is by
impeachment under Section 2 of the same Article, there is, however, no constitutional provision
similarly dealing with the removal from office of a Deputy Ombudsman, or a Special Prosecutor,
for that matter. By enacting Section 8 (2) of R.A. 6770, Congress simply filled a gap in the law
without running afoul of any provision in the Constitution or existing statutes. Unquestionably,
the Ombudsman is possessed of jurisdiction to discipline his own people and mete out
administrative sanctions upon them, including the extreme penalty of dismissal from the service.
However, it is equally without question that the President has concurrent authority with respect
to removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified
conditions. (Gonzales III vs. Office of the President, Sept. 4, 2012)

Nature of Public Office

52. Public office is personal to the incumbent and is not a property which passes to his heirs" (De la
Victoria vs. Comelec, 199 SCRA 561 [1991]). The heirs may no longer prosecute the deceased
protestee's counter-claim for damages against the protestant for that was extinguished when
death terminated his right to occupy the contested office. (Abeja vs. Judge Tanada [1994])

A public office is not property within the sense of the constitutional guaranties of due process of
law, but is a public trust or agency; (Libanan vs. Sandiganbayan [1994]). However, an
incumbent’s right to office may be considered “property” within the protection of due process in
controversies relating to the question as to who of two (2) persons is entitled thereto.

De facto Officer; Salary

53. A de facto officer must be distinguished from a mere usurper. A “de facto officer” has color of
right or title to the office or has apparent authority to hold the office and has done so in good
faith, while a “usurper” has neither lawful title nor color of right or title to the office; the act of a
de facto officer is valid as if it was done by a de jure officer but that of a usurper is absolutely null
and void; the former may be removed through a direct proceeding only.

A de facto public officer cannot be made to reimburse funds disbursed during his term of office
because his acts are as valid as those of a de jure officer. Moreover, as a de facto officer, he is
entitled to emoluments for actual services rendered. [Sampayan vs. Daza, 1992]

An incumbent of a public office may recover from a de facto officer the salary received by the
latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the
office in good faith and under color of title. A de facto officer, not having a good title, takes the
salaries at his risk and must, therefore, account to the de jure officer for whatever salary he
received during the period of his wrongful tenure. The Supreme Court has allowed a de facto
officer to receive emoluments for actual services rendered but only when there is no de jure
officer.

What is the effect of a disapproval by the Civil Service Commission (CSC) of a public officer’s
appointment? If the basis for disapproval is not “violation of civil service law”, say lack of
qualification, the appointee is entitled to a salary. However, if the disapproval by the CSC is on the
ground that the appointment was made in violation of civil service law, the appointing authority
shall be personally held liable for the salary of the appointee. (Nazareno vs. City of Dumaguete,
June 2009)
 16  
 

Qualification; Effect of Pardon

54. Unlike residence and age qualifications, the qualification of “citizenship” for local elective officials
under the Local Government Code of 1991 must only be possessed at the time the candidate
becomes “elective official” by his valid proclamation and at the start of his term. (Frivaldo vs.
Comelec [1996])

55. What is the effect of Pardon on the right to hold public office? Under Art. 36 of the Revised Penal
Code, pardon shall not work the restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon. In Monsanto vs.
Factoran, the Supreme Court said that the pardon granted to petitioner has resulted in removing
her disqualification from holding public employment but it cannot go beyond that. To regain her
former post as assistant city treasurer, she must re-apply and undergo the usual procedure
required for a new appointment. The Supreme Court continued to say that pardon looks to the
future and it is not retrospective. It affords no relief for what has been suffered by the offender. It
does not impose upon the government any obligation to make reparation for what has been
suffered. This would explain why petitioner, though pardoned, cannot be entitled to receive
backpay for lost earnings and benefits.

Discretion of Appointing Authority; Role of CSC in appointments

56. The appointing authority is given ample discretion in the selection and appointment of qualified
persons to vacant positions, provided that the exercise thereof is in good faith for the
advancement of the employer's interest and not for the purpose of defeating or circumventing the
rights of the employees under special laws or under valid agreements and provided further that
such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton
manner, or out of malice or spite.

57. Civil Service Commission has no power of appointment except over its own personnel. Neither
does it have the authority to review the appointments made by other offices except only to
ascertain if the appointee possesses the required qualifications. The determination of who among
aspirants with the minimum statutory qualifications should be preferred belongs to the
appointing authority and not the Civil Service Commission. It cannot disallow an appointment
because it believes another person is better qualified and much less can it direct the appointment
of its own choice.

One who is next-in-rank is entitled to preferential consideration for promotion to the higher
vacancy but it does not necessarily follow that he and no one else can be appointed. The rule
neither grants a vested right to the holder nor imposes a ministerial duty on the appointing
authority to promote such person to the next higher position. Thus, an officer lower in rank but of
superior qualification may be promoted instead.

58. A primarily confidential position is one which denotes not only confidence in the aptitude of the
appointee for the duties of the office but primarily close intimacy which ensures freedom from
intercourse without embarrassment or freedom from misgivings or betrayals of personal trust or
confidential matters of state.

Under the proximity rule, the occupant of a particular position could be considered a confidential
employee if the predominant reason why he was chosen by the appointing authority was the
latter’s belief that he can share a close intimate relationship with the occupant which ensures
freedom of discussion without fear or embarrassment or misgivings of possible betrayal of
personal trust or confidential matters of state. Withal, where the position occupied is more
remote from that of the appointing authority, the element of trust between them is no longer
predominant. (CSC v. Salas, 274 SCRA 414)

59. It is not the absence or presence of the required appointment from the CSC, or the membership of
an employee in the SSS or in the GSIS that determine the status of the position of an employee. It
is the regulation or the law creating the Service that determines the position of the employee.
(Hidalgo vs. CSC, 2010)

Discipline and Liability of public officials

60. There are two kinds of preventive suspension of civil service employees who are charged with
offenses punishable by removal or suspension: (i) preventive suspension pending investigation
 17  
 
and (ii) preventive suspension pending appeal. Compensation is due only for the period of
preventive suspension pending appeal should the employee be ultimately exonerated.

When performing official functions, public officers are liable only in case of (1) malice, (2) bad
faith, and (3) Gross Negligence. They are not liable for wrong interpretation of law, unless in the
case of judges who commit gross ignorance of the law. Heads, on the other hand are liable for acts
of subordinates only when he has authorized by written order the act complained of. Cf. Arias
Doctrine.

Three-fold Liability Rule

61. It is a basic rule in administrative law that public officials are under a three-fold responsibility for
a violation of their duty or for a wrongful act or omission, such that they may be held civilly,
criminally and administratively liable for the same act. Administrative liability is thus separate
and distinct from penal and civil liability.

Moreover, the fact that the administrative case and the case filed before the Ombudsman are
based on the same subject matter is of no moment. It is a fundamental principle of administrative
law that the administrative case may generally proceed against a respondent independently of a
criminal action for the same act or omission and requires only a preponderance of evidence to
establish administrative guilt as against proof beyond reasonable doubt of the criminal charge.
Accordingly, the dismissal of two criminal cases by the Sandiganbayan and of several criminal
complaints by the Ombudsman did not result in the absolution of petitioner from the
administrative charges. (Melendres vs. Presidential Anti-Graft Commission, Aug. 15, 2012.)

Election Laws

Interpretation of Election Laws

62. Defects in the certificates of candidacy should be questioned on or before the election and not
after the will of the people has been expressed through the ballots. While provisions relating to
certificates of candidacy are mandatory in terms, that mandatory provisions will be construed as
directory after the elections, to give effect to the will of the electorate. (Say-ang vs. Comelec
[2003])

Party-list System

63. The party-list system is composed of three different groups: (1) national parties or
organizations; (2) regional parties or organizations; and (3) sectoral parties or organizations.
National and regional parties or organizations are different from sectoral parties or
organizations. National and regional parties or organizations need not be organized along sectoral
lines and need not represent any particular sector. (Atong Paglaum, Inc. vs. Comelec [Apr. 2013])

Power of Comelec over elections

64. Congress has “primary authority” to regulate elections but when it leaves it to Comelec to issue
implementing rules of the law it enacted, its authority stops there. Otherwise, Comelec’s
independence will be violated. Hence, Congress cannot review or approve such implementing rule
in a “legislative veto” scheme. Any claim of an implementing rule’s infirmity/validity should be
brought to the Courts. (Macalintal vs. Comelec [2003])

Power to Investigate and Prosecute election offenses

The grant of exclusive power to investigate and prosecute cases of election offenses to the Comelec
was not by virtue of the Constitution but by the Omnibus Election Code which was eventually
amended by Section 43 of R.A. 9369. Thus, the DOJ now conducts preliminary investigation of
election offenses concurrently with the Comelec and no longer as mere deputies. (Arroyo vs. DOJ
[2012])
CITDES
There is no impediment for the creation of a Joint Committee of DOJ and Comelec for the
purpose of conducting preliminary investigation in election cases. While the composition of the
 18  
 
Joint Committee and Fact-Finding Team is dominated by DOJ officials, it does not necessarily
follow that the Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee
finding probable cause for election offenses shall still be approved by the Comelec in accordance
with the Comelec Rules of Procedure. (Arroyo vs. DOJ, supra.)

Jurisdiction of the Comelec

65. The rule that the COMELEC should decide cases in division first applies only when COMELEC is
asked to exercise adjudicatory function (QJ). Hence, when exercising purely administrative
function, need not be in division. Correction of manifest errors involves purely administrative
function only.

Review of Comelec Resolution

66. What is contemplated by the term “final orders, rulings and decisions of the COMELEC”
reviewable by certiorari by the Supreme Court are those rendered in actions or proceedings before
the COMELEC in the exercise of its adjudicatory or quasi-judicial power. COMELEC’s Resolution
regulating conduct of Plebiscite is administrative, not adjudicatory. (Salva vs. Makalintal [2000])

Moreover, this decision must be a final decision or resolution of the Comelec en banc, not of a
division, certainly not an interlocutory order of a division. The Supreme Court has no power to
review via certiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections. (Cagas vs. Comelec [2012], citing Ambil vs. Comelec [2000])

Jurisdiction of Electoral Tribunal

67. Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member
of the House of Rep., the jurisdiction of the HRET begins over election contests relating to his
election, returns, and qualifications, and mere allegation as to the invalidity of her proclamation
does not divest the Electoral Tribunal of its jurisdiction. (Limkaichong vs. Comelec [2009]; see
also Jalosjos vs. Comelec [2012])). The Codilla Doctrine (2002) applies only when the
proclamation itself is void as when due process had not been observed, in which case, the
Comelec will not be divested of its jurisdiction despite the fact that a proclamation had been
made.

Material Misrepresentation

68. The material misrepresentation contemplated by Section 78 of the Omnibus Election Code refers
to qualifications for elective office. However, it could not have been the intention of the law to
deprive a person of such a basic and substantial political right to be voted for a public office upon
just any innocuous mistake. Aside from the requirement of materiality, a false representation
under Section 78 must consist of a “deliberate attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible.” In other words, it must be made with an intention
to deceive the electorate as to one’s qualifications for public office. (Salcedo vs. Comelec [1999])

Violation of the three-term limit rule is a ground for disqualification under Sect. 78 of the OEC as
it affects eligibility to hold public office. (See: Aratea vs. Comelec [2012])

“Section 78 Petition” vs. “Section 68 Petition”

A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of OEC, or
Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can
only be grounded on a statement of a material representation in the said certificate that is false.
The petitions also have different effects. While a person who is disqualified under Section 68 is
merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied
due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.
(Fermin vs. Comelec [2008], cited in Talaga vs. Comele [2012])

Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto
proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification
of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before
proclamation (within 25 days from filing of CoC), while a petition for quo warranto is filed after
proclamation of the winning candidate. A "Section 78" petition ought not to be interchanged or
 19  
 
confused with a "Section 68" petition. They are different remedies, based on different grounds,
and resulting in different eventualities. (Gonzalez vs. Comelec [2011])

Effects of Filing of Certificate of Candidacy

69. Two Quinto vs. Comelec cases:

2009: The Supreme Court ruled that the differential treatment of persons holding appointive
offices as opposed to those holding elective ones is not germane to the purposes of the law, and
thus violated the equal protection clause.

2010: THERE ARE SUBSTANTIAL DISTINCTIONS BETWEEN “ELECTIVE” AND

“APPOINTIVE” OFFICIALS. The former occupy their office by virtue of the mandate of the
electorate while the latter by virtue of their designation thereto by an appointing authority. The
former are obviously engaged in partisan political activities while the latter are strictly prohibited
from engaging in partisan political activity.

Thus, the rule that the filing of Certificate of Candidacy by a public officer will automatically result
in resignation applies only to appointive officials.

Substitution of Candidate

There are different deadlines set to govern the specific circumstances that would necessitate the
substitution of a candidate due to death, disqualification or withdrawal. In case of death or
disqualification, the substitute had until midday of the election day to file the COC. In case of
withdrawal, the substitute is usually required to file the COC much earlier. In the 2010 elections,
for example, it was set on December 14, 2009. (Renato M. Federico vs. Comelec, Jan. 22, 2013)

The reason for the distinction can easily be divined. Unlike death or disqualification, withdrawal
is voluntary. Generally, a candidate has sufficient time to ponder on his candidacy and to
withdraw while the printing has not yet started. If a candidate withdraws after the printing, the
name of the substitute candidate can no longer be accommodated in the ballot and a vote for the
substitute will just be wasted. (Renato M. Federico vs. Comelec, supra.)

Void Certificate of Candidacy; Non-application of “No Second Placer Rule”

A void certificate of candidacy on the ground of ineligibility that existed at the time of the filing of
the certificate of candidacy can never give rise to a valid candidacy, and much less to valid votes.
Whether the certificate of candidacy is cancelled before or after the elections is immaterial
because the cancellation on such ground means the candidate was never a valid candidate from
the very beginning, his certificate of candidacy being void ab initio. If the ineligibility existed on
the day of the filing of the certificate of candidacy, the cancellation of the certificate of candidacy
retroacted to the day it was filed. (Jalosjos, Jr. vs. Comelec [2012]) In fact, even without a
petition under Section 78 of the Omnibus Election Code, the COMELEC is under a legal duty to
cancel the certificate of candidacy of anyone suffering from perpetual special disqualification to
run for public office by virtue of a final judgment of conviction. The final judgment of conviction is
judicial notice to the COMELEC of the disqualification of the convict from running for public
office. (see: Aratea vs. Comelec [2012])

Decisions holding that the second-placer cannot be proclaimed winner if the first-placer is
disqualified or declared ineligible should be limited to situations where the certificate of
candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled
because of a violation of law that took place, or a legal impediment that took effect, after the filing
of the certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the
person who filed such void certificate of candidacy was never a candidate in the elections at any
time. All votes for such non-candidate are stray votes and should not be counted. Thus, such non-
candidate can never be a first-placer in the elections. (Ibid.)

Premature Campaign

70. Two Penera vs. Comelec cases:

September 2009: A person, after filing his/her COC but prior to his/her becoming a candidate
(thus, prior to the start of the campaign period), can already commit the acts described under
Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity.
 20  
 
However, only after said person officially becomes a candidate, at the beginning of the campaign
period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus
Election Code. Only after said person officially becomes a candidate, at the start of the campaign
period, can his/her disqualification be sought for acts constituting premature campaigning.

November 2009: Congress has laid down the law — a candidate is liable for election offenses only
upon the start of the campaign period. This Court has no power to ignore the clear and express
mandate of the law that “any person who files his certificate of candidacy within [the filing] period
shall only be considered a candidate at the start of the campaign period for which he filed his
certificate of candidacy.” … Neither can this Court turn a blind eye to the express and clear
language of the law that “any unlawful act or omission applicable to a candidate shall take effect
only upon the start of the campaign period.” The forum for examining the wisdom of the law, and
enacting remedial measures, is not this Court but the Legislature.

Election Contests

71. Considering that election contest is imbued with public interest, unlike in an ordinary suit, the
death of the protestant does not extinguish an election contest. The candidate who is likely to
succeed had the protestant been declared the winner, like a vice-elect, will be the real-party-in-
interest. (Poe vs. GMA)

Public International Law

Jus Cogens; Erga Omnes Norms

72. Under Art. 53, Convention on the Law of Treaties (Vienna, 1969), treaty is void if it conflicts with
a peremptory norm of general international law, “a norm accepted and recognized by the
international community of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law having the
same character”. This norm is called Jus Cogens. Examples of jus cogens rules are prohibition on
the use of force, of genocide, slavery, gross violation of the right of people to self-determination,
racial discrimination, and torture.

Erga Omnes norms, on the other hand, are obligations of a state to the international community.
Examples of erga omnes norms are the obligations not to commit/fail to punish International
crimes and not to violate people’s right to self-determination.

Decision Ex Aequo Et Bono

73. As a rule, a judge or arbitrator can always use equity to interpret of fill gaps in the law, even when
he has not been expressly authorized to do so. But, he may not give a decision “ex aequo et bono”
(a decision in which equity overrides all other rules) unless he has been expressly authorized to do
so by the parties.

Under Article 38 (2) of the Statute of the International Court of Justice, the list of sources of
international law under Article 38(1) “shall not prejudice the power of the Court to decide ex
aequo et bono if the parties agree thereto”.

Relationship between International Law and Municipal Law

74. Under the Doctrine of Incorporation, rules of international law form part of the law of the land
and no further legislative action is needed to make such rules applicable in the domestic sphere.
This is the by-product of Monism Theory which perceives international law and domestic law as
belonging to one and the same system of law. In the Philippines, only the “generally accepted
principles of international law” form part of the law of the land without need of government
action. Thus, a treaty that does not contain generally accepted principle of international law,
forms part of the law of the land only when ratified by the President and concurred in by the
Senate.

The Doctrine of Transformation allows international law to form part of the law of the land only
through an affirmative act by the government, usually in the form of legislation.
 21  
 
Sources of International Law

75. Article 38(1) of the Statute of International Court of Justice lists down the sources of international
law that the ICJ will apply, thus:

Primary Sources:
International conventions, whether general or particular, establishing rules expressly
recognized by the contesting States;
International custom, as evidence of a general practice accepted as law
General principle of law recognized by civilized nations

Subsidiary Sources:
Judicial decisions and teachings of the most highly qualified publicists of the various
nations

Treaties as sources of PIL

Treaties are agreements between and among States, by which parties obligate themselves to act,
or refrain from acting, according to the terms of the treaty. Rules regarding treaty procedure and
interpretation are defined in the Vienna Convention on the Law of Treaties (VLCT). Article 26 sets
out the fundamental principle relating to treaties, pacta sunt servanda, which provides, “Every
treaty in force is binding upon the parties to it and must be performed by them in good faith.”
Once a State becomes a party to a treaty, it is bound by that treaty. Article 34 provides that a
treaty does not create rights or obligations for State that are not parties to the treaty. But, even if a
State is not party to a treaty, the treaty may serve as evidence of customary international law.
Article 38 of the VCLT recognizes this “back-door” means by which a treaty may become binding
on non-parties.

Customary International Law

For international law to be customary, two (2) elements are required: (1) widespread state
practice [except in the case of “instant” customary law] and (2) opinio juris – the mutual
conviction that the recurrence (of state practice) is the result of an obligatory or compulsory rule.

Secondary Sources

“Teachings” refers simply to the writings of learned scholars. This does not refer, however, to
every single published article on international law. The provision is expressly limited to teachings
of “the most highly qualified publicists” such as Grotius, Lauterpacht, and Brownlie.

Persistent Objector Doctrine

76. A state, that from the outset consistently objects to a particular practice, is not bound by any rule
of alleged customary international law which may arise from the practice. (UK vs. Norway, ICJ
Report, 1951)

Subjects and Objects of International Law

77. “Subjects” of international law are those that enjoy international legal personality and being
capable of possessing international rights and duties, including the right to bring international
claims. States are primarily the subjects of international law. However, modern international law
has recognized secondary subjects of international law such as International Organizations (e.g.
UN, WTO), individuals (protected persons of IHL, insurgents and national liberation movements,
minorities), juridical persons (multinational companies), and NGOs (e.g. ICRC, Greenpeace,
Amnesty Int’l.).

International Organizations are established through the agreements by States (e.g. UN). It is
different from NGOs which are established by individuals or private organizations (e.g.
Greenpeace and Amnesty International). See Reparation for Injuries Case” (ICJ) where UN was
recognized as having legal personality to espouse a claim in behalf of its officer.

While it is conceded that original international legal personality belongs to the main actors of
international law, namely states, the UN had international legal personality through the fact that
its member states, by the very fact of creating such an organization, must have transferred some
of their powers over the organization. (“Derivative international legal personality”) [See:
Reparation for Injuries Case)
 22  
 
“International legal personality” means “the ability to possess international rights and duties and
the power to sustain these rights by bringing international claims”.

Individuals and Companies are generally considered “objects” of international law, especially
insofar as international rights are concerned. (Cf. “espousal claims” by States; “right to self-
determination”). Insofar as international duties are concerned, however, they may be called
“subjects” of international law to the extent that their breach of international law is
internationally actionable as in the case of military commanders held liable for violation of
international humanitarian law.

Inviolability of Diplomatic Mission

78. The premises of a foreign diplomatic mission are inviolable and no person, even a member of the
government of the receiving state, may enter the premises without the authority of the mission.
The receiving state has in fact the duty to protect the mission against intrusion or damage and to
prevent disturbances of the peace of the mission or impairment of its dignity. (See Art. 22 of the
Vienna Convention on Diplomatic Relations [VCDR]). Thus, in Tehran Hostages Case [ICJ,
1980], the ICJ found Iran to have violated the provisions of the Vienna Conventions on
Diplomatic and Consular Relations (1961, 1963) as it failed, as receiving State, to take appropriate
steps to ensure the protection of the United States Embassy and Consulates, their staffs, archives,
means of communication, and freedom of movement. These obligations are even customary.

Under Article 27 of VCDR, a receiving state shall permit and protect the free communication on
behalf of the mission for all official purposes. Such official communication shall not be interfered
with. The diplomatic bag shall not be opened or detained. The use of sniffer dogs and external
examination of the bag is, however, permitted customarily per ILC Draft Articles. A reasonable
suspicion that the bag contains illegal article will also allow the authorities to have the bag opened
in the presence of a representative of the sending state. The bag, however, must bear visible
external marks of its character and contain only diplomatic documents or official articles.

Personal and Functional Immunity of Diplomatic Officials

79. In terms of personal immunity from jurisdiction, a distinction must be drawn between civil and
criminal process. In terms of criminal jurisdiction, diplomatic agents have total immunity from
the law of the receiving state and the only remedy available to the receiving state is to declare the
diplomat persona non grata. The immunity from criminal jurisdiction applies to any offense
committed by the diplomat whether official or not. In terms of civil jurisdiction, diplomats are
immune from the civil jurisdiction of the receiving state except in three (3) cases. The immunity
of diplomats extends to “arrests” and “detentions”.

As for Consuls, however, although they enjoy more or less the same immunities and privileges as
diplomats, their immunity from criminal and civil jurisdiction extends to their official acts only.

Treaty

80. A treaty per Vienna Convention on the Law of Treaties (VCLT) is “an international agreement
concluded between States in written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments, and whatever its particular
designation.”

Consent to be bound

Consent of a State to be bound by a treaty may be expressed by signature, exchange of

instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other
means if so agreed (Art. 11, VCLT). Ratification occurs only when instruments of ratification are
exchanged between the contracting states or are deposited with the depositary. (Arts. 2 (1)(b) &
16, VCLT)

Entry into force

Generally, a treaty enters into force generally as soon as all negotiating states have expressed their
consent to be bound by it, unless otherwise stipulated. A State is obliged to refrain from acts
which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has
exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until
it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its
 23  
 
consent to be bound by the treaty, pending the entry into force of the treaty and provided that
such entry into force is not unduly delayed (Art. 18, VCLT).

Reservation

Reservation is “a unilateral statement… made by a State, when signing, ratifying, accepting,

approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to the State.” (Article (2)(1)(d), VCLT).
Reservation is allowed only when it is accepted by all the states which had signed (not necessarily
ratified) or adhered to the treaty.

Treaty vs. Executive Agreement

In international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the functionaries have remained within their
powers. International law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations. In the Philippines, we distinguish
a treaty from an international agreement for the purpose of determining whether ratification by
the President requires the concurrence of the Senate. In our jurisdiction, we have recognized the
binding effect of executive agreements even without the concurrence of the Senate or Congress.
(BAYAN vs. Zamora [2000])

The terms "exchange of notes" and "executive agreements" have been used interchangeably,
exchange of notes being considered a form of executive agreement that becomes binding through
executive action. On the other hand, executive agreements concluded by the President
"sometimes take the form of exchange of notes and at other times that of more formal documents
denominated 'agreements' or 'protocols.'” Concurrence of the Senate is not required in executive
agreements, such as the “RP-US Non Surrender Agreement”. (Bayan Muna vs. Romulo [2011])

Signature; Ratification; Role of Senate

The signing of the treaty and the ratification are two separate and distinct steps in the treaty-
making process. 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. Ratification, on the other hand, is the formal act by
which a state confirms 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.
The power to ratify is vested in the President, subject to the concurrence of the Senate. The role of
the Senate, however, is limited nly to giving or withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, refuse to ratify it. (Pimentel vs. Romulo
[2006])

Invocation of rebus sic stantibus

The doctrine of rebus sic stantibus does not operate automatically to render the treaty
inoperative. There is a necessity for a formal act of rejection, usually made by the head of state,
with a statement of the reasons why compliance with the treaty is no longer required. (Santos III
v. Northwest Orient Airlines, 210 SCRA 256)

Nicaragua vs. USA (ICJ, 1986)

81. Key Principles:

1. General customary international law must be determined by the general practice of the
states and not just by the states party to the dispute before the ICJ. Opinio juris may be
deduced from the attitude of the Parties concerned and that of states to certain General
Assembly Resolutions.

2. The prohibition on the use of force is jus cogens.

3. Principle of “non-intervention” is customary international law and, therefore, not affected

by treaty stipulation.

4. Customary international law can exist alongside treaties.

 24  
 
Legality of the Threat or Use of Nuclear Weapons Case (ICJ Advisory Opinion, 1996)

82. Key Principles:

1. General Assembly Resolutions may show the formation of opinio juris. Even if they are
not legally binding, they may sometimes have normative value.

2. A State is barred to do an act only when it is so prohibited under a treaty or customary

international law. Restriction to state’s sovereignty is not presumed.

ICJ Voting and Opinion:

Unanimous, on the principle that “there is in neither customary nor conventional international
law any specific authorization or the threat or use of nuclear weapons”;

11-3, on the principle that “there is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear weapons as such”;

Unanimous, on the principle that “a threat or use of force by means of nuclear weapons that is
contrary to Art. 2, par. 4 of the UN Charter and that fails to meet all the requirements of Art. 51,
is unlawful”;

Unanimous, on the principle that “a threat or use of nuclear weapons should also be compatible
with the requirements of the international law applicable to armed conflict and IHL as well as
specific obligations under treaties dealing with nuclear weapons”;

7-7, on the principle that “while the threat or use of nuclear weapons would generally be
contrary to the rules of IHL in armed conflict, the Court cannot conclude definitively whether it
would be lawful or unlawful in an extreme circumstance of self-defense, in which the very
survival of the State would be at stake”;

Unanimous, on the principle that there exists an obligation to pursue in good faith efforts towards
nuclear disarmament.

Nationality Theory

83. Nationality as a basis for exercising jurisdiction must be real and effective to give a right to a state
who has conferred it. Real and effective link with the state of nationality necessary. Right to
diplomatic protection and protection by means of international judicial proceedings only arises
when proper nationality link exist between the individual concerned and the state seeking to
exercise such rights. [see Nottebohm Case (Liechtenstein vs. Guatemala, ICJ,1955) on “Effective
Nationality Theory”]

State Immunity

84. Which agency of the Executive Branch can make a determination of immunity from suit, which
may be considered as conclusive upon the courts? The Supreme Court in Department of Foreign
Affairs (DFA) v. National Labor Relations Commission (NLRC) (1996) emphasized the DFA's
competence and authority to provide such necessary determination. The DFA's function includes,
among its other mandates, the determination of persons and institutions covered by diplomatic
immunities, a determination which, when challenge, (sic) entitles it to seek relief from the court
so as not to seriously impair the conduct of the country's foreign relations. This authority is in fact
exclusive to the DFA. (China National Machinery & Equipment Corp. vs. Santamaria [2012])

Under the Restrictive theory of State Immunity (also known as the Doctrine of Qualified
Immunity), the immunity of the sovereign is recognized only with regard to public acts or acts
jure imperii of a state, but not with regard to private acts or acts jure gestionis.

In the Philippines, the Supreme Court had considered the following transactions by a foreign state
with private parties as acts jure imperii: (1) the lease by a foreign government of apartment
buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312 [1949]); (2) the conduct of
public bidding for the repair of a wharf at a United States Naval Station (United States of America
v. Ruiz, supra.); and (3) the change of employment status of base employees (Sanders v.
Veridiano, 162 SCRA 88 [1988]) and the following transactions as acts jure gestionis: (1) the
hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a bakery, a
store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to
American servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644
 25  
 
[1990]; and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City
(United States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the restaurants and
other facilities open to the general public is undoubtedly for profit as a commercial and not a
governmental activity. By entering into the employment contract with the cook in the discharge
of its proprietary function, the United States government impliedly divested itself of its sovereign
immunity from suit. (see Holy See, The v. Rosario, Jr., 238 SCRA 524)

Take note also of the following cases:

Republic of Indonesia vs. Vinzon (2003): The mere entering into a contract by a foreign State
with a private party cannot be construed as the ultimate test of whether or not it is an act jure
imperii or jure gestionis. The State may enter into contracts with private entities to maintain the
premises, furnishings and equipment of the embassy and the living quarters of its agents and
officials, and such acts are public acts.

WHO vs. Aquino (1972): Officer of WHO assigned in the Philippines was entitled to diplomatic
immunity pursuant to the Host Agreement executed on July 22, 1951 between the Philippine
Government and the World Health Organization.

Minucher vs. CA (2003): A foreign agent (DEA), operating within a territory, can be cloaked with
immunity from suit when it can be established that he is acting within the directives of the
sending state and when the Philippines has given imprimatur to his presence here.

Liang vs. People (2000): the commission of a crime (slander) is not part of official duty. ADB’s
immunity covers “official duty”.

Immunity of Former Head of State

85. The House of Lords of UK ruled that “the absolute prohibition of torture, a jus cogens norm,
overrides immunity afforded to a former Head of State in criminal proceedings. The commission
of a crime against humanity and jus cogens cannot be done in an official capacity on behalf of a
state.” (see Pinochet case)

Presidential immunity from suit exists only in concurrence with the president's incumbency.
Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president
even for acts committed during his or her tenure. Courts look with disfavor upon the presidential
privilege of immunity, especially when it impedes the search for truth or impairs the vindication
of a right. (In re: Petition for Writ of Amparo in favor of Francis Saez, Saez vs. Gloria
Macapagal-Arroyo [September 2012])

Extradition

86. Extradition is the “process by which persons charged with or convicted of crime against the law of
a State and found in a foreign State are returned by the latter to the former for trial or
punishment. It applies to those who are merely charged with an offense but have not been
brought to trial; to those who have been tried and convicted and have subsequently escaped from
custody; and those who have been convicted in absentia. It does not apply to persons merely
suspected of having committed an offense but against whom no charge has been laid or to a
person whose presence is desired as a witness or for obtaining or enforcing a civil judgment.”
(Puno in Sec. of Justice vs. Lantion [2000]).

Under international law there is no duty to extradite in the absence of treaty, whether bilateral or
multilateral. (Billot)

The prohibition against ex post facto law applies only to criminal legislation which affects the
substantial rights of the accused. This being so, there is no merit in the contention that the ruling
sustaining an extradition treaty’s retroactive application violates the constitutional prohibition
against ex post facto laws. The treaty is neither a piece of criminal legislation nor a criminal
procedural statute. (Wright v. CA, 235 SCRA 341)

Deportation is different from extradition because deportation is unilateral act of a state and does
need a treaty. Destination of deportee is irrelevant in deportation, unlike in extradition.

International Human Rights Law

87. The Three (3) “Generations” or “Categories” of Human Rights are:

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A. UN Universal Declaration of Human Rights

1. Civil and Political Rights
2. Economic, Social and Cultural Rights

B. Opinions of Publicists

3. Right to Peace, Self-Determination, common heritage of mankind

principle, environment, development, minority rights

The Universal Declaration of Human Rights by the UN is not a legally binding instrument as it
merely recommends states to keep it in mind in the enactment of legal measures. However, if the
particular right mentioned there has already ripened into a customary international law (e.g.
torture, slavery, racial discrimination), violation of the human right becomes a “matter of
international concern” that allows criminal prosecution.

International Humanitarian Law

88. In International Humanitarian Law (IHL), which regulates the conduct of war to protect civilians
and civilian objects, an armed conflict exists whenever there is a resort to armed force between
States or protracted armed violence between governmental authorities and organized armed
groups or between such groups within a State. The kinds of wars that render International
Humanitarian Law (IHL) applicable are: 1. International Armed Conflict and 2. Non-international
Armed Conflict.

An armed conflict is international if it takes place between two or more States. This includes the
concept of “internationalized armed conflict”. “Wars of National Liberation” are considered
International Armed Conflict.

Article 1(4) of AP I provides that armed conflicts in which peoples are fighting against colonial
domination, alien occupation or racist regimes (wars of national liberation) are to be considered
international conflicts. International armed conflicts are governed by the Geneva Conventions
and Additional Protocol (AP) I.

Armed conflict is non-international if it is restricted to the territory of a single State involving

either regular armed forces fighting against armed group or armed groups fighting each other.
The armed violence must be “protracted” and engaged in by “organized groups”, thus, mere riots
are not covered. Non-international armed conflicts are governed by Common Article 3 of the 4
Geneva Conventions and Additional Protocol (AP) II.

The “core crimes” in IHL are those that are within the jurisdiction of the International Criminal
Court (ICC), governed by the Rome Statute (July 1, 2002), thus:

Genocide
Crimes Against Humanity
War Crimes
Crime of Aggression

IHL protects (1) civilians and (2) civilian objects. Civilians are persons who do not belong to
armed force and who are not combatants. Civilian Objects are objects which are not military
objectives. “Military Objects” are those which by their nature, location, purpose or use make
effective contribution to military action and advantage.

Peoples’ Right to Self-Determination

89. It is a customary international law; a jus cogens and erga omnes norm.

Set out in Art. 1(2) and Art. 55 of the UN Charter, Art. 2 of G.A. Resolution entitled Declaration
on the Granting of Independence (1960) [“All peoples have the right to self-determination; by
virtue of that right they freely determine their political status and freely pursue their economic,
social and cultural development”]; in ICCPR and ICESCR, and in 1970 Declaration on Friendly
Relations of the G.A..

Article 1(4) of Protocol I of the 1949 Geneva Conventions make the laws of international armed
conflict applicable to "armed conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist regimes in the exercise of the right of
self-determination.”
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Any group within a territory claiming to be fighting against colonial domination, alien
occupation or a racist regime (national liberation movement) is now protected by the
laws of war, and that its members are entitled to prisoner-of-war status.

Principle of “uti possidetis juris”

90. A general rule of international law, it states that the boundaries of colonial territories ought to
become international boundaries when those territories attained independence unless altered by
agreement.

The principle of “uti possidetis juris”, which was developed in South America in connection with
the independence of states from Spain and Portugal, was also adopted in 1964 by the
Organization of African Unity which states that “all member states pledge themselves to respect
the borders existing on their achievement of national independence”.

Recognition of Government

91. Recognition of government is a political question.

Theories:

1. Tobar or Wilson Doctrine: precludes recognition of any government established by

revolutionary means until constitutional reorganization by free election of
representatives.
2. Stimson Doctrine: no recognition of a government established through external
aggression. (adopted by the League of Nations)
3. Estrada Doctrine: if a government was established through political upheaval, a state
may not issue a declaration giving recognition to such government, but may merely
accept whatever government is in effective control without raising the issue of
recognition. Dealing or not dealing with the government is not a judgment on the
legitimacy of the said government.

Effects of Recognition

92. Before recognition, the rebels are subject to the municipal laws of the legitimate government and
responsibility attaches to the government for any damage the rebels may cause third states;

After recognition, the belligerent community is treated as an “international person” for purposes
of the conflict and will be governed by the “laws of war” in its dealings with the government; the
latter will not be held liable for any damage the rebels may cause third states; third states must
observe neutrality.

State Responsibility

93. Principle of Attribution or Imputability Doctrine: A State is liable only for its own acts and
omissions, and in this context, the State is identified with its governmental organs and apparatus,
not with the population (nor with private [vs. ultra vires] acts of government agents).

Espousal of Claims

94. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to
determine whether to espouse petitioners' claims against Japan. The Philippines is not under
any international obligation to espouse petitioners' claims. The International Law Commission's
(ILC's) Draft Articles on Diplomatic Protection fully support this traditional view. They (i) state
that "the right of diplomatic protection belongs to or vests in the State," (ii) affirm its
discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of the
State; and (iii) stress that the state "has the right to exercise diplomatic protection on behalf of a
national. It is under no duty or obligation to do so." (Vinuya vs. Romulo [2010])

Command Responsibility in Philippine Law

95. The doctrine of command responsibility may be used to determine whether respondents in Writ
of Amparo cases are accountable for and have the duty to address the abduction of the victim in
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order to enable the courts to devise remedial measures to protect his rights. Nothing precludes
the Court from applying the doctrine of command responsibility in amparo proceedings to
ascertain responsibility and accountability in extrajudicial killings and enforced disappearances.
That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or
administrative liability should not abate the applicability of the doctrine of command
responsibility. (In re: Petition for Writ of Amparo in favor of Rodriguez, Rodriguez vs. Gloria
Macapagal-Arroyo [November 2011], J. Sereno, reversing ruling of SC on this point in Rubrico
vs. Gloria Macapagal-Arroyo [2010]); (see also In re: Petition for Writ of Amparo in favor of
Francis Saez, Saez vs. Gloria Macapagal-Arroyo [September 2012])

The inapplicability of the doctrine of command responsibility in an amparo proceeding does not,
by any measure, preclude impleading military or police commanders on the ground that the
complained acts in the petition were committed with their direct or indirect acquiescence.
Commanders may therefore be impleaded — not actually on the basis of command responsibility
— but rather on the ground of their responsibility, or at least accountability. (Balao vs. Gloria
Macapagal-Arroyo [December 2011], J. Villarama; Note: J. Sereno Dissented on the non-use of
the term “command responsibility”; Note also of In re: Petition for Writ of Amparo in favor of
Francis Saez, Saez vs. Gloria Macapagal-Arroyo [September 2012]), where the SC used again
the terminology of “command responsibility” in Rodriguez).

Command Responsibility as applied to the President

96. The president, as commander-in-chief of the military, can be held responsible or accountable for
extrajudicial killings and enforced disappearances.

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 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.

The president, being the commander-in-chief of all armed forces, necessarily possesses control
over the military that qualifies him as a superior within the purview of the command
responsibility doctrine. (In re: Petition for Writ of Amparo in favor of Rodriguez, Rodriguez vs.
Gloria Macapagal-Arroyo, J. Sereno, supra.)

Presidential immunity from suit exists only in concurrence with the president's incumbency.
Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president
even for acts committed during his or her tenure. Courts look with disfavor upon the presidential
privilege of immunity, especially when it impedes the search for truth or impairs the vindication
of a right. (In re: Petition for Writ of Amparo in favor of Francis Saez, Saez vs. Gloria
Macapagal-Arroyo [September 2012])

International Environmental Law

97. The “Trail Smelter case” (1965): “no State has the right to use or permit the use of its territory in
such a manner as to cause injury by fumes in or to the territory of another….”

First major international environmental conference was convened by the UN GA in Stockholm

(Sweden) in 1972 which later resulted to the adoption of certain environmental Principles.

Basic Principles:

Responsibility and Prevention (Principle 21, Stockholm Declaration)

-Principle 21 of the Stockholm declaration states, "States have in accordance
with the Charter of the United Nations and the principles of international
law, the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environment of other
States or of areas beyond the limits of national jurisdiction.” Principle 21
focuses on transboundary harm or State responsibility.
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Sustainable Development
-Intra- and inter-generational responsibility (Principle 3, Rio Declaration)
-Conservation of resources (Principle 8, Rio Declaration)
-Integration (Principle 4, Rio Declaration)
Precautionary Principle (Principle 15, Rio Declaration)
Polluter-Pays Principle (Principle 16, Rio Declaration
Common but Differentiated Principle ( Principle 7, Rio Declaration)

Law of the Sea

98. RA 9522 (Baseline Law) is not Unconstitutional. RA 9522 is a Statutory Tool to Demarcate the
Country's Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine
Territory. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from
the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental
shelves that UNCLOS III delimits. UNCLOS III and its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through occupation,
accretion, cession and prescription, not by executing multilateral treaties on the regulations of
sea-use rights or enacting statutes to comply with the treaty's terms to delimit maritime zones and
continental shelves. (Magallona vs. Ermita [2011])

RA 9522's Use of the Framework of Regime of Islands to Determine the Maritime Zones of the
KIG and the Scarborough Shoal, not Inconsistent with the Philippines' Claim of Sovereignty Over
these Areas. The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that
RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and
thus comply with UNCLOS III's limitation on the maximum length of baselines). Under RA 3046,
as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around
the Philippine archipelago. (Magallona vs. Ermita [2011])

99. Internal waters include ports, harbors, rivers, lakes and canals. The coastal state can prohibit
entry into its internal waters by foreign ships, except for ships in distress. When already within
internal waters, different legal questions arise depending on the kind of vessel that is within the
internal water: merchant ships, warships, other foreign non-commercial ships.

The territorial sea of a state does not exceed twelve (12) n. m. from the “baseline”. The baselines
are based either on (1) Normal Baseline (Low-Water Mark Method), and (2) Straight Baseline
Method. The territorial sea is subject to the “Right of Innocent Passage” by foreign ships. It is
innocent if not prejudicial to the peace, good order or security of the coastal state. Fishing vessels
must comply with local laws and submarines must navigate on the surface and show their flag.

The contiguous zone of a state does not exceed twenty-four (24) n.m. from the baseline. The
coastal State is limited to Protective Jurisdiction only, that is, to prevent infringement of its
customs, fiscal, immigration or sanitary regulations.

The Exclusive Economic Zone (EEZ) does not exceed two hundred (200) n.m. from the baseline.
The coastal state has sovereign rights over all the economic resources of the sea, seabed, and
subsoil which include not only fish but also minerals beneath the seabed. However, if the coastal
state is unable to fully exploit the resources, it must make arrangement to share the surplus with
other states.

The High Seas extend beyond 200 n.m. from the baseline. It may be used freely by ships of all
nations (including land-locked states). ”Freedom on the high seas” includes: freedom of
navigation, freedom of fishing, freedom to lay submarine cables and pipelines and freedom to fly
over the high seas. These freedoms are, however, subject to certain conventions and agreements.

As a rule, ships in the high seas are governed only by (1) international law and (2) law of the flag
state. The “Flag of the State” refers to the nationality of the flag, which is determined by the place
of registration. A ship can only use one flag. ”Flags of Convenience” are countries that allow
registration of a ship for a fee.

The continental shelf refers to the seabed and subsoil of the submarine areas that extend beyond
its territorial sea throughout the natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 n. m. from the baselines, where the outer edge of the
continental margin does not extend up to that distance. The state has exclusive right over natural
resources in the continental shelf.
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Under the “Median Line” principle, the coasts of two states are opposite or adjacent to each other,
neither of them is entitled, failing agreement between them to the contrary, to extend its
territorial sea beyond the median line every point of which is “equidistant” from the nearest
points on the baselines. This is also applicable in the case of continental shelf. The medial line
principle is, however, subject to exceptions such as Historic title or other special circumstances.

Jurisdiction

100. Territorial Jurisdiction: State has jurisdiction over property, persons, acts, or events
occurring within its territory.

Subjective Territorial Principle: jurisdiction to prosecute or punish crimes commenced

within their territory but completed or consummated in the territory of another state.

Objective Territorial Principle: certain states apply their territorial jurisdiction to

offenses or acts commenced in another state, but (i) consummated or completed within their
territory, or (ii) producing gravely harmful consequences to the social or economic order inside
their territory.

Nationality Principles in Jurisdiction

Kinds:

Active Nationality: states may regulate the conduct of their nationals wherever they are
in the world

Passive Nationality: a state may prescribe law for situations where its nationals are a
victim of the conduct being regulated; this has limited scope, usually applicable to terrorist
attacks

Protective Principle in Jurisdiction: a state can legislate crimes that it considers to be a threat to
its security, integrity, or economic interests. Common examples: espionage, counterfeiting. This
principle is limited to conduct that occurs outside a state’s territory, by noncitizens.

Note: Restatement 402: “…a state has jurisdiction to prescribe the law with respect to…(3) certain
conduct outside its territory by persons not its nationals that is directed against the security of the
state or against a limited class of other state interests.” (see: United States vs. Osama Bin Laden,
2000)

Legality of Abduction of Criminals in foreign territory

101. Abduction of criminals in the territory of another state is understood as “intervention” and
therefore violates customary law and the UN Charter (Art. 2 (4); It can only be justified if done
invoking self-defense.

But, the illegal apprehension will not affect the jurisdiction of the apprehending state unless the
defendant was secured torture, brutality, or similar outrageous conduct. (See: Ker vs. Illinois
[1886]; Frisbie vs. Collins [1952])

GOOD LUCK!!

GO USC!!